How to Build a Nation in 15 Weeks
Summary: Former Assistant U.S. Attorney Harry Sandick along with Jon Hatch and colleagues at Patterson Belknap revisit the hottest topics from each week in the Constitutional Convention of 1787, tracking their current place in our legal and political landscape.
New Hampshire finally shows up, without a per diem. The delegates debate the process for ratification and whether state legislatures can be trusted to do anything right. Nathaniel Gorham asks what will happen if Rhode Island won’t play along. Everyone tries to figure out how to select the executive and things get creative. The Patterson team considers the merits of election by lottery and whether the delegates can tell when someone is joking.
The delegates revisit the Executive Power. The Judicial Branch finally comes up again and the delegates debate how to pick judges. Nathaniel Gorham proposes that the Executive pick judges with the Senate’s “advice and consent,” though nobody really knows what this means. The Council of Revision makes another appearance but the delegates want judges to stay in their lane. Chief Justice Jay writes to Washington, and civility reigns, except when it doesn’t.
The delegates finally compromise on representation when the large states throw in the towel. Roger Sherman tries to protect state police powers. The delegates reject a veto of state legislation but unanimously support making federal laws supreme. The Patterson team discusses whether the Connecticut compromise still makes sense and the evolution of the federal supremacy and the preemption doctrine. The Treaty Power gets an in-depth look.
Debate continues on whether and how to account for enslaved people in determining representation in the legislature. The North-South divide widens. The delegates tie representation to taxation and approve the 3/5th's ratio for both. The delegates try to semantically conceal their compromise, but fool no one. The Northwest Ordinance is passed in Congress, with suspicious timing. The team weighs in on the legacy of the 3/5th's clause and the delegates’ failure to reckon with the immorality of slav
The delegates debate how to apportion representation in the lower house. The Morris Committee proposes an allocation based on guesswork. The King Committee proposes an alternative based on counting three-fifths of enslaved people. The delegates debate whether and how to factor enslaved people into representation, but no one speaks for the unrepresented. Potential western states complicate matters. The census is proposed.
The delegates celebrate Independence Day. Gerry presents the committee’s proposal to the Convention, with diffidence. A subcommittee is formed to address the calculation of proportional representation. The Patterson team ponders the Spirit of ’76, the benefits of some time off, and the delegates’ increasing willingness to reach a compromise.
Delegates start to flee the Convention. Hamilton and Washington get pessimistic. The delegates deadlock over proportional versus equal state representation. Connecticut renews its proposal. The Gerry Committee tackles question of legislative representation after being stacked with small-state friendly delegates. The Patterson team discusses the shifting tide in favor of the smaller states and the eccentricities of Pennsylvania delegate Gouverneur Morris.
On this special bonus episode, we had the pleasure of interviewing Joshua Matz, author with Professor Laurence Tribe of the excellent new book To End a Presidency: The Power of Impeachment. Joshua discussed what we can learn from the Constitutional Convention about the meaning of the Impeachment Clause and the purpose of impeachment, as well as what we can learn from the so-called “common law” of impeachment—examples of impeachments, near impeachments, and impeachment discussions in our country’s hi
The delegates debate whether Senators should be paid. South Carolina argues for rule by the wealthy. The delegates agree on six-year Senate terms. Ben Franklin suggests the convention seek divine inspiration. The Patterson team considers how much democracy is too much democracy.
Luther Martin delivers a two-day speech with much diffuseness. Madison argues the small states have nothing to fear. Connecticut proposes a compromise. The mood amongst the delegates continues to deteriorate. Madison accuses Connecticut of failing to support to war effort. Delaware threatens to ally with foreign nations. Ben Franklin tries to bring the sides together. The Patterson team weighs the merits of proportional representation.
The convention falls into chaos. Madison’s judgment slips, and he makes not-so-veiled threats against small states. Additional delegates try to push their own extreme visions. Connecticut tries to restore peace.
Hamilton finally speaks up, keeps speaking straight through lunch, damages his reputation, and is otherwise ignored. The benefits and perils of an elective monarchy and legislature. The Patterson team revisits the utility of the electoral college, muses about Old Bacon Face, and wonders whether people “begin to be tired of an excess of democracy.”
The Large States and Deep South support one another. Gerry takes on the three-fifths compromise. New Jersey stalls for time and introduces an alternative plan for a federal government. The Patterson team takes the New Jersey plan seriously.
Delegates debate whether lower federal courts are worth the money and how to select judges. Franklin makes an unorthodox proposal. The council of revision resurfaces and the judicial veto is rejected. The delegates debate the method of electing Senators. Wilson makes another stand for popular election. The convention stalls on a proposal to allow Congress to veto State laws. The Patterson team discusses lifetime appointments, the Supreme Court and the perceived importance of State involvement in the Senate.
Virginia presses its plan with broad outlines for the executive, legislative, and judicial branches. Fear and loathing of a return to a monarchy. The delegates nonetheless opt for a single executive, with a veto, but defer how they will be elected. Wilson makes a stand for popular election, and is entirely ignored. The Patterson team discusses the impact of the electoral college in recent elections, the powers of the modern presidency, and the declining use of the presidential veto.