August 15, 1787: The Veto

Oliver Ellsworth by David Edwin after John Trumbull, 1814

National Portrait Gallery, Smithsonian Institution, https://npg.si.edu/object/npg_S_NPG.78.27?destination=node/63231%3Fedan_local%3D1%26edan_q%3Doliver%252Bellsworth

"We grow more and more skeptical as we proceed. If we do not decide soon, we shall be unable to come to any decision."

--Oliver Ellsworth

Wednesday, August 15, 1787

Strong (MA) moved that tax bills and appropriations should originate in the House, leaving the Senate free to amend. Mason (VA) seconded the motion, and a fight was on. After debate Williamson (NC), who favored the motion, thought the issue might be placed in a better perspective if it were postponed until the Senate’s other powers were more carefully defined. The convention voted postponement by 6 to 5.

Next, Madison (VA) moved that both the President and the Supreme Court should have veto power, with a two-thirds vote of each House to override if either branch vetoed a law. Wilson (PA) seconded. Mercer (MD) approved in part because he “disapproved of the doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontrollable” by the judiciary. Charles Pinckney (SC) disliked how this proposal violated the separation of powers principle, and Gerry (MA) accurately noted that the motion was very near one that had already been voted down. Madison’s idea lost, 3–8, with Delaware, Maryland, and Virginia in favor.

Gouverneur Morris (PA) expressed his regrets that the motion was defeated. He favored an absolute veto power by either the Executive or Judicial Branches, which he thought would act as a strong barrier against legislative instability. Dickinson of (DE) was appalled by Mercer’s observation that the judiciary could overturn legislation it deemed unconstitutional, thinking “no such power ought to exist.” And yet he was, “at the same time, at a loss what expedient to substitute” for judicial override of unconstitutional laws.

Carroll (MD) wanted the issue postponed until the executive branch was better defined. Gorham, much irritated, said there was “no end to these difficulties and postponements. Some could not agree to the form of government before the powers were defined. Others could not agree to the powers till it was seen how the government was to be formed.” Rutledge (SC) was also “strenuous against postponing; and complained much of the tediousness of the proceedings” and Ellsworth feared these postponements were eroding the delegates’ ability to make decisions. The motion to postpone lost with only Delaware and Maryland in favor.

Williamson moved to require three-fourths of each house of Congress to override a veto instead of just two-thirds. Wilson seconded, and the measure passed 6–4–1 with New Hampshire, Massachusetts, New Jersey, and Georgia opposed and Pennsylvania divided.

After a quick a motion to give the President ten days to veto legislation, and after what Madison described as “a short and rather confused conversation” over wording issues, the Convention passed the article as amended and adjourned.

Synopsis

• While some delegates supported repeated postponements on important decisions, saying that other details needed to be hashed out first, other delegates, eager to wrap up the Convention, were peevish at further delays.
• The day’s main struggle was over the veto: whether the judiciary and the executive should both have it or just the executive, whether it should be possible for the veto to be overridden, and what proportion of Congress should be required for an override.
• By the end of the day, the Convention had agreed to only give the President veto power, and to only allow vetoes to be overridden by three-quarters of each House of Congress.

Delegates Today

• Washington (VA) wrote the Marquis de Lafayette. He promised details of the Convention when it ended early next month, congratulated Lafayette on his work in the French Assembly, and discussed European affairs. He was pleased that Lafayette was seeking toleration in religious matters and took the opportunity to express his own philosophy. “Being no bigot myself to any mode of worship, I am disposed to indulge the professors of Christianity in the church, that road to Heaven, which to them shall seem the most direct plainest easiest and least liable to exception.”
• Madison (VA) wrote his fellow Virginia delegate to the Confederation Congress, William Grayson, asking him to support the appointment of Major George Turner to a position in the Northwest Territory’s government.
• Sherman (CT) wrote Henry Gibbs to order chinaware for his wife. He hoped the Convention would adjourn by the end of August, concluding, “letters directed to me at New Haven are not free from postage, but if directed to me here as member of the Convention they are free.” In 1787, the mail recipient typically paid the postage.

Philadelphia Today

• The day was warm but pleasant; the evening brought a thunderstorm.