Answers to Mason’s “Objections”: “Marcus” [James Iredell] II

Norfolk and Portsmouth Journal (Virginia), February 27, 1788

Following are excerpts from James Iredell’s responses to George Mason’s “Objections” to the Constitution:

IVth. Objection. The Judiciary of the United States is so constructed and extended, as to absorb and destroy the Judiciaries of the several States; thereby rendering law as tedious, intricate and expensive; and justice as unattainable by a great part of the community as in England; and enabling the rich to oppress and ruin the poor.”

” . . . Are not the State Judiciaries left uncontrouled as to all the affairs of that State only? In this, as in all other cases, where there is a wise distribution, power is commensurate to its object. With the mere internal concerns of a State, Congress are to have nothing to do. In no case but where the Union is in some measure concerned, are the Fœderal Courts to have any jurisdiction. The State Judiciary will be a satellite waiting upon its proper planet: That of the Union like the sun, cherishing and preserving a whole planetary system.”

Vth. Objection. The President of the United States, has no Constitutional Council (a thing unknown in any safe and regular government), he will therefore be unsupported by proper information and advice; and will generally be directed by minions and favorites—or he will become a tool to the Senate—or a Council of State will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council in a free country; for they may be induced to join in any dangerous or oppressive measures; to shelter themselves, and prevent an enquiry into their own misconduct in office: Whereas, had a Constitutional Council been formed (as was proposed) of six Members, viz. two from the eastern, two from the middle, and two from the southern States; to be appointed by vote of the States in the House of Representatives, with the same duration and rotation of office as the Senate, the Executive would always have had safe and proper information and advice. The President of such a Council might have acted as Vice-President of the United States, pro tempore, upon any vacancy or disability of the Chief Magistrate; and long-continued Sessions of the Senate would, in a great measure have been prevented. From this fatal defect of a Constitutional Council, has arisen the improper power of the Senate, in the appointment of public officers, and the alarming dependence and connexion between that branch of the Legislature and the Supreme Executive. Hence also sprung that unnecessary and dangerous officer, the Vice-President; who, for want of other employment, is made President of the Senate; thereby dangerously blending the Executive and Legislative powers; besides always giving to some of the States an unnecessary and unjust pre-eminence over the others.”

“Mr. Mason here reprobates the omission of a particular Council for the President, as a thing contrary to the example of all safe and regular governments. . . . My enquiry into this subject shall not be confined to the actual present practice of Great-Britain. I shall take the liberty to state the constitutional ideas of Councils in England, as derived from their ancient laws subsisting long before the Union, not omitting however to shew what the present practice really is.—By the laws of England the King is said to have four Councils. 1. The High Court of Parliament. 2. The Peers of the Realm. 3. His Judges. 4. His Privy Council.—By the first, I presume, is meant in regard to the making of laws; because the usual introductory expressions in most acts of Parliament, viz. . . . they are deemed the King’s laws, after a ratification in Parliament. The Peers of the Realm are, by their birth hereditary Counsellors of the Crown, and may be called upon for their advice either in time of Parliament, or when no Parliament is in being. . . . The Judges, I presume, are called ‘A Council of the King,’ upon the same principle that the Parliament is, because the administration of justice is in his name, and the Judges are considered as his instruments in the distribution of it. We come now to the Privy Council, which I imagine, if Mr. Mason had any particular view towards England when he made this objection, was the one he intended as an example of a Constitutional Council in that kingdom. The Privy Council in that country is undoubtedly of very ancient institution; but it has one fixed property invariably annexed to it, that it is a mere creature of the Crown, dependent on its will both for number and duration, since the King may, whenever he thinks proper, discharge any particular Member, or the whole of it, and appoint another. If this precedent is of moment to us, merely as a precedent, it should be followed in all its parts; and then what would there be in the regulation to prevent the President from being governed by ‘minions and favorites?’ It would only be the means of rivetting them on constitutional ground. So far as precedents in England apply, the Peers being constitutionally the Great Council of the King, tho’ also a part of the Legislature, we have reason to hope, that there is by no means, such gross impropriety as has been suggested, in giving the Senate, tho’ a branch of the Legislature, a strong controul over the Executive. . . .”

” . . . As to the temptations mentioned to the officers in joining in dangerous or oppressive measures to shelter themselves, and prevent an enquiry into their own misconduct in office, this proceeds upon a supposition that the President and the great officers may form a very wicked combination to injure their country; a combination that in the first place it is utterly improbable, in a strong respectable government, should be formed for that purpose; and in the next, with such a government as this Constitution would give us, could have little chance of being successful, on account of the great superior strength, and natural and jealous vigilance of one at least, if not both the two weighty branches of Legislation. This evil however, of the possible depravity of all public officers, is one that can admit of no cure, since in every institution of government, the same danger in some degree or other must be risqued; it can only be guarded against by strong checks, and I believe it would be difficult for the objectors to our new Constitution, to provide stronger ones against any abuse of the Executive authority, than will exist in that. . . .”

Iredell’s responses to Mason touched on two fundamental points for constructing a government: (1) only justified governmental institutions should be preserved in a new government and (2) mitigating the dangers of bad governance is a priority. Mason’s criticism of the proposed Constitution included the creation of an advisory board for the president, called the Constitutional Council, which was based on a similar body in the English monarchy.

First, Iredell aptly identifies state governments and the federal government existing in unison. Metaphorically, he placed the states as planets orbiting around a star: the federal government. With their own systems, applicable to their inhabitants, the states were capable of primarily self-governing with some qualification in the form of broad proclamations coming from the federal government. By Iredell’s calculation, this system is justified in the new American government resulting from the Constitution.

Second, antiquated institutions of government are not entitled to perpetuation, according to Iredell. The existence of a Privy Council, Judges, and Peers at the service of the executive of the government is far from assumed to be helpful. While those positions were prominent in the English monarchy, Iredell argued that the institutions did not deserve to manifest themselves in a Constitutional Council in the American system of government. Primarily, this conclusion resulted from the fact that any such council was unlikely to be a body capable of probative, incisive analysis of the executive. In fact, more likely, it was bound to be the opposite of a “strong check” and instead a rubber stamp for the executive.

In this sense, while Mason had legitimate, lasting concerns about the Constitution, these objections were not sensible. The concerns and the systems of yesteryear need not be bequeathed to the new American government that resulted from the Constitution, according to Iredell.

Iredell’s responses to Mason’s objections were a convincing piece of rhetoric, primarily for his faith in the system of government proposed in the Constitution. His responses articulated a vision of American government that took the bold yet practical approach of discarding those institutions of British governance that were not appropriate for the newly blossoming country. Despite any urge to adopt these institutions and conform them to American ideals, Iredell expressed outrage at adoption whatsoever, and ultimately, Iredell prevailed as the executive in government would have the benefit of a cabinet but not a Constitutional Council.