dodd frank in historical perspective

7/28/2019 Dodd Frank in Historical Perspective

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Dodd-Frank in Historical Perspective

A ConSource Research Project

The mission of The Constitutional Sources Project is to increase understanding, facilitateresearch, and encourage discussion of the United States Constitution by connectingindividualsincluding students, teachers, lawyers, and judgeswith the documentaryhistory of its creation, ratification, and amendment.

This research report was prepared by ConSource staff members, legal research fellows,and Lorianne Updike Toler, Founding President of ConSource and current member ofthe Board of Directors and Legal Advisory Board.


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Research Table of Contents

1. Article I, Sec. 1Legislative Vesting Clause: Non-Delegation and Vagueness ................................. 4

a.

Intellectual Influences .......................................................................................................................... 4b. Declaration of Independence ............................................................................................................. 5c. Massachusetts Constitution ................................................................................................................ 6d. Constitutional Convention Debate .................................................................................................... 6e. New York Ratification Debate ........................................................................................................... 8f. North Carolina Ratification Debate .................................................................................................. 8g. Virginia Ratification Debate ............................................................................................................... 8h. Anti-Federalist Papers ......................................................................................................................... 9i. Federalist Papers ................................................................................................................................. 10

2. Article I, Sec. 8Bankruptcy Clause: Orderly Liquidation Authority ................................................ 11

a. Constitutional Convention Debate .................................................................................................. 11b. Federalist Papers ................................................................................................................................. 12c. William Blackstones Commentaries ............................................................................................... 11d.

George Tuckers Annotations of Blackstones Commentaries ................................................... 13

e. Congressional Debates ...................................................................................................................... 14f. Joseph Storys Commentaries ........................................................................................................... 17

3. Article II, Sec. 2Appointment of Executive Officers: Director of Consumer FinancialProtection Bureau (CFPB).............................................................................................................................. 17

a. Articles of Confederation .................................................................................................................. 17b. Constitutional Convention Debates ................................................................................................ 18c. Pennsylvania Ratification Debate .................................................................................................... 19d. 1789 House of Representatives Debate on the Removal Power ................................................ 19

4. Article II, Sec. 3Take Care Clause: Executive Oversight of CFPB ................................................. 20

a. Articles of Confederation .................................................................................................................. 21


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b. Virginia Constitution of 1776 ........................................................................................................... 21c. Constitutional Convention Debate .................................................................................................. 21d. Pennsylvania Ratification Debate .................................................................................................... 22e. Federalist Papers ................................................................................................................................. 23

5. Article III, Sec. 2Exceptions to Appellate Jurisdiction: Review of Financial Stability OversightCouncil (FSOC) Action .................................................................................................................................. 23

a. Articles of Confederation .................................................................................................................. 24b. Connecticut Ratification Debates .................................................................................................... 24c. Pennsylvania Ratification Debates ................................................................................................... 24d. Anti-Federalist Papers ....................................................................................................................... 25

6. Article VI.Supremacy Clause: Preemption of State Law ................................................................... 26

a. Constitutional Convention Debates ................................................................................................ 26b. New York Ratification Debate ......................................................................................................... 27c. Pennsylvania Ratification Debate .................................................................................................... 28

7. Amendment XIV, Sec. 1Due Process: Judicial Review of Orderly Liquidation Authority ......... 29

a. Magna Carta ........................................................................................................................................ 29b. Edward Cokes Common Law Treatise .......................................................................................... 29c. Alexander Hamiltons Papers ........................................................................................................... 30d. Pre-14th Amendment Due Process Jurisprudence ....................................................................... 30e. Congressional Debate on Proposed 14th Amendment ................................................................ 31f. Post-Ratification Newspaper Account ............................................................................................ 32g. Post-Ratification Due Process Jurisprudence ................................................................................ 32


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1. Article I, Sec. 1 Legislative Vesting Clause: Non-Delegation andVagueness

Citation: U.S.CONST. art. I, 8, cl. 3, available athttp://consource.org/document/united-states-constitution/#annotation-500d89dcfbed7d14d1000098

Quote: All legislative Powers herein granted shall be vested in a Congress of the United States,which shall consist of a Senate and House of Representatives.

a. Intellectual InfluencesCitation #1: JOHN LOCKE,TWOTREATISES OF GOVERNMENT 193-94 (Thomas Cook ed., Hafner

Publishing Co. 1947) (1690).Background: JohnLockes work, published in 1690, was actually written over the course of the preceding decade in

the historical context of Englands Glorious Revolution, during which King James II was overthrown byWilliam of Orange. Locke opposed authoritarian rule and considered it important to establishgovernmental institutions that protected against authoritarianism. He believed that by separating powersbetween branches of government, no one institution would be able to seize authoritarian power. ForLocke, this meant giving sufficient power to the legislature so as to limit the power of kings who tended tograsp at absolute authoritarian power. He also asserted the classic formulation of the non-delegationprinciple, which helps insure that the legislative power remains with the legislature.

Quote: Chapter XII: Of the Legislative, Executive, and Federative Power of theCommonwealth: It may be too great a temptation to human frailty, apt to grasp atpower, for the same persons who have the power of making laws to have also in theirhands the power to execute them.

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Citation #2: JOHN LOCKE,TWOTREATISES OF GOVERNMENT 193-94 (Thomas Cook ed., HafnerPublishing Co. 1947) (1690).

Background: JohnLockes understanding of the function of government included the three duties of legislating,executing, and judging the laws of its nation. Though governments, especially the British government withwhich Locke was most familiar, could accurately be described as performing these basic functions, theytended to blend the functions by allowing individuals or institutions to serve as legislator, executive, andjudge. For example, the House of Lords in England created the laws and also served the function of thesuperior court. Locke believed such concentration of power led to tyranny. However, if these discretepowers were separated and placed in different hands, tyranny could be avoided.

Quote: Chapter XI: Extent of the Legislative Power: "The legislative cannot transfer the powerof making laws to any other hands; for it being but a delegated power from the people,

they who have it cannot pass it over to others. The people alone can appoint the formof the commonwealth, which is by constituting the legislative, and appointing in thosewhose hands that shall be. And when the people have said, We will submit to rules, andbe governed by laws made by such men, and in such forms, nobody else can say othermen shall make laws for them; nor can the people be bound by any laws but such as areenacted by those whom they have chosen and authorized to make laws for them. Thepower of the legislative, being derived from the people by a positive voluntary grant and
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institution, can be no other than what the positive grant conveyed, which being only tomake laws, and not to make legislators, the legislative can have no power to transfer theirauthority of making laws and place it in other hands.

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Citation #3: CHARLES DE SECONDAT BARON DE MONTESQUIEU,THE SPIRIT OF LAWS 151-52(Prometheus Books, 2002) (1748).

Background: Montesquieu, writing in 1748, was motivated by a desire to explain why societies create the laws theydo. He provided a theory of separation of powers that was widely cited by the Framers in writing andconsidering the Constitution. Like John Locke, Montesquieu was concerned with concentratinggovernmental power in one institution because he believed it led to tyranny. To arrive at the conclusionthat the basic powers of government must be separated, Montesquieu analyzed both contemporary andhistorical structures of government and found that governments characterized by concentrated power werethe most tyrannical.

Quote: When the legislative and executive powers are united in the same person, or in the samebody of magistrates, there can be no liberty; because apprehensions may arise, lest the

same monarch or senate should enact tyrannical laws, to execute them in a tyrannicalmanner. Again, there is no liberty, if the judiciary power be not separated from thelegislative and executive.

b. Declaration of IndependenceCitation #1: THE DECLARATION OF INDEPENDENCE paras. 3, 5, 6 (U.S. 1776), available at

http://www.consource.org/document/declaration-of-independence-1776-7-4/ Background: The Declaration of Independence outlined grievances that the American colonists had against the King of

England and his government, several of which had to do with what they perceived as flawed or tyrannicalstructures of government. The Declaration reveals the fundamental importance that Americans placedon separation of powers. They viewed their mistreatment at the hands of the King as an example of howconcentrated power infringes liberty.

Quote: (3) The history of the present King of Great Britain is a history of repeated injuries andusurpations, all having in direct object the establishment of an absolute tyranny overthese states. To prove this, let facts be submitted to a candid world.

.

(5) He has forbidden his governors to pass laws of immediate and pressing importance,unless suspended in their operation till his assent should be obtained; and, when sosuspended, he has utterly neglected to attend to them.

(6) He has refused to pass other laws for the accommodation of large districts ofpeople, unless those people would relinquish the right of representation in thelegislature, a right inestimable to them, and formidable to tyrants only.
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c. Massachusetts ConstitutionCitation #1: MASS.CONST.art. XXX (1780), available athttp://www.nhinet.org/ccs/docs/ma-

1780.htmBackground: Massachusetts ratified its first constitution in 1780, and the document created was sophisticated and has

been in continuous effect since then. Not only did it contain a separation of powers provision, it backedit up by establishing an independent executive and judiciary with relatively robust powers. Massachusettsprovides an example of a state constitution that uses checks and balances to protect the branches andinsure that they remain separated. For this reason, it was a more useful template for the U.S.Constitution than most of the other states founding charters. The Maryland, North Carolina, andVirginia constitutions of 1776 and the Georgia Constitution of 1777 all contained separation of powersclauses but generally failed to create checks and balances to maintain the independence of each branch.

Quote: In the government of this commonwealth, the legislative department shall neverexercise the executive and judicial powers, or either of them; the executive shall neverexercise the legislative and judicial powers, or either of them; the judicial shall neverexercise the legislative and executive powers, or either of them; to the end it may be agovernment of laws, and not of men."

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Citation #2: MASS.CONST. art. XXIX (1780) available athttp://www.nhinet.org/ccs/docs/ma-1780.htm

Background: Unlike the Articles of Confederation, the Massachusetts Constitution separates the distinct judicial,executive and legislative functions of government and discusses the importance of an independent judiciaryfor securing individual rights. The independence of judges was secured by granting them life tenure and asource of income that the other branches could not tamper with. By structuring the judiciary this way,Massachusetts prevented the courts from becoming simply functionaries of the other branches.

Quote: Art. XXIX. It is essential to the preservation of the rights of every individual, his life,liberty, property, and character, that there be an impartial interpretation of the laws, andadministration of justice. It is the right of every citizen to be tried by judges as free,impartial, and independent as the lot of humanity will admit. It is, therefore, not only thebest policy, but for the security of the rights of the people, and of every citizen, that thejudges of the supreme judicial court should hold their offices as long as they behavethemselves well, and that they should have honorable salaries ascertained and establishedby standing laws.

d. Constitutional Convention DebateCitation #1: Madisons Notes on the Constitutional Convention (June 1, 1787) reprinted in1 MAX

FARRAND,RECORDS OF THE FEDERAL CONVENTION OF 1787, 67 (1911), available athttp://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-6-1/

Background: James Madison believed it was essential to define the scope of executive power before settling on astructure for the executive branch. He offered a concise list of what those powers should be. CharlesPinckney suggested that Madisons definition could be construed to allow the legislature to delegate powerinappropriately to the executive, and language was added to the clause to clarify that the legislature would
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not have the ability to delegate judicial or legislative powers. Ultimately a motion to strike out theprohibition against delegating judicial or legislative power was adoptednot because the framers thoughtsuch powers could be delegated but because they thought the Constitutions language already sufficientlyprohibited inappropriate delegation. It should be noted that the first Pinckney mentioned is CharlesPinckneys first cousin once removed, Charles Cotesworth Pinckney, who had served as a BrigadierGeneral in the Continental Army and was later promoted to Major General in the South Carolina

militia. Madison refers to him as General Pinckney to distinguish him from his younger cousin.Quote: Mr. (Madison)(thought) it would be proper, before a choice shd. be made between a

unity and a plurality in the Executive, to fix the extent of the Executive authority; that ascertain powers were in their nature Executive, and must be given to that departmtwhether administered by one or more persons, a definition of their extent would assistthe judgment in determining how far they might be safely entrusted to a single officer.He accordingly moved that so much of the clause before the Committee as related to thepowers of the Executive shd. be struck out & that after the words "that a nationalExecutive ought to be instituted" there be inserted the words following viz, "with powerto carry into effect the national laws to appoint to offices in cases not otherwiseprovided for, and to execute such other powers ("not legislative nor judiciary in theirnature") as may from time to time be delegated by the national Legislature". The words("not legislative nor judiciary in their nature") were added to the proposed amendment inconsequence of a suggestion by Genl [Charles Cotesworth] Pinckney that improperpowers might (otherwise) be delegated

Mr. [Charles] Pinckney moved to amend the amendment by striking out the lastmember of it; viz. "and to execute such other powers not Legislative nor Judiciary intheir nature as may from time to time be delegated." He said they were unnecessary, theobjective of them being included in the "power to carry into effect the national laws."

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Citation #2: Charles Pinckney, Observations On The Plan of Government Submitted to The FederalConvention, in Philadelphia, on the 28th of May, 1787, reprinted in3 MAXFARRAND,RECORDS OF THE FEDERAL CONVENTION OF 1787, 106, 111 (1911), available athttp://www.consource.org/document/charles-pinckney-observations-on-the-plan-of-government-submitted-to-the-federal-convention-in-philadelphia-1787-5-28/

Background: Excerpts of a speech by Charles Pinckney likely prepared to accompany the presentation of the PinckneyPlan on May 29, 1787, but overshadowed by the Virginia Plan, also introduced that day. Later, itwas published by Francis Childs after the conclusion of the Constitutional Convention on September 17,1787 but before October 14, 1787. Charles Pinckney (SC) frequently contributed to the discussions atthe Constitutional Convention. This statement, made early in the convention, reflects Pinckneysthoughts on the scope of executive power under the new government. Compared with foreign executives,like the King of England, the U.S. President would have more limited power. Pinckney thought that

this conscious separation between executive and legislature meant that the legislature was prohibited fromdelegating its authority to the executive unless specifically permitted to do so.

Quote: It is true, that in our Government, he [the executive] cannot be cloathed [sic] withthose executive authorities, the Chief Magistrate of a Government often possesses;because they are vested in the Legislature, and cannot be used or delegated by them inany, but the specified mode. Under the New System, it will be found essentially
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necessary to have the Executive distinct. His duties, will be, to attend to the execution ofthe acts of Congress, by the several States.

e. New York Ratification DebateCitation #1: Richard Harrison, Speech to the New York Ratification Convention reprinted in23 THE

DOCUMENTARYHISTORY OF THE RATIFICATION OF THE CONSTITUTION 2170 (John P.Kaminski et. al eds., 1993) (emphasis in original).

Background: Richard Harrison was a delegate at the state convention representing New York City. Harrison was afederalist who voted for ratification. He did not play a prominent role in the debates but he did makecomments that illuminate the issue of legislative delegation. Harrison viewed the powers vested in thelegislature as held in trust for the people so that Congress would have no authority to abdicate or alterthose powers.

Quote: powers in Congs. & state Legislatures are a deposit of trust in their hands for the publicgoodwe ought not to wish that congress should give them upit ought not to beinthe power of Congs to [increase?] or abridgetheir powers.

f. North Carolina Ratification DebateCitation #1: William Lenoir, Speech to the North Carolina Ratification Convention, 1778, reprinted in

3 MAXFARRAND,RECORDS OF THE FEDERAL CONVENTION OF 1787, 342 (1911),available athttp://www.consource.org/document/debate-in-the-north-carolina-convention/

Background: William Lenoir was as prominent North Carolina politician and legal professional. He voiced acommon anti-federalist objection to the Constitution that the legislative and executive powers were notstrictly separated but rather each had some way to check the other. In this particular instance, heobjected to the power of the executive to negotiate treaties which become the law of the land. This powerhe considered to be legislative in nature and inappropriate for the executive branch. Generally, theseobjections were countered with assertions that these discrete delegations of legislative power to the executivewere necessary to check the legislature and maintain the separation of powers, and that the executivecould only act in a legislativemanner to the extent explicitly called for in the Constitution.

Quote: Mr. Lenoir. Mr. Chairman, I have a greater objection on this ground than that whichhas just been mentioned. I mean, sir, the legislative power given to the President himself.It may be admired by some, but not by me. He, sir, with the Senate, is to make treaties,which are to be the supreme law of the land. This is a legislative power given to thePresident, and implies a contradiction to that part which says that all legislative power isvested in the two houses.

g. Virginia Ratification DebateCitation #1: Edmund Randolph, Speech to the Virginia Ratification Convention reprinted in9 THE

DOCUMENTARYHISTORY OF THE RATIFICATION OF THE CONSTITUTION 986 (John P.Kaminski et. al eds., 1993); see also 3 JONATHAN ELLIOT,THE DEBATES IN THE SEVERAL
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STATE CONVENTIONS ON THEADOPTION OF THE FEDERAL CONSTITUTION 83 (1876),available athttp://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(ed0039))

Background: Edmund Randolph, the young governor of Virginia, was a major contributor at the ConstitutionalConvention. He introduced the Virginia Plan and served on the Committee of Detail, which authoredthe first working draft of the Constitution. Though he refused to sign the Constitution, he supported its

ratification in Virginia. He noted the deficiencies of the government under the Articles of Confederationwhich included not only a lack of enumerated power, but also a dangerous concentration of power in onebody. His comments reflect the importance of separating the judicial, executive, and legislative powers inthe new government.

Quote: In it [Congress] one body has the legislative, executive, and judicial powers; but thewant of efficient powers has prevented the dangers naturally consequent on the union ofthese. Is this union consistent with an augmentation of their power? Will you, then,amend it by taking away one of these three powers? Suppose, for instance, you onlyvested it with the legislative and executive powers, without any control on the judiciary;what must be the result? Are we not taught by reason, experience, and governmentalhistory, that tyranny is the natural and certain consequence of uniting these two powers,or the legislative and judicial powers, exclusively, in the same body? If any one denies it,I shall pass by him as an infidel not to be reclaimed. Whenever any two of these threepowers are vested in one single body, they must, at one time or other, terminate in thedestruction of liberty.

h. Anti-Federalist PapersCitation #1: Cato V (anonymous) (July 5, 1789), available at

http://www.consource.org/document/cato-v-1789-7-5/Background: Anti-federalists opposed ratification of the Constitution primarily on the ground that it granted too much

power to the national government. Ultimately, the anti-federalists failed to prevent ratification but theywere influential in calling for a Bill of Rights to be added soon after ratification. The anti-federalist

writer of Cato V (speculated to be Governor of New York George Clinton) objected to the extent ofpower vested in the president, which he feared would make the president too similar to a monarch. Hepoints out that the Constitution provides for a robust executive branch, especially when compared to theweak executive branches created by many of the early state constitutions.

Quote: "In my last number I endeavored to prove that the language of the article relative to theestablishment of the executive of this new government was vague and inexplicit, that thegreat powers of the President, connected with his duration in office would lead tooppression and ruin. That he would be governed by favorites and flatterers, or that adangerous council would be collected from the great officers of state;that the tenmiles square, if the remarks of one of the wisest men, drawn from the experience ofmankind, may be credited, would be the asylum of the base, idle, avaricious andambitious, and that the court would possess a language and manners different from

yours; that a vice-president is as unnecessary, as he is dangerous in his influence that thepresident cannot represent you, because he is not of your own immediate choice, that ifyou adopt this government, you will incline to an arbitrary and odious aristocracy ormonarchythat the president possessed of the power, given him by this frame ofgovernment differs but very immaterially from the establishment of monarchy in Great-Britain, and I warned you to beware of the fallacious resemblance that is held out to youby the advocates of this new system between it and your own state governments.the
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framers of this perfect government, as it is called, have departed from this democratical[sic] principle, and established bi-ennial [sic] elections, for the house representatives, whoare to be chosen by the people, and sextennial [sic] for the senate, who are to be chosenby the legislatures of the different states, and have given to the executive theunprecedented power of making temporary senators, in case of vacancies, by resignationor otherwise, and so far forth establishing a precedent for virtual representation (though

in fact, their original appointment is virtual) thereby influencing the choice of thelegislatures, or if they should not be so complaisant as to conform to his appointmentoffence will be given to the executive and the temporary members, will appear ridiculousby rejection; this temporary member, during his time of appointment, will of course actby a power derived from the executive, and for, and under his immediate influence."

i. Federalist PapersCitation #1: THE FEDERALIST NO. 72 (Alexander Hamilton), available at

http://www.consource.org/document/the-federalist-no-72-1788-3-19/

Background: The Constitution does not explicitly define executive power. In this paper, Alexander Hamiltonattempts to outline the contours of that power. He gives a more detailed sense of what it means to saythat the executive power shall be vested in a president of the United States. This passage relates to thedelegation issue because it discusses the kinds of activities that are properly within the scope of theexecutive branch by articulating the distinction between executive and legislative power.

Quote: The ADMINISTRATION of government, in its largest sense, comprehends all theoperations of the body politic, whether legislative, executive or judiciary, but in its mostusual and perhaps in its most precise signification, it is limited to executive details, andfalls peculiarly within the province of the executive department. The actual conduct offoreign negotiations, the preparatory plans of finance, the application and disbursementof the public monies, in conformity to the general appropriations of the legislature, thearrangement of the army and navy, the direction of the operations of war; these and

other matters of a like nature constitute what seems to be most properly understood bythe administration of government. The persons therefore, to whose immediatemanagement these different matters are committed, ought to be considered as theassistants or deputies of the chief magistrate; and, on this account, they ought to derivetheir offices from his appointment, at least from his nomination, and ought to be subjectto his superintendence. This view of the subject will at once suggest to us the intimateconnection between the duration of the executive magistrate in office, and the stabilityof the system administration. To reverse and undo what has been done by a predecessoris very often considered by a successor, as the best proof he can give of his own capacityand desert; and, in addition to this propensity, where the alteration has been the result ofpublic choice, the person substituted is warranted in supposing, that the dismission [sic]of his predecessor has proceeded from a dislike to his measures, and that the less he

resembles him the more he will recommend himself to the favor of his constituents.These considerations, and the influence of personal confidences and attachments, wouldbe likely to induce every new president to promote a change of men to fill thesubordinate stations; and these causes together could not fail to occasion a disgracefuland ruinous mutability in the administration of the government.
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Citation #2: THE FEDERALIST NO. 47 (James Madison), available athttp://www.consource.org/document/the-federalist-no-47-1788-1-3/

Background: Because the U.S. Constitution did not explicitly invoke separation of powers in the text and called for aseries of checks and balances, the structure allowed anti-federalists to argue that it inappropriatelyblended powers and actually violated the principle of separation of powers. In this paper, James Madisonresponded to that critique by asserting a theory of separation that can be reconciled with this blending so

long as no branch exercises the whole of another branchs power.Quote: [Montesquieu] did not mean that these departments out to have no PARTIAL

AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his ownwords import, and still more conclusively as illustrated by the example in his eye, canamount to no more than this, that where the WHOLE power of one department isexercised by the same hands which possess the WHOLE power of another department,the fundamental principles of a free constitution are subvertedThe charges broughtagainst the proposed Constitution, of violating the sacred maxim of free government, iswarranted neither by the real meaning annexed to that maxim by its author, nor by thesense in which it has hitherto been understood in America.

2.Article I, Sec. 8 Bankruptcy Clause: Orderly Liquidation AuthorityCitation: U.S.CONST. art. I, 8, cl. 4., available at:http://consource.org/document/united-states-

constitution/#annotation-500d89dcfbed7d14d1000098Quote: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of

Bankruptcies throughout the United States;

a. William Blackstones CommentariesCitation #1: 2 WILLIAM BLACKSTONE, COMMENTARIESON THE LAWS OF ENGLAND 471-73 (photo.

reprint 1979) (1766) (emphasis in original).Background: BlackstonesCommentaries on the Law of England are an influential 18-century treatise on

Englands common law, based on a series of lectures given by Sir William Blackstone at Oxford in1753. Blackstones Commentaries were very influential on American law, often incorporated wholesaleas the common law of England into the legal systems of the colonies where statutory or constitutional lawdid not exist. Blackstone says that the legislature is following the example of Roman law of cessionwhere if the debtor yields his fortune to the creditors, he was secured from being taken to jail.

Quote: [A]t present the laws of bankruptcy are considered as laws calculated for the benefit oftrade, and founded on the principles of humanity as well as justice; and to that end theyconfer some privileges, not only on the creditors, but also on the bankrupt or debtorhimself. On the creditors; by compelling the bankrupt to give up all his effects to theiruse, without any fraudulent concealment: on the debtor; by exempting him from therigor of the general law, whereby his person might be confined at the discretion of hiscreditor, though in reality he has nothing to satisfy the debt; whereas the law ofbankrupts, taking into consideration the sudden and unavoidable accidents to whichmen in trade are liable, has given them the liberty of their persons, and some pecuniaryemoluments, upon condition they surrender up their whole estate to be divided amongtheir creditors.
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To the misfortunes therefore of debtors the law has given a compassionate remedy, butdenied it to their faults: since, at the same time that it provides for the security ofcommerce, by enacting that every considerable trader may be declared a bankrupt, for

the benefit of his creditors as well as himself, it has also to discourage extravagancedeclared, that no one shall be capable of being made a bankrupt, but only a trader;norcapable of receiving the full benefit of the statutes, but only an industrioustrader.

b. Constitutional Convention DebateCitation #1: James Madisons Notes on the Constitutional Convention (September 3, 1787) reprinted

in2 MAXFARRAND,RECORDS OF THE FEDERAL CONVENTION OF 1787 67 (1911),available athttp://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-9-3/

Background: The Constitutional Convention adopted the bankruptcy clause with almost no debate(see Joseph Storys

description below). At the time, various states had wildly different laws governing creditor-debtorrelationships, and the strained economic context in which the Constitution was written helps explainwhy the clause was included. However, an explanation for the lack of substantive debate on the clausehas eluded scholars.

Quote: The clause in the Report To establish uniform laws on the subject of Bankruptciesbeing taken up.

Mr. Sherman observed that Bankruptcies were in some cases punishable with death bythe laws of England-- & He did not chuse [sic] to grant a power by which that might bedone here.

Mr Govr Morris said this was an extensive & delicate subject. He would agree to it

because he saw no danger of abuse of the power by the Legislature of the U-- S.

c. Federalist PapersCitation #1: THE FEDERALIST NO. 42 (James Madison), available at

http://consource.org/document/the-federalist-no-42-1788-1-22/Background: James Madison devoted little time to explaining or defending the inclusion of the bankruptcy clause in

the Constitution. In his cursory treatment, he categorized it as one of the powers to regulate theinteraction between the states and assumed that it was so directly related to the commerce power that itdid not need to be justified separately.

Quote: The power of establishing uniform laws of bankruptcy is so intimately connected with

the regulation of commerce, and will prevent so many frauds where the parties or theirproperty may lie or be removed into different States, that the expediency of it seems notlikely to be drawn into question.
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d. George Tuckers Annotations of Blackstones CommentariesCitation #1: 1 ST.GEORGETUCKER, BLACKSTONES COMMENTARIES:WITH NOTES OF REFERENCE

TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITEDSTATES AND OF THE COMMONWEALTH OFVIRGINIA 259-260 (1803).

Background: St. George Tucker was a Virginia lawyer, law professor at the College of William & Mary, and justiceof Virginias highest court. He is best known for his five volume edition of Blackstones Commentaries,which included hundreds of pages of his annotations commenting on the adaptation of English commonlaw to early America.

Quote: There are few subjects upon which there is less practical information to be obtained inVirginia, than that of bankruptcies. The English statutes of Bankruptcy have never beenregarded as in force, here; and the manner in which the commerce of the colony wasconducted, before the revolution, by no means seemed to favour their adoption. In acommercial country, such as England, the necessity of good faith in contracts, and thesupport of commerce, oblige the legislature to secure for the creditors the persons ofbankrupts. It is, however, necessary to distinguish between the fraudulent and the honestbankrupt: the one should be treated with rigor; but the bankrupt, who, after a strict

examination, has proved before proper judges, that either the fraud, or losses of others,or misfortunes unavoidable by human prudence, have stripped him of his substance,ought to receive a very different treatment. Let his whole property be taken from him,for the benefit of his creditors; let his debt, if you will, not be considered as cancelled, tillthe payment of the whole; let him be refused the liberty of leaving his country withoutleave of his creditors, or of carrying into another nation that industry, which, under apenalty, he should be obliged to employ for their benefit; but what pretence can justifythe depriving an innocent, though unfortunate man, of his liberty, as is said to be thepractice in some parts of Europe, in order to extort from him the discovery of hisfraudulent transactions, after having failed of such a discovery, upon the most rigorousexamination of his conduct and affairs!

But, how necessary soever [sic], bankrupt laws may be in great commercial countries,the introduction of them into such as are supported chiefly by agriculture, seems to bean experiment which should be made with great caution. Among merchants and othertraders, with whom credit is often a substitute for a capital, and whose only actualproperty is the gain, which they make by their credit, out of the property of others, awant of punctuality in their contracts, may well be admitted as a ground to suspect fraud,or insolvency. But the farmer has generally a visible capital, the whole of which he cannever employ, at the same time, in a productive manner. His want of punctuality mayarise from bad crops, unfavourable seasons, low markets, and other causes, whichhowever they may embarrass, endanger not his solvency; his property is incapable ofremoval, or of that concealment, which fraudulent traders may practise with success; histransactions within the proper line of his occupation are few, and not liable to intricacy;whilst the merchant is perhaps engaged in a dozen different copartnerships, in which hisname does not appear, and in speculations which it might require a life to unravel. Toexpose both to the same rigorous, and summary mode of procedure, would be utterlyinconsistent with those maxims of policy, which limit laws to their proper objects, only.And accordingly, we find, that even in England, where the interests of commerce areconsulted on all occasions, and where they are never sacrificed, (unless, perhaps, toambition,) the bankrupt laws cannot affect a farmer, who confines himself to the proper


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sphere of his occupation; and the bankrupt law of the United States, 6 congress, 1session, c. 19, is confined to merchants, or other persons, actually using the trade ofmerchandise, by buying and selling in gross, or by retail, or dealing in exchange as abanker, broker, factor, underwriter, or marine insurer. Whilst the bankrupt laws areconfined to such characters, and are resorted to, merely as a necessary regulation ofcommerce, their effect, in preventing frauds, especially where the parties or their

property may lie, or be removed into different states, will probably be so salutary, thatthe expediency of this branch of the powers of congress, will cease to be drawn inquestion.

e. Congressional DebatesCitation #1: Abraham Baldwin, Uniform Bankruptcy, House of Representative, January 15, 1799, in9

ANNALS OF CONGRESS.THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THEUNITED STATES 2670-71 (Gales & Seaton, 1834-1856), available athttp://press-pubs.uchicago.edu/founders/documents/a1_8_4_bankruptcys2.html

Background: In a speech to the U.S. House of Representatives on January 15, 1799, Georgia RepresentativeAbraham Baldwin argued that states had power to legislate on the subject of bankruptcy until such timeas Congress should act. Abraham Baldwin was a Georgia representative to the Continental Congress,and then served in the U.S. House of Representatives and Senate.

Quote: But it is insisted on, said Mr. B., by some gentlemen, that as the power to pass uniformlaws on the subject of bankruptcy is expressly given to Congress by the Constitution, itis their duty to do it; and some go as far as to say that it is not proper for the States tolegislate on that subject. He thought there was no great weight in that argument.Congress not having passed such a law for these ten years past, and the States havinglegislated upon it in their own way, is a sufficient proof that that has not been theunderstanding of the Constitution.

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Citation #2: Thomas Montgomery, Speech to the House of Representatives on the Bankrupt Bill,February 8 & 11, 1822, in38 ANNALS OF CONGRESS.THE DEBATES AND PROCEEDINGSIN THE CONGRESS OF THE UNITED STATES. 971-74 (Gales & Seaton, 1834-1856),available athttp://press-pubs.uchicago.edu/founders/print_documents/a1_8_4_bankruptcys11.html

Background: Mr. Thomas Montgomery served in the Continental Army and had settled in Virginia before moving toKentucky, where he ran for Congress. Here he addressed the House of Representatives on the matter ofthe bankrupt bill on February 8, 1822.

Quote: The Convention who framed the National Constitution had the experience of someyears before their eyes; the members were witness to the results of such discordant

legislation in regard to the merchants of the country; they were wise men, and could seethat the evil would grow with the growth of our population and commerce, and to guardagainst it Congress was invested with the power of passing a system of bankruptcywhich should be uniform throughout the United States. This in his view was thegreatest reason for the investiture of the power, and the strongest for the expediency ofthe exercise of it.
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He said he believed the members of the Convention were wise men, and as such hecould not believe that they intended to bring within the scope of the jurisdiction of thenational courts the small transactions of handicraftsmen, agriculturists, &c. He couldnot believe that it was intended to drag them before commissioners of bankruptcy, and

finally before a federal court, to adjust the division of an estate, not worth more thanone or two hundred dollars. No, he believed, in opposition to many others, that the lawought to be confined to the cases of those classes in society, whose transactions of amercantile and trading character had furnished the necessity of the system.

He then remarked that the terms bankruptcy and insolvency were both technical termsin the law, the first expressing the condition of a merchant, trader, or broker, & c., whohad committed some act, &c., evincive of a disposition to hinder of delay the paymentof his debts, and who was entitled, upon a complete surrender of his estate for thebenefit of his creditors, to be released of future liability; the second embracing the casesof all the other classes of society who were unable to pay their debts, and who wereentitled by sundry statutory provisions to be released from imprisonment, but not fromall future liability with reference to their property. The members of the Conventionwere generally learned in the laws, as well of the States as of Britain; they had a fullopportunity of seeing these principles in the form of statutes and digests; theyunderstood them; it is, therefore, a fair conclusion, that, if they had designed to adoptthe principles and notion of insolvency, they would have used the term.

He then observed that the term bankruptcy was a technical term in legal science,embracing the persons, acts, proceedings, and results of the bill; that the persons usingthe term well understood its technical import; and he thought it a fair conclusion that it

was used in that sense. He then called the attention of the Committee to one of the rulesof construction laid down by Vattel, B. II. chap. 17, section 276. The rule is, thattechnical terms, or terms peculiar to the arts and sciences, ought commonly to beinterpreted according to the definition given of them by masters of the art, or personsversed in the knowledge of the art or science to which the terms belong. . . . Now, asthere is no evidence to show that the members of the Convention were ignorant of thescience of law; nor any fact or circumstance to justify the inference that they wereunacquainted with the import of the word bankruptcy as a legal phrase; nor anyevidence of its being used in a vulgar sense, the case cannot be taken as falling within theexceptions.

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Citation #3: Cadwallader D. Colden, Speech to the House of Representatives on the Bankrupt Bill,February 8 & 11, 1822, in38 ANNALS OF CONGRESS.THE DEBATES AND PROCEEDINGSIN THE CONGRESS OF THE UNITED STATES. 971-74 (Gales & Seaton, 1834-1856),available athttp://press-pubs.uchicago.edu/founders/print_documents/a1_8_4_bankruptcys11.html
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Background: Cadwallader D. Colden was a lawyer and a federalist from New York. Previous to becoming acongressman, he served in the New York State Assembly and as Mayor of New York City. He wonhis initial seat in Congress by successfully contesting the election of Peter Sharpe. Here, he addresses theHouse of Representatives on February 11, 1822 in response to the Feb. 8 discussions.

Quote: The Constitution has given Congress the power to establish uniform laws on thesubject of bankruptcies throughout the United States. Mr. C. said that this phraseology

was deserving attention, and seem to have been adopted to convey ideas more extendedthan the expression which would be the most likely first to occur for granting a limitedpower to pass bankrupt laws. Had the Constitution merely said Congress shall power toestablish bankrupt laws, or all bankrupt laws, even then it would be difficult to say thatthere was any restriction as to the kind of bankrupt law which Congress might pass. Butwhen the power is to pass laws on the subject of bankruptcies, is it not to be understoodthat Congress have a right to pass every kind of bankrupt law?

Mr. C. said, it seemed to him that this question would be answered by determining themeaning of the word bankrupt, or bankruptcy.

It has been justly said by the gentleman from Virginia (Mr. Stevenson), that Blackstonegave us no definition of the word bankrupt. He merely describes those who maybecome obnoxious to the English bankrupt laws, and points out the consequences ofsuch liability. For he who might be a bankrupt at one time, according to the Englishlaw, was not so considered at another. Thus, the statute of Henry VIIII, which wasentitled a law against such as do make bankrupt, applied to all persons. The statute ofElizabeth confined the application of the bankrupt law to traders. A subsequent statuteof James extended it to scriveners. A law of Queen Anne absolved the subsequentlyacquired property, as well as the person, of a discharged bankruptand a statute ofGeorge III, extended their then numerous bankrupt laws to bankers, brokers, andfactors; so that we cannot appeal to the English statutes for the definition we are insearch of, unless we should be willing to admit that that word bankrupt must, at all

times, mean whatever the British Parliament shall please to say shall be its signification.

[Congressman Colden then discussesthe etymology of the term bankrupt, including dictionarydefinitions from the time.]

But, though we should in vain appeal to the statute law of England, or of our owncountry, for the definition of the term bankrupt, yet we may refer to them to ascertainthe sense in which the word was used by the framers of the Constitution; and, when wefind that every law which existed in Europe, under the name of a bankrupt law, not onlyenabled the insolvent debtor to obtain a discharge of his person, but an exoneration of

his subsequent acquisitions, can it be supposed that, in our Constitution, the term wasused in a more restricted sense than it was used in all contemporaneous laws?

Mr. C. said these considerations had brought his mind to the most satisfactoryconclusion, that, by the letter of the Constitution, power was given to Congress to passthe bill now under the consideration of the Committee.


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f. Joseph Storys CommentariesCitation #1: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 4

(1833).Background: Joseph Story, American jurist and legal scholar, discusses the division of power between the state and

federal government on the question of bankruptcy laws. In his Commentaries on the Constitution, heembraced the same views held by Madison, noting the connection between the subject of bankruptcies andthe regulation of commerce.

Quote: The power to pass laws on the subject of bankruptcies was not in the original draft ofthe constitution. The original article was committed to a committee together with thefollowing proposition: to establish uniform laws upon the subject of bankruptcies, andrespecting the damages arising on the protest of foreign bills of exchange. Thecommittee subsequently made a report in favour of incorporating the clause on thesubject of bankruptcies into the constitution; and it was adopted by a vote of nine statesagainst one. The brevity, with which this subject is treated by the Federalist [No. 42], isquite remarkable. The only passage in that elaborate commentary, in which the subjectis treated, is as follow: The power of establishing uniform laws of bankruptcy is so

intimately connected with the regulation of commerce, and will present so many frauds,where the parties or their property may lie, or be removed into different states, that theexpediency of it seems not likely to be drawn in question.

3.Article II, Sec. 2 Appointment of Executive Officers: Director ofConsumer Financial Protection Bureau (CFPB)

Citation: U.S.CONST. art. II, 2, cl. 1., available at:http://consource.org/document/united-states-constitution/#annotation-500d89dcfbed7d14d1000098

Quote: He shall have Power, by and with the Advice and Consent of the Senate, to makeTreaties, provided two thirds of the Senators present concur; and he shall nominate, andby and with the Advice and Consent of the Senate, shall appoint Ambassadors, otherpublic Ministers and Consuls, Judges of the supreme Court, and all other Officers of theUnited States, whose Appointments are not herein otherwise provided for, and whichshall be established by Law: but the Congress may by Law vest the Appointment of suchinferior Officers, as they think proper, in the President alone, in the Courts of Law, or inthe Heads of Departments.

a. Articles of ConfederationCitation #1: ARTICLES OF CONFEDERATION of 1781, art. IX, para. 4, available at

http://consource.org/document/articles-of-confederation/ Background: Ratified in 1781, the Articles of Confederation served as the charter for the national government until

the Constitution was adopted. The Articles created only one branch of governmentthe ContinentalCongressat the national level and vested it with limited powers. Many of the delegates at the 1787Constitutional Convention viewed this as a shortcoming to be remedied because it left the centralgovernment considerably weak in many respects. This clause was primarily concerned with the
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appointing and commissioning of military officers. Under the Articles, the Continental Congress hadexclusive authority to appoint all national officers, a power which had traditionally been the province ofthe Crown.

Quote: The United States in Congress assembled shall also have the sole and exclusive rightand power of... commissioning all officers whatever in the service of the United States.

b. Constitutional Convention DebatesCitation #1: Madisons Notes on the Constitutional Convention (June 5, 1787), reprinted in1 MAX

FARRAND,RECORDS OF THE FEDERAL CONVENTION OF 1787, 67 (1911), available athttp://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-6-5/

Background: On June 5, 1787 the delegates debated whether to give the power to appoint federal judges to theexecutive raised questions about the nature of executive power. It was not immediately obvious to all ofthe delegates that the appointment power should be part of the executive power, butit seems that mostof the delegates thought the president should have some agency in appointing federal judges to addtransparency and accountability to the process. If the legislature were solely responsible for appointments,

the public would not know who to hold responsible for bad appointments; it would be easy to pass theblame. JamesWilsons comment articulates well the point that one of the primary virtues of vesting theexecutive power in a single person is that he cannot escape accountability for his actions. On the otherhand, JohnRutledges statement reflects the ongoing concern that granting substantial power to theexecutive would lead the government down the path to authoritarian monarchy. Finally, JamesMadisons proposal is a sort of middle ground. Ultimately, the convention opted to give both thepresident and the senate a piece of the appointment power.

Quote: "Mr. Wilson opposed the appointment (of judges by the) national Legisl: Experienceshewed [sic] the impropriety of such appointmts. by numerous bodies. Intrigue,partiality, and concealment were the necessary consequences. A principal reason forunity in the Executive was that officers might be appointed by a single, responsibleperson.

Mr. Rutlidge [sic.] was by no means disposed to grant so great a power to any singleperson. The people will think we are leaning too much toward a Monarchy. He wasagainst establishing any national tribunal except a single supreme one...

Mr. Madison disliked the election of the Judges by the Legislature or any numerousbody...On the other hand He was not satisfied with referring the appointment to theExecutive. He rather inclined to give it to the Senatorial branch."

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Citation #2: The Hamilton Plan (June 18, 1787), reprinted in3 MAXFARRAND,RECORDS OF THEFEDERAL CONVENTION OF 1787, 624-25 (1911), available athttp://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(fr003449))

Background: Alexander Hamilton outlined his plan for the Constitution of the United States at the start of the

convention. Hamilton was present in the Constitutional Convention less than half of the time. As an

advocate of a strong national government, Hamilton was the primary proponent and creator of Bank of

United States and modern financial system. Hamiltonsversion of the presidential vesting clause gives the
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President a great deal of control over appointments by allowing him to appoint principle officers without

Senate confirmation. This version was ultimately rejected as a majority of the convention felt that

Senatorial approval was a necessary check to place on the appointment power of the Executive.

Quote: 10. He shall have the appointment of the principal or Chief officer of each of thedepartments of War, naval Affairs, Finance, and Foreign Affairs; and shall have the

nomination; and by and with the Consent of the Senate, the appointment of all otherofficers to be appointed under the authority of the United States, except such for whomdifferent provision is made by this Constitution; and provided that this shall not beconstrued to prevent the Legislature, from appointing by name in their laws, persons tospecial & particular trusts created in such laws, nor shall be construed to preventprincipals in offices merely ministerial, from constituting deputies.-- In the recess of theSenate he may fill vacancies in offices by appointments to continue in force until the endof the next Session of the Senate. And he shall commission all Officers

c. Pennsylvania Ratification DebateCitation #1: James Wilson, Speech to the Pennsylvania Ratification Convention (November 20,

1787), reprinted in2 THE DOCUMENTARYHISTORY OF THE RATIFICATION OF THECONSTITUTION 495 (John P. Kaminski et al. eds., 1976); see also 2 JONATHAN ELLIOT,THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THEADOPTION OF THEFEDERAL CONSTITUTION 480 (1836), available athttp://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(ed0028))

Background: James Wilson was a strong supporter of the Constitution and the primary speaker at the PennsylvaniaRatification Convention. He defended the Constitution by arguing for the benefits of a unitary executive.The Constitution vests all the executive power in one president making accountability the hallmark ofthe Executive branch.

Quote: The next good quality that I remark is, that the executive authority is one. By this

means we obtain very important advantages. We may discover from history, fromreason, and from experience, the security which this furnishes. The executive power isbetter to be trusted when it has no screen. Sir, we have a responsibility in the person ofour President; he cannot act improperly, and hide either his negligence or inattention; hecannot roll upon any other person the weight of his criminality; no appointment can takeplace without his nomination; and he is responsible for every nomination he makes.

d. 1789 House of Representatives Debate on the Removal PowerCitation #1: Debate on the Bill for Establishing an executive Department, to be denominated the

Department of Foreign Affairs, June 18, 1789, reprinted in11 DOCUMENTARYHISTORY

OF THE FIRST FEDERAL CONGRESS 1789-1791, 951-93 (Charlene B. Bickford et. al eds.,1992); see also 4JONATHAN ELLIOT,THE DEBATES IN THE SEVERAL STATECONVENTIONS ON THEADOPTION OF THE FEDERAL CONSTITUTION 350, 355-56 (1836),available athttp://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(ed00412))

Background: In 1789, the House of Representatives was in its first session when it engaged in its first majorconstitutional debate. The topic was whether, in creating an executive branch Department of Foreign
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Affairs, Congress could make the departments chief officer removable by the president at his will.1 TheConstitution does not speak directly to this question, so Representatives, including James Madison, madea series of structural arguments. The debate divided between those, like Madison, who thought theremoval of officers was the sole province of the president, and those, like Alexander White, who believedit was a joint power shared between the president and the senate. The primary objections to at willremoval were that it would confer on the president too much authority and that he might abuse it.

However, Madisons response that it was ultimately the president who is responsible for the execution ofthe law and that he needs to control his subordinates was accepted by Congress.

Quotes: Alexander White (VA): As I conceive the power of appointing and dismissing to beunited in their natures, and a principle that never was called in question in anygovernment, I am adverse to that part of the clause which subject the secretary offoreign affairs to be removed at the will of the President. In the Constitution, specialprovision is made for the removal of the judges: that I acknowledge to be a deviate frommy principle; but as it is a constitutional provision, it is to be admitted.

James Madison (VA): The Constitution affirms that the executive power shall be vestedin the President. Are there exceptions to this proposition? Yes, there are. TheConstitution says that, in appointing to office, the Senate shall be associated with thePresident, unless in the case of inferior officers, when the law shall otherwise direct.Have we a right to extend this exception? I believe not. If the Constitution has investedall executive power in the President, I venture to assert I conceive that the legislature hasno right to diminish or modify his executive authority.

The question now resolves itself into this: Is the power of displacing an executivepower? I conceive that, if any power whatsoever is in its nature executive, it is in thepower of appointing, overseeing, and controlling those who execute the laws. If theConstitution had not qualified the power of the President in appointing to office, byassociating the Senate with him in that business, would it not be clear that he would havethe right, by virtue of his executive power, to make such an appointment? Should we be

authorized, in defiance of that clause in the Constitution, - The executive power shall bevested in a President,- to unite the Senate with the President in the appointment tooffice? I conceive not. If it is admitted we should not be authorized to do this, I think itmay be disputed whether we have a right to associate them in removing persons fromoffice, the one power being as much of an executive nature as the other; and the firstonly is authorized by being excepted out of the general rule established by theConstitution, in these words, The executive power shall be vested in the President.

4.Article II, Sec. 3 Take Care Clause: Executive Oversight of CFPBCitation: U.S.CONST. art. I, 3, available at:http://consource.org/document/united-states-

constitution/#annotation-500d89dcfbed7d14d1000098Quote: Heshall take Care that the Laws be faithfully executed, and shall Commission all the

Officers of the United States;

1The exact clause in question was to be removable from office by the President of the United States.
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a. Articles of ConfederationCitation #1: ARTICLES OF CONFEDERATION of 1781, art. X, para. 1, available at

http://consource.org/document/articles-of-confederation-1777-11-15/Background: Similar to state Councils of Safety then in operation, the Articles gave Congress the ability to appoint a

committee, comprised of members from each state, to oversee the national government when Congress wasin recess. This is the closest the Articles came to providing for a second branch of government, but thiscommittee was still a legislative entity.

Quote: The Committee of the States, or any nine of them, shall be authorized to execute, in therecess of Congress, such of the powers of Congress as the United States in Congressassembled, by the consent of the nine States, shall from time to time think expedient tovest them with; provided that no power be delegated to the said Committee, for theexercise of which, by the Articles of Confederation, the voice of nine States in theCongress of the United States assembled be requisite.

b. Virginia Constitution of 1776Citation #1: VA.CONST. (1776), available athttp://consource.org/document/final-draft-of-the-

virginia-constitution-of-1776/Background: The Virginia Constitution of 1776 was adopted in Williamsburg, Virginia, just six days before the

Declaration of Independence and was the third state to establish a written constitution after NewHampshire and South Carolina. Three Virginia delegatesGeorge Mason (who authored thedocument), James Madison, and Edmund Randolphserved on the committee to prepare a declarationof rights, and such a plan of government as will be most likely to maintain peace and order in thiscolony, and secure substantial and equal liberty to the people of the Fifth Virginia Convention whichpassed the first Virginia Constitution. These Virginia drafters, added to George Wythe, all laterparticipated in the Federal Convention of 1787 where James Madison and Edmund Randolph later

played prominent roles.Quote: The [governor] shall, with the advice of a Council of State, exercise the executivepowers of government according to the laws of this commonwealth; and shall not, underany pretence [sic], exercise any power or prerogative by virtue of any law, statute, orcustom, of England: But he shall, with the advice of the Council of State, have thepower of granting reprieves or pardons, except where the prosecution shall have beencarried on by the House of Delegates, or the law shall otherwise particularly direct; inwhich cases, no reprieve or Pardon shall be granted but by resolve of the House ofDelegates.

c. Constitutional Convention DebateCitation #1: Charles Pinckney, Draft of a Federal Government, reprinted in3 MAXFARRAND,

RECORDS OF THE FEDERAL CONVENTION OF 1787, 599-600 (1911) available athttp://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(fr003446))

Background: Charles Pinckney of South Carolina at age 29 was the second youngest delegate to the ConstitutionalConvention. Born of a father who was well placed in Charleston aristocracy and who served on the
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committees that authoredSouth Carolinas 1776 and 1778 constitutions, arrived in Philadelphia withwell-developed thoughts on how to structure a powerful new national government. On the second full dayof debate, May 29, 1787, Pinckney proposed a draft of a constitution to the Convention which hasbecome known as the Pinckney Plan. The original did not survive, and from the notes of theConvention, it does not appear that it was fully discussed. However, James Wilson who played the mostprominent role on the Committee of Detail, the committee assigned to prepare a first draft of the

Constitution, copied either extracts or the full text of the document, and this document exists amongWilsons papers at the Historical Society of Pennsylvania. From Wilsons other notes, it is known that,while Pinckneys Plan was not discussed in convention, it played an important role in flushing outpowers and jurisdictions for the three branches of government. We find in it the first iteration of thetake care clause.

Quote: The Executive Power of the United States shall be vested in a President of the UnitedStates of America which shall be his stile & his title shall be His Excellency -- -- He shallbe elected for ... Years & shall be reeligible.

He shall from time give information to the Legislature of the state of the Union &recommend to their consideration the measures he may think necessary -- he shall takecare that the laws of the United States be duly executed: he shall commission all theOfficers of the United States & except as to Ambassadors other ministers & Judges ofthe Supreme Court he shall nominate & with the consent of the Senate appoint all otherOfficers of the United States."

~ ~ ~

Citation #2: Madisons Notes on the Federal Convention (September 7, 1787), reprinted in2 MAXFARRAND,RECORDS OF THE FEDERAL CONVENTION OF 1787538-539 (1911), available athttp://consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-9-7/

Background: During discussions of the Constitutional Convention, delegates discussed the blending of powers via the

Senatorial power of confirmation for the Appointment Clause. James Wilson from Pennsylvania notedthat the power of the Executive, thus mixed, could render the law ineffective. He argued that spreadingthe appointment power between the executive and legislature would decrease accountability and thataccountability would be increased my making the president solely responsible for appointments.

Quote: Mr. Wilson objected to the mode of appointing, as blending a branch of the Legislaturewith the Executive. Good laws are of no effect without a good Executive; and there canbe no good Executive without a responsible appointment of officers to execute.Responsibility is in a manner destroyed by such an agency of the Senate -- He wouldprefer the Council proposed by Col. Mason, provided its advice should not be madeobligatory on the President.

d. Pennsylvania Ratification DebateCitation #1: Thomas McKean, Speech to the Pennsylvania Ratification Convention, December 7,

1787, reprinted in2 THE DOCUMENTARYHISTORY OF THE RATIFICATION OF THECONSTITUTION 536 (John P. Kaminski et.al eds., 1976); see also 2 JONATHAN ELLIOT,THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THEADOPTION OF THEFEDERAL CONSTITUTION 534 (1836), available athttp://memory.loc.gov/cgi-
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Background: Hesitancy over the repercussions of placing the power of appointment in the President was a commondiscussion in the Constitutional Conventions. In this speech, Thomas McKean, a representative fromPhiladelphia to the Pennsylvania Ratification Convention states his opinion on the security of theAppointments Clause as it relates to Presidential responsibility and culpability. McKeans views are

notable in response to such documents asThe Address and Reasons of Dissent of the Minorityof the Convention of the State of Pennsylvania to their Constituents, which advanced theargument that the mixture of the Legislative and the Executive form a dangerous combination thatcould be assuaged by the placement of all appointment power in the President, albeit a President whoseactions must be approved by a separately appointed council. This approval would seemingly extend tothe appointment of Principal Officers.

Quote: The President is to nominate to office, and, with the advice and consent of the Senate,appoint officers, so that he is the responsible person; and when any such impeachmentshall be tried, it is more than probable that not one of the Senate, who concurred in theappointment, will be a senator, for the seats of a third part are to be vacated every twoyears, and of all in six.

e. Federalist PapersCitation #1: THE FEDERALIST NO. 70 (Alexander Hamilton), available at

http://consource.org/document/the-federalist-no-70-1788-3-15/Background: The Federalist Papers made it clear that one of the primary advantages of giving the president the power

to make appointments was that he would be responsible for the conduct of his appointees. In instanceswhere states had called for the appointment power to be shared between the governor and a special council,there was no direct accountability for the appointment.

Quote: In the single instance in which the governor of this State is coupled with a council --that is, in the appointment to offices, we have seen the mischiefs [sic] of it in the view

now under consideration. Scandalous appointments to important offices have beenmade. Some cases, indeed, have been so flagrant that ALL PARTIES have agreed in theimpropriety of the thing. When inquiry has been made, the blame has been laid by thegovernor on the members of the council, who, on their part, have charged it upon hisnomination; while the people remain altogether at a loss to determine, by whoseinfluence their interests have been committed to hands so unqualified and so manifestlyimproper. In tenderness to individuals, I forbear to descend to particulars.

5.Article III, Sec. 2 Exceptions to Appellate Jurisdiction: Review ofFinancial Stability Oversight Council (FSOC) Action

Citation: U.S.CONST. art. III, 2, cl. 2, available at:http://consource.org/document/united-states-constitution/#annotation-500d89dcfbed7d14d1000098

Quote: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those inwhich a State shall be Party, the Supreme Court shall have original Jurisdiction. In all theother Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both
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as to Law and Fact, with such Exceptions, and under such Regulations as the Congressshall make.

a. Articles of ConfederationCitation #1: ARTICLES OF CONFEDERATION of 1781, art. IX, paras. 2, available athttp://consource.org/document/articles-of-confederation-1777-11-15/Background: Ratified in 1781, the Articles of Confederation served as the charter for the national government until

the Constitution was adopted. The Articles created only one branch of governmentthe ContinentalCongress - at the national level and vested it with limited powers. To the extent that the nationalgovernment had a judicial function, it was exercised entirely by the Congress.

Quote: The United States in Congress assembled shall also be the last resort on appeal in alldisputes and differences

dodd frank in historical perspective

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