Retired judge discusses U.S. Constitution’s creation

Retired Ninth Judicial Circuit Court Judge Randall Cole presents a historical program on how the Constitution was created.

Retired Ninth Judicial Circuit Judge Randall Cole gave a presentation Tuesday on the founding of the U.S. Constitution.

“This group of 55 men came together and agreed on all of this. It is amazing that they were able to do that, and the foresight they had in doing it really made for a miracle,” Cole said.

The process happened under such a degree of secrecy that Washington even ceased writing in his diary. Cole said the debate was concealed from the public so delegates could have the freedom to change their minds without ridicule.

Such was the secrecy that on the final day of the Convention, delegate Benjamin Franklin was asked whether the country had a monarchy or a Republic. His response: “A Republic, if you can keep it.”

“That continues to be a challenge, even today,” Cole said.

Cole retired last year as the longest-serving judge in DeKalb County history. During those 45 years in the judiciary, he gained expertise on the country’s founding document.

Recent news headlines have brought attention to the way the three branches of government interact and the role of the Electoral College in deciding who becomes president. Cole said he visited Washington D.C. to witness first-hand the impeachment hearings, accompanied by John Baker.

Regarding the Electoral College, Cole said, “Some of the Founders did not think that ordinary people were smart enough to have the right to a direct popular election, but the bigger factor was the independence the states enjoyed during that period of time. The states were almost like little countries in 1787. Some of the states had their own navy and printed money. Most of the states had tariffs against their neighboring states. So anytime you took power away from those states, you were treading on dangerous ground. I think the Framers had that in mind, along with other things.”

Political divisions at the time reflected arguments that remain today, including differences of opinion on how much representation states should get in deciding issues. Smaller and more sparsely populated states argued that it should be based on geography rather than head count. The Founders settled the argument by compromising on how the House and Senate would select members.

“You know, there’s a lot of partisanship these days,” Cole told a crowd of about 45 people gathered for the nonpartisan event at the DeKalb County Democratic Headquarters in Fort Payne. “As bad as we think it is today, I can’t say that it’s any worse today than it was then. I mean, you had Alexander Hamilton and Aaron Burr dueling with pistols and one of them got killed as a result. It hasn’t gotten to that yet.”

Asked whether he thought the Electoral College is still needed today, Cole responded, “No.”

He said the fact that Amendments have been added ending slavery and giving women the right to vote defies the argument for strict constructionism that the Federal government can only do what the Constitution says it can do rather than loosely interpreting it as allowing the government to do what is good for the country, even if the Constitution does not explicitly allow it.

“Times have changed so much since the 18th Century. It’s hard to see 

how the Constitution can’t allow some flexibility to it,” he said.  

Cole recalled how James Madison of the Virginia delegation was most responsible for shaping the document intended to create a stronger central government after defeating the British and creating a new republic. 

All that loosely tied the states together were the Articles of Confederation. A strong federal government with the ability to collect taxes and raise an army was needed, with the power to coerce the states, who would only go along with it if they had representation inside of it. 

Many of the delegates only participated because George Washington supported the process. 

“He gave it credibility,” Cole said. “He knew how weak the central government was, and he commanded great respect.”

Madison read everything he could about governing, recruiting Thomas Jefferson to send him books from Paris, where he was serving as ambassador, Cole said. His “Virginia Plan” set the overall agenda for debate at the Constitutional Convention of 1787 and set forth the idea of protecting population-weighted representation in what would become Congress. 

Benjamin Franklin was also a delegate, but few of his ideas were accepted. Among his proposals was an executive branch consisting of three men appointed for life. 

Alexander Hamilton thought America ought to have an elected king for life. 

“Before the convention was convened, the president of the Continental Congress contacted a prince in Prussia and suggested that he come to the United States and serve as our monarch,” Cole said. 

“Fortunately, others did not share that sentiment. Wilson suggested an executive who would be elected by the people, and the Convention was astonished that he would suggest this. Some thought the chief executive should have a life term, some 10 or 15 years. They settled on a one-man executive to be called president and a four-year term. But he would not be elected by the people. He would be selected by electors chosen in whatever manner the state legislatures chose, thus we have the Electoral College.”

Cole said James Madison’s Virginia Plan provided that the president could be removed for malpractice or neglect of duty. 

“Some believed that the national legislature should be able to remove the president for whatever reason they wanted to,” he said. “[A president] was to serve at their will and pleasure. Some thought that the national legislature should not have the power to remove the president, that if the president engaged in misconduct, it would be taken care of at the next election. George Mason insisted that the legislature have the power to remove the president because he felt that the president might betray the nation’s trust to foreign powers or engage in a scheme to insure his own re-election. In the end, they agreed the House would have the power of impeachment and the Senate would have the power of removal for treason, bribery and other high crimes and misdemeanors.”

Cole said the judicial branch was given little consideration at the Constitutional Convention since “it had neither the power of the sword or the purse” and judges were not initially empowered by the Constitution to interpret whether laws were constitutional. That authority came later when a Supreme Court justice named John Marshall took the position that this had to be an inherent role of the court if it was going to have the ability to function. 

“There was no requirement that a justice be a lawyer or have a law degree,” Cole said. The Constitution also did not specify how many justices would be appointed. 

“Ever lurking in the business of the Convention was the issue of slavery,” Cole said. 

Southern states threatened to walk away from the Constitutional Convention if slavery was abolished. 

“The bigger issue was with how slaves were to be counted for population purposes. The Southern states who had slaves wanted them counted just like everybody else for determining how many representatives they would have in the House of Representatives and how many electors they would have in a presidential election. The states that didn’t have slaves, they didn’t want them counted at all in that calculation. Again, there was a compromise to count the slaves as three-fifths of a person.”

The delegates approved the Constitution, but it still had to be ratified by nine of the 13 states. 

“Once the public found out what was in it, they were unhappy because it did not contain a Bill of Rights. Some states would not ratify it unless this was added by amendment.” 

Citizens demanded that their rights be specifically clarified.  

“With that assurance, all nine states voted to ratify it. Then, within the next two or three years, the first 10 amendments were added to the Constitution, giving us our Bill of Rights and freedoms,” Cole said.

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