Saturday, January 20, 2007

Russ Diamond: CENSORED!!!

At any given time, a good and virtuous system of government cannot be created by those who occupy elected offices at that particular moment…

by Russ Diamond

On May 15, 1776, the Continental Congress passed a resolution directing each of the thirteen colonies to develop a constitution in order to plan for self-governance in anticipation of breaking ties with England. On July 16, less than two weeks after the official Declaration of Independence from the king, Pennsylvania’s first constitutional convention opened with the unanimous election of Benjamin Franklin as its president.

On September 28, the convention unanimously approved the new Pennsylvania Constitution. The document was a two-chapter affair, including a Declaration of Rights and a Frame of Government. The plan for governing the Commonwealth included provisions establishing a legislative branch consisting of elected representatives in a single chamber, an executive branch embodied in a President and a twelve-member Council, and a judicial branch overseen by a Supreme Court.

Well aware of the temptations for the abuse of power, and themselves victims of abuse under the king’s rule, the framers included an important provision within the Constitution to keep ultimate control of government in the hands of the people. Chapter II, Section 47 provided for a Council of Censors to be elected from the citizenry every seven years to review the actions of those who govern.

The Council would be charged with determining if the Constitution had indeed been followed over the previous seven years, if those who governed had abused their power and if any taxes levied had been fair. Finally, the Council was authorized to determine if the Constitution, or any part of it, was so unworkable that it required a rewrite under the guise of another convention.

Throughout the American Revolution, Pennsylvanians lived and governed themselves under the Constitution, but there were some elected officials who clearly had desires to alter the established plan for government. In 1777 and again in 1778, the General Assembly passed resolutions calling for another constitutional convention.

The motives of those who wanted a new convention were apparently: dividing the General Assembly into two chambers, further empowering the executive branch, and curiously, abolishing the Council of Censors years before it was scheduled to meet. The citizenry, realizing that the power to call a convention belonged exclusively to the Council of Censors, overwhelmingly rejected the notion and the Assembly rescinded its resolutions in 1779.

In November, 1783 the duly elected Council of Censors met for the first time to carry out its duties, but it was obvious that the primary intent of some members was to follow the earlier whims of the General Assembly. The divided Council ignored or delayed most of its duties, focusing instead on altering the Constitution. In late January, 1784 the Council produced its preferred constitutional changes and recessed until June. A dissenting opinion was issued by the minority, objecting to the call for a convention, primarily on the grounds that two-thirds of the Council had not approved it, as required by the Constitution.

By June, it was clear the inhabitants of Pennsylvania overwhelmingly sided with the dissenters. Nearly 18,000 citizens signed remonstrances against a convention while less than 300 petitioned the Council in favor. Additionally, two members of the Council were replaced during the recess and another pair who did not attend the first session were in attendance at the second, allowing a new majority to steer the Council on its proper mission of judging the constitutionality of government action during the previous seven years.

The Council’s findings were scathing. It found many instances of the General Assembly and the Executive Council overstepping their bounds. By far, the biggest fault it found with the legislative branch was the hasty passage of legislation. Chapter II, Section 15 of the Constitution mandated that all legislation produced in any given session first be published, with voting delayed until the next session “except on occasions of sudden necessity,” ensuring that all acts “may be more maturely considered.”

Modern government observers would find many familiar themes among the body of legislation passed in violation of Section 15, including massive pay raises for elected officials, authorization of per-diem payments, increases in ferry fees, government giveaways to widows, children and the poor, appropriations for questionable public projects, dubious uses of private property (including one estate appropriated as a stable - including free oats and hay - for the horses of Representatives and another as a residence for the Chief Justice), and other acts passed to favor the friends of officials.

The Council cited a “striking example of the mischiefs” in a bill which consisted of a mere 26 lines of text during its first two readings, but upon third reading was found to have been altered to include “sundry new paragraphs” establishing the collectorship of the port of Philadelphia. The bill was approved by the General Assembly within two days, yet another violation of Section 15.

The Council concluded its proceedings in late September and authorized a written address to the citizens of the Commonwealth summarizing their findings, including their reasoning for not calling another constitutional convention. They noted that those among the minority who did support a convention did so for reasons which were “highly pernicious, and utterly inconsistent with liberty.”

Under the Constitution, the next Council of Censors was due to convene and sit in judgment of government after the general election of 1790. The General Assembly, perhaps in anticipation of another negative report, short-circuited the process by again calling for a constitutional convention in 1789 by a 41-17 vote in March and a 39-17 vote in September.

The dissenting opinion on the first vote noted that such power was not invested in the legislature, but instead belonged solely to the Council of Censors, and warned that “if we begin to tear up foundations, we are persuaded a much more dangerous system will be established in its stead.” The second vote’s dissentient declared that “this house is not competent to the subject” of calling a convention and that “this measure at once infringes the solemn compact entered into by the people of this state with each other.”

Despite those warnings, the General Assembly’s convention was hastily convened in November of the same year, eventually producing the Constitution of 1790, which divided the legislature into two separate chambers, established the office of Governor, and - conveniently - abolished the Council of Censors.

In form, the convention turned the Constitution on its head. While the Declaration of Rights existed as Chapter I in 1776, the plan for government took up the first eight Articles of the 1790 version, relegating the rights of the people to Article IX. This was eventually corrected in 1874, but remains as haunting evidence of the true motives of those who occupied the seats of power at the time.

In 1789, the General Assembly usurped the power of the people - via the Council of Censors - to define the structure of government. Today, elected officials continue to mistakenly insist that they and their bi-partisan committees are the best arbiters of how government should be constructed.

At any given time, a good and virtuous system of government cannot be created by those who occupy elected offices at that particular moment. Rather, those officials should prostrate themselves before the citizenry and allow for objective and independent judgment of any prospective form of self-governance.

Russ Diamond

[Russ Diamond is a Lebanon area businessman, political commentator, and former candidate for Governor of Pennsylvania. Mr. Diamond is the founder of PA Clean]

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