The Creation of the U.S. Presidency

1. The Creation of the U.S. Presidency Richard M. Skinner

2. Creating the Executive • Before the Constitution was written, Americans had a long history of distrust of the executive. • Twice in the 17th century, English kings had been overthrown as tyrants.

3. Creating The Executive • By the 18th century, the monarch’s power was limited by Parliament. • The Crown’s ministers ran the government, subject to the support of Parliament. • Parliament itself was divided into two houses: the House of Lords (the nobility) and the House of Commons (elected by a small number of voters, most of them wealthy).

4. Creating the Executive • Many Americans admired the British system deeply for its blend of monarchy, aristocracy, and democracy. • But they also distrusted the “corruption” and patronage that suffused the British government. • Most of the colonies had governors appointed by the Crown or by a “proprietor” (such as the Penn family, which controlled Pennsylvania). • Their assemblies were divided between an upper house appointed by the governor, and a lower house elected by the wealthier people.

5. Creating the Executive • Colonial politics featured many clashes between governors and legislatures. These instilled in Americans a belief that executive power was dangerous. • One key advantage: governors depended upon the legislature for their salaries. • Until the 1760s, the British Crown showed little interest in the internal affairs of the colonies.

6. Creating the Executive • Many of the events that led up to the Revolution featured colonists’ rebelling against attempts by the Crown to gain greater control. • Once again, executive power was equated with tyranny. • The Declaration of Independence featured numerous complaints about executive power.

7. Creating the Executive • When the British American colonies declared their independence, they created state constitutions with weak or non-existing executives. • Governors were chosen by the legislatures for one-year terms, without possibility of re-election. • They shared the executive power with advisory councils.

8. Creating the Executive • New York was one major exception. Its governor was elected directly by the people for a 3-year term, and could seek re-election indefinitely. • He could exercise a veto subject to override by the legislature. • He could make appointments with the consent of the legislature. • There was no council to share the executive power.

9. Creating the Executive • In November 1777, the Continental Congress adopted the Articles of Confederation. It was not ratified by the states until March 1781. • But the Articles differed little from the ad hoc practices of the Congress. • Under the Articles, the United States was more of a loose alliance than a unified nation.

10. Creating the Executive • There was no independent executive. The “president” simply presided over the meetings of Congress. • The Congress had no power to tax or to enforce its decisions. Laws required the consent of 9 of 13 states – so few were passed.

11. Creating the Executive • After the end of the Revolution in 1783, Congress, never widely admired, saw its power slip further. • It faced increased conflict with the states. • The states quarreled among themselves, especially over interstate trade and the western territories. • Spain and Great Britain refused to respect the USA’s frontiers or to live up to their treaty obligations.

12. Creating the Executive • The USA faced a crippling war debt, with little revenue to pay it. • Gold and silver flowed to Europe to pay for imports. • Responding to the demands of debtors, states issued vast amounts of paper money. • Wealthy citizens turned against the new government, seeking one with a stronger executive.

13. Creating the Executive • Representatives of six states met at Annapolis in 1786, to discuss revisions to the Articles. • James Madison and Alexander Hamilton led the call for a second convention. • Shays’ Rebellion – a debtors’ rising in Massachusetts – convinced Congress to call for a convention in Philadelphia in the summer of 1787.

14. The Constitutional Convention • The convention opened in May 1787. • George Washington was unanimously elected as its first president. • The “Virginia Plan,” written by James Madison, was offered on May 29. • It became the fundamental basis for the Constitution.

15. The Constitutional Convention • Debate continued through June and July. The delegates also considered the “New Jersey Plan” and one offered by Alexander Hamilton. • The Committee of Detail met July 24 – August 6. It turned numerous resolutions and plans, ideas taken from state constitutions, and existing practices of Congress, into a draft constitution. • It wrote the “take care,” commander-in-chief, and appointment clauses.

16. The Constitutional Convention • In debate in August, the convention agreed that Congress would have the power to “declare” war, not to “make” war. • The Committee of Postponed Matters met August 31-September 8. It devised the Electoral College and the Vice Presidency. • The Committee of Style wrote the actual Constitution in September. • It devised the “vesting clauses” of Article I and Article II.

17. The Constitutional Convention • The convention adopted the Constitution on September 17.

18. The “Presidentialists” • The advocates of a stronger executive were known as the “Presidentialists.” • Many of them were younger men, who had come of age during the Revolution. James Madison had served in Congress, while Alexander Hamilton had been an aide to General Washington.

19. The “Presidentialists” • James Madison is called the “Father of the Constitution” for his authorship of the Virginia Plan. • But the plan’s language concerning the executive was vague. • Madison was a strong advocate of executive power, but was mostly not responsible for the shaping of the presidency. • The Virginia Plan did include the “take care” clause, which would become a foundation of presidential power.

20. The “Presidentialists” • Alexander Hamilton was a passionate advocate of executive power. • This helped him be a leading force for holding the Convention, for fighting for the ratification of the Constitution, and for defending presidential power during the Washington Administration. • But it limited his influence at the Convention, since he was often dismissed as an extremist.

21. The “Presidentialists” • Hamilton’s speech of June 18 offered a vision of executive power so extreme that some called him a monarchist. • He proposed a president with vast power who would serve for life. • The state governments would be appointed by Congress. • Hamilton’s plan was so extreme that some have speculated that it was offered to make the Virginia Plan look moderate.

22. The “Presidentialists” • Hamilton nonetheless helped shape the president’s powers to pardon, to appoint executive officials, to veto legislation, and to make treaties. • Hamilton wrote most of the Federalist Papers discussing the executive, and his writings remain a key text for anyone trying to understand the American Presidency.

23. The “Presidentialists” • George Washington presided over the Convention, and all assumed that he would be the nation’s first chief executive. • Washington rarely spoke at the Convention, but behind the scenes, he was a leading voice for a strong central government and a powerful presidency.

24. The “Presidentialists” • The delegates felt more comfortable with creating a powerful presidency, knowing that Washington would set a good example for his successors. • Benjamin Franklin: “The first man put at the helm will be a good one. Nobody knows what sort may come afterwards.” • Washington consciously cultivated an image as a disinterested patriot, lacking ambitions of his own.

25. The “Presidentialists” • At the end of the Revolution, some Continental Army officers tried to convince Washington to overthrow Congress and set himself up as ruler. He refused. • He returned home to his plantation at Mount Vernon, Virginia. • This assured his contemporaries that Washington was not a threat to democracy.

26. The “Presidentialists” • James Wilson, a Scottish-born Philadelphia lawyer, became “The Father of the Presidency.” • As a member of Congress, he had long advocated for a more powerful central government. • He was allied with conservatives who opposed “mob rule,” especially Pennsylvania’s democratic constitution. • Wilson fought for “a single vigorous executive”, arguing that only one man could provide the accountability and energy the office required.

27. The “Presidentialists” • He opposed an advisory council, fearing it would weaken the executive. • He opposed legislative selection of the presidency, proposed popular election, and when that was rejected, devised the Electoral College.

28. The “Presidentialists” • Wilson and Hamilton proposed giving the president an absolute veto on legislation. The Convention decided to give Congress the power to override. • Wilson and Hamilton also fought to give the president a stronger appointment power. Wilson opposed any role for Congress in appointment.

29. The “Presidentialists” • James Wilson went on to serve on the U.S. Supreme Court. • A taste for land speculation would wreck his finances, and he would spend time in debtors’ prison.

30. The “Presidentialists” • Gouverneur Morris shared Wilson’s and Hamilton’s belief in a strong central government and a powerful executive. • A wealthy lawyer from a prominent family, he had a strong aristocratic streak that made him skeptical of popular rule. • An accident had left him one-legged. Witty and brilliant to some, a decadent fop to others. He would later serve as minister to France and as a U.S. senator. • Gave eulogies at Washington’s and Hamilton’s funerals.

31. The “Presidentialists” • Morris fought for the eligibility of presidents to seek re-election, arguing that it would serve as a motive for good behavior. He warned that legislative selection of the president would be “the work of intrigue, of cabal, and of faction.” • On the Committee of Style, Morris wrote the vesting clauses for Congress and the Presidency in such a way as to support the doctrine of “inherent powers.” • Morris was the dominant figure on the Committee, and shaped the vague language of Article II.

32. The Skeptics • Not everyone at the Convention was an admirer of executive power. • Virginians Edmund Randolph and George Mason eventually refused to sign the Constitution.

33. The Skeptics • Randolph opposed a single executive. • Mason wanted the president to be chosen by Congress, with no possibility of re-election. • He warned that the Constitution was creating an “elective monarchy” that would prove more dangerous than the British Crown. • They were also supporters of the impeachment process.

34. The Skeptics • Second only to Washington in prestige, Benjamin Franklin was often allied with skeptics of executive power. He had bad memories of struggles against the proprietary governor of Pennsylvania. • But he did sign the Constitution. • Like Franklin, Roger Sherman of Connecticut was an older man with a background in colonial politics.

35. The Skeptics • Sherman had served on the committees that drafted the Declaration of Independence and the Articles of Confederation. • He wanted the executive to be “nothing more than an institution for carrying out the will of the legislature.” He opposed giving the presidency an independent grant of power in the Constitution. • Sherman called for legislative selection of the executive. The legislature will also would determine the number of the executive. • But Sherman signed the Constitution.

36. Major Controversies: Selection • Most governors were elected by the state legislatures. • Initially, most delegates favored congressional selection of the president. • But that threatened the independence of the executive and could lead to presidential “corruption” of the Congress, especially if a president could seek re-election.

37. Major Controversies: Selection • James Wilson proposed popular election of the president. Delegates rejected it as impractical and too democratic. • Wilson later offered an electoral college (chosen by popular vote) as a compromise. The convention rejected it, too, but the problems with legislative selection remained. • Proposals were made for selection by the nation’s governors or some other state-based system.

38. Major Controversies: Selection • The convention proposed a motion for selecting the president by joint ballot of the House and Senate. • But small-state delegates feared that that would favor the large states.

39. Major Controversies: Selection • The Committee of Postponed Matters revived the Electoral College. • The method of selection of electors would be left to the states. • The number of electors would be apportioned according to representation in Congress, serving as a compromise between large and small states. • Each elector would receive two votes.

40. Major Controversies: Selection • The convention accepted the Electoral College, with the House of Representatives to make the choice if no candidate won a majority. This satisfied both supporters of legislative selection and those who wanted an independent presidency. • Many expected the House to make the selection in most cases. • The second-place finisher would become vice president.

41. Major Controversies: Unity vs. Plurality • Led by James Wilson, supporters of a strong presidency wanted a single executive. • Skeptics wanted multiple executives. Edmund Randolph proposed a three-man executive, with each one from a different region. • On June 4, the convention voted for a single executive.

42. Major Controversies: Unity vs. Plurality • The Virginia Plan proposed a Council of Revision, which would exercise the veto with the president. The council would be composed of judges. • Wilson opposed such a council for weakening the presidency. • Others opposed it for the role played by judges. • With no consensus, the council was abandoned.

43. Major Controversies: Unity vs. Plurality • But two members of the Committee on Proposed Matters revived the council as a proposed system of five executive departments. • This originated the idea that the president could “require the opinion” of executive branch officials.

44. Major Controversies: Term of Office • The Virginia Plan said nothing about the length of the president’s term, or eligibility for re-election. • By late July, the convention had approved a 7-year term with no eligibility for re-election. • Gouverneur Morris argued that eligibility for re-election was necessary for good behavior. • The Committee on Proposed Matters recommended a 4-year term, with no limits. This was accepted.

45. Major Controversies: The Veto • Few governors had a veto power, and it was seen as essential to a stronger executive. • The Virginia Plan had the president exercise the veto with a Council of Revision. • James Wilson and Alexander Hamilton called for an absolute veto. • Elbridge Gerry won passage of a 2/3 override by Congress.

46. Major Controversies: The “Vesting Clauses” • The Committee of Detail proposed “vesting” clauses establishing the three branches of government. • The “executive power” remained vague and ill-defined. • Political theorists had long argued that executives possessed a “prerogative power” that allowed them act in a crisis, even against written law if necessary.

47. Major Controversies: The “Vesting Clauses” • As a member of the Committee of Style, Gouverneur Morris changed the vesting clause in Article I to “all legislative powers herein granted…,” while leaving the vesting clause in Article II as “the executive power shall be vested in a President of the United States.”

48. Major Controversies: The “Vesting Clauses” • Morris may have intended that these clauses would be interpreted as creating an “executive power” more sweeping than that of the other branches. • As Secretary of the Treasury, Alexander Hamilton would argue for this doctrine, and it would be embraced by defenders of a strong presidency.

49. Major Controversies: “Commander-in-Chief” • It was initially assumed that the Congress would control the armed forces. • The Committee of Detail wrote the Commander-in-Chief clause, but left Congress the power to “make war.” • James Madison and Elbridge Gerry changed the language to “declare war.” • Most delegates assumed that the president would have the power to repel sudden attacks, but not to commence war.

50. Major Controversies: Appointment • Under the Articles, Congress made all appointments of government officials. • At the Convention, it was assumed that the Congress would create executive departments. • Madison, Hamilton and Wilson fought to give the president the power to make executive and judicial appointments.