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Home , Committee of Detail, Council of Revision, Jacob Broom, Virginia Plan, William Houston

Crafting a Republican Executive

THE PRESIDENCY AND THE CONSTITUTIONAL CONVENTION

JOSEPH M. BESSETTE AND GARY J. SCHMITT APRIL 2021

AMERICAN ENTERPRISE INSTITUTE Executive Summary

he Declaration of Independence argued that The Convention reached an early consensus that Tthe 13 colonies were right to break from Great the new chief executive should largely be an inde- Britain because of the British monarch’s “history pendent institution and single in composition. From of repeated injuries and usurpations”—behavior, it the start, the delegates rejected the proposal that the asserted, that had the “object” of establishing “an executive should be “nothing more than an institution absolute Tyranny over these States.” Not surprisingly, for carrying the will of the Legislature into effect.” the newly independent states initially drafted consti- The first major issue the Convention faced was tutions that left their executives weak both politically whether, in addition to the authority to execute the and institutionally, with the one notable exception nation’s laws, to give the independent, single execu- of . And, at the federal level, the Articles of tive the more far-reaching “executive rights” vested Confederation dispensed with a separate executive in Congress by the Articles of Confederation. How to body altogether, leaving matters such as the conduct define those authorities over war and foreign affairs of the war, diplomacy, and the administration of fed- and whether they could be safely given to the now eral finances in the hands of a single body, the United more institutionally substantial chief executive were States Congress. matters yet to be worked out. A decade of experience with these weak mod- The second major problem the Convention faced els of executive authority and their associated prob- was how to maintain the new executive’s institutional lems of governance generated a budding consensus independence while still having its occupant elected that, when it came time to craft a new constitu- by the national legislature, the very body it was being tional order for the federal union, a more capable asked to check. The initial solution of a six-year and independent executive was needed. What was term in office, with no second term, was ultimately desired was an executive that could act with deci- deemed unsatisfactory as a sitting executive would sion, dispatch, and secrecy; provide the new gov- be insufficiently motivated to govern with the coun- ernment with direction and energy; be capable of try’s long-term interest in mind. Conversely, election checking the legislature politically; and, still, be by popular vote with no limits on reeligibility, while accountable to the general public in some fash- favored by some key delegates, was seen by others as ion. In short, as delegate James Wilson put it at impractical or not likely to result in the election of the start of the Constitutional Convention, the the best candidate. new executive was to be an unprecedented mix of The Convention ultimately settled on the Electoral monarchic-like vigor and republican restraint. How College system as a means to select a president. The this was accomplished is the story of the creation president’s election would be independent of Congress of the presidency at the Constitutional Convention and would rest, if indirectly, on popular support. The of 1787. president would now serve a four-year term, with no In crafting the presidency, the Convention relied limit on reeligibility. Compared with the state exec- on a wealth of the delegates’ experience in their utives, the combination of the term length and the respective states’ executive and military affairs. Their possibility of unrestricted tenure was unprecedented. deliberations were a mix of principle, practical expe- Coming late in the Convention, the Electoral College rience, argumentation, and compromise. decision was the final piece in the puzzle of how to

1 allow the president to check the Congress as neces- oath and the division between Sections 2 and 3 of sary, be capable of responsibly handling a broader the article. array of executive authorities, provide the leadership It is often said that the presidency was created with necessary for a system of separated powers, and do George in mind, given his presidency of so while maintaining the office’s republican character the Convention and the universal expectation that through a national election. he would be the first president elected under the After the delegates decided how best to craft Constitution. No doubt, the delegates felt more the office, pen was put to paper to draft the text of comfortable about what they had crafted knowing what would become Article II of the Constitution. Washington would be the first chief executive. That The model for doing so was the New York Constitu- said, what’s striking about the Convention’s delibera- tion of 1777. Those crafting the final text of the US tions is how open they were about the need to create Constitution used two key elements of the New York an office that would operate effectively and respon- Constitution. The first was distinguishing the general sibly without someone of Washington’s stature and vesting clause that opened Article II—“The execu- virtues. In the end, the authorities the delegates tive Power shall be vested in a President”—from the vested in the chief executive were as much a reflec- more narrowly tailored legislative vesting clause of tion of their confidence in the characteristics of the Article I—“All legislative Powers herein granted shall institution they crafted and its concomitant promo- be vested in a Congress.” The second was the divi- tion of “presidential” behavior as it was trust in the sion of the president’s authorities into “powers and personal characteristics of the men they expected duties,” reflected in Article II in both the president’s would rise to the nation’s highest office.

2 Crafting a Republican Executive

THE PRESIDENCY AND THE CONSTITUTIONAL CONVENTION

Joseph M. Bessette and Gary J. Schmitt

t the outset of the Constitutional Convention, (’s delegates were not appointed A James Wilson of , perhaps the until June 27 and did not arrive until July 23; the nation’s foremost expert on law and later to serve Rhode Island legislature refused to send delegates.) on the US Supreme Court, described the problem of A total of 55 men from 12 states attended at least creating a national executive as bounded by two prin- some part of the deliberations, which lasted three cipal concerns: the country’s extent “require[d] the and a half months. Forty-two delegates were present vigour of Monarchy,” but its “manners . . . [were] on the final day (September 17), and 39 signed the purely republican.”1 Wilson’s assessment of the new Constitution. nation’s political sensibilities was no doubt accu- As Tables 1 and 2 show, the delegates brought rate and one likely shared by most of the delegates. to the task of fashioning a new national govern- Even those willing to consider measures that might ment a wealth of executive experience. More than appear less than fully republican knew the Conven- three-fifths had significant civilian executive expe- tion’s work (and their part in it) would be judged by a rience before arriving in , and fully half public whose sympathies were decidedly Whiggish in had served as an officer in the Continental Army, a character. Experience and study had led many of the state’s regular forces, or the militia. Eight had served delegates (indeed most, by the end of their delibera- or were serving as governor, and more than a fourth tions) to believe that effective government, especially had served on their state’s committee of safety, over a large territory in a dangerous world, required a which wielded executive power before the new con- strong and vigorous executive. Yet, history furnished stitutions were enacted. Of those who had been mili- no examples of large republics, and the popular wis- tary officers, more than half (almost a third of all the dom at the time was that powerful executives could delegates) had reached the rank of general, colonel, threaten the very liberties that republics cherished. or lieutenant colonel. Altogether, fully two-thirds of the delegates (37 of **** 55) had served as a state governor, been a member of a governor’s council, served on their state’s commit- The Constitutional Convention formally convened tee of safety during the early period, on Friday, May 25, 1787, with 29 delegates present or been an officer in the Continental Army or their from nine states. By the following Tuesday, May 29, state’s regular forces—all positions of considerable when the substantive discussions began, the number executive responsibility, particularly for public safety. of delegates had reached 40, representing 11 states. One could hardly have selected a group of men of the

3 CRAFTING A REPUBLICAN EXECUTIVE JOSEPH M. BESSETTE AND GARY J. SCHMITT

Table 1. Executive Experience of the Delegates to the Constitutional Convention Executive Position Before the Constitutional Convention, May 1787 Number of Delegates Civilian Position State governor 8 Governor’s council in a colony 2 Governor’s council in a state 5 Committee of safety for a state 15 Committee of safety for a city or town 5 Committee of correspondence for a state 2 Committee of correspondence for a city or town 7 Administrative or executive office in the national government 5 Mayor of a city or town 4 Government attorney (such as attorney general) 11 Total different individuals with civilian executive experience 34 Military Officer Officer in the Continental Army or a state’s regular forces 13 Officer in the state or colonial militia 17 Total different individuals who served as an officer 28 Reached the rank of general, colonel, or lieutenant colonel 16 Total Number of Individuals with Executive Experience 46 Source: Data compiled from M. E. Bradford, Founding Fathers: Brief Lives of the Framers of the United States Constitution, 2nd ed. (Lawrence, KS: University Press of Kansas, 1994); and National Archives, “Biographical Index of the Framers of the Constitution,” March 16, 2020, https://www.archives.gov/founding-docs/founding-fathers. time more knowledgeable about the practical busi- tinker with the old machinery of the Confedera- ness of administering public affairs, including war- tion. In place of a congress of confederated states, fare, or better acquainted with the impediments to Randolph and his colleagues were proposing a new, sound administration caused by the deficiencies of powerful, and essentially national government, con- the national and state governments during the first sisting of a “National Legislature,” a “National Execu- decade of independence. tive,” and a “National Judiciary.”2 Of the 15 resolutions in the Plan, two dealt directly with the new national executive. The first of The these, Resolution 7, reads in full as follows:

After the delegates agreed to a set of rules to guide Resd. that a National Executive be instituted; to be their deliberations, Gov. of chosen by the National Legislature for a term of Virginia opened the substantive debate on May 29 _____ years, to receive punctually at stated times, by submitting for the Convention’s consideration a a fixed compensation for the services rendered, in set of resolutions—known as the Virginia Plan—that which no increase or diminution shall be made so called for establishing a totally new government to as to affect the Magistracy, existing at the time of replace the Articles of Confederation. Drafted princi- increase or diminution, and to be ineligible a second pally by and endorsed by the Virginia time; and that besides a general authority to execute delegation, this plan was meant to foreclose any the National laws, it ought to enjoy the Executive notion that the delegates were assembled just to rights vested in Congress by the Confederation.3

4 CRAFTING A REPUBLICAN EXECUTIVE JOSEPH M. BESSETTE AND GARY J. SCHMITT

Table 2. Delegates Who Held Major Executive Positions Before the Constitutional Convention, May 1787 State Governor (8) John Langdon (NH) (NJ) (PA) (DE, MD) George Read (DE) Edmund Randolph (VA) Alexander Martin (NC) (SC) Governor’s Council (Colony or State) (7) Caleb Strong (MA) William Johnson (CT) (CT) Daniel Jenifer (MD) James Madison (VA) John Blair (VA) (GA) Committee of Safety (State) (15) Elbridge Gerry (MA) Oliver Ellsworth (CT) (CT) William Houston (NJ) (NJ) (PA) (PA) (PA) Robert Morris (PA) Richard Bassett (DE) Daniel Jenifer (MD) (MD) (VA) George Wythe (VA) John Rutledge (SC) Officer (Continental Army or a State’s Regular Forces) (13) (NH) Alexander (NY) (NJ) (PA) Gunning Bedford (DE) James McHenry (MD) John Mercer (MD) (VA) Edmund Randolph (VA) William Davie (NC) Alexander Martin (NC) Charles Cotesworth Pinckney (SC) William Pierce (GA) Source: Data compiled from M. E. Bradford, Founding Fathers: Brief Lives of the Framers of the United States Constitution, 2nd ed. (Lawrence, KS: University Press of Kansas, 1994); and National Archives, “Biographical Index of the Framers of the Constitution,” March 16, 2020, https://www.archives.gov/founding-docs/founding-fathers.

5 CRAFTING A REPUBLICAN EXECUTIVE JOSEPH M. BESSETTE AND GARY J. SCHMITT

Resolution 8 then established a “council of revi- political contrivance that authorities were given to sion” composed of the executive and “a convenient each of the major organs of government. number of the National Judiciary,” which would have The Virginia Plan did not detail the specific pow- authority to acts of the national legislature, sub- ers included in the “general authority to execute ject to an override by an unspecified number of the the National laws,” nor did it explain what it meant members of each branch.4 by the “Executive rights vested in Congress by the As this sketch of a new executive office and the Confederation.” At the very least, the latter seemed subsequent debates reveal, the Virginia Plan seemed to include something beyond the mere execution of to contemplate the establishment of an office that the laws. Moreover, as the phrase “Executive rights would be authoritative in its own right, with an inde- vested in Congress” indicates, the plan’s authors pendent will. In particular, although the legislature recognized that some of the powers vested in the would select the executive, its influence over the Congress under the Articles of Confederation were office would be sharply reduced by making the exec- executive by their very nature. utive ineligible for a second term and providing the We can get some sense of what the authors of executive(s) a salary that could not be altered during the Virginia Plan may have had in mind for the new any one term. (Note that the Virginia Plan did not national executive by identifying those powers that specify whether the executive would be singular or the Articles of Confederation vested in its Congress plural. More on this later.) Moreover, under other but which the Constitution of 1787 did not vest in provisions of the plan, no member of either of the the new bicameral legislature (ignoring both powers two proposed legislative chambers could hold a posi- internal to the functioning of the Congress and those tion in the executive branch. Finally, the Virginia Plan obviously judicial in character). These range from an provided the new executive with seemingly broad, obviously executive power like (1) “apply[ing] [appro- independent grants of power, including (in associa- priated funds] for defraying the public expenses” to tion with members of the judiciary) a qualified power (2) appointing civilian and military officers (includ- to veto legislation. ing the commander in chief) and (3) managing the Under the proposed plan, the new national bicam- nation’s external affairs (other than regulating trade eral legislature was “to legislate in all cases to which with Indian tribes and foreign nations). This import- the separate states are incompetent” and to “enjoy ant last group included “determining on peace”; the Legislative Rights vested in Congress by the “sending and receiving ambassadors”; “entering into Confederation.” Similarly, the new executive was treaties and alliances”; “managing all affairs [other empowered with the “general authority to execute than regulating trade] with the Indians, not members the National laws” and the “Executive rights vested of any of the states”; and “directing [the] operations in Congress by the Confederation.”5 As these words [of the land and naval forces].”6 imply, there was an assumption here that certain Although in the Constitution that the delegates powers were, by their very nature, legislative or exec- fashioned, the treaty power (and a good part of the utive in character and, as such, properly belonged appointment power) was shared between the pres- to their respective branch of government. Reflect- ident and the Senate, suggesting possibly a kind of ing, it appears, the political theory of the time, the mixed character—neither simply executive nor Virginia Plan began with the premise that govern- simply legislative—this gets ahead of the story. As ment’s powers were not an undifferentiated mass we will eventually see, the delegates went two full of authority. Although there might be good reasons months without detailing the chief executive’s pow- to modify or change how these powers were distrib- ers, leaving this task first to the important Commit- uted, it was not merely a matter of convention or tee of Detail.

6 CRAFTING A REPUBLICAN EXECUTIVE JOSEPH M. BESSETTE AND GARY J. SCHMITT

First Decisions on Empowering the recognizing that they could “afterwards chang[e] . . . Executive them.”8 (Indeed, until June 20, the Convention met in “Committee of the Whole,” a parliamentary device While the Virginia Plan established the principled in which a body operates under more informal rules basis for a truly separate and independent executive to consider one or more issues and then reports back with significant powers—apparently well beyond to itself. This further illustrates the provisional nature merely carrying out the laws—it left open whether of the delegates’ initial deliberations.) Rutledge added the executive should be one person or a committee, that he was for “vesting the Executive power in a sin- how long his (or their) single term would be, and gle person” but not for “giving him the power of war exactly how far the “Executive rights” would extend. and peace.”9 A single executive, Rutledge explained, After the delegates made some preliminary deci- “would feel the greatest responsibility and administer sions on the new national legislature, they turned on the public affairs best.”10 June 1 to Virginia’s proposals for the national execu- tive. Charles Pinckney of , who spoke first, endorsed “a vigorous Executive” but added that he “was afraid the Executive powers of (the exist- Could the Convention ing) Congress might extend to peace & war &c.” If the members of the Convention were not care- determine the executive’s ful, he cautioned, they could make the new execu- tive “a monarchy”—a monarchy “of the worst kind, powers without first towit an elective one.”7 Before Pinckney’s point could be addressed, Wilson of Pennsylvania immediately knowing what kind of moved to fill the executive office with a single person, a motion Pinckney seconded. institution it would be? Separately, the two men had raised issues of the first importance. Wilson’s proposal and Pinckney’s query, falling as they did on top of one another, pro- Franklin’s and Rutledge’s remarks seemed to ease duced “a considerable pause” in the proceedings. the pressure of the moment, and the debate picked With little or no discussion to have eased them into back up. Roger Sherman of rose to the subject, the delegates faced, in the Convention’s oppose the very notion of a strong and independent opening moments, two essential questions regard- executive. “The executive magistracy,” he argued, ing the new executive’s power and organization. The “was nothing more than an institution for carrying debate notes indicate there was a general uncertainty the will of the Legislature into effect.” Thus, the exec- as to how to proceed. Could the Convention deter- utive should be appointed by, and accountable to, the mine the executive’s powers without first knowing legislature, “which was the depositary of the supreme what kind of institution it would be? Conversely, will of the Society.” There was no need, then, to fix could it design an executive office without first deter- the number of executives in the Constitution, as the mining what powers it would wield? legislature as a matter of course would determine The pause in the debate was broken by Benjamin “the business which ought to be done by the Execu- Franklin, who urged the delegates not to be so reti- tive department” and then could appoint one or more cent on matters of such “great importance.” Franklin executives “from time to time.”11 was followed by John Rutledge, the former governor Wilson then reentered the debate to explain his of South Carolina, who reminded his colleagues that support for a single executive—it would give “[the] they were engaged in a deliberative process in which most energy[,] dispatch[,] and responsibility to the they should “frankly disclose . . . their opinions,” office”—and to support Rutledge’s point about the

7 CRAFTING A REPUBLICAN EXECUTIVE JOSEPH M. BESSETTE AND GARY J. SCHMITT

powers of war and peace. On the latter, he held that imply that other powers might be considered exec- the “Writers on the Laws of Nations” had “deter- utive in some broader sense. Here it appears that mined” the power of war and peace to be legislative Wilson was consciously narrowing the scope of in nature.12 On this and related questions, he denied executive authority proposed in the Virginia Plan, the applicability of British constitutional practice yet leaving open what might be done later about to the task at hand: “The prerogatives of the British the “Executive rights” vested in the Confederation Monarch,” he insisted, were no “model” for the new Congress, or what Madison had called in a 1785 letter executive. Pushing his argument even further, Wilson “all the great powers . . . properly executive.”16 claimed that, in fact, the only powers “strictly execu- Madison, speaking shortly after Wilson, appears tive” were those of executing the laws and appointing to have tried to resolve this issue by proposing that subordinate officials.13 the executive be given three broad powers: (1) “to Although Wilson was not challenged on the leg- carry into effect the national laws,” (2) “to appoint islative nature of the power over war and peace, it to offices in cases not otherwise provided for,” and is not at all clear to what “Writers on the Laws of (3) “to execute such other powers as may from time Nations” he was referring since, at the time, the to time be delegated by the national Legislature.”17 most widely cited authorities on separation of pow- Then, in response to a concern by Gen. Pinckney ers (, Baron de Montesquieu, and William that “improper powers might (otherwise) be dele- Blackstone) identified the power of war and peace gated,” Madison amended his proposal to exclude as executive. The exception that Wilson might have delegations that were “Legislative . . . [or] Judiciary had in mind, which is suggested by his reference, is in their nature.” This revised proposal thus pro- Emerich Vattel, author of The Law of Nations. Near hibited nonexecutive powers from being delegated the beginning of his discussion of war, Vattel notes by the legislature. Madison insisted, however, that that the power to move a nation into a state of war “as certain powers were in their nature Executive,” does not always reside with the chief executive and they “must be given to [the executive] departmt.”18 that it “may be separated or limited according to the His new proposal—a compromise between the will of the nation.” As a result, the power to declare Virginia Plan’s vesting of broad powers in the exec- war may in fact vary from constitution to constitu- utive and Wilson’s motion to vest only powers tion. Vattel notes, for example, that in England, “the “strictly Executive”—recognized the need to grant kings . . . whose power is in other respects so lim- the new chief magistrate powers beyond appointing ited, have the right of making war and peace. Those officials and generally enforcing the laws, but left to of Sweden have lost it.”14 And once a war is formally the new national legislature the actual delegation of declared, whether by the executive or legislature, it these other powers “in their nature Executive.” becomes “lawful” and, as such, obligates the states Pinckney then objected that the third of Madison’s involved to abide by certain rules of warfare and powers was subsumed under the first and was thus recognize the rights of neutrals under international “unnecessary.” As a South Carolinian, Pinckney was law.15 Despite this evidence from Vattel, the leading quite familiar with legislative delegations to the political philosophers and theorists who had writ- executive of large amounts of authority over mili- ten about the power of war and peace, and particu- tary affairs and public safety when circumstances larly about its relationship to separation-of-powers and necessities dictated. One might consider this the doctrine, certainly had not uniformly described it as classical republican remedy to the problem of the a legislative power. executive: protect against tyranny during normal In any case, Wilson’s comments appear to have times by keeping the executive relatively weak and had the effect of fixing, at least initially, the new exec- dependent, but grant him virtually unlimited author- utive’s basic authorities. Yet by describing certain ity when crises threaten the state’s survival.19 For powers as “strictly executive,” Wilson seemed to Pinckney, the new lawmaking branch would retain an

8 CRAFTING A REPUBLICAN EXECUTIVE JOSEPH M. BESSETTE AND GARY J. SCHMITT

inherent authority to delegate broad powers, as need had been settled. Just three days after the affirma- arose, to the executive. The Convention then approved tive vote on Pinckney’s motion, he remarked in an Pinckney’s motion to delete the third of Madison’s extended speech on the executive that the Conven- powers. The definition of the chief executive’s pow- tion had “not yet been able to define the powers of ers now stood as follows: “with power to carry into the Executive.” And, more suggestively, Mason stated execution the national laws” and “to appoint to offices that “however moderately some gentlemen may talk in cases not otherwise provided for.”20 or think upon the subject,” there was in fact a “general In this early debate on executive power, the del- tendency [in the Convention] to a strong Executive.”22 egates seemed to be struggling with how to handle Mason’s comments suggest that the proponents of a what Locke had called the “federative powers” in strong executive did not want to overplay their hand Chapter XII of his influential Second Treatise of Gov- early in the debates. Better to focus on the structural ernment. They appeared to implicitly accept Locke’s issues and build confidence in the institution before distinction between the domestic executive, who pressing the point of powers. was essentially the enforcer of domestic law, and the One additional power did receive considerable executive who managed the nation’s external rela- attention in these first days. The Virginia Plan had tions. For now, the delegates assigned the former to vested a qualified veto power in a , the new national executive but held off on making which would include the chief executive (whether big decisions about the federative powers until later a single person or committee) and some unspeci- in the Convention. fied number of Supreme Court justices. On June 4, Yet, in voting for Pinckney’s proposal, the dele- the delegates decided by large majorities, first, not gates were not precluding the president-to-be from to make the veto absolute (all states against); sec- exercising Madison’s “great powers . . . properly ond, to allow a veto override by two-thirds of each executive.” When need arose, the legislature could house of the legislature (no recorded opposition); simply delegate such powers to the chief executive. and, finally, to strip the judiciary from any role in Clearly, at this early stage in their deliberations, the vetoing legislation (eight states to two).23 Unwilling delegates were unwilling to entrust the executive to let the issue lie, Madison and Wilson pushed for simply with the discretion inherent in the employ- a reconsideration. ment of these powers. With New York’s Council of Revision as his model, This is hardly surprising since to this point the Madison had joined the court to the executive in the delegates had not decided on the nature and struc- Virginia Plan to add political weight to the executive’s ture of the executive office, including whether it effort to check possible encroachments by the leg- would be unitary or plural, how the chief executive islature, the government’s more “popular” branch. would be chosen, how long he would serve, whether Madison was willing, in short, to bend the principle he would be reeligible, and whether he could be of to strengthen separation in removed from office for misbehavior. Absent such practice. But the delegates remained unconvinced. decisions, it was still uncertain whether a republi- On June 6, they reaffirmed by a large majority, not- can, but institutionally competent, executive could withstanding new and earnest appeals by Madison, be established nationally. Until the structural issues the earlier vote to exclude the judiciary from the could be resolved, it was premature to engage in veto power. Most of the delegates apparently agreed extended debate over what specific powers should with John Dickinson that the original proposal be lodged in the new executive office.21 “involved an improper mixture of powers.”24 Or, as Moreover, as Rutledge had reminded everyone, Elbridge Gerry had argued two days before, “It was initial views, positions, and votes were not the last quite foreign from the nature of [the] office to make word. Virginia’s George Mason, for one, apparently [members of the Supreme Court] judges of the policy did not believe the issue of the executive’s powers of public measures.”25

9 CRAFTING A REPUBLICAN EXECUTIVE JOSEPH M. BESSETTE AND GARY J. SCHMITT

Despite this dispute over whether to join judges and demonstrated that “all know that a single magis- with the president in the veto power, one should trate is not a King.” Moreover, Randolph’s plan would not lose sight of the significance of the Conven- have institutionalized—indeed promoted—the very tion’s decision. In vesting the chief executive alone regional conflicts that the new national government with the authority to block any legislation unable to was to a large degree designed to dampen. It would receive support by two-thirds of both houses of the have undermined “the tranquility not less than the legislature, the Convention was granting its executive vigor of the Govt.”28 (Emphasis in original.) Republi- a power possessed in the states by only the Massa- can sensibilities aside, the new government’s capacity chusetts governor. Such a power could not help but to act decisively would depend in no small measure strengthen the new executive office by giving its occu- on establishing unity in the executive. pant a say in national legislation and providing him a After brief additional debate, the delegates voted tool to fight possible encroachments by the national seven states to three for a single executive. Unlike legislature. the other key institutional issues of mode of election, term of office, and reeligibility, the Convention never revisited this decision. First Decisions on Structuring the Executive Branch

Simultaneous with these early deliberations on exec- Republican sensibilities utive power were the delegates’ first decisions on structural issues. On June 1, Wilson and Rutledge aside, the new urged their colleagues to embrace a single executive to promote energy and responsibility (or accountabil- government’s capacity ity). Randolph, the incumbent governor of Virginia and introducer of the Virginia Plan, “strenuously to act decisively would opposed a unity in the Executive magistracy,” which he regarded as “the foetus of monarchy.” After Wilson depend in no small again urged unity, the delegates postponed the sub- ject “by common consent.”26 measure on establishing It arose again on the following day, with Rutledge and Pinckney formally moving a resolution for a sin- unity in the executive. gle executive. Randolph again opposed unity “with great earnestness.” He favored a three-person exec- The Virginia Plan had proposed that the national utive drawn from different regions of the country. executive be selected by the national legislature for This would better fit “the permanent temper of the a fixed term of years (the number was unspecified) people” who were “adverse to the very semblance of and be ineligible for reelection. This mode of election Monarchy.”27 No one voiced support for Randolph’s mirrored most of the state constitutions (though, as proposal, and the issue was postponed once more. noted earlier, if one includes Connecticut and Rhode Finally, the matter came to a head at the begin- Island, still operating under their charter govern- ning of debate on June 4. Wilson opened the debate, ments, fully five states were electing their governors directly challenging Randolph’s contention that a by popular vote in 1787). It is clear from the debate single executive was at odds with the nation’s polit- notes that the members saw the method of selec- ical practice. To the contrary, he maintained, every tion, the length of term, and the question of reeli- state “plac[ed] a single magistrate at the head of the gibility as “three distinct, but interrelated, issues.” Governmt.” This fact carried “great weight with him” They “formed a sort of tripod,” which, when properly

10 CRAFTING A REPUBLICAN EXECUTIVE JOSEPH M. BESSETTE AND GARY J. SCHMITT

balanced, would support the executive’s indepen- to modes for filling the executive office other than dence. And, like a tripod, a change in one necessitated selection by the new national legislature. The Con- adjustments to the others.29 vention’s preference for this method was as much a Wilson was the first to suggest rearranging these matter of convenience as not. No one, if Madison’s elements. On June 1, when the matter of electing the notes are accurate, took the floor to defend it as the executive was first raised, Wilson proposed an alter- only appropriate mechanism for electing the repub- native combination of provisions: popular election, lic’s chief executive. And, indeed, the fact that the a three-year term, and reeligibility. Wilson admitted delegates had agreed to a seven-year term of office— that the idea of having the people choose the presi- a term more than twice as long as that of any state dent “might appear chimerical,” but he noted that governor—was a not-so-subtle indication that legis- experience in New York and showed lative selection of the executive was more a matter “that an election of the first magistrate by the people of expediency than principled preference. at large, was both a convenient & successful mode.”30 What is clear from these first few days of debate Perhaps surprisingly, Wilson’s proposal was not on the executive is that there was a broad consen- summarily rejected. The debate turned to the length sus among the delegates that the legislature should of term, and a plurality of states endorsed seven years not, in any simple sense, be the executive’s superior. (five states to four, with one divided). Mode of elec- Sherman’s was a lonely voice in opposition. Even tion came back up near the end of day. Wilson spoke Mason, who, as we have seen, was no friend to the again for popular election, this time adding the vir- idea of creating a powerful national executive, was tue that popular election of both the legislature and “decidedly” against “making the Executive the mere executive would “make them as independent as pos- creature of the Legislature as a violation of the funda- sible of each other, as well as of the States.”31 Mason, mental principle of good Government.”34 the highly respected senior member of the Virginia delegation, who had supported the original package of election by the legislature for a single seven-year Moving Toward a Draft Constitution term, indicated that he was inclined to look favorably on Wilson’s proposal but found it to be “impractica- Given the delegates’ limited attachment to legisla- ble.” He recommended that Wilson be given time to tive selection and their more fundamental commit- formulate a specific plan, and the matter was post- ment to ensuring the executive’s independence, it is poned until the next day. no surprise that the early votes on the mode of elect- Giving up, at least temporarily, on direct popular ing the president did not end the debate. Just a week election, Wilson proposed on June 2 that electors after the June 2 vote, Gerry of Massachusetts pro- chosen by the people in specially created districts posed that the state governors elect the national exec- meet at some central location and choose the nation’s utive, “whose proportion of votes would be the same chief executive.32 The delegates, though, did not with that allowed to the States in the election of the warm to this indirect method of popular election. Senate.”35 Only Randolph, who strongly disagreed, One cautioned that the partisans of the states would spoke to the matter, and no state voted in favor. not accept “stripping the states of their powers,” and Then on June 15, William Paterson of , another complained that Wilson’s plan was incon- speaking for many delegates from the smaller states, venient and too expensive to implement. Wilson’s presented an alternative to the Virginia Plan that motion failed by a lopsided vote (two states in favor, would essentially preserve the Confederation Con- eight against), and selection of the executive remained gress with its equal state vote, add some new pow- with the legislative branch.33 ers, and, unlike the Articles of Confederation, create As the Convention’s initial consideration sug- distinct executive and judicial branches. The so-called gests, the delegates were not in principle opposed would have the Congress select the

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executive for a single term, leaving open both whether ineligible for a second term, would make the exec- the executive would be one person or several and utive “the mere creature of the Legisl,” said Morris, how long he (or they) would serve. The executive and “too dependent” on that body, said Wilson.38 would have the power to “execute the federal laws,” Since most chief executives would likely come from “appoint all offices not otherwise provided for,” and Congress and might be expected to return after “direct all military operations.”36 serving the allotted term, the political ties that bind Just three days later, of New might still be considerable. Morris and Wilson sim- York gave his now famous five- to six-hour speech ply did not believe that a national executive chosen by outlining a plan for an even more powerful national the national legislature would have the interest and government. If Hamilton had his way, the “supreme motivation to check the lawmaking body. In Wilson’s Executive authority” would be vested in a “Gover- words, the executive would not “stand the mediator nour” selected by electors chosen by the people for between the intrigues & sinister views of the Rep- a life term, though also subject to removal for “mal— resentatives and the general liberties & interests of and corrupt conduct.” Hamilton’s executive would the people.”39 have an absolute veto, “the direction of war when Although the delegates were generally sympa- authorized or begun,” the power to make treaties with thetic to Wilson’s and Morris’ institutional concerns, the approval of the Senate, the sole power to appoint they were not persuaded that the people knew either the heads of the major executive departments and enough about national affairs, as opposed to local and nominate ambassadors subject to Senate approval, state matters, or enough about the individuals who and the power to pardon all offenses except treason. might properly hold the office to make a wise choice. Admitting that his plan “went beyond the ideas of As Mason put it rather pointedly, it was “as unnatu- most members,” Hamilton did not formally propose ral to refer the choice of a proper character for chief it to the Convention.37 Magistrate to the people, as it would, to refer a trial of Because the delegates never formally considered colours to a blind man.”40 With only one of 10 states Hamilton’s plan, it is impossible to assess its influ- in favor, the delegates rejected popular election of ence. Nonetheless, if Madison’s notes are an accurate the chief executive. Immediately after this vote, and guide, Hamilton devoted the better part of an hour with no recorded debate, the delegates first voted to vigorously defending the virtues of an energetic down election by electors chosen by the state legis- executive, presaging his public defense of a strong latures (two states in favor, eight against) and then presidency months later in . Here, approved unanimously the election of the executive he may have moved (or nudged) some minds, even if by the legislature.41 a life term was simply unacceptable to his colleagues But again, while support for legislative selection (and, presumably, to the citizenry at large). Indeed, of the executive was broad, it was not particularly except for the life term, Hamilton’s executive looks deep. With argument, it could be (and was) shaken. remarkably like the one that eventually emerged from Later in the day on July 17, Madison joined the debate the Convention. (now on the length of the executive’s term of office) In mid-July, after the Great Compromise settled by arguing that a critical flaw in the American experi- the issue of representation in the bicameral legisla- ment in republican rule had been the failure to antic- ture, the delegates returned to presidential election ipate the dangers posed to liberty by unchecked and the related structural features of the executive legislatures. “Experience [in the states],” he explained, branch. They devoted considerable time and atten- “had proved a tendency in our governments to throw tion to the topic between July 17 and July 26. all power into the Legislative vortex.” This problem Gouverneur Morris and Wilson championed the was that under the state constitutions the governors case for direct popular election. Allowing the leg- were “in general little more than Cyphers; the legis- islature to pick the chief executive, even if he were latures omnipotent.”42 It was essential that this flaw

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not find its way into the new national constitution. fourth) successive term would undermine the larger Whatever the exact mode of selection finally chosen ambitions of men, effectively removing “the great by the delegates, it was vital, Madison urged, that it spring to noble & illustrious actions.”45 Thus, limiting support—and not undermine—executive indepen- the office to a single term might well discourage the dence. Preventing “a dependence of the Executive most eminent characters from seeking it and would on the Legislature” was key to sustaining a system of both undermine the occupant’s willingness to resist separation of powers and impeding the slide toward legislative encroachments and diminish his incen- legislative tyranny.43 The state experience had shown tives to accomplish great things for his countrymen. that it was not enough for the executive to be separate During debate on July 19, Madison added his from the legislature in name; the executive also had voice against legislative election. Free government to be independent of the legislature in practice. required not only “that the Legislative, Executive & Judiciary powers should be separately exercised” but also that they be “independently exercised.” Selection by the lawmakers would not give the executive “free Preventing “a dependence agency with regard to the Legislature.” Here, for the first time, Madison endorsed election by “the peo- of the Executive on the ple at large.”46 It would likely produce “an Executive Magistrate of distinguished Character.” Legislature” was key to Yet, two possibly insurmountable obstacles stood in the way: (1) Northern states, because of low prop- sustaining a system of erty qualification to vote, enfranchised a higher pro- portion of their free male citizens than did southern separation of powers and states, and (2) direct popular vote would not factor in the South’s slave population. These two factors impeding the slide toward would put the South at a great disadvantage in the executive’s election. Madison concluded that selec- legislative tyranny. tion by electors would solve these problems and “seemed on the whole to be liable to the fewest objec- July 17 also saw Morris challenge the structural tions.”47 Apparently moved by the force of Morris’ “package” (mode of election, term of office, and and Madison’s arguments, the delegates voted at the reeligibility) on which the delegates had previously end of the day that the new chief executive would agreed. As noted above, Morris feared the depen- be chosen by electors (six states to three) chosen by dence that would necessarily result from legislative the state legislatures (eight states to two). He would election. Although many delegates believed the exec- serve a six-year term (nine states to one) and would utive would feel no pressure to curry favor with the be eligible for reelection (eight states to two).48 legislature as long as (1) he could not succeed himself For reasons not clear from the Convention records, and (2) his salary was fixed for the length of his term, the issue of the executive’s selection was reopened a Morris disagreed. As he elaborated in speeches on few days later (July 24). William Houstoun of July 17 and 19, a ban on reelection would reduce the moved to reinstate election by the legislature. executive’s underlying attachment to his office and After he and five other delegates spoke to the mat- thus diminish his interest in protecting its powers and ter, the delegates reversed their recent decision and prerogatives from an encroaching legislature. Equally approved Houstoun’s motion (seven states to four). important, it would eliminate the “great motive This vote forced a reconsideration of reeligibil- to good behavior, the hope of being rewarded by a ity (also passed just a few days before) because the re-appointment.”44 Foreclosing a second (or third or combination of legislative election and reeligibility

13 CRAFTING A REPUBLICAN EXECUTIVE JOSEPH M. BESSETTE AND GARY J. SCHMITT

seemed to guarantee executive subservience to the The delegates returned to the subject on July 20, legislative will. devoting most of the day to a wide-ranging debate. Debate on this matter filled nearly two and a half They were keenly aware of the challenge they faced: days. The delegates toyed with increasing the exec- how to protect the community from dangerous utive’s term of office to as much as 15 years, with abuses of executive power without undermining mixing selection mechanisms, and even with pick- the executive’s independence from the legislature. ing electors by lot from the legislature. In a lengthy Pinckney, Morris, and of Massachu- address on July 25, Madison detailed the “objections setts saw no way to square the circle: An executive agst. every mode that has been, or perhaps can be who could be removed by Congress would not be proposed.”49 Yet, in his view, either direct election by able to stand up to Congress when the need arose.54 the people or selection by electors was preferable to Periodic elections, they argued, would give the com- legislative election, for “one object of the Natl. Exec- munity sufficient opportunity to pass judgment on utive . . . was to control the Natl. Legislature.”50 the executive’s behavior. But most delegates were Madison’s appeal proved unavailing (at least for not convinced. Madison spoke for many when he now). Pressed by the need to end the debate so the argued that it was “indispensable that some provi- (appointed on July 24) could get sion should be made for defending the Community on with crafting a draft constitution, the Convention agst the incapacity, negligence or perfidy of the chief reaffirmed its decision to have the executive chosen Magistrate,” particularly one who might “betray his by the legislature for a single seven-year term (seven trust to foreign powers.”55 And in perhaps the most states to three). After nearly two months of discus- memorable line from the debate, Mason asked simply, sion, it appeared, according to Mason, that while there “Shall any man be above Justice?”56 was no denying “the difficulty of the subject,” election by the national legislature “was liable to fewer [objec- tions] than any other.”51 One final structural provision needs mention: They were keenly aware removability from office. The Virginia Plan had pro- posed that the jurisdiction of the new “supreme tri- of the challenge they bunal” extend to “impeachments of any National officers,” but it said nothing more on the subject, faced: how to protect including the kinds of misbehavior that would justify removal from office. The delegates first addressed the the community from matter on June 2, when Dickinson of pro- posed that the executive be removed when a major- dangerous abuses of ity of the state legislatures so requested and the national legislature agreed. Sherman, again a lonely executive power without voice, responded that the legislature should be able to remove the executive “at pleasure.”52 No other undermining the delegate endorsed placing the executive at the mercy of the legislature in this way. After all the states but executive’s independence Delaware voted down Dickinson’s motion, the del- egates, apparently without debate, agreed that the from the legislature. executive should “be removeable on impeachment & conviction of mal-practice or neglect of duty,” leav- By the end of the debate, Morris himself, one ing undecided for now which institution(s) would of the two or three most vigorous advocates in the enforce this standard.53 Convention for a strong and independent executive,

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had changed his mind, now recognizing that there spectrum of opinion about the executive. Four were had to be some way of removing a dangerous and attorneys of some distinction (all but Gorham), and treacherous executive from office—though he cau- three had significant executive experience at the tioned that “we should take care to provide some state level: Randolph was the sitting governor (since mode that will not make him dependent on the the previous December) of the nation’s most pop- Legislature.”57 Immediately after Morris’ speech, the ulous state; Rutledge had led South Carolina as its delegates voted eight states to two to make the execu- chief executive for five years during the Revolution- tive removable through impeachment. ary War, under two different state constitutions; and Ellsworth had served on his state’s committee of safety early in the war and later on its governor’s council. The Committee of Detail The members appear to have read their charge from the Convention broadly. In general, they did By the end of July, after nearly two months of delib- not tamper with the organizational principles the erations and provisional decisions about the new delegates laid down, but they freely added powers national government, the delegates were ready to and other provisions they believed to be consistent fashion their numerous and various resolutions into with those principles. They had been given the basic a more detailed plan of government. On July 23, frame of a house, and they did much to furnish it.59 they voted to establish a five-member Committee Although Randolph was assigned the task of writ- of Detail to draft an actual constitution conforming ing the first draft, the final product appears to have to the Convention’s decisions, and a day later they been largely the work of Wilson. In particular, the chose its members by ballot. Three more days of Pennsylvanian played a large part in drafting the debate followed before the Convention adjourned for executive articles and fleshing out the office’s -pre a 10-day break, during which the committee crafted rogatives. Moreover, the similarity between the com- its document.58 mittee’s final product and the executive provisions of The committee had before it a variety of materials the Pinckney plan suggests that Wilson relied partly for its consideration. Most important were the reso- on either the Pinckney plan itself or its apparent lutions formally approved by the delegates up to that source, the New York Constitution. When the resolu- point in the Convention. In addition, the Convention tions of the Convention were submitted to the com- had referred two other plans of government. Pinckney mittee at the end of July, the executive possessed only drafted one of the plans, which had been submitted the powers to appoint officials, execute the laws, and to the Convention on May 29 but had not actually veto legislation. When the delegates reconvened on been debated by the delegates. The other was the New August 6, they had before them a much fuller specifi- Jersey Plan (also called the Paterson resolutions after cation of executive powers and duties in the Commit- its sponsor, Paterson of New Jersey). As noted earlier, tee of Detail’s proposed constitution. Hamilton had not formally proposed his plan to the Article X, Section 1 began: “The Executive Power Convention, so it was not officially submitted to the of the United States shall be vested in a single person. committee. The committee members, of course, had His stile shall be ‘The President of the United States heard Hamilton’s impressive five- tosix-hour speech of America;’ and his title shall be, ‘His Excellency.’”60 on June 18 and may well have been influenced by his It then reaffirmed the delegates’ prior decisions for case for a strong executive. election by the legislature for a single seven-year term. The five members were Randolph, Wilson, Rutledge, Then came a lengthy list of powers in Section 2. of Massachusetts (who had pre- sided over the Committee of the Whole), and Oliver He shall, from time to time, give information to the Ellsworth of Connecticut. These delegates reflected Legislature, of the state of the Union: he may rec- not only geographic diversity but also a fairly wide ommend to their consideration such measures as

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he shall judge necessary, and expedient: he may con- office of President of the United States of America.” vene them on extraordinary occasions. In case of dis- All of this, as noted, was preceded by a vesting clause: agreement between the two Houses, with regard to “The Executive Power of the United States shall be the time of adjournment, he may adjourn them to vested in a single person.” (Later we address whether such time as he thinks proper: he shall take care that this clause was meant to vest powers beyond those the laws of the United States be duly and faithfully subsequently enumerated in the draft constitution.) executed: he shall commission all the officers of the Note also that the draft constitution used the United States; and shall appoint officers in all cases terms “powers” and “duties” to refer to the author- not otherwise provided for by this Constitution. He ities it vested in the president, terms that will reap- shall receive Ambassadors, and may correspond with pear in the final Constitution. Article X begins with the supreme Executives of the several States. He the vesting of the “Executive Power.” This is followed shall have power to grant reprieves and pardons; but by a variety of specific authorities, some of which, his pardon shall not be pleadable in bar of impeach- such as granting reprieves and pardons and serving as ment. He shall be commander in chief of the Army commander in chief, might best be understood as and Navy of the United States, and of the Militia of powers, while others, such as providing information the Several States.61 to Congress or seeing to the faithful execution of the laws, appear rather to be duties imposed on the exec- Following this list were provisions to (1) prevent utive. Then, after the specific authorities are listed, the legislature from changing the president’s salary the draft constitution requires a special oath of the while he served; (2) require that before he “enter on president before he “enter on the duties of his depart- the duties of his department,” the president take an ment.” Finally, the end of Article X makes provision oath to “faithfully execute the office of President of for the president of the Senate to carry out the “pow- the United States of America”; (3) provide for the ers and duties” of the presidency if the office is vacant president’s removal upon impeachment by the House or the elected president is unable to do so. As we dis- of Representatives and conviction in the Supreme cuss later, the final Constitution further formalized Court of “treason, bribery, or corruption”; and (4) the distinction between executive powers and duties, provide that if the president was removed, died, with implications for the constitutional authorities resigned, or was unable “to discharge the powers and of the presidency. (Although we focus later on the duties of his office, the President of the Senate . . . difference between “powers” and “duties,” in the [would] exercise those powers and duties.”62 More- meantime we follow the common practice of using over, among its provisions on the new Congress, the term “powers” in the generic sense to refer to all the draft constitution spelled out in some detail (in the authorities vested in the executive.) Article VI, Section 13) the president’s authority to Despite the Committee of Detail’s extensive flesh- veto bills passed by Congress subject to an override ing out of the executive authority, important powers by two-thirds of both branches. still remained outside the president’s control, for the No longer were the executive’s powers at the draft constitution gave the Senate authority “to make mercy of the legislature. Now through explicit consti- treaties, and to appoint Ambassadors, and Judges tutional grant the president would have such substan- of the supreme court.” Also, following the constitu- tial powers as recommending measures to Congress, tional practice of the states, the committee’s product convening the legislature on extraordinary occasions, empowered Congress to appoint the nation’s trea- granting reprieves and pardons, and serving as com- surer, the administrative officer most closely tied to mander in chief of the army, navy, and state militia. the legislature’s control over the public purse.63 But This same constitution imposed on the executive the with this exception, the president was left in effective high duties to “take care” that the laws be “duly and control of the administrative organs of government, faithfully executed” and to “faithfully execute the for he would be solely responsible for appointing the

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heads and subordinate officials of the various depart- The committee’s report to the Convention on ments and, unlike in the state constitutions, none of August 6 essentially completed the delegates’ ini- the subordinate executive officials in the national tial deliberations on the executive. The powers and government (except possibly the treasurer) would responsibilities vested in the president reflected the have a constitutional status. The “Executive Power relative institutional advantages of a single chief of the United States” was to be vested not in a hand- executive, especially its capacity to act with decision, ful of distinct constitutional officers, or in a president dispatch, and secrecy. Such an official would likely and council, but in “a single person.” have the unified perspective and day-to-day continu- ity that would be lacking in the new Congress. What resulted, then, was an institution, like New York’s governor, that seemed to sit astride—in some The powers and sense preside over—the workings of the new govern- ment.66 In particular, by authorizing the president to responsibilities vested inform the Congress on the state of the union and recommend legislation, the draft constitution con- in the president reflected templated a chief magistrate whose responsibili- ties extended well beyond those “strictly” executive. the relative institutional Compared to most of the state governors, the dele- gates had constructed an office with broad reach and advantages of a single responsibilities, one relatively independent of the legislative branch. chief executive, especially Had they stopped there, the president would have been a significant player in the political life of its capacity to act with the nation. Yet, as noted, the committee’s president would neither “make treaties” nor appoint treasur- decision, dispatch, ers, ambassadors, or Supreme Court judges. And despite the misgivings of many delegates, he was to be and secrecy. elected by the Congress for a single seven-year term. As Mason had earlier suggested, some in the Conven- Finally, the Committee of Detail enhanced the tion had more in mind for the chief executive. Even executive’s independence from the legislature by Randolph, the early opponent of a unified executive, modifying the impeachment process. Previously, the had spoken of the new chief executive becoming “the Convention had resolved only that the chief exec- great Oak.”67 If that were to happen, more would utive would be “removable on impeachment and need to be done. conviction of malpractice or neglect of duty,” leav- ing unresolved who would do the impeaching and convicting.64 Under the draft constitution, the new Debating the Draft Constitution House of Representatives would have “the sole power of impeachment,” and the Supreme Court would For the next three to four weeks, the delegates decide guilt or innocence. Although this would change worked their way systematically through the Com- later, at least for now Congress would not have the mittee of Detail’s draft constitution. They did final say on whether to remove the president from not formally get to the executive provisions of office. In addition, the draft constitution tightened Article X until August 24. Before then, however, the standard for removing the executive to conviction issues affecting the executive’s powers arose on for the crimes of “treason, bribery, or corruption.”65 several occasions.

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The Veto Power. The veto power, which the draft not do so “but when the Nation will support it.” constitution included among its provisions on the Notably, neither Pinckney nor Butler offered a reso- legislature, was debated at some length on August 15. lution to move the power “to make war” to the Sen- Madison, having earlier lost decisively on vesting ate or president, and no other delegate endorsed the veto power in a council of revision on which either position. would serve the chief executive and some number Although Pinckney’s and Butler’s arguments got of Supreme Court judges, now proposed giving the no traction among their colleagues, they seem to have veto to both the president and the Supreme Court persuaded Madison and Gerry to move to replace the acting separately. If either objected to a bill, an over- word “make” with “declare.” This change, they said, ride would require two-thirds of both branches, and would “leav[e] to the Executive the power to repel if both objected, the override fraction would increase sudden attacks”—the most telling instance of the to three-fourths. Although a large majority again office’s need to act with energy and dispatch. Only defeated the involvement of judges in the veto power, four more delegates spoke to the issue, all apparently a smaller majority acceded to a new three-fourths quite briefly, before the matter first came to a vote. requirement to override a veto.68 Sherman of Connecticut (who, as we have seen, was the delegate least in favor of a truly indepen- The War Power. Two days later, on August 17, the dent executive) preferred the original formula. The delegates addressed Congress’ power under the draft executive, in his view, should “be able to repel and constitution “to make war.” How broadly this power not commence war.” “Make” war was better than should be read is not clear from the Convention “declare” war, he explained, because “the latter nar- records. Indeed, there was no extended debate on row[ed] the power too much.” Gerry, responding the “war power” either before or after the Commit- to Butler, voiced his surprise at even “hear[ing] in a tee of Detail had completed its work. The August 17 republic a motion to empower the Executive alone debate, though the most extensive discussion of the to declare war.” Ellsworth distinguished making war war power at the Convention, occupies in Madison’s from making peace, maintaining that “It shd. be more notes less than two full pages. The only other notes easy to get out of war, than into it.” Finally, Mason we have of this discussion are just two lines from of Virginia spoke against entrusting either the Senate James McHenry of : “Debated the difference or president alone with such a power. He argued for between a power to declare war, and to make war— “clogging rather than facilitating war; but for facili- amended by substituting declare.”69 tating peace.” According to Madison’s notes, the brief debate Madison’s notes show his and Gerry’s motion began with Pinckney challenging the appropriate- passing seven states to two and then, after a change ness of involving the House of Representatives in by Connecticut, eight states to one. The official jour- the decision “to make war.”70 The House, Pinckney nal of the Convention shows instead that the motion maintained, would operate too slowly, would meet first failed, four states to five, and then passed, eight only once a year, and “would be too numerous for states to one. Although Madison, unlike the jour- such deliberations.” Better to vest this power in the nal, shows a change by only one state, he attributed Senate alone, which was smaller and would be more the switch in a note to “the remark by Mr. King that knowledgeable about foreign affairs. (At this point ‘make’ war might be understood to ‘conduct’ it which in the Convention, the Senate retained the power to was an Executive function.” make treaties and appoint ambassadors.) It is hard to know how much to make of this brief In response, , also from South debate, for so few delegates spoke to the issue at all Carolina, argued that Pinckney’s objections applied and those who did had little to say. What seems clear as well to the Senate. It was the executive who had is that the delegates wanted to both (1) make the full the “requisite qualities” for making war, and he would Congress responsible for moving the nation from

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peace to war and (2) make it clear that the president “declare” war,” this would “leav[e] to the Executive the retained the authority to repel sudden attacks. The power to repel sudden attacks.” Similarly, Sherman, phrase “make war” (assigned to Congress in the draft who opposed the motion, seemed to fear that narrow- constitution) seemed to comprise too much; thus, ing Congress’ power this much would leave too much some narrowing was called for. war-making power in the president’s hands. Here Sherman’s and King’s brief comments are par- As the late Robert Scigliano pointed out, “When ticularly interesting. For Sherman, Congress’ power the delegates to the Constitutional Convention dis- to “make war” did not prevent the executive from cussed giving war-making power to Congress, they responding to sudden attacks. Consequently, narrow- seemed to assume that whatever wasn’t given to the ing the power from “make” to “declare” might give legislature would lie with the president, even without too much authority to the executive. For King, who express constitutional language to that effect.”73 This was on the other side of this issue, “make” war might implies that the delegates thought of the war power be interpreted to spill over into “conduct[ing]” war, as naturally belonging to a nation’s chief executive. To which was by its very nature an executive function. change this required explicit language to the contrary. In the end, this debate on the war power leaves more questions unanswered than answered. The delegates, for example, did not address undeclared (or “imperfect”) wars, though such wars were an This implies that the established practice of 18th-century statecraft.71 There is no record of their beliefs about the use of the delegates thought of the nation’s military to protect American commerce on the high seas. Nor is there any indication of how the war power as naturally delegates understood the difference, if any, between Congress’ power “to declare war” and the seemingly belonging to a nation’s broader and more emphatically worded authority of the Confederation Congress to exercise the “sole chief executive. To change and exclusive right and power of determining on war and peace.” And, finally, there was no direct dis- this required explicit cussion (beyond repelling sudden attacks and con- ducting war) of the relationship between Congress’ language to the contrary. power to “declare war” and the president’s respon- sibility as “commander in chief.” Nonetheless, we Here the delegates seemed to be dividing one can fairly conclude (1) that the delegates intended to important element of Locke’s federative power: deny the chief executive sole discretion in deciding the power over war and peace. To adjust the power whether to take the nation to war, (2) that the pres- to the new constitution’s republican form, the new ident under the Constitution could independently Congress would decide whether to take the nation respond to an attack on the nation, and (3) that as to war, and the president would conduct it once commander in chief it was the president’s responsi- authorized by Congress or initiated by an attack by a bility to conduct war.72 foreign power. Yet at this point in the Convention, Indeed, what is usually overlooked in analyses the Senate—with the sole power to appoint ambassa- of the August 17 debate is the apparent unstated dors and make treaties—retained considerable power assumption that whatever war-making power was over foreign affairs (a related element of the feder- not expressly delegated to Congress would remain in ative power). Indeed, in early August, Pinckney had the executive. Recall that when Madison and Gerry spoken of the Senate’s “power of making treaties & moved to narrow Congress’ power from “make” to managing our foreign affairs.”74 Some scholars agree

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that until changes were made near the end of the ambassadors” were lodged in the Senate. Morris deliberations, the Senate was expected simply to be apparently saw no contradiction between the Sen- in charge of the nation’s foreign policy.75 However, ate’s role as maker of treaties and the responsibility this view was not universally shared. of the secretary of foreign affairs, a presidential sub- ordinate, to conduct foreign negotiations, propose A Council for the President? On August 18, treaties, and evaluate treaties submitted by foreign Ellsworth called to his colleagues’ attention that no nations. Moreover, no other delegate pointed out provision had yet been made for an executive coun- such a contradiction. cil. Ellsworth himself favored one composed of the It appears, then, that some delegates thought that president of the Senate, the chief justice, and the conducting foreign affairs would generally lie with heads of the major departments, but their job would the president, even before the treaty-making clause be advisory only: They “should advise but not con- was moved to the executive article and made a shared clude the President.”76 Brief discussion followed, power of the president and Senate. Here the president and the delegates decided to postpone the issue until would be no mere agent of the Senate. Morris of Pennsylvania, not then on the floor, could An examination of Morris’ definition of the duties attend to present his plan. of each of the department heads, all appointed by the Two days later, Morris, seconded by Pinckney, president and serving at his pleasure, reveals just how presented a detailed sketch of a Council of State to far-reaching was his vision of the president’s respon- “assist the President in conducting Public affairs.”77 sibility for “conducting the Public affairs.” The sec- Among its members would be the chief justice of the retary of domestic affairs would “attend to” “matters Supreme Court, the secretaries of the major executive of general police,” agriculture, manufacturing, “the departments—“Domestic Affairs,” “Commerce and opening of roads and navigations,” and “facilitat- Finance,” “foreign affairs,” “War,” and “Marine”— ing communications” throughout the nation, and he and a secretary of state who would serve as secre- would recommend “measures and establishments” tary to the Council of State. The president “from time to promote these objects. The secretary of commerce to time” could submit matters for the council to dis- and finance would “superintend all matters relat- cuss, and he could “require the written opinions of any ing to the public finances” and would develop plans one or more of the members,” but he would “in all for raising revenue and regulating expenditures. The cases exercise his own judgment, and either Conform secretary of foreign affairs would, as noted earlier, to such opinions or not as he may think proper.”78 manage the nation’s external relations. The secretary A most interesting aspect of Morris’ proposal was of war would “superintend” “the raising and equip- his definition of the duties of the secretary of foreign ping of troops, the care of military Stores—public affairs, who would be appointed by the president and fortifications, arsenals & the like” and in time of war serve at his pleasure. would “prepare & recommend plans of offence and Defence.” Finally, the secretary of the marine would It shall be his duty to correspond with all foreign “superintend every thing relating to . . . the pub- Ministers, prepare plans of Treaties, & consider such lic Ships, Dock-Yards, Naval-Stores & arsenals” and as may be transmitted from abroad; and generally to would in time of war “prepare and recommend plans attend to the interests of the U- S- in their connec- of offence and defence.”80 tions with foreign powers.79 Clearly Morris’ proposed council was not, like the executive councils in the states, intended to Here the day-to-day conduct of foreign affairs check the chief executive in the exercise of his pow- was unmistakably placed in the hands of a presiden- ers. Except for the chief justice, each member was to tial subordinate, and this at a time (as noted earlier) be appointed by the president and directly respon- when the powers to “make treaties” and “appoint sible to him. They were to be the president’s men.

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The president would determine which matters to must include those things the existing departments send the council for advice, and he alone would were doing.84 decide whether to take it. There would be no cloud- ing of the lines of responsibility in the new execu- The Treaty Power. On August 23, the Convention tive branch: “In all cases,” Morris’ plan stipulated, took up Article IX, Section 1 of the Committee of the president was to “exercise his own judgment.”81 Detail’s draft constitution, which vested in the Senate As noted earlier, the Council members were given alone the power “to make treaties, and to appoint broad authority to initiate plans and develop recom- Ambassadors, and Judges of the Supreme Court.”85 mendations in their respective policy areas. Here Madison, who first spoke to the issue, complained they would be assisting the president in meeting his that the Senate “represented the States alone.” For responsibility to report on the “state of the Union” this and “other obvious reasons,” the president and recommend to Congress measures he judged “should be an agent in Treaties.”86 Although Madison “necessary, and expedient.”82 With his proposal for a did not detail these “obvious reasons,” he seemed to Council of State, Morris seemed intent on creating a be suggesting that negotiating treaties in itself was mechanism for the president to fulfill those respon- not a legislative function. sibilities in a clear, efficient, and constitutionally Indeed, back on August 15, John Mercer of uncontestable manner. Maryland had offered in a debate on a related mat- Morris’ presidency seems hardly less than the ani- ter that the “[treaty] power belonged to the Executive mating force in the new government, its energy, in department.”87 Moreover, a few days earlier, Madison effect, giving direction to the system as a whole. It is and Rutledge had moved to exempt the Senate from an executive whose responsibilities would spread far publishing its proceedings “when acting not in its beyond executing the laws Congress passes. While legislative capacity” on a matter that “require[d] we cannot assume that all the delegates shared this secrecy.”88 Here they seemed to be assuming that expansive view of executive power, no one immedi- the Senate was not conducting legislative business ately rose to challenge such a broad understanding of as such when confirming appointments and mak- the president’s role in the new constitutional order. ing treaties (the only two authorities vested in the Not debated at the time of its introduction, Senate but not the House). Wilson seemed to be say- Morris’ proposal was later referred to the Committee ing the same thing near the end of the Convention of Eleven (one member from each state in attendance, when he complained that by giving the new Sen- also called the Committee on Postponed Matters or ate authority over treaties and impeachments, “the the Committee on Unfinished Business, which was Legislative, Executive & Judiciary powers are all appointed on August 31).83 Although, as we shall blended in one branch of Government.”89 see, Morris’ Council of State did not make it into the Perhaps somewhat surprisingly, the debate on Constitution, the reason apparently had little to do August 23 did not address the relative fitness of the with the broad notion of executive power it embraced. Senate and president to exercise the treaty power. In his classic study of the creation of the American Rather, it focused on a motion by Morris to require presidency, Charles Thach notes that Morris’ plan that treaties be ratified by law before they become embraced the principle, apparently uncontested at binding, thus giving the House of Representatives the Convention, that the president would direct the some formal role. Several who addressed this issue activities of the great executive departments. By the seemed to imply that the Senate would have an summer of 1787, several such departments answer- active part in negotiating treaties, which might prove able to the Confederation Congress already existed, embarrassing if the House later refused to ratify including those of Foreign Affairs, War, Finance, them. William Johnson of Connecticut was the most and the Post Office. Thus, to understand what the explicit on the point: He “thought there was some- delegates had in mind for presidential power, we thing of solecism in saying that the acts of a Minister

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with plenipotentiary powers from one Body [appar- by the dominance of the large states in the House ently the Senate], should depend for ratification on and (2) whether separate votes by the two bodies another Body [the House].”90 This might have been would lead to “great delay and confusion” if they an implicit contradiction of Morris’ definition of the could not agree.93 duties of the secretary of foreign affairs, a subordinate Although the delegates agreed to a joint ballot of the president, or it reflects a more complex shar- (seven states to four), Morris expressed his continued ing of responsibilities with perhaps the president’s dissatisfaction with having the first branch elect the agent conducting preliminary negotiations, followed second. The combination of legislative election and by “Minister[s] with plenipotentiary powers” sent by no reeligibility would make the executive “interested the Senate to formalize the final details of treaties. In in Courting popularity in the Legislature by sacrific- any case, Morris’ motion that treaties be ratified by ing his Executive rights; & then he can go into that law was defeated, eight states to one. body, after the expiration of his Executive office, and Madison then closed this fairly brief discussion enjoy the fruits of his policy.”94 This was no small by again raising the possibility of presidential matter: “In the strength of the Executive would be involvement in treaty making by distinguishing found the strength of America. Ineligibility operates between treaties of alliance “for limited terms,” to weaken or destroy the constitution.”95 If the del- which, he proposed, would be made by the presi- egates wanted to erect a bulwark against legislative dent and Senate, and other treaties, which would tyranny and foster in the executive a political psychol- require approval by the whole legislature.91 The for- ogy that set its sights beyond the here and now, they mer, Madison seemed to be saying, would operate would have to reconsider their decision on selection not so much to change the nation’s laws as to effec- and reeligibility. tuate a temporary alliance with a foreign nation. Morris then proposed that the Convention resur- Alliance making of this sort was proper to be vested rect the idea of having electors chosen by the people in the president and Senate, not the full Congress. select the president. The motion failed but by Like the issue of the executive council, treaty making only one vote (five states to six, with Connecticut, was eventually referred to the Committee on Unfin- Delaware, New Jersey, Pennsylvania, and Virginia all ished Business. voting in favor). Apparently hoping that a smaller group could resolve the matter off the floor of the The Executive Article. The Convention finally Convention, Jacob Broom of Delaware moved that reached the executive article of the draft constitu- the provisions on electing the president and reeli- tion on August 24 and proceeded to devote parts of gibility be referred to a committee with members three days to the topic. from each state, but this failed on a tie vote (five to five, with one state divided). Immediately thereafter, Electing the President. After agreeing without discus- Morris’ proposal was put to a second vote—this sion and objection to “vesting the [executive] power time only “as an abstract question”—but it too failed in a single person” (emphasis in original),92 the dele- on a tie vote (four to four, with two divided). gates debated whether Congress should choose the The delegates were obviously of a mixed mind president either by joint ballot—meaning the repre- about having Congress elect the president. On each sentatives and senators would vote as one body with of the three votes, the delegations from Georgia, each member having one vote—or by each chamber New Hampshire, , and South Carolina voting separately, thereby giving each a veto over the all voted no. From this it appears that the key to other’s choice. This seemingly technical issue raised replacing congressional election of the president two large concerns: (1) whether in a joint ballot the with an Electoral College mechanism was to address presidential preferences of the small states, which the political concerns of these three slave states and enjoyed equality in the Senate, would be overwhelmed lessen the inconvenience and expense associated

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with sending electors to meet in one central location, Ministers,” prohibited the president from pardon- far from the extreme north and south. ing those convicted in an impeachment trial, and Exactly one week later, Morris moved to strike restricted the president’s authority to serve as com- the language from Article XXIII of the draft consti- mander in chief of the state militia to occasions when tution that called on the newly created Congress the militia was “called into the actual service of the to “choose the President of the United States” as a United States.” This was, at most, tinkering with the “point . . . not being yet finally determined.”96 This Committee of Detail’s work. passed overwhelmingly (nine states to one, with Two additional minor changes, both pushed by one divided), and the matter was referred to the Morris, point to broader principles regarding exec- Committee on Unfinished Business. utive power under the US Constitution. On Morris’ motion on August 24, the Convention replaced the Refining the Powers. Late in the day on August 24, word “may” in the clause, “he may recommend to [the the delegates turned to the long list of powers legislature] . . . such measures as he shall judge neces- vested in the executive office in Article X, Section 2 sary, and expedient,” with “shall.” This was done “in of the draft constitution. Strikingly, no one rose order to make it the duty of the President to recom- to oppose the enlargement of executive authority mend, & thence prevent umbrage or cavil at his doing that the Committee of Detail recommended. And, it.”100 (Emphasis in the original.) Here is an explicit indeed, the debate on the specifics of the executive recognition of the difference between a discretionary powers, though occurring on parts of three separate power and a positive duty. days (August 24, 25, and 27), appears to have filled The other change of note is that the Conven- no more time than one full day’s worth of discus- tion deleted a power from the draft constitution. sion.97 Moreover, during this brief debate, not a On August 25, Morris moved “to strike out the single delegate challenged the wisdom of having section—‘and may correspond with the supreme the president exercise such substantial powers as Executives of the several States’ as unnecessary recommending measures to Congress, convening and implying that he could not correspond with oth- Congress on extraordinary occasions, appointing ers.”101 There was no debate, and the motion passed, executive officials, or serving as commander in chief nine states to one. Apparently, the vast majority of of the armed forces. delegates agreed the president would be fully autho- The most frontal attack on major powers came rized to correspond with the chief executives of the from two motions by Sherman. On August 24, states (and with others) without a specific grant of Sherman moved that Congress have authority by power to this effect. One could hardly find clearer simple statute to determine what appointments the evidence of the notion of implied executive pow- president could make on his own authority. No one ers. As the possessor of the “Executive Power of the rose to defend the proposal, and it failed, nine states United States,” the president possessed at least some to one.98 Sherman followed this on August 25 with powers not specifically enumerated. a motion to replace the general authority to grant One important innovation that resulted from pardons and reprieves with a much more limited these three days of debate was an expansion of power to grant reprieves until the next session of the special oath required of presidents. The draft the Senate and to require Senate consent for pardons. Constitution had required that all federal and state No debate ensued, and the motion was defeated, officials (legislative, executive, and judicial) “be eight states to one.99 bound by oath to support this Constitution.” In addi- In addition to making some minor stylistic tion, it required that the president “solemnly swear, changes, the Convention limited the appointment (or affirm) that I will faithfully execute the office of power to offices created by law, broadened the power President of the United States of America.”102 Early to receive ambassadors to include “other public on August 27, Mason and Madison moved that the

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presidential oath also include the following language: for two different individuals), the Senate would “and will to the best of my judgment and power pre- select one of these to be president. serve[,] protect[,] and defend the Constitution of the Sherman, a member of the committee, explained U. S.” Madison records no speech by him or Mason that the reason for removing the selection of the defending the addition. Only Wilson spoke (briefly) president from Congress “was to get rid of the ineli- to the matter, offering that the general oath of office gibility.” The possibility of reelection, it was thought, was sufficient, rendering this special oath “unneces- would bring the advantages of attachment to office, sary.” Yet the motion passed, seven states to one.103 incentive to good behavior and farsightedness. Morris, another committee member, emphasized “the indispensable necessity of making the Execu- The Committee on Unfinished Business tive independent of the Legislature.”104 Thus, hav- ing taken the president’s selection entirely out of On August 31, as the Convention neared its end, the the hands of the House and, at least initially, from delegates appointed a committee of 11, one from each the Senate’s, the committee completely elimi- state in attendance, to make recommendations on a nated the prohibition on reelection and reduced the variety of postponed matters, including the mode of president’s term from seven years to four. election of the president, the executive council, and The Convention debated presidential election on the treaty power. Among its members were Madison September 4 and 6, but the basic idea of moving pres- and Morris. Moving rapidly, the committee made its idential selection from Congress to electors proved major report on September 4. largely uncontroversial. Wilson acknowledged that The committee was clearly not reluctant to pro- this issue was “the most difficult of all on which we pose dramatic changes in the final weeks. It estab- have had to decide.”105 Key to the Convention’s will- lished the office of vice president, introduced ingness to accept the change was the committee’s qualifications for the presidency, substituted the adroit handling of the political and practical objec- Senate for the Supreme Court as the trier of all tions that had plagued the previous Electoral College impeachments, substantially revised the treaty- proposals. First, allowing the electors to meet in their making power and appointment powers, and, per- home states substantially reduced the expense and haps most importantly, created an electoral system inconvenience of this method, freeing many from hav- for choosing presidents. ing to travel hundreds of miles to cast their votes. In The new presidential selection method was a addition, the multiplication of meeting places would refinement of Wilson’s earlier proposal for an indi- reduce, if not entirely eliminate, the possibility that rect mode of popular election (though Wilson’s first some cabal or foreign influence would corrupt the preference was direct popular election). Under this electors and control the result. Moreover, while the plan, each state would choose electors as its legisla- proposal favored the most populous states, it diluted ture decided, with the number equal to each state’s this advantage somewhat by giving every state two number of senators (two) and members of the House votes based on its representation in the Senate. And, of Representatives. The electors would meet in of course, if no one garnered a majority of the elec- their states (not at a central location in the nation) tors or two tied, the Senate, with its equal state vote, and vote for two persons for president, only one of would make the final decision. whom could be from the electors’ state. If no one The requirement that electors vote for two per- received a majority of the number of electors, the sons, one of whom had to be outside their state, was Senate would select the president from among the also expected to reduce the advantage of the most five candidates with the most votes. If two candidates populous states, whose “favorite sons” would have received votes from a majority of the electors and an advantage over eminent characters from the small tied (which was possible because each elector voted states. An elector could well vote for a state favorite,

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but his second vote had to go to someone from a dif- and treaties a new power to choose the president ferent state. By reducing state factionalism in the on at least some (perhaps many) occasions. Wilson selection process, this provision would increase the took strong issue with Morris, his frequent ally for probability that someone of “national” reputation creating a strong presidency. Although he did not would be elected president. worry, like Mason, that the president and Senate Finally, this indirect method of popular election would collude to subvert the Constitution, he feared seemed to solve the “problem” (from the southern- the president would become “the Minion of the ers’ perspective) that the franchise was more broadly Senate” and not “the man of the people as he ought shared in the North than in the South. Not only to be.”108 While seen from different perspectives, would the number of electoral votes cast by south- the Convention generally agreed that the committee ern states depend on their population rather than had weakened the principle of separation of powers how many citizens were eligible to vote, but the pro- beyond a tolerable point, risking the safe and effec- posed method also adjusted for the slave population tive use of the new government’s powers. because representation in the House of Representa- The difficulty the delegates faced in modifying the tives factored in three-fifths of the slaves. committee’s work was that the selection mechanism The plan’s most controversial feature was vest- it had designed appeared to rest on a finely crafted, ing the final decision in the Senate when no sin- if a bit unstable, set of compromises between the gle person received a majority of electors’ votes or small and large states.109 Removing the Senate from two tied. Several of the Convention’s leading figures the selection process might very well have unrav- questioned the wisdom of giving this power to the eled the political thread holding the proposed sys- Senate, especially since many delegates—including tem together. To the Convention’s probable relief, Pinckney, Rutledge, Mason, and Hamilton—thought two members of the committee—Sherman and Hugh this might become a routine occurrence. Mason, in Williamson (of North Carolina)—solved the prob- particular, thought lem late on September 6. Shortly after the delegates voted nine states to two to accept the selection of the it will rarely happen that a majority of the whole votes president by electors chosen as the state legisla- [of the electors] will fall on any one candidate: and tures saw fit, the delegates approved Williamson and as the Existing President will always be one of the Sherman’s motion to have the House of Representa- 5 highest, his re-appointment will of course depend tives make the final decision for president when no on the Senate. single person garnered a majority, but the members would vote by state rather than individually.110 This would likely result in a coalition between The committee was equally bold on treaties and the president and Senate that would “subvert the appointments. Regarding the former, it withdrew the Constitution.”106 power “to make treaties” from the Senate’s exclu- Morris strongly disagreed. He expected there sive control and vested it in the president “by and would generally be a majority of votes for some indi- with the advice and Consent of the Senate,” provided vidual “eminent and generally known.” And if the that two-thirds of the senators concurred. The del- incumbent president was standing for reelection and egates briefly debated the committee’s proposal on had “given satisfaction,” a majority “will reappoint September 7 and 8. Despite the magnitude of the him.” If, instead, the president “was disliked,” those change, not a single delegate argued for a return to disliking him “would take care to unite their voices exclusive Senate control over treaties. The change so as to ensure his being supplanted.”107 proved remarkably uncontroversial. Wilson pro- Morris’ assurances did not eliminate the unease posed that the House also approve treaties since that many delegates felt with adding to the Senate’s “treaties . . . are to have the operation of laws,” but already considerable influence over appointments this failed with only one of 11 states in favor.111

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Madison came closest to opening up the broad Among the other matters before the committee issue of Senate versus president when he moved to had been Morris’ plan for a Council of State. That deny the president authority over treaties of peace: Morris himself served on the committee ensured that “The president . . . would necessarily derive so much his proposal received a respectful hearing. Yet in the power and importance from a state of war that he end, the committee dropped the entire plan but for might be tempted, if authorized, to impede a treaty the provision authorizing the president to require of peace.”112 Gorham and Morris both objected. opinions in writing from heads of departments. The former thought it “unnecessary” to remove the Morris explained to the Convention on September 7 president from peace treaties because “the means that the committee had judged that a president of carrying on the war would not be in the hands of might persuade his Council “to concur in his wrong the President, but of the Legislature.”113 Morris measures” and thereby “acquire their protection added that “no peace ought to be made without the for them.”119 A motion by Mason, supported by concurrence of the President, who was the general Madison, to instruct the committee to establish Guardian of the National interests.”114 The motion a Council of State for the president was defeated, failed, with three states in favor and eight against. eight states to three. The delegates seemed to believe Although Madison succeeded temporarily in autho- that executive responsibility and accountability would rizing the Senate to ratify peace treaties by a sim- be enhanced without a formal council, even one that ple majority, this was overturned one day later, was only advisory, and that the absence of such an thereby placing peace treaties on the same footing as institution would in no way prevent the president other treaties.115 from seeking advice from his subordinates. On appointments, the Committee on Unfinished The Convention at this time made but one other Business had withdrawn from the president exclu- significant change to the president’s powers as they sive power over executive appointments and from then stood. On September 8, it modified the author- the Senate sole control over appointing ambassadors, ity to call Congress into special session to allow other public ministers, and Supreme Court judges the president to convene either house separately, and combined these into a single joint power. Now thus allowing the president to convene the Senate the president would on matters like treaties and appointments that did not require the House of Representatives. Besides nominate and by and with the advice and consent of McHenry of Maryland, who moved the change, only the Senate . . . appoint ambassadors, and other pub- Wilson spoke to the issue. He opposed the motion lic ministers, Judges of the Supreme Court, and all “because it implied that the senate might be in Ses- other Officers of the U- S-, whose appointments are sion, when the Legislature was not, which he thought not otherwise herein provided for.116 improper.”120 Perhaps surprisingly, four states of the 11 voting opposed the change, suggesting that a The change proved nearly as uncontroversial significant number of delegates did not envision the as the change in the treaty power did. Although Senate serving as a kind of permanent advisory coun- Wilson voiced outright opposition to “blending a cil to the president on matters of foreign affairs and branch of the Legislature with the Executive” in appointments. Even those who voted for the change appointing executive officials because it would under- may have wanted only to allow the president to con- mine presidential responsibility, only Pinckney sup- vene the Senate on rare “extraordinary occasions” (as ported him.117 Apparently voicing the committee’s the clause itself stated) such as responding to a treaty view, Morris held that nomination by the president proposal from a foreign nation that required immedi- would ensure “responsibility” and that confirmation ate attention. by the Senate would guarantee “security.” After brief It is no coincidence that the expansion of the pres- additional debate, all states supported the change.118 ident’s authority into treaties and nonadministrative

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appointments came when the delegates found a way authority to make treaties because “the Senate rep- to sever presidential selection from Congress’ direct resented the States alone.” Yet, as Madison acknowl- control and thus ensure that the president could edged, there were also “other reasons” for giving the succeed himself if his performance merited reelec- president a role in treaty making.123 These presum- tion. Institutional independence, energy in the con- ably included the fitness of the new executive branch duct of the office, accountability to the broader for this task as it gained institutional independence community, and the incentive to behave well all and strength over three months of deliberations. would be enhanced by this artful electoral mecha- nism, modeled on a similar device used to select the Maryland Senate. As the delegates grew more con- fident in the merits of their institutional design for Once the president’s the presidency, they showed little reluctance to moving into the presidential sphere authorities that independence was had traditionally rested with a nation’s chief execu- tive. Once the president’s independence was rein- reinforced, his ties to the forced, his ties to the office strengthened, and his political horizons broadened, additional responsibil- office strengthened, and ities and powers could be safely and effectively placed in his charge.121 his political horizons Strengthening the executive in the final weeks came partly at the expense of the Senate, which lost broadened, additional exclusive power to make treaties and appoint ambas- sadors and Supreme Court justices. Exactly what responsibilities and motivated this shift of power is not entirely clear. There are no existing records of the deliberations of the powers could be safely Committee on Unfinished Business, and the debate in the Convention is not especially illuminating. and effectively placed in Likely, though, the dissatisfaction of many of the nationalists with the equal state vote in the Senate, his charge. which resulted from the Great Compromise in late July, played a role. At the Convention’s start, some of Before the appointment of the Committee on the leading figures wished to see the Senate become Unfinished Business, the Convention had agreed the the new regime’s “great anchor.”122 Properly con- president could be removed from office if impeached structed, the upper house would add stability to the by the House of Representatives and convicted by new government. After the Great Compromise, how- the Supreme Court of “treason, bribery, or corrup- ever, many doubted whether the Senate could fulfill tion.” (The Committee of Detail had substituted this this role since it now embodied in its very structure list of offenses for the more amorphous standard of what many delegates believed to be the fundamental “mal-practice or neglect of duty,” which the delegates defect of the Confederation: equal state vote. had endorsed on June 2.) The Committee on Unfin- It is not surprising, given the Senate’s quasi-federal ished Business proposed two important changes: nature and the presidency’s evolving institutional (1) to substitute the Senate for the Supreme Court strength, that those powers specially delegated to as the final decision maker, with atwo-thirds vote the Senate would come under critical review. As required for conviction, and (2) to limit impeach- noted earlier, for example, Madison in late August able offenses to treason and bribery. The delegates, had opposed giving the upper house the exclusive as we have seen, were quite conscious of the threat

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that the provision for impeachment and removal, one-half page. While Mason’s motion to add “mal- however necessary in extraordinary cases, posed for administration” to treason and bribery was clearly presidential independence from Congress. These two meant to broaden the category of wrongs that could changes seemed to cut in opposite directions. With lead to a president’s removal, his willingness to sub- the Supreme Court now entirely out of the process, stitute “high crimes and misdemeanors” right after Congress alone could remove the president from Madison objected suggests that neither he nor the office. Yet, the grounds for removal were now to be majority of delegates were interested in undermin- strictly limited to the two well-defined crimes of trea- ing the president’s normal, working independence. son and bribery, and it would take a supermajority of In Mason’s own words, he was looking for language the Senate to convict. The Convention debated these that would reach “great and dangerous offenses” provisions on September 8. that might not meet the legal definitions of treason Mason opened the debate by asking why impeach- or bribery.129 Requiring a two-thirds vote for convic- ment should be limited to treason and bribery, for this tion and putting the senators on a special oath are standard did “not reach many great and dangerous further evidence that the delegates were trying to offenses” that fell short of actual treason. To remedy find a way to protect the nation from a dangerous this defect, Mason proposed including “maladmin- chief executive without making the president the istration” as an impeachable offense.124 Madison servant of Congress. immediately objected: To employ “so vague a term” was tantamount to having the president serve at the “pleasure of the Senate.”125 In response to Madison’s Nearing the End: The Committee of Style concerns, Mason moved to amend his proposal by replacing “maladministration” with “high crimes and On September 8, the Convention appointed its final misdemeanors.” By a vote of eight states to three, the committee, a five-member body to “revise the stile amended version passed. of and arrange the articles which had been agreed Madison then objected to substituting the Sen- to by the House,”130 commonly called simply the ate for the Supreme Court in impeachment trials as Committee of Style. By ballot the delegates chose rendering the president “improperly dependent” on Johnson of Connecticut, Hamilton of New York, the Congress. Pinckney sided with Madison, while Morris of Pennsylvania, Madison of Virginia, and Morris and Sherman defended the change. Morris King of Massachusetts. Unlike with earlier com- objected that the Supreme Court would be so small mittees, regional representativeness and balance that it “might be warped or corrupted.” Also, the sena- between large and small states seem not to have been tors’ oaths would be a safeguard against abusing their a consideration. The deep South was unrepresented, power, “especially as in four years he can be turned and four committee members came from four of the out.”126 Sherman added that it would be improper five most populous states. Hamilton’s appointment for the president to be tried by individuals (Supreme is especially interesting. Gone from the Conven- Court justices) appointed by him. Only two states of tion for most of July and August, he announced on the 11 then voted to return to the previous language.127 September 6 that he “dislik[ed] . . . the Scheme of Later in the day, Morris formalized the oath require- Govt in General” but would “support the plan to be ment by moving the addition of the words “every recommended, as better than nothing.”131 Presum- member shall be on oath” to the clause on impeach- ably, what mattered at this final stage of constitution ment trials, and nine of 11 states approved.128 writing was not a balance of political forces but skill There is no way to know what precisely the del- at legal craftsmanship. egates intended by adding “high crimes and mis- The committee, through Johnson, its chairman, demeanors” to the list of impeachable offenses. made its report to the delegates on September 12.132 Madison’s notes on this particular matter fill only The 23 articles of the Committee of Detail’s draft

28 CRAFTING A REPUBLICAN EXECUTIVE JOSEPH M. BESSETTE AND GARY J. SCHMITT

constitution were now reduced to seven, intro- the judicial vesting clause unchanged and only duced by a revised preamble. The first and longest of slightly altered the wording of the executive vesting the articles was on Congress, the next in order and clause, as noted above, it introduced a potentially length was on the presidency, and the third was on significant change into the legislative vesting clause. the judiciary. Articles IV–VII covered various miscel- It now read, “All legislative powers herein granted laneous topics. shall be vested in a Congress of the United States.”134 The committee made but minor changes in the (Emphasis added.) Moreover, the committee president’s powers. The vesting clause, which had retained from the Committee of Detail’s earlier draft read, “The Executive power of the United States a follow-on clause to the vesting of judicial power shall be vested in a single person,” now became “The that stipulated that this power was to “extend” to a executive power shall be vested in a president of defined set of cases. As a result, only the president the United States of America.” The power “to grant under the committee’s handiwork retained what reprieves and pardons except in cases of impeach- could be read as an unqualified vesting of its partic- ment” became the power “to grant reprieves and par- ular power. dons for offences against the United States, except in The comparison between the vesting of legisla- cases of impeachment.” And the duty to “take care tive and executive powers is particularly interesting. that the laws of the United States be duly and faith- Although both branches were given a list of spe- fully executed” became the duty to “take care that cific authorities, Congress, but not the president, the laws be faithfully executed.” seemed to be expressly limited to the powers “herein We can presume that the committee added “for granted.” In this federal system in which the states offences against the United States” to the pardoning retained authority over matters not delegated to the power to clarify that the power did not reach to vio- new national government, Congress did not possess lations of state law. Why it dropped “of the United general legislative power. It could lay claim only to States” from the “take care” clause is less clear, but the powers actually spelled out in the Constitution, it may suggest a broader responsibility to preserve such as the great powers over taxation, commerce, the integrity of the whole body of law—not just the regulation of the currency, the raising of a mili- federal statutory law—including treaties, the “law of tary force, and the declaration of war. For example, nations,” and perhaps even state law. Other than these when Pinckney and Gerry moved on September 14 to modifications, the powers of the president previously add a provision “that the liberty of the Press should be agreed to by the Convention were adopted by the inviolably observed,” Sherman opposed it as “unnec- committee with at most minor stylistic changes. essary” because “the power of Congress does not Two of the changes introduced by the committee extend to the Press.” Seven of the 11 states opposed with perhaps the broadest implications for under- the motion.135 standing executive power under the Constitution did That Congress was limited to specified powers not involve changes in the wording of the president’s does not imply, however, that Congress’ powers would specific powers. The first was the change introduced have to be narrowly construed, as is suggested by the into Congress’ vesting clause. When the Commit- final authority in the long list in Article I, Section 8 of tee of Style first convened, the members had before the Committee of Style’s constitution: “To make all them three passed by the Convention: laws which shall be necessary and proper for carry- “The legislative power shall be vested in a Congress”; ing into execution the foregoing powers, and all other “The Executive power of the United States shall be powers vested by this constitution in the government vested in a single person”; and “The Judicial Power of the United States, or in any department or officer of the United States both in law and equity shall be thereof.” Because the delegates generally understood vested in one Supreme Court, and in such Inferior that the new Congress would possess only the enu- Courts.”133 Although the committee’s report retained merated powers, the addition of the phrase “herein

29 CRAFTING A REPUBLICAN EXECUTIVE JOSEPH M. BESSETTE AND GARY J. SCHMITT

granted” did not substantively affect the powers of clause or of the significance of the difference between the national legislature. The addition clarified the it and the executive vesting clause. meaning of Article I and might have been thought The other change with perhaps broad implica- useful for allaying fears among the public about the tions for understanding executive power under the US reach of national authority. Constitution is the way the committee structured Article II, particularly with respect to the authori- ties vested in the president. The draft constitution of the Committee of Detail had divided Article X on That the committee chose the executive into two sections. The short Section 1 began with the vesting clause and included the “stile” to add “herein granted” (“The President of the United States of America”), the “title” (“His Excellency”), mode of appointment to the legislative, but not (“ballot by the Legislature”), term of office (“seven years”), and ineligibility (“but shall not be elected a the executive, vesting second time”). This was followed in Section 2 by the long list of powers and provisions on compensation, clause is strong evidence, oath of office, impeachment and removal from office, and succession by the president of the Senate in case in itself, that the of removal, death, resignation, or disability. As we have seen, during its subsequent deliberations, the committee did not view Convention modified some of these powers and added others. the list of the president’s In the constitution reported by the Committee on Style, what had been two sections on the executive authorities as exhaustive. now became four. The first—and now the longest— again began with the vesting clause and included The committee, of course, could have added the additional provisions on term of office, mode of same language to the executive vesting clause. It appointment for the president and vice president, might had been rewritten to read: “The executive qualifications for office, succession by the vice pres- powers herein granted shall be vested in a president ident, compensation, and oath of office. The sec- of the United States of America.” This would have ond and third sections listed the specific authorities dispelled any notion that the vesting clause itself vested in the executive office. Section 2 included the granted power beyond the specific powers that fol- commander-in-chief power and the powers over opin- lowed. That the committee chose to add “herein ions in writing, reprieves and pardons, treaties, and granted” to the legislative, but not the executive, appointments. Section 3 included informing Congress vesting clause is strong evidence, in itself, that the and recommending measures, the limited powers over committee did not view the list of the president’s convening and adjourning Congress, and the provisions authorities as exhaustive. This view is consistent governing receiving ambassadors, taking care the laws with the Convention’s nearly unanimous decision are faithfully executed, and commissioning officers. on August 25, noted above, to delete from the presi- Finally, Section 4 stipulated that the president, vice dent’s specific authorities the power to “correspond president, and all other civil officers were to be removed with the supreme Executives of the several States” upon impeachment and conviction of “treason, bribery, as “unnecessary.” Unfortunately, there is no record or other high crimes and misdemeanors.” in the Convention debates of any discussion of the An obvious question about this organizational relevance of the change made to the legislative vesting scheme is why the committee divided the president’s

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specific authorities into two distinct sections. Given of the legislature on the time of adjournment, and the care with which the committee arranged the to receive ambassadors. (The New York governor’s numerous and various provisions passed by the Con- authority to make appointments, with the council of vention, it seems reasonable to presume that the appointment, and commission all the state’s officers committee’s division of the president’s authorities were vested in Articles XXIII and XXIV, respectively.) into two sections indicates some difference in kind The Committee of Style, however, had no con- between the authorities listed in each. trol over the powers themselves, just the style and Do we have any evidence as to what kind of dis- arrangement of what the delegates had already agreed tinction may have been behind this structural fea- to. And here they seemed to follow closely the New ture of Article II? Although there is no explanation in York Constitution. In every case but one where the the Convention debates, we do have circumstan- national executive had an authority comparable to tial evidence that bears on the matter. Most tell- what could be found in the three principal execu- ing is a comparison of the contents and structure of tive articles of the New York Constitution, the com- Article II of the Committee of Style’s report with the mittee located such authority in the parallel place in various state constitutions. This reveals a striking Article II. This includes the general vesting clause, similarity between the form used in the New York the commander-in-chief power, the pardoning power, Constitution to vest authority in that state’s governor the responsibility to inform Congress and recom- and the form employed by the Committee of Style to mend measures, and the “take care” clause. The one empower the US president. Table 3 presents a side- exception is the authority to convene the legislature by-side comparison of the two. on extraordinary occasions, which the New York Among the early state constitutions, only New Constitution located in the second of the three exec- York’s began its grant of executive authority with utive articles and the Committee of Style in the a vesting clause in one section (or article) followed third. The only other structural deviation between by two major sections detailing specific authori- the Committee of Style’s report and the New York ties. Other structural similarities between the New Constitution was the committee’s decision to include York Constitution and the Committee of Style’s the executive’s appointment power and his responsi- work include beginning the second section with the bility to commission officers with the other express commander-in-chief power, including the pardoning authorities, which the New York Constitution had power in the second section, beginning the third sec- not done. tion with the responsibilities for providing informa- If this textual similarity is not enough to demon- tion and recommending measures to the legislature, strate that the New York Constitution was the model and locating the “take care” clause near the end of the for Article II of the US Constitution, we have strong third section. supporting evidence. Virtually all we know about There are, of course, differences between the doc- the Committee of Style’s work is that Morris was uments. The new American president, for example, the principal architect of its final report. Abraham was not specifically granted the authorities, found Baldwin, a delegate from Georgia, made this claim in the New York Constitution, to prorogue tempo- in December 1787.136 Morris himself, in a letter he rarily the legislature, correspond with the Continen- wrote to Timothy Pickering in 1814, maintained that tal Congress and the states, transact business with the Constitution “was written by the fingers, which government officers, and expedite the measures write this letter.”137 And in an 1831 letter, Madison passed by the legislature. Moreover, he was vested reported that with some authorities not granted to the New York governor—specifically, to require the opinion in writ- the finish given to the style and arrangement of the ing of department heads, to make treaties (with the Constitution fairly belongs to the pen of Mr Morris; Senate), to settle disputes between the two branches the task having, probably, been handed over to him

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Table 3. How the New York Constitution and the Committee of Style Vested the Executive Authority New York Constitution Committee of Style Report XVII Article II, Section 1 • “the supreme executive power and authority of this • “The executive power shall be vested in a president State shall be vested in a governor” of the United States of America”

XVIII Section 2 • “the governor shall . . . by virtue of his office, be • “The president shall be commander in chief of the general and commander-in-chief of the militia, and army and navy of the United States, and of the militia admiral of the navy of this State;” of the several States when called into the actual service of the United States” • “he may require the opinion, in writing, of the “he shall have power principal officer in each of the executive departments, • to convene the assembly and senate on extraordinary upon any subject relating to the duties of their respec- occasions; tive offices, and • to prorogue them from time to time, provided such • he shall have power to grant reprieves and pardons prorogations shall not exceed sixty days in the space for offences against the United States, except in cases of any one year; and, of impeachment. • at his discretion, to grant reprieves and pardons to • He shall have power, by and with the advice and persons convicted of crimes, other than treason or consent of the senate, to make treaties, provided murder, in which he may suspend the execution of two-thirds of the senators present concur; and the sentence, until it shall be reported to the legis- • he shall nominate, and by and with the advice and lature at their subsequent meeting; and they shall consent of the senate, shall appoint ambassadors, either pardon or direct the execution of the criminal, other public ministers and consuls, judges of the or grant a further reprieve.” supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for.” • “The president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session.”

XIX Section 3 “That it shall be the duty of the governor • “He shall from time to time give to the Congress • to inform the legislature, at every session, of the information of the state of the union, and recommend condition of the State, so far as may respect his to their consideration such measures as he shall judge department; necessary and expedient: • to recommend such matters to their consideration as • he may, on extraordinary occasions, convene both shall appear to him to concern its good government, houses, or either of them, and in case of disagree- welfare, and prosperity; ment between them, with respect to the time of • to correspond with the , and adjournment, he may adjourn them to such time as other States; he shall think proper: • to transact all necessary business with the officers of • he shall receive ambassadors and other public government, civil and military; ministers: • to take care that the laws are faithfully executed to the • he shall take care that the laws be faithfully executed, best of his ability; and and • to expedite all such measures as may be resolved • shall commission all the officers of the United States.” upon by the legislature.”

Source: Yale Law School, Lillian Goldman Law Library, Avalon Project, “The : April 20, 1777,” https://avalon. law.yale.edu/18th_century/ny01.asp; and Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed., 4 vols. (New Haven, CT: Yale University Press, 1966), 2:597–600.

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by the chairman of the Committee, himself a highly then stipulates that “he shall have power” to convene respectable member, and with the ready concurrence the legislature on extraordinary occasions, prorogue of the others.138 (Emphasis in original.) them temporarily, and grant reprieves and pardons. Article XIX begins, “That it shall be the duty of the Morris’ preeminent role in preparing the Com- governor” and follows this with six specific provisions. mittee of Style’s report is particularly relevant to the The delegates to the Constitutional Convention comparison with the New York Constitution because were conscious of the distinction between powers although Morris served in 1787 as a delegate from and duties. In particular, on August 24, the Conven- Pennsylvania, in 1776–77 he was a member of the tion changed “he may recommend” measures to the New York legislature that prepared that state’s con- legislature to “he shall recommend” to make this, in stitution. In fact, Morris was a leading figure, second Morris’ words, “the duty of the President.”140 More- only to John Jay, in formulating the original draft of over, the Committee of Detail’s draft constitution the New York Constitution and guiding it through had referred to the “powers and duties” of the exec- the legislature.139 It can hardly be doubted that when utive office in its provision governing succession in he put his hand to the executive authorities submit- case of death, resignation, removal, or inability. The ted to the Committee of Style, he knew full well that Committee of Style’s constitution closely tracked the his rearrangement followed the model of his native earlier language, although now succession fell to the state’s constitution. And lest we forget, the Commit- vice president, an office created and recommended by tee of Style also included Hamilton, who represented the Committee on Unfinished Business: “In case of New York and was, presumably, well familiar with the removal of the president from office, of his death, the details of its charter of government. resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president.”141 (Emphasis added.) The delegates to the Constitutional Final Decisions on Executive Power Immediately after Johnson reported the commit- Convention were tee’s proposal on September 12, Williamson of North Carolina moved to decrease from three-fourths to conscious of the two-thirds the fraction of votes in the House and Senate required to override a presidential veto. A spir- distinction between ited debate ensued, which was joined by such lead- ing figures as Morris, Hamilton, Mason, Pinckney, powers and duties. and Madison. Of these, all but Mason opposed mak- ing it easier to overturn a presidential veto. Yet, the Having established a strong circumstantial case motion passed by the fairly close vote of six states in that the division into two distinct sections of the favor, with one divided.142 In this rare case in which specific executive authorities of Article II was mod- Madison recorded the votes of each member of the eled on the New York Constitution, what importance Virginia delegation, “Genl. Washington” voted no.143 is this to understanding executive power under the The Committee of Style’s constitution had retained US Constitution? Simply this: The New York Consti- the appointment of the treasurer by joint ballot of Con- tution explicitly groups the authorities of the chief gress. This was now the only high-level administrative executive into powers and duties. Article XVIII begins officer not to be appointed through nomination by the by naming the governor “commander-in-chief” and president and confirmation by the Senate. Rutledge

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moved on September 14 to delete this exception being too necessary, to be omitted.” This time it to the general appointment power. Historically, the passed unanimously.146 Without this provision, the colonial and state assemblies had seen legislative president and Senate would have shared the power to appointment of the treasurer as an important tool for appoint “all other officers of the United States.” keeping the governor in check. It was a key mecha- The new provision seemed to be a recognition that nism for enhancing popular control over the public at a certain level (“inferior Officers”) it was not nec- purse. Gorham and King argued for preserving the essary to vest the appointment in such high author- traditional practice, as “the people are accustomed & ity as the president and Senate acting together. For attached to that mode of appointing Treasurers, and these lower-level officers, Congress would decide the innovation will multiply objections to the Sys- whether to vest the appointment in the president act- tem.” Sherman added that “as the two Houses appro- ing alone, the heads of the executive departments, or priate money, it is best for them to appoint the officer the courts of law. What Congress could not do under who is to keep it.” These arguments proved unavail- this language was reserve to itself the right to appoint ing, and the motion passed eight states to three.144 national officers, exclusive of officers in the House There was now no constitutional distinction and Senate, which each branch was expressly autho- between the officer in charge of the public purse rized to appoint.147 and any of the other high-level administrators who A final change in the appointment power, appar- would serve under and at the direction of the presi- ently neither debated nor opposed, was to add “and dent. Given the political sensibilities of the time, this which shall be established by law” after the language was a fairly bold step that signaled just how far the on the president’s and Senate’s shared appointment Convention was willing to go in cementing the execu- authority.148 This made it clear that the president and tive branch’s power. Senate could not themselves create offices but only On the following day, one final attempt was made fill offices created by the full Congress. The Conven- to limit the president’s pardoning power by excluding tion’s work on the executive was now complete. cases of treason. Randolph, who moved the change, At the end of the day on September 15, Randolph, feared the president himself might be involved in trea- Mason, and Gerry announced their opposition to sonous activities and would pardon his accomplices. the constitution and called for a second convention. Wilson insisted that a power to pardon treason must Perhaps surprisingly, they had relatively little to say lie somewhere, and it was “best placed in the hands about the presidency. Randolph, though an early and of the Executive.” He could, after all, “be impeached vigorous opponent of a single executive, made no and prosecuted” if he were a party to treason. King criticism of the presidency at all. Mason spoke only agreed and spoke strongly against giving such a power generally about the new government ending “either to Congress as “inconsistent with the Constitutional in monarchy, or a tyrannical aristocracy.” Gerry separation of the Executive & Legislative powers.” included among his list of 11 objections only one that “A Legislative body,” he argued, “is utterly unfit for dealt with the executive branch—and this was not the purpose. They are governed too much by the pas- a criticism of the presidency as such but rather the sions of the moment.” In the end, the motion failed, vice president’s position as presiding officer of the eight states to two with one divided.145 Senate.149 Of the 42 delegates present on the final day, Following this vote, Morris moved to add at the end 39 signed the new Constitution of the United States. of the appointment provision the following language: “but the Congress may by law vest the appointment of such inferior Officers as they think proper, in the Conclusion President alone, in the Courts of law, or in the heads of Departments.” After failing on a tie vote, “it was What is perhaps most striking about the fashion- urged that it be put a second time, some such provision ing of the presidential powers at the Constitutional

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Convention is the absence of serious debate—some- Senate, like other high-level appointments, several times of any debate—over the major authorities delegates opposed, but the measure passed eight vested in the president. At each stage where one states to three. Indeed, such lopsided votes tended might expect to find some fundamental opposition, to characterize the few disputes about presidential none appears. power that did arise during the Convention. No one on the floor of the Convention opposed the Committee of Detail’s dramatic expansion of the president’s powers from the three previously approved by the delegates—“to carry into execution When they came to the the national laws,” “to appoint to offices in cases not otherwise provided for,” and to veto legislation veto power, for example, subject to override by two-thirds of each house of the legislature—to a lengthy list that included such the issue was not whether important authorities as commander in chief, the power to pardon all violations of federal law, and the president should the responsibility to recommend measures to Con- gress and convene them on extraordinary occasions. have such influence over No one on the floor attacked Morris’ plan for a Coun- cil of State that clearly placed the president at the legislation—this seems head of public affairs for the new nation. And late in the Convention when the Committee on Unfin- to have been accepted by ished Business proposed to increase the president’s responsibilities over foreign affairs by removing from all—but rather what the the Senate exclusive control over making treaties and appointing ambassadors and then vesting these pow- appropriate proportion ers jointly in the president and Senate, no one argued for returning these powers to the Senate alone. should be for an override. In the final weeks, the delegates at most tin- kered with several of the president’s specific pow- In the end, the delegates created a chief exec- ers. When they came to the veto power, for example, utive for the new nation that surpassed the state the issue was not whether the president should have governors in both structural sturdiness and formal such influence over legislation—this seems to have authority. Even the New York governor, the most pow- been accepted by all—but rather what the appro- erful of the state executives, could not match the new priate proportion should be for an override. On the presidential office. Where the former served a commander-in-chief power, not a single delegate three-year term (with Delaware the longest among is recorded in opposition to vesting this author- the states), the president served four years. Where ity in the president. On the pardoning power, only the governor’s salary was under the state legislature’s Sherman presented a frontal challenge, and he was control, the president’s could not be changed for the soundly defeated. Later the delegates debated a pro- current term. Where the governor was impeachable posal to prevent the president from pardoning trea- under the relatively loose standard of “mal and cor- son (since he might be a party to it) but decided by a rupt conduct,” the president had to be found guilty large majority to retain the broader authority. Finally, of “Treason, Bribery, or other high Crimes and when it was moved in the final days to remove from Misdemeanors.” Where the governor could not par- Congress the authority to appoint the nation’s trea- don treason or murder, the president was subject to surer and vest the appointment in the president and no such restriction. Where the governor could only

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veto a legislative act with the approval of a majority In addition, that everyone expected George of a special council of revision, the president pos- Washington to become the nation’s first president sessed independent veto authority (subject to a no doubt made the delegates more receptive to the two-thirds override). idea of strengthening the executive branch. Sitting Where the New York Constitution did not make before them for months as the Convention’s presid- it clear whether the governor alone could nominate ing officer, Washington was surely in their thoughts individuals to high office (resulting in years of polit- as they considered and debated the new office’s insti- ical strife), the US Constitution expressly vested the tutional form and authorities. As one delegate, Butler, nominating authority in the president. Where the commented on Washington’s influence when reflect- New York Constitution vested the appointment of ing on the Convention some eight months later, the the state treasurer in the legislature, the US Consti- president’s powers were “great, and greater than I was tution treated this appointment like any other depart- disposed to make them.” He added, ment head. Finally, the president was given express authorities over foreign affairs—making treaties with Nor . . . do I believe they would have been so great the approval of two-thirds of the Senate and receiv- had not many of the members cast their eyes towards ing ambassadors—that the New York governor nec- General Washington as President; and shaped their essarily lacked. Only in his authority to prorogue the Ideas of the Powers to be given to a President, by legislature for up to 60 days in any one year did the their opinions of his Virtue.150 New York governor possess a power denied to the president. Were we to compare the powers of the Although there is surely some truth in this US president to the governors of the other states, often-quoted passage, Butler’s thesis is not sufficient the contrast would, perforce, be even starker. to explain the Convention’s work. First, if most del- As Wilson noted at the start of the Convention’s egates looked at Washington as the living model for proceedings, establishing a formidable chief execu- what they wanted in a president, it is odd that they tive in a nation decidedly republican in its political would establish such minimal formal qualifications sentiments would not be easy. It required stripping for the office as 35 years of age, natural-born citizen- the office of many of its traditional monarchic trap- ship, and residency in the United States for 14 years. pings and prerogatives while retaining (to the extent Surely, they could have raised the age to something politically possible) its inherent, formidable formal closer to Washington’s 55 (time enough to demon- capacities—a feat no republic had yet accomplished. strate a lengthy record of public service), imposed a Standing on such uncertain ground, with no real prec- substantial property qualification (a common require- edents at hand, the pauses, fits, and starts that char- ment for state governors), or specifically required acterized the Convention’s handling of the executive previous high-ranking civilian or military service. are hardly a surprise. Franklin seemed to have something like this in Yet, in the end, the Convention set in place a mind when he proposed on June 2 that the president powerful and vigorous executive, the political and not be paid. He worried that otherwise the office constitutional equal of the legislature and, in many would attract dangerous men who loved money and respects, the animating force in national affairs. power rather than “the wise and moderate, the lov- This resulted largely from the deliberative char- ers of peace and good order, the men fittest for the acter of the proceedings themselves. Three and a trust.”151 As Herbert J. Storing has noted, Franklin’s half months of argument and debate gave the del- remarks called to mind Washington’s selfless ser- egates the time and reasons necessary to adjust to vice during the War for Independence in which he and finally accept the key idea that a strong execu- served as commander-in-chief of the Continental tive could be accommodated in the framework of a forces without remuneration.152 Of course, the aris- republican regime. tocratic implications of such a provision—restricting

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the office to those who could afford to manage for at all reluctant to speak of ignoble cabals and monar- four years (or longer) with no salary—were obvious. chic designs, while those who favored a powerful Madison notes that Franklin’s proposal “was treated and energetic executive were quite open about the with great respect, but rather for the author of it, need to tie the president’s passions and interests to than from any apparent conviction of its expediency his duties. or practicability.”153 Rather than looking to Washington as the kind of Storing points out another problem with Butler’s man they expected typically to occupy the office, the argument: the extreme rarity of men with delegates may have been thinking more of someone Washington’s combination of personal virtue, prac- like New York Gov. George Clinton. By the summer tical wisdom, and executive competence and experi- of 1787, Clinton was serving in his 11th consecutive ence. As famous as the “father of his country” is to year as governor. Among the state governors, only modern Americans, his contemporaries may have William Livingston of New Jersey had served longer seen him as occupying an even higher plane. Perhaps (by one year), and no governor had become as power- the remarks of the Anti-Federalist “An Old Whig” ful a political figure in his state. Although Clinton was best illustrate the attitude of the founding genera- not without talent, few would rank him with fellow tion to the commander in chief who won the Revolu- New Yorkers Hamilton or Jay, never mind with the tionary War: “It is perhaps a chance of one hundred likes of Washington. Operating under a constitu- millions to one that the next age will not furnish an tion that gave him renewable three-year terms and example of so disinterested a use of great power.”154 vested the office with substantial independent pow- To put it simply, Washington’s virtues were viewed ers, Clinton proved to be an effective and responsi- as so extraordinary and his decision-making about ble governor. practical affairs so solid (“no judgment was ever sounder,”155 would later write) that Washington’s very example proved the need to fit the new and powerful executive office to more ordinary The delegates would men. Hence the need to design the office to attach the occupant to its powers and duties and to give the hardly have committed president incentives to exert himself for the good of the country. themselves to making To make an obvious point, the delegates would hardly have committed themselves to making the the president president impeachable if they expected every pres- ident to be a Washington. Nor would they have impeachable if they required Senate approval to the appointment of high-ranking executive officials. In the end, the expected every president authorities the delegates vested in the chief execu- tive were as much a reflection of their confidence in to be a Washington. the characteristics of the institution they so carefully crafted and the ways that institution would promote The architects of the presidency hoped their Elec- “presidential” behavior as it was trust in the personal toral College system would raise to the nation’s high- characteristics of the men they expected would rise est office men with a reputation for exemplary public to the nation’s highest office. service. As the delegates themselves implied, repu- Indeed, it is remarkable how frank the delegates tation was an approximation for real virtue. Men of were in their discussions of the executive. Those con- the caliber of Washington were desired, but men like cerned about creating too strong an office were not Clinton were more likely to fill the office.

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Of course, state governors did not exercise what legislative control within each term, removing the Madison had called the “great powers . . . properly election of the president from Congress, and giving executive”—the management of the nation’s exter- the chief executive a qualified veto over legislation— nal affairs. The Constitution vested some of these all indicate that the delegates were in general accord powers in the full Congress—such as declaring war, with this view. regulating foreign commerce, and defining violations As for the president’s role in developing public of international law—and others specifically in the policy and thereby guiding the legislative process—a Senate—ratifying treaties and confirming ambas- function that is familiar and largely uncontroversial sadorial appointments. The president retained to modern Americans—there is less direct evidence. the general “executive Power,” was commander in Although the Constitution requires the president chief, would make treaties (with the Senate), would to recommend measures to Congress (about which receive ambassadors, would take care that the laws no delegate objected), it is not at all clear from the be faithfully executed (including treaties and possi- debates just how far the delegates expected this bly international law), and had a special obligation to responsibility to reach. We know from Morris’ plan “preserve, protect and defend the Constitution.” for a Council of State that at least Morris contem- The Constitution did not, however, precisely plated the executive branch as an active force in define the boundaries between these powers. Did the guiding policy across the whole range of the new gov- Constitution, for example, require that the president ernment’s responsibilities. No other delegate, how- would work jointly with the Senate in negotiating ever, seems to have explicitly addressed the question treaties, or would the president alone negotiate them of presidential initiative over public policy, though and then send them to the Senate for final approval? they seemed in the end to accept Morris’ case for Did the Constitution authorize the president on his reeligibility, which included giving the president a own to proclaim the nation’s neutrality when a treaty positive incentive to try to accomplish great things seemed to require that the nation provide an ally for the nation. Thus, it remains uncertain from the military assistance? Both of these (and other related) recorded debates how many delegates contem- questions confronted the nation during President plated the president directing and setting national Washington’s two terms. priorities in the domestic sphere. Because so much of the delegates’ time in In sum, the debates and votes in the Constitu- Philadelphia was spent on structural issues, it is tional Convention provide a rough outline of what particularly difficult to determine their under- the framers had in mind when they fashioned the standing of the precise division of powers in their then-unique office of the presidency. Yet this out- separation-of-powers regime. The paucity of line leaves unresolved several important issues recorded debate on particular powers and their regarding the presidency. If one relies on the Con- extent, especially over foreign affairs and war pow- vention’s records alone, it is often not possible to ers, makes it difficult to reach definitive conclusions. determine whether the lack of debate at key points On other matters, such as the importance of the reflects a generally shared view among the delegates presidency as a check on legislative excesses and of the nature of the executive’s powers and respon- instability, the evidence is more fulsome and less sibilities or, instead, conceals divisions among the ambiguous. Key delegates such as Madison, Morris, Constitution’s many and diverse architects. Given and Wilson argued the point forcefully and repeat- the gaps in the record, the Convention necessarily edly. Certainly, the delegates’ votes on key provi- points beyond itself to the ratification debates and sions—such as insulating the president’s salary from the first presidential administrations.

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About the Authors

Joseph M. Bessette is the Alice Tweed Tuohy Gary J. Schmitt is a resident scholar in strategic Professor of Government and Ethics at Claremont studies and American institutions at the American McKenna College. Enterprise Institute.

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Notes

1. Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed., 4 vols. (New Haven, CT: Yale University Press, 1966), 1:71 (June 1) (notes by Rufus King). James Madison of Virginia, on his own initiative, took notes of the debates every day the body was in session. The official journal of the motions and votes was published in 1819, but Madison’s extensive notes of the actual debates were not published until 1840, four years after his death. A few other delegates took notes for some days or weeks. Farrand’s edition includes all the notes known at the time of publication. Unless otherwise noted (as in this case), all quotations we cite are from Madison’s notes. 2. Farrand, ed., The Records of the Federal Convention of 1787, 1:20–23. 3. Farrand, ed., The Records of the Federal Convention of 1787, 1:20–23. 4. These two resolutions are at Farrand, ed., The Records of the Federal Convention of 1787, 1:21. 5. Farrand, ed., The Records of the Federal Convention of 1787, 1:21. 6. Articles of Confederation, Article IX, https://www.ourdocuments.gov/doc.php?flash=false&doc=3&page=transcript. 7. Farrand, ed., The Records of the Federal Convention of 1787, 1:64–65. The use of parentheses in direct quotations from the Conven- tion debates indicates changes that Madison made many years later. See Farrand, ed., The Records of the Federal Convention of 1787, xviii–xix. South Carolina sent two Charles Pinckneys to the Convention. This Pinckney, at 29 years old, was one of the youngest dele- gates and had already served in the Continental Congress, the Confederation Congress, and his state’s legislature. The other was his second cousin, Charles Cotesworth Pinckney, 11 years his senior, who rose to the rank of brigadier general in the Continental Army during the Revolutionary War. Madison usually identified him as Gen. Pinckney, as we will here. Because the younger Pinckney spoke much more often than his cousin did and had a larger impact on the creation of the presidency, when we refer simply to Pinckney, this is who we mean. 8. Farrand, ed., The Records of the Federal Convention of 1787, 1:64–65. 9. Given the slightness of the notes, it is difficult to determine exactly what Rutledge had in mind here in arguing against giving the executive the power over “war and peace.” How sweeping or limited the point he was making is not clear from the debate. It is not surprising, however, that someone from South Carolina should apparently be the first to raise this issue. Of the state constitutions drafted in the wake of the Revolution, only South Carolina’s two constitutions (1776 and 1778) directly addressed this matter. In the 1778 constitution, the governor was explicitly denied the power “to commence war, or conclude peace, or enter into any final treaty without the consent of the [state] senate and house of representatives.” If Rutledge was attempting to repeat that limitation for the national executive, it would appear to leave the executive with powers short of commencing a war—such as acting in defense of the nation if attacked or negotiating the terms of a treaty while not having the authority to formally conclude one. 10. Farrand, ed., The Records of the Federal Convention of 1787, 1:65. 11. Farrand, ed., The Records of the Federal Convention of 1787, 1:65. 12. Farrand, ed., The Records of the Federal Convention of 1787, 1:65–66, 73–74. The quotations are from the notes of William Pierce of Georgia. 13. Farrand, ed., The Records of the Federal Convention of 1787, 1:65. 14. Emer de Vattel, The Law of Nations, eds. Béla Kapossy and Richard Whatmore, bk. 3 (Indianapolis, IN: Liberty Fund, 2008), 471. 15. Vattel, The Law of Nations, bk. 3, 507–08. The authority to declare war was also understood to have legal aspects that might imply a role for a legislature. Blackstone, for instance, writes that “the reason . . . given by Grotius, why a denunciation of war ought always to precede the actual commencement of hostilities . . . [is] to make clear that the war is not undertaken by private persons. . . . It is neces- sary . . . that it be publicly declared, and duly proclaimed . . . then, all parts of both the contending nations, from the highest to the low- est, are bound by it.” Once formally declared, a war, according to Vattel, becomes “lawful” and, as such, obligates the states involved to abide by certain rules and recognize certain rights under international law. In addition, according to Vattel, a declared state of war mod- ifies a participating state’s prerogatives relative to the property and person of other states. Sir William Blackstone,Commentaries on the Laws of England in Four Books, bk. 1 (Philadelphia, PA: J. B. Lippincott Co., 1893), 258; and Vattel, The Law of Nations, bk. 3, 507–08.

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16. Four years after the Constitutional Convention finished its work, James Wilson gave a series of lectures on law at the College of Philadelphia. In a lecture that compared the authorities of the British crown and the American presidency (in operation at that time for just two years), Wilson described the president’s powers as “strictly and properly executive” and that “in this important aspect the constitution of the United States has much more regular, more correct, and better proportioned features, than those of . . . Great Britain.” Robert G. McCloskey, ed., The Works of James Wilson, 2 vols. (Cambridge, MA: Harvard University Press, 1967), 1:730. Although the president’s formal powers in the US Constitution went well beyond Wilson’s June 1 definition of “strictly executive” powers as executing the laws and appointing subordinate officials, they were still by their nature “strictly and properly executive.” 17. Farrand, ed., The Records of the Federal Convention of 1787, 1:67. 18. Farrand, ed., The Records of the Federal Convention of 1787, 1:67. 19. The American founders were quite familiar, for example, with the practice of the ancient Roman Republic to appoint a temporary dictator for some number of months to address a domestic or foreign crisis, after which the dictator would voluntarily surrender his powers. Alexander Hamilton cited this historical example at the beginning of Federalist 70. See Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies, rev. ed. (London: Routledge, 2002), 15–28. 20. Farrand, ed., The Records of the Federal Convention of 1787, 1:67. 21. Madison made explicit the need to match the executive office with the powers and powers with the office during the early stage of the debate. On June 1, he argued that the convention should first fix the “extent of the Executive authority” before the character of the office was settled. A “definition” of the executive’s powers “would assist” the delegates “in determining how far they might be safely entrusted to a single officer.” Farrand, ed., The Records of the Federal Convention of 1787, 1:67. Madison’s broader point about matching the office and powers was, as we argue, accepted by the delegates, although, as we also argue, it appears the order of doing so was largely reversed, with the delegates’ focus primarily on establishing the features of the office first. 22. Farrand, ed., The Records of the Federal Convention of 1787, 1:113 (June 4). 23. Farrand, ed., The Records of the Federal Convention of 1787, 1:97–104. 24. Farrand, ed., The Records of the Federal Convention of 1787, 1:140. 25. Farrand, ed., The Records of the Federal Convention of 1787, 1:97–98. 26. Farrand, ed., The Records of the Federal Convention of 1787, 1:66. 27. Farrand, ed., The Records of the Federal Convention of 1787, 1:88. 28. Farrand, ed., The Records of the Federal Convention of 1787, 1:96. George Mason, Randolph’s fellow Virginian, was one of the few other delegates to support a three-person executive, arguing that it would increase the strength of the executive in “defending itself against the encroachments of the legislature.” Farrand, ed., The Records of the Federal Convention of 1787, 1:112. 29. Shlomo Slonim, “The Electoral College at Philadelphia: The Evolution of an Ad Hoc Congress for the Selection of a President,” Journal of American History 73, no. 1 (June 1986): 37–38, https://www.jstor.org/stable/1903605. 30. Farrand, ed., The Records of the Federal Convention of 1787, 1:68. 31. Farrand, ed., The Records of the Federal Convention of 1787, 1:69. 32. We sometimes refer to this system, a version of which ultimately prevailed, by its familiar name “Electoral College.” Note, however, that the Constitution does not use this term, which originated in the early 1800s. 33. Farrand, ed., The Records of the Federal Convention of 1787, 1:80–81. 34. Farrand, ed., The Records of the Federal Convention of 1787, 1:86 (June 2). 35. Farrand, ed., The Records of the Federal Convention of 1787, 1:175 (June 9). That is, if the number of senators varied in some way based on the states’ populations—a matter not yet resolved—so would the number of votes cast by the governor for president. 36. Farrand, ed., The Records of the Federal Convention of 1787, 1:244. 37. Farrand, ed., The Records of the Federal Convention of 1787, 1:282–92. 38. Farrand, ed., The Records of the Federal Convention of 1787, 2:29, 30. 39. Farrand, ed., The Records of the Federal Convention of 1787, 2:30. 40. Farrand, ed., The Records of the Federal Convention of 1787, 2:31. 41. Farrand, ed., The Records of the Federal Convention of 1787, 2:32.

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42. Farrand, ed., The Records of the Federal Convention of 1787, 2:35. 43. Farrand, ed., The Records of the Federal Convention of 1787, 2:34. 44. Farrand, ed., The Records of the Federal Convention of 1787, 2:33 (July 17). 45. Farrand, ed., The Records of the Federal Convention of 1787, 2:53 (July 19). Morris also pointed out that, in a time of crisis, the ban on a second term might be ignored if adhering to it meant losing “the tried abilities and established character of a favorite Magistrate.” Farrand, ed., The Records of the Federal Convention of 1787, 2:33, 53. 46. Farrand, ed., The Records of the Federal Convention of 1787, 2:56. 47. Farrand, ed., The Records of the Federal Convention of 1787, 2:56–57. 48. Farrand, ed., The Records of the Federal Convention of 1787, 2:58–59. 49. Farrand, ed., The Records of the Federal Convention of 1787, 2:109. 50. Farrand, ed., The Records of the Federal Convention of 1787, 2:110. 51. Farrand, ed., The Records of the Federal Convention of 1787, 2:118–19 (July 26). 52. Farrand, ed., The Records of the Federal Convention of 1787, 1:85. 53. Farrand, ed., The Records of the Federal Convention of 1787, 1:88. 54. Farrand, ed., The Records of the Federal Convention of 1787, 2:64–69. 55. Farrand, ed., The Records of the Federal Convention of 1787, 2:65. 56. Farrand, ed., The Records of the Federal Convention of 1787, 2:65. 57. Farrand, ed., The Records of the Federal Convention of 1787, 2:68–69. In explaining his change of mind, Morris noted that “he was now sensible of the necessity of impeachments, if the Executive was to continue for any time in office.” In a political system where the chief executive was either hereditary or selected for life, one could expect the executive’s interest to coincide largely with the nation’s. But absent the life interest, the executive’s responsibilities and powers were too grave not to provide against the chance the executive might be enticed by some “greater interest to betray his trust.” Farrand, ed., The Records of the Federal Conven- tion of 1787, 2:64–69. 58. Farrand, ed., The Records of the Federal Convention of 1787, 2:95–96, 106, 128. 59. See Charles C. Thach Jr., The Creation of the Presidency, 1775–1789 (Indianapolis, IN: Liberty Fund, 2007), 92–104; and James H. Hutson, “Writing the Constitution: The Report of the Committee of Detail, August 6, 1787,” This Constitution: A Bicentennial Chronicle (Summer 1984), 23–30. 60. Farrand, ed., The Records of the Federal Convention of 1787, 2:185–86. 61. Farrand, ed., The Records of the Federal Convention of 1787, 2:185–86. 62. The draft constitution of the Committee of Detail can be found at Farrand, ed., The Records of the Federal Convention of 1787, 2:177–89. 63. Farrand, ed., The Records of the Federal Convention of 1787, 2:183, 182. 64. Farrand, ed., The Records of the Federal Convention of 1787, 2:134. 65. Farrand, ed., The Records of the Federal Convention of 1787, 2:186. Consistent with this more circumscribed conception of impeachment, the Committee of Detail excised from its final draft reference to the House of Representatives as “the grand Inquest of this Nation.” See Farrand, ed., The Records of the Federal Convention of 1787, 2:154, 178–79. 66. One indication of the committee’s more expansive view of the executive’s role is suggested by its edit of Pinckey’s draft in which the president had the “duty to inform the Legislature of the Condition of [the] U.S. so far as may respect his Department,” expanding it to a responsibility to inform the legislature “of the State of the Union.” (Emphasis added.) Farrand, ed., The Records of the Federal Convention of 1787, 2:158, 171, 185. 67. Farrand, ed., The Records of the Federal Convention of 1787, 1:176 (June 9). 68. Farrand, ed., The Records of the Federal Convention of 1787, 2:298–301. See also the brief debate on August 16. Farrand, ed., The Records of the Federal Convention of 1787, 2:304–05. 69. Farrand, ed., The Records of the Federal Convention of 1787, 2:320. 70. All the quotations from this debate are from Farrand, ed., The Records of the Federal Convention of 1787, 2:318–19.

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71. See Michael P. Riccards, A Republic, If You Can Keep It: The Foundation of the American Presidency, 1700–1800 (Westport, CT: Greenwood Press, 1987), 38. 72. Even under Hamilton’s plan, although the Senate had the “sole power of declaring war,” the executive had “direction of war when authorized or begun.” Farrand, ed., The Records of the Federal Convention of 1787, 1:292. 73. Robert Scigliano, “The War Powers Resolution and the War Powers,” in The Presidency in the Constitutional Order, ed. Joseph M. Bessette and Jeffrey Tulis (Baton Rouge, LA: LSU Press, 1981), 137. 74. Farrand, ed., The Records of the Federal Convention of 1787, 2:235 (August 9). 75. See, in general, Arthur Bestor, “Respective Roles of Senate and President in the Making and Abrogation of Treaties: The Original Intent of the Framers Historically Examined,” Washington Law Review 55 (1979), 1–135; Arthur Bestor, “Separation of Powers in the Domain of Foreign Affairs: The Original Intent of the Constitution Historically Examined,”Seton Hall Law Review 5 (1974): 527–665; and Leonard W. Levy, Original Intent and the Framers’ Constitution (Chicago: Ivan R. Dee, 1988), 30–53. For a more balanced account, see Jack N. Rakove, “Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study,” in Perspectives in American History, vol. 1 (1984), 236–50. 76. Farrand, ed., The Records of the Federal Convention of 1787, 2:329. 77. Farrand, ed., The Records of the Federal Convention of 1787, 2:342 (August 20). 78. Farrand, ed., The Records of the Federal Convention of 1787, 2:343–44. 79. Farrand, ed., The Records of the Federal Convention of 1787, 2:343 (August 20). 80. Farrand, ed., The Records of the Federal Convention of 1787, 2:342–43. 81. Farrand, ed., The Records of the Federal Convention of 1787, 2:343. 82. Farrand, ed., The Records of the Federal Convention of 1787, 2:185 (August 6). 83. This Committee of Eleven should not be confused with a previous committee of the same name that was created on August 22 to address the slavery issue. To avoid confusion, we will use the name “Committee on Unfinished Business.” 84. Thach, The Creation of the Presidency, 1775–1789, 109. 85. Farrand, ed., The Records of the Federal Convention of 1787, 2:3. 86. Farrand, ed., The Records of the Federal Convention of 1787, 2:392. 87. Farrand, ed., The Records of the Federal Convention of 1787, 2:297. 88. Farrand, ed., The Records of the Federal Convention of 1787, 2:259 (August 11). 89. Farrand, ed., The Records of the Federal Convention of 1787, 2:522–23 (September 6). 90. Farrand, ed., The Records of the Federal Convention of 1787, 2:393. 91. Farrand, ed., The Records of the Federal Convention of 1787, 2:394. 92. Farrand, ed., The Records of the Federal Convention of 1787, 2:401. 93. Farrand, ed., The Records of the Federal Convention of 1787, 2:402 (Ghorum). 94. Farrand, ed., The Records of the Federal Convention of 1787, 2:404. 95. Farrand, ed., The Records of the Federal Convention of 1787, 2:407 (James McHenry’s notes). 96. Farrand, ed., The Records of the Federal Convention of 1787, 2:480. 97. Farrand, ed., The Records of the Federal Convention of 1787, 2:404–07, 418–20, 426–27. 98. Farrand, ed., The Records of the Federal Convention of 1787, 2:405. 99. Farrand, ed., The Records of the Federal Convention of 1787, 2:419. 100. Farrand, ed., The Records of the Federal Convention of 1787, 2:405. 101. Farrand, ed., The Records of the Federal Convention of 1787, 2:419. 102. Farrand, ed., The Records of the Federal Convention of 1787, 2:185. 103. Farrand, ed., The Records of the Federal Convention of 1787, 2:427. 104. Farrand, ed., The Records of the Federal Convention of 1787, 2:499, 500. 105. Farrand, ed., The Records of the Federal Convention of 1787, 2:501 (September 4). 106. Farrand, ed., The Records of the Federal Convention of 1787, 2:512 (September 5).

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107. Farrand, ed., The Records of the Federal Convention of 1787, 2:512 (September 5). 108. Farrand, ed., The Records of the Federal Convention of 1787, 2:523 (September 6). 109. This account of the establishment of the Electoral College system mirrors in some respects the process by which the Convention’s delegates were able to complete the Constitution, resting as their efforts did on the “” in which the interests of the large and small states were accommodated by adjusting the composition of the two chambers of the Congress. But like the Connecticut Compromise, the various accommodations made to the states in the executive selection system did not under- mine the larger goal of the Constitution’s architects. In the case of the Connecticut Compromise, the delegates could still craft a new political order substantially different in kind than the Articles of Confederation, while in the case of the Electoral College, they created a system of selecting a president that was initially not dependent on the legislature and, hence, reinforced the goal of executive inde- pendence. On the mix of principle and politics in the Convention’s deliberations, see Herbert J. Storing, “The Constitutional Convention: Toward a More Perfect Union,” in Toward a More Perfect Union: Writings of Herbert J. Storing, ed. Joseph M. Bessette (Washington, DC: AEI Press, 1995), 17–36. 110. Farrand, ed., The Records of the Federal Convention of 1787, 2:527 (September 6). 111. Farrand, ed., The Records of the Federal Convention of 1787, 2:538 (September 7). 112. Farrand, ed., The Records of the Federal Convention of 1787, 2:540. 113. Farrand, ed., The Records of the Federal Convention of 1787, 2:540. 114. Farrand, ed., The Records of the Federal Convention of 1787, 2:541. 115. Farrand, ed., The Records of the Federal Convention of 1787, 2:540 (September 7), 548–49 (September 8). 116. Farrand, ed., The Records of the Federal Convention of 1787, 2:498–99. 117. Farrand, ed., The Records of the Federal Convention of 1787, 2:538–39 (September 7). 118. Farrand, ed., The Records of the Federal Convention of 1787, 2:539. 119. Farrand, ed., The Records of the Federal Convention of 1787, 2:542. 120. Farrand, ed., The Records of the Federal Convention of 1787, 2:553. 121. See, for example, Forrest McDonald, Novus Ordo Seclorum (Lawrence, KS: University Press of Kansas, 1985), 251. In a letter to John Quincy Adams in 1818, Charles Pinckney claimed that the expansion of the president’s power at this point owed more to the haste of the Convention’s final days than the “patient & coolly deliberative” sense that had marked the delegates’ work until that time. Madison, in a letter to Jared Sparks some years later, disputed Pinckney’s characterization of the proceedings, writing that he was “at a loss for the ground of his contrast between the latter period of the Convention and the . . . months preceding.” Farrand, ed., The Records of the Federal Convention of 1787, 3:427, 502. 122. James Madison, letter to Thomas Jefferson, October 24, 1787, in Farrand, ed.,The Records of the Federal Convention of 1787, 3:133. 123. Farrand, ed., The Records of the Federal Convention of 1787, 2:392 (August 23). 124. Farrand, ed., The Records of the Federal Convention of 1787, 2:550. 125. Farrand, ed., The Records of the Federal Convention of 1787, 2:550. 126. Farrand, ed., The Records of the Federal Convention of 1787, 2:551. 127. Farrand, ed., The Records of the Federal Convention of 1787, 2:551. 128. Farrand, ed., The Records of the Federal Convention of 1787, 2:552. Under the Senate’s rules, the members take an oath to “do impartial justice according to the Constitution and laws” whenever sitting as the jury in an impeachment trial. See , Constitution Annotated, “ArtI.S3.C6.1.3.2 Requirement of Oath or Affirmation,”https://constitution.congress.gov/browse/essay/artI_ S3_C6_1_3_2/ALDE_00000709/. 129. Following Mason’s complaint that, as things stood, the grounds for impeachment “will not reach many great and dangerous offenses,” the Convention notes have Mason remarking, “Hastings is not guilty of Treason.” This is a reference to the impeachment proceedings taking place in the House of Commons against Warren Hastings, the former British governor of India. In April 1786, Edmund Burke had set forth nearly two dozen charges against Hastings. In May 1787, the House of Commons voted to impeach Hastings for “high crimes and misdemeanors.” The charges leveled at the former governor included corruption, abuse of office, and the creation of a despotic form of rule over India. But, according to Burke, the charges did not principally involve violations of English

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or Indian law. Rather, Hastings was being impeached because he had used his discretionary authority as governor in a manner that ran afoul of his more fundamental duty to act in accord with just and right rule. As Burke argued in his opening speech on Hastings to the House of Lords in 1788, the “high crimes and misdemeanors” with which the former governor was charged rested “not upon the niceties of narrow jurisprudence, but upon the enlarged and solid principles of state morality.” Farrand, ed., The Records of the Federal Convention of 1787, 2:550; and Edmund Burke, The Writings and Speeches of Edmund Burke in Twelve Volumes: Volume IX, Articles of Charge Against Warren Hastings, Esq.; Speeches in the Impeachment (Boston, MA: Little Brown & Co., 1901), 333. 130. Farrand, ed., The Records of the Federal Convention of 1787, 2:547. 131. Farrand, ed., The Records of the Federal Convention of 1787, 2:524. The resolutions of the Convention referred to the Committee on Style are conveniently collected at Farrand, ed., The Records of the Federal Convention of 1787, 2:565–79. 132. The Committee of Style’s constitution is at Farrand, ed., The Records of the Federal Convention of 1787, 2:590–603. 133. Farrand, ed., The Records of the Federal Convention of 1787, 2:565, 512, 515. 134. Farrand, ed., The Records of the Federal Convention of 1787, 2:567, 590, 600. 135. Farrand, ed., The Records of the Federal Convention of 1787, 2:617–18. 136. Farrand, ed., The Records of the Federal Convention of 1787, 3:170. Ezra Stiles reported in his diary Baldwin’s claim of Morris’ role. In one respect, however, the diary entry is wrong, for it also accords equal credit to James Wilson, who did not in fact serve on the Committee of Style. 137. Farrand, ed., The Records of the Federal Convention of 1787, 3:420. 138. Farrand, ed., The Records of the Federal Convention of 1787, 3:499. 139. See Charles Z. Lincoln, The Constitutional History of New York, 5 vols. (Rochester, NY: Lawyers Co-operative Publishing Co., 1906), 1:471–558, esp. 471 and 496. 140. Farrand, ed., The Records of the Federal Convention of 1787, 2:405. 141. Farrand, ed., The Records of the Federal Convention of 1787, 2:598–99. 142. Farrand, ed., The Records of the Federal Convention of 1787, 2:585–87. 143. After the Committee of the Whole had completed its work on June 19, Washington presided over the daily sessions. If Madison’s notes are accurate, he did not speak to any substantive matter until September 17, the final day, when he supported a motion to change the ratio of representation in the new House from no more than one representative per 40,000 persons to one per 30,000. See Farrand, ed., The Records of the Federal Convention of 1787, 2:644. 144. Farrand, ed., The Records of the Federal Convention of 1787, 2:614. 145. Farrand, ed., The Records of the Federal Convention of 1787, 2:626–27. 146. Farrand, ed., The Records of the Federal Convention of 1787, 2:627–28. 147. Even to this day, it is a sign of some distinction and stature for an executive official of the national government to be a PAS official—presidentially appointed and Senate confirmed. 148. Farrand, ed., The Records of the Federal Convention of 1787, 2:628. 149. Farrand, ed., The Records of the Federal Convention of 1787, 2:631–33. In a pamphlet titled “Objections to This Constitution of Government,” which Mason wrote at or just after the end of the Convention, he criticized the absence of a constitutional council in the executive branch, the “blending of the executive and legislative powers” with the Senate’s role in appointments and the vice president’s duties in the Senate, the power of the president to pardon treason, and the vesting of the treaty power in the president and Senate with no requirement for “the assent of the House of Representatives.” Reprinted in Farrand, ed., The Records of the Federal Convention of 1787, 2:637–40. 150. Letter to Weedon Butler, May 5, 1788, in Farrand, ed., The Records of the Federal Convention of 1787, 3:302. 151. Farrand, ed., The Records of the Federal Convention of 1787, 1:82. 152. See Herbert J. Storing, “Introduction,” in The Creation of the Presidency, 1775–1789 by Charles C. Thach Jr. (Indianapolis, IN: Liberty Fund, 2007), 163–71, esp. 169. 153. Farrand, ed., The Records of the Federal Convention of 1787, 1:85.

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154. Herbert J. Storing, The Complete Anti-Federalist, 7 vols. (Chicago: University of Chicago Press, 1981), 3:38. 155. Thomas Jefferson, letter to Walter Jones, January 2, 1814,https://founders.archives.gov/documents/Jefferson/03-07-02-0052 .

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