by Ray Raphael
Dreamlike, the convention was turning into a dramatic farce, in which each character recites the same lines over and over. A cacophony of voices. Make a motion, talk, vote, reconsider, adjourn, vote again, affirm, postpone, resume debate, reverse, reaffirm, reverse again, and so on, without apparent end. Late in the afternoon of July 24, the move to postpone yet one more time won by acclamation.
Two days later George Mason tried to redirect the debate, as Morris had done a week before. Like Morris, he offered definitive positions on all three strands, but his views leaned in the opposite direction. First, on the method of selection: “election by the National Legislature, as originally proposed, was the best,” not because it had anything special to commend it, but because “if it was liable to objections, it was liable to fewer than any other.” That seems to have been the winning hand, albeit a low one. Legislative appointment was still the default mode, adopted only in the absence of anything better. In conjunction with this, Mason offered two motions in one: “that the executive be appointed for seven years, & be ineligible a second time.” There was nothing new in this, but Mason took the offensive by giving his argument a new twist. Ineligibility, the cornerstone of his approach, was also the touchstone of republican government:
Having for his primary object, for the pole-star of his political conduct, the preservation of the rights of the people, he [Mason] held it as an essential point, as the very palladium of Civil liberty, that the great officers of State, and particularly the Executive should at fixed periods return to that mass from which they were at first taken, in order that they may feel & respect those rights & interests, which are again to be personally valuable to them.
Mason’s speech—a grand but innocuous acknowledgment of the people’s supremacy, unencumbered by any measure that would actually grant them power—was perfectly suited to his audience. He had taken command of the high moral ground. Immediately, Benjamin Franklin, as committed to republican virtue as any man in the room, proceeded to fortify this territory with his customary wit:
It seems to have been imagined by some that the returning to the mass of the people was degrading the magistrate. This he thought was contrary to republican principles. In free Governments the rulers are the servants, and the people their superiors & sovereigns. For the former therefore to return among the latter was not to degrade but to promote them. And it would be imposing an unreasonable burden on them, to keep them always in a state of servitude, and not allow them to become again one of the masters.
Mason and Franklin made a vote for the single-term limitation seem virtuous and patriotic. Delegates could feel good about themselves by favoring that. Perhaps even more important, by returning to their original track, before Gouverneur Morris had steered them off, they could feel as if they were finally done with the matter. We have no way of assessing whether it was republican virtue or fatigue that determined the results on Mason’s motion, but in any case it carried handily if not overwhelmingly, seven states to three.
Delegates were tired. They were done. They had just appointed five of their number—James Wilson, Edmund Randolph, John Rutledge, Nathaniel Gorham, and Oliver Ellsworth—to a workforce they called the Committee of Detail, which they instructed to flesh out matters that had not been fully defined. While that group hammered out a more complete draft, the rest of the delegates could take a ten-day breather. They would not meet again till August 6.
Here’s the draft delegates handed to the Committee of Detail, the sum total of what they had decided over the course of two months about the new executive department:
Resolved, That a national executive be instituted, to consist of a single person; to be chosen by the national legislature, for the term of seven years; to be ineligible a second time; with power to carry into execution the national laws; to appoint to offices in cases not otherwise provided for; to be removable on impeachment, and conviction of malpractice or neglect of duty; to receive a fixed compensation for the devotion of his time to publick service; to be paid out of the publick treasury.
Resolved, That the national executive shall have a right to negative any legislative act, which shall not be afterwards passed, unless by two third parts of each branch of the national legislature.
Sound familiar? Delegates had made no changes to the office of the executive since June 4. They had entertained many alternatives, some seriously; a few of these had made their way briefly into the working plan, only to be removed later. We can infer two things from this. First, for many delegates, several of these measures created serious problems, for they kept getting challenged. Second, since they had withstood the challenges, the measures had staying power. They were on course, at that point, to become part of the final document and ultimately the law of the land.
Imagine if they had. President Buchanan and President Lincoln each serve a seven-year term (assuming no assassinations in this scenario). John Tyler, never elected to the presidency and known today as the junior partner in “Tippecanoe and Tyler too,” serves for six years, eleven months after William Henry Harrison falls ill on Inauguration Day and dies one month later. Franklin Pierce, Benjamin Harrison, Herbert Hoover all enjoy seven years in office, as does Franklin Delano Roosevelt, who is limited, like the others, to a single term. Strong presidents or weak, effective leaders or not, all would serve lengthy identical terms.
Very possibly, the office would have been allocated to a very different set of characters, politicians who, in today’s parlance, were “Washington insiders.” If members of the legislature chose the president, they probably would have selected power figures who had made their way up through the ranks of Congress, not men who were born in log cabins or otherwise presented themselves as “of the people.” Meet President Thomas Hart Benton and President Thaddeus Stevens. Presidents Sam Rayburn and Tip O’Neill. Or try President Tom DeLay and the sitting president, Nancy Pelosi, secure in her office from 2007 to 2014, unless impeached and convicted “of malpractice or neglect of duty.”
Well, maybe not. Probably, when the majority party in Congress selected one of its own, it would have paid some attention to national popularity, since one unofficial role of the president would be to attract voters to his political party. Heavy hitting on the inside would have to be balanced by appeal to the electorate, and who knows how that might have played out. In any case, though, the presidency would certainly have been launched on a very different trajectory, with powerful consequences for the subsequent history of the United States.
Try to imagine, too, what a man selected by Congress to serve as president would actually have done, had there been no guidance from the framers beyond what appeared in the working draft on July 26. Would he have been commander in chief of the military forces? Not necessarily, no word on that. Could he have engaged in international diplomacy? Not unless he went beyond the strict construction of his office. Propose a budget, place an agenda before Congress, or argue for laws he preferred? He was not empowered to do any of those things. Appoint judges? No. That authority, just five days earlier, had been granted to the upper house of the legislature.
Some of these powers had been suggested, but none enacted. The New Jersey Plan granted the executives (note the plural) the authority “to direct all military operations,” but the authority was granted to multiple executive officers, not to one man—and it didn’t matter in any case, since the New Jersey Plan was rejected four days later. Hamilton’s schema gave to the executive, with consent of the Senate, the power to appoint ambassadors and negotiate treaties. He would possess the “sole” authority to appoint “chief officers of the departments of Finance, War and Foreign Affairs” and also take charge of “the direction of war when authorized or begun.” Yet Hamilton’s proposals, tainted by the politically dangerous views of their author, were quickly discarded. Further, regardless of who suggested them, they had been highly controversial.
Charles Pinckney, at the very outset, had feared the powers of the executive “might extend to peace & war &c., which would ren
der the Executive a monarchy.” For men of the Revolutionary generation, whose nation had fought the king’s army during seven grueling years, allocating any authority over “peace & war” to a single individual still raised concerns. Virginia’s James McClurg, in a postscript to the deliberations of July 20, “asked whether it would not be necessary … to determine on the means by which the Executive is to carry the laws into effect, and to resist combinations against them. Is he to have a military force for the purpose, or to have the command of the Militia, the only existing force that can be applied to that use?” A good question, and as yet unaddressed.
The only specific power delegates had handed the executive was a limited veto, and that was actually legislative in nature, not an executive matter per se. Instead of allocating powers, they had focused their attention on questions of access to the office, not the office itself. Who chose the executive and how long he might remain in office had a lot to do with politics but little to do with governance.
To grasp why delegates, somewhat illogically, debated issues of access before determining, or even outlining, what the access was to, we have to understand how nervous they were about what they were doing. The driving force of the convention, the very reason for its existence, was to grant additional powers to a central government, but who, within this new construct, would be exercising the augmented powers? Therein lay the problem.
The legislative branch was prone to division and open to intrigue, many delegates felt, and yet throughout the admittedly short history of the nation the legislature was the central government. This created considerable confusion. On the one hand, delegates wanted to load new powers on Congress, the heart of the government; on the other hand, they had little trust for legislatures of any sort, with their incessant wrangling, partisan interests, and thirst for power. The contradiction caught the eye of George Mason. “It is curious to remark the different language held at different times,” he said on July 17, nine days before the recess. “At one moment we are told that the Legislature is entitled to thorough confidence, and to indefinite power. At another, that it will be governed by intrigue & corruption, and cannot be trusted at all.”
The executive branch, for very different reasons, was also suspect. There, the negative examples dated from colonial times and from British history, which was still in a sense their history. Delegates were stretching to their political limits by urging centralization, which perforce would lessen the power of the states. If they centralized power even more by placing it in the hands of one person, the political repercussions could doom the project.
Wary of amassing too much authority in either branch, delegates embraced the notion of separation of powers espoused by “the celebrated Montesquieu.” Since the premise of the convention was to concentrate power within a new central government, Montesquieu’s admonition to disperse powers among separate components of that new and stronger government became an absolute imperative.
But this impeded progress. Any allocation of power to one branch raised fears of imbalance, causing delegates to back off, reconsider, and sometimes revoke the powers they had just granted. So the convention proceeded cautiously, too cautiously perhaps. The new powers of a national government, if they were to exist at all, needed to find their proper homes. And time was passing.
* Only ten states voted during this round. Rhode Island sent no delegates to the convention; New Hampshire’s had still not arrived; New York’s had all departed, Hamilton first, then Yates and Lansing, who disapproved of the convention’s direction.
† A delegation from New Hampshire had arrived the day before, bringing the number of voting states to eleven.
CHAPTER FIVE
Gouverneur Morris’s Final Push
The American “president” was formally christened in the early days of August 1787, after a laborious birth. We have three extant drafts from the five-man Committee of Detail, which had been instructed to turn the convention’s broad outline for governance into a preliminary version of a constitution.
The first draft, in the hand of Edmund Randolph, referred generically to a “National Executive,” who was “to consist of a single person.”
In his reworking of Randolph’s draft, John Rutledge called the chief executive “Governor of the united People & States of America.” The only delegate who had served as both “president” (1776–78) and “governor” (1779–82) of his home state, Rutledge opted for the term implying that a leader should not merely preside but actually govern. That appealed to advocates of a strong executive, but when Alexander Hamilton had suggested the national “governor” should serve for life, he scared off his fellow delegates and perhaps tainted the very word. A more modest yet still respectful appellation was called for.
It was James Wilson, author of the original motion for a single executive, who once again prevailed. According to Wilson’s final draft of the Committee of Detail’s report, “The Executive power of the United States shall be vested in a single person. His style shall be ‘The President of the United States of America,’ and his title shall be, ‘His Excellency.’ ” The convention accepted the “style” but not the “title.” (“His Excellency,” though never formalized, did remain in common usage until Andrew Jackson’s administration. A common term during Revolutionary times, it was applied not just to George Washington, as is generally assumed, but to state governors.)1
The term “president” struck just the right chord. In late colonial and Revolutionary times, a president was one who presided over a convention, congress, or almost any type of meeting; sometimes he was called a moderator. The Continental Congress had a president, as did this very meeting, the Federal Convention. Typically, the rules governing the body stipulated that to minimize personal discord, speakers must address the president rather than each other. “Mr. President,” a member would say, and then he would make his point. The rules of the convention, passed on May 28, stated: “Every member, rising to speak, shall address the President; and whilst he shall be speaking, none shall pass between them, or hold discourse with another, or read a book, pamphlet or paper, printed or manuscript.”
A president, as moderator, was not to take sides but to stand over and above, a man apart. That was how orderly meetings worked, and couldn’t this serve as a model for the leader of a nation? “The President of the United States of America,” by remaining above the fray, could serve as a moral compass and limit conflict. Political strife, always a threat to civil well-being, would be held in check by “Mr. President,” a man respected by all yet not a monarch, just a citizen.
That was the basic idea, reflected in the name. The draft of the Constitution emerging from the Committee of Detail meshed well with this ideal. Carefully, the committee restrained the president from governing his people with a strong hand, as a monarch would do. He was permitted to “recommend” legislation, but not to push for it or vote on it. He could write letters to state governors, but he was not empowered to force their hands, supersede their authority, or, on his own authority, suppress insurrections within their states. Although he could commission officers and receive ambassadors, the authority to appoint ambassadors and judges lay with the Senate, as did the power to make treaties with foreign nations. He could command military forces but not raise them. He could neither declare war nor negotiate peace. Always under close supervision, he could be removed from office through “impeachment by the House of Representatives, and conviction in the supreme Court, of treason, bribery, or corruption.” Only once, to check the judiciary, did the committee use the word “power”: “He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment.”
Although all five members of the Committee of Detail—Wilson, Rutledge, Randolph, Gorham, and Ellsworth—had previously expressed support for a strong executive, the office they outlined was tightly reined in. By contrast, they gave to Congress a very imposing array of new powers, many of which had been the province of the Crown when Ameri
cans had lived under the British constitution. In addition to the Senate’s authority to negotiate treaties and appoint ambassadors and judges, Congress could collect taxes, regulate commerce, coin money, borrow money, establish courts, negotiate controversies between states, make war, raise armies, build and equip fleets, call forth the militia, suppress insurrections, and “make all laws that shall be necessary and proper” to accomplish these and other tasks.
The new office of the president remained but a stepchild within this government in the making. The retreat from executive authority, so pronounced in the Revolutionary years, had slowed but not reversed. This did not satisfy Gouverneur Morris. He would not quit until the convention gave the president of the United States full and equal standing.
It rained in Philadelphia on Monday, August 6, the day delegates reconvened after their brief break. John Rutledge, as chairman of the Committee of Detail, read aloud its report. Then the session quickly adjourned, each man returning to his home or lodging with a printed copy to ponder. Confidentiality was a paramount concern, but the convention had trusted John Dunlap, who had published the first copies of the Declaration of Independence eleven years earlier, to print a very limited edition.2
The brief document that went into committee on July 26 had tripled in length. It looked more like a constitution than an outline, a promising outcome. Due to the draft’s expansion, however, there was so much more to discuss, and because it appeared definitive, the stakes were higher yet. The next morning, August 7, delegates started to make their way methodically through the draft’s twenty-three articles. They adopted Article I, “The style of the Government shall be, ‘The United States of America,’ ” and Article II, “The Government shall consist of supreme legislative, executive, and judicial power,” with neither discussion nor dissent. Those were the easy parts; the rest would take time. Over the next week, at the height of summer and through a muggy Philadelphia heat wave, the pace of debate intensified. There were more motions than ever before, more votes, more changes to specific clauses, phrases, and individual words.