by Ray Raphael
Gouverneur Morris had much to say on many counts. In the four days following the committee report, he offered a dozen motions to alter the committee’s version; in the same time span, no other delegate presented more than four. He also used the occasion to bring up matters that had already been decided. On August 7, with George Read, he pushed once again for an absolute executive veto, but only Delaware, Read’s home state, supported this. Morris then tried to limit the national franchise to freeholders, but again, only the delegation from Delaware voted his way.
The following day, in an impassioned speech, Morris insisted that counting three-fifths of the enslaved population when apportioning representation was an absolutely terrible idea. From Madison’s notes: “He [Morris] never would concur in upholding domestic slavery. It was a nefarious institution—It was the curse of heaven on the States where it prevailed…. He would sooner submit himself to a tax for paying for all the Negroes in the U. States than saddle posterity with such a Constitution.” This time only New Jersey agreed. During the summer’s proceedings, no other member of the convention came out so forcibly against slavery.
On August 15, Gouverneur Morris repeated yet again his argument for an absolute veto. The resounding defeat of this idea eight days earlier, by a vote of nine states to one, fazed him not the least. Back on July 19, he had convinced the convention, at least momentarily, to reverse its decision on legislative appointment of the executive. Now he was trying to replicate that performance by promoting another twice-defeated idea. His central argument—“Encroachment of the popular branch of the Government ought to be guarded against”—was not new and won no additional converts, but recent developments were beginning to raise a new fear. Was the upper branch of the legislature also taking on too many powers? The Committee of Detail had granted the Senate treaty-making authority. Then, on August 8, upon Morris’s urging, the clause prohibiting the Senate from initiating money bills had been withdrawn. This caused Hugh Williamson to comment bitterly, “We have now got a House of Lords which is to originate money-bills.” Who, then, could check both the lower house and the upper house simultaneously? The president, if he received the power to “negative” any bill.
Delegates had been through this discussion before and arrived at a compromise—an executive veto that could be cast aside by two-thirds of each branch of Congress—but that would not check a runaway legislature, Morris thought. This time, he tackled the veto issue from a slightly different angle. Knowing he didn’t have the votes, he suggested there might be “some more effectual check than requiring ⅔ only to overrule the negative of the executive.” Following Morris’s lead, Williamson proposed a new compromise: a three-fourths override instead of two-thirds. This higher hurdle would make the veto more powerful, but not absolute. Five states that had opposed Morris’s absolute veto the week before agreed now to make an override more difficult, and the motion passed six states to four, with one divided.
The vote on the three-fourths override followed no discernible pattern. Large states and small, southern states and northern, came down on both sides of the issue. With no special interests at stake, delegates were seriously considering the delicate balance of power in the distinct branches of government, and the executive, outdone in the Committee of Detail draft by the legislative, was on a slight upswing. The convention strengthened the president’s position not by granting him new powers per se but by increasing his ability to check Congress. The Committee of Detail’s draft had included a similar change: the president could check the judiciary by issuing pardons. While the president himself exercised few special powers, delegates were creating for him a meta-role of referee.
Two days later, on August 17, the jockeying for authority among the branches resumed. On the table was Congress’s power “to make war,” as stipulated in the Committee of Detail’s draft. Charles Pinckney thought “the House of Representatives would be too numerous for such deliberations.” It met “but once a year,” and “its proceedings were too slow.” So who should be empowered to make war? “The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions,” Pinckney said. Since the Senate, through its authority to make treaties, already possessed the “power of peace,” it should have the “power of war” as well.
Pierce Butler, Pinckney’s colleague from South Carolina, countered that “the objections against the legislature lie in great degree against the Senate.” The president, on the other hand, would always be on the job. He could work quickly. He “will have all the requisite qualities, and will not make war but when the Nation will support it.” Butler was likely recalling the problems he faced as adjutant general for South Carolina in 1779, when his state struggled to mobilize against an imminent British invasion. Surely, a single leader at that point would have performed more efficiently than any deliberative body.
Butler’s proposal for vesting the president with the power to “make war” drew immediate and heated responses. Elbridge Gerry was shocked and dismayed. From Madison’s notes: “Mr. GERRY never expected to hear in a republic a motion to empower the Executive alone to declare war.” At the outset of the convention, Gerry admitted he had been “too republican heretofore,” but Butler’s retreat from republican values was going too far even for him. Only the people, through their representatives, could ever possess the power of war.
For Oliver Ellsworth, allowing one man to lead the nation into war made war too easy: “There is a material difference between the cases of making war and making peace. It should be more easy to get out of war, than into it. War also is a simple and overt declaration, peace attended with intricate & secret negociations.” George Mason followed up on this theme: “Mr. MASON was against giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace.”
No delegate supported Butler. Gouverneur Morris, whom we might expect to have at least commented on such an increase in presidential powers, remained uncharacteristically silent on this provocative suggestion. Like Alexander Hamilton, Butler had established an outer limit to acceptable discourse. Indeed, Hamilton himself, in the plan he offered two months earlier, had granted the executive only “the direction of war when authorized or begun.” Despite his own disclaimers on republicanism, Hamilton had ceded that only Congress could take the monumental and irreversible step of initiating a war.
Still, Butler did pose one valid question. How could the nation defend itself against an invasion while Congress was not in session?
Madison and Gerry offered a solution. Congress would be granted exclusive authority to “declare” war, not “make” war, thus “leaving to the Executive the power to repel sudden attacks.” Rufus King explained the differences in word connotations. To “make” war could be construed as to “conduct” war, and that was the province of the president, the commander in chief of the armed forces. To “declare” war, on the other hand, was to set the nation on a course of action that included the expenditure of blood and treasure, and nobody but the people’s direct representatives should be authorized to do that. Only one state, New Hampshire, opposed the change from “make” to “declare.” This decision, precise but not insignificant, confirmed the overarching sense of the convention. Although the president would be granted powers sufficient to make government function more efficiently, only Congress could set lasting policy.
The following day, a Saturday, delegates considered the possibility of an executive council, something akin to the Privy Council under the British system. Charles Pinckney observed that Gouverneur Morris “was not then on the floor,” and Morris was known to have decided views on the subject. We do not know why Morris was absent on August 18, but we do know that his peers readily agreed to let the issue ride until he returned. At no other time during the summer of 1787 did the convention suspend discussion because of the abs
ence of a single member.
Morris returned to work on Monday, August 20, and presented a written plan for a council “to assist the President in conducting the public affairs.” The chief justice of the Supreme Court would be its president, and its members would include secretaries for domestic affairs, commerce and finance, foreign affairs, war, marine, and state. Other than the chief justice, these council members would hold their offices at the pleasure of the president, who could submit any matter for their consideration but would in no way be bound by their advice. The president, wrote Morris, “shall in all cases exercise his own judgment, and either conform to such opinions or not as he may think proper.”
Morris’s council, absent the chief justice, closely resembled the modern cabinet, but it differed markedly from the council envisioned by other delegates. For those who remained suspicious of a single executive, the purpose of an executive council was to diffuse power and prevent autocratic rule, and that could happen only if council members were independent of the president. Morris’s council, by contrast, was predicated on the assumption that the president was boss in all matters. His idea was to centralize power, not disperse it. The showdown between these contradictory notions of an executive council did not take place at this time. Instead, the matter was sent to a new Committee of Eleven, one representative from each state delegation.3
On August 23, with a three-pronged offensive, Morris continued to attack the authority of the legislative branch. First, he argued against the appointment of ambassadors and Supreme Court judges by the Senate. According to Madison’s notes, he “considered the body as too numerous for the purpose [and] as subject to cabal.” Morris did not say who should have the power of appointment, but it certainly wouldn’t be the House, more numerous yet. There could be only one other choice, the president, but Morris did not say that explicitly, nor did he offer a motion to transfer authority, for such a direct assault would have met with defeat by an assembly still nervous about the political liability of a too-powerful single executive. So, after planting the seeds of doubt, Morris allowed the matter to be “waived.”
Immediately, before any other proposition should come to the floor, Morris offered two motions of a seemingly technical nature. In the committee’s draft, Congress was empowered “to call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions.” Two phrases here—“execute” and “enforce treaties”—ran counter to his preference for a strong and independent president. These words should not appear within a delineation of legislative powers, he reasoned; the president, not Congress, was to “execute” and “enforce.” Morris prevailed easily in this tighter game, his motions passing with neither argument nor dissent.
After a feint and a pass on the power of appointments, and then distancing Congress from executing laws and enforcing treaties, Morris tackled a matter of great import: the treaty-making authority of the Senate, which would give it the lead in setting foreign policy. Again, though, his attack was indirect. Morris “did not know that he should agree” to empowering the Senate with treaty-making authority, but he let it stand “for the present” and agreed to revert the matter to committee. While he did not have sufficient support for a dramatic change of power, he did conjure a way to include the president in the process. He moved that “no treaty should be binding on the U.S. which is not ratified by law,” and that meant the president would have to sign on, unless overridden by three-quarters of both the House and the Senate. This seemingly modest alteration appeared winnable, but it was not. Only Pennsylvania, home to both Morris and Wilson, favored the measure.
A pattern was emerging. Although Morris didn’t have the votes to transfer significant powers to the president, he could get agreement on small changes while getting the larger issues remitted to committee. By moving the venue, he provided an alternative mechanism for the passage of controversial resolutions. We do not know exactly when this became a conscious strategy, but we do know that in the last two weeks of August, he was more than eager to send issue after issue into committee—and further, the committee report that would eventually emerge bore a striking resemblance to Morris’s own views.
By August 24 the convention had worked its way up to Article X, Section 1, of the new draft: “The executive power of the United States shall be vested in a single person. His stile shall be ‘The President of the United States of America’; and his title shall be ‘His Excellency.’ He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time.” Here the heavy jockeying began. The proceedings of that day would have immense consequences for the presidency and the nation, so they need to be examined in some detail.
The single executive, his “stile,” and his title excited no controversy at this moment, but then came the problem: What, exactly, did “elected by ballot by the Legislature” mean? That seemed to imply both houses of Congress, the Senate and the House of Representatives, but would these bodies vote jointly, or would they each have to approve the president, voting separately?
John Rutledge opened by moving that the word “joint” be inserted before “ballot,” and this immediately resurrected the old small-state/large-state controversy that had dominated so much of the early weeks of the convention. Connecticut’s Roger Sherman objected that the Senate, which represented states, would lose “the negative intended them in that house”; only separate balloting would maintain that body’s integrity. Nathaniel Gorham of Massachusetts, a state with double the population of Connecticut, quickly scolded Sherman for neglecting “the public good,” which was “the true object to be kept in view.” This triggered a tirade from New Jersey’s Jonathan Dayton and David Brearly, who warned that the Senate, in which each state had an equal say, would be overwhelmed in the voting by the much larger House, dominated by large-state representatives. “A joint ballot would in fact give the appointment to one House,” Dayton complained, and he “could never agree to the clause with such an amendment.” Twenty-six years old and the youngest delegate to the convention, Dayton had fought at Brandywine and Germantown when only sixteen, survived wartime captivity, engaged in daring postwar land speculation, and already established a reputation as a hard-hitting politician for issuing statements that resembled ultimatums, such as this one.
That last phrase in Dayton’s pronouncement—“could never agree to the clause”—caught the attention of James Wilson and Maryland’s Daniel Carroll. The clause Dayton referred to was legislative selection of the president, and his strong opposition signaled to them that support might be weakening for that worn idea. Carroll, who had seconded Wilson’s strange elector-by-lot scheme exactly one month earlier, moved “to strike out ‘by the Legislature’ and insert ‘by the people,’ ” and Wilson now seconded Carroll’s motion. This radical alternative, though, had never garnered many votes, and it didn’t this time either; only Pennsylvania and Delaware voted in favor of popular election, a proposition that offered no solace to the disgruntled small-state delegates.
So it was back to the matter at hand, how Congress was to select the president. John Langdon and James Madison mounted a two-pronged offensive that was difficult to rebut. First, Langdon announced he was ready to vote against the interests of his own state, New Hampshire, which was smaller than either Connecticut or New Jersey and would presumably lose influence under joint balloting. According to New Hampshire’s constitution, he noted, each house voted separately for the state’s chief executive, and that system had been “productive of great difficulties.” Jealousies resulted when one house rejected a candidate approved by the other, and joint balloting was the only sensible alternative.
Madison followed by noting that small states actually gained influence under the joint-balloting plan, which would “give to the largest State, compared with the smallest, an influence as 4 to 1 only, altho the population is as 10 to 1. This surely can not be unreasonable.” W
hen the question was called, seven states thought joint balloting was reasonable indeed, while four still objected—New Jersey, Connecticut, Georgia, and Maryland.
Dayton and Brearly, defeated but not vanquished, countered with another proposal: joint balloting but with the congressional delegation for each state casting but a single vote. Without debate, this blatantly small-state proposal picked up the support of tiny Delaware, but it was still defeated, six states to five. There the matter stood: the president would be chosen by a joint ballot of the members of both houses of Congress. It was time to move on—or was it?
Enter once again Gouverneur Morris, not yet ready to concede, who suggested that the president “shall be chosen by Electors to be chosen by the People of the several States.” This idea had a familiar ring, and Morris was the only one who bothered to speak in its favor or, more precisely, to speak against the existing plan, selection by Congress. “The legislature will swallow up the whole powers of the constitution,” he warned, “but to do this effectually they must possess [select] the Executive.” Other delegates could have recited this by rote, Morris and Wilson had said it so many times. Yet Morris was unrelenting, and he forced the issue as never before. “In the strength of the Executive would be found the strength of America,” he proclaimed with dramatic flair but to no avail.4
The motion failed, but only by a vote of six states to five. Morris had chosen his words carefully, hoping to attract small-state delegates who wanted no part of Wilson’s popular election. Electors were to be chosen “by the People of the several States,” leaving the path open for one-state, one-vote or to some compromise scheme that would allocate a certain number of electors per state. This almost worked. Three leading carriers of the small-state banner—New Jersey, Connecticut, and Delaware—joined delegates from Pennsylvania and Virginia, the prime proponents of an independent executive, in support of Morris’s motion.