by Ray Raphael
The Federal Sheriff may commit what oppression, make what distresses he pleases, and ruin you with impunity: For how are you to tie his hands? Have you any sufficient decided means of preventing him from sucking your blood by speculations, commissions and fees? Thus thousands of your people will be most shamefully robbed.22
Congress, too, received its share of Henry’s blows. “We ought to be exceeding cautious in giving up this life—this soul—of money—this power of taxation to Congress,” he warned. “Must I give my soul—my lungs, to Congress? … What powerful check is there here to prevent the most extravagant and profligate squandering of the public money?”23
For Henry, Congress’s power to regulate commerce under the new plan was particularly worrisome. One of the hottest political topics in the nation was John Jay’s tentative agreement with Spanish ministers. Jay was ready to bargain away American rights to shipping on the Mississippi in return for favorable trade concessions that would benefit eastern merchants, but according to the Articles of Confederation he would need the votes of nine of the thirteen state delegations in Congress to cement the deal. Five southern states with access to the West doomed the potential treaty, but under the new Constitution a simple majority in Congress would suffice. The North thus joined the president, federal tax collectors, and Congress on Henry’s list of villains. If the Constitution were ratified, northern representatives would “give away this river,” and that was just the beginning of northern tyranny. On June 24, as the convention reached its climax, Henry warned his fellow delegates and the onlookers in the gallery that it was only a matter of time before northern congressmen would “liberate every one of your slaves.” The proposed Constitution gave them “the power in clear unequivocal terms … to pronounce all slaves free,” and they “will clearly and certainly exercise it.”24
We have no way of determining whether Patrick Henry was more worried about the president, tax collectors, Congress, or the North. Once he decided to oppose the Constitution, he utilized his immense powers of persuasion to their best advantage. The president is even worse than a king? If that instilled doubt, he’d use it. Tax collectors will bleed you dry? Try that one too. Congress will take away your slaves? That should work in this venue.
Henry’s blanket indictments of the proposed Constitution were not unusual. For some Anti-Federalists, the new office of the presidency may have triggered resistance to the plan, but for others federal taxation, the loss of state and local control, the prospect of a standing army, or the lack of guarantees for basic liberties might have raised more serious concerns. Whatever their individual reasons, those who decided against the Constitution tried to defeat it by using any and all arguments they could muster, so they naturally raised alarms about the powers of the presidency. Since the Articles of Confederation had lacked an executive branch, all these powers were entirely new and potentially suspect. Item by item, each enumerated power became the object of complaint.
The president’s role as commander in chief was a ready target. A Virginia writer, under the name Impartial Examiner, labeled the president “generalissimo.” Mercy Otis Warren, writing as A Columbian Patriot, called him a “despot” who could “draw out his dragoons” to suppress those who opposed him. Benjamin Workman, a mathematics instructor at the University of Pennsylvania who assumed the name Philadelphiensis, wrote that an American “king with a standing army at his disposal ought to cause the blood of a free citizen to boil with indignation.” He predicted that under the president’s leadership, the government would become “despotic and oppressive, and the people will become abject slaves.” Elections would be worthless, he said. The government would soon be composed “only of an emperor and a few lordlings, surrounded by thousands of blood-suckers and cringing sycophants.”25
The presidential pardon, Anti-Federalists argued, was discretionary and unrestrained. Logically, they were on strong ground here. The framers had wanted to check the authority of abusive courts, but in doing so, they gave the president a power that could not be overruled by any governmental body under any circumstance. “The President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself,” Mason argued at the Virginia ratifying convention. “It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted.”26
Anti-Federalists attacked the various ways the executive could interfere with the legislative branch, thereby undermining the separation of powers, which Federalists claimed to hold so dear. The vice president, second-in-command to the chief executive, presided over the Senate, a legislative body, for no apparent reason. The president had the power to convene or adjourn the two houses of the legislature. (Although he could convene Congress only on “extraordinary occasions” and adjourn it only temporarily when the two houses disagreed on the timing for adjournment, Anti-Federalists likened the president’s power to that of the British Crown, which had dissolved colonial legislatures at will.) Worse yet, the president could interfere with legislative functioning by vetoing a bill at his discretion. True, his “negative” could be overridden by two-thirds of each house of Congress, but Anti-Federalists preferred to downplay that provision. The writer using the name Impartial Examiner acknowledged the two-thirds override but quickly suggested it would give the president “in the legislative scale of government a weight almost equal to that of two thirds of the whole Congress.” Then, to ramp up the argument, the writer created and attacked a phantom absolute veto:
If the system proposed had been calculated to extend his authority a little further, he would preponderate against all—he alone would possess the sovereignty of America. For if the whole executive authority and an absolute negative on the legislature should become united in one person, … he will be elevated to the height of supremacy…. [H]e cannot be the object of any laws; he will be above all law…. How near will the president approach to this consummate degree of power!27
While most attacks on the presidency portrayed the office as being too powerful, one, ironically, cast it as being too weak. Since the Senate had “a negative upon the President” in powers of appointment and treaty making, it could tie his hands and destroy the “independence and purity” of the executive. He would become the tool of “the ruling junta” in the Senate, and members of that unholy body, elected for repeatable six-year terms, would likely serve for life. The Senate could thus “dictate” to the president, and because it also enjoyed greater powers than the House, it would essentially “govern alone.” An author calling himself Federal Farmer held that “by giving the senate, directly or indirectly, an undue influence over the representatives, and the improper means of fettering, embarrassing, or controuling the president or executive, we give the government, at the very outset, a fatal and pernicious tendency to that middle undesirable point—aristocracy.”28
The “aristocracy” charge was bold and biting; like “monarchy,” it carried a negative connotation that Anti-Federalists readily put to political purpose. Philadelphiensis predicted that the president, if he “not be a man of an enterprising spirit,” would become “a minion of the aristocratics” in the Senate. A writer calling himself John Humble, using raw satire, tapped into the egalitarianism that lay behind the national hatred of aristocracy: “Now we the low born, that is, all the people of the United States except 600 or thereabouts, well born, do by this humble address, declare, and most solemnly engage, that we will allow and admit the said 600 well born, immediately to establish and confirm this most noble, most excellent and truly divine constitution.” This kind of primitive class consciousness made the Senate, the new government’s vestigial aristocratic body, a particularly soft target for the Constitution’s critics.29
At the close of the Federal Convention, a disgruntled George Mason had warned, “The dangerous power and str
ucture of the government … would end either in monarchy, or a tyrannical aristocracy; which, he was in doubt, but one or another he was sure.” After the convention Anti-Federalist polemicists followed Mason’s lead, tagging the Constitution with both labels even if they appeared to contradict each other. Was the Senate or the president the main problem? It didn’t matter which, so long as the Constitution would be derailed.30
Mason himself, along with several other Anti-Federalists, offered a cogent argument that challenged the powers of the presidency and the Senate simultaneously. The president, he claimed, was not the minion of the aristocratic Senate, nor was the Senate under the wing of a monarchical president. Instead, the Constitution would allow the Senate and the president to work in tandem to circumvent the people’s representatives in the House and take charge of the government. Mason presented this argument forcefully to the Virginia convention:
The Constitution has married the President and the Senate—has made them man and wife. I believe the consequence that generally results from marriage, will happen here. They will be continually supporting and aiding each other. They will always consider their interests as united. We know the advantage the few have over the many. They can with facility act in concert and on an uniform system. They may join scheme and plot against the people without any chance of detection. The Senate and the President will form a combination that cannot be prevented by the Representatives. The Executive and legislative powers thus connected, will destroy all balance.31
Even impeachment, the final defense against tyranny, would not suffice to check a president who was in collusion with the Senate. Since the Senate tried cases of impeachment, the president would be “tried by his counsellors,” Mason said. “The guilty try themselves.”
• • •
How to assess these various arguments against the presidency presents something of a puzzle. Which features were truly repugnant to Anti-Federalists? If large numbers of citizens at the time severely objected to the president’s role as commander in chief, the presidential pardon or presidential veto, the vice president’s role as presiding officer in the Senate, the sharing of power between the president and the Senate, or any other specific provision of the Constitution with respect to the executive office, then that provision does not enjoy the blessings of a consensus of the founding generation. Legally, this does not affect its standing, but historically and perhaps ethically that provision would be tainted. If such were the case, we have been living under a rule that a significant proportion of the people we respect as our founders thought was flawed.
While the true feelings of Anti-Federalists cannot be established by taking every attempt to derail the Constitution at face value, they can be surmised by examining the actual amendments to the Constitution that these people offered during the ratification debates. Two days after the Virginia convention formally ratified the Constitution on June 25, 1788, it proposed 40 amendments and sent them on to the other states for their consideration. Virginia was not the only state to do so. The South Carolina convention proposed 4 amendments, Massachusetts 9, New Hampshire 12, North Carolina 46, Rhode Island 21 plus 18 “principles” it wanted to add to the Constitution, and New York 32 amendments plus 24 principles. In addition, a majority committee from Maryland suggested 13 amendments, a minority committee from the same state another 15, and a minority report from Pennsylvania 15. Altogether, delegates to nine of the state ratification conventions suggested 249 additions or changes to the Constitution. These proposals offer a clearer indication of popular sentiments than do the political arguments that appeared in the press or were offered at the ratifying conventions. They were intended not to sway public opinion but to refine the actual workings of the new government. Like the Constitution itself, each addition or change was vetted and approved by a deliberative body, and these bodies represented broader constituencies than did the Federal Convention.32
Many of the proposals were duplicated, and about half concerned the kinds of protections that eventually wound up in the Bill of Rights, but there were also several dozen distinct suggestions for improving elements within the body of the Constitution. Some of these were offered by several states, suggesting widespread discontent. Seven state conventions and the Pennsylvania dissenters, for instance, wanted to prohibit Congress from imposing taxes until it had first requisitioned the states and the states had failed to come through. Six states sought to prevent Congress from granting monopolies or giving any “exclusive advantages of commerce” to a single company. These economic concerns weighed heavily on people.
A few amendments concerned the presidency. These can be placed in two groups, the first dealing with the president and military power, the second with a president’s terms in office. New York and Maryland wanted to prohibit the president from commanding an army in the field. New Hampshire, Virginia, New York, North Carolina, Rhode Island, and the Maryland minority wanted to require a supermajority in Congress to establish a standing army in peacetime. Virginia, New York, North Carolina, and the Pennsylvania and Maryland minorities wanted to limit federal control of the state militia, which, once nationalized, would be under the control of the president. Taken together, these amendments suggest widespread apprehension over the possible abuse of military power. Delegates to the Federal Convention had understood this and tried to address it by placing the military under civilian control, but at least in the minds of some their move backfired. Although the president was a civilian leader, placing him at the head of an army and allowing him to assume field command involved risks that called for further safeguards.
The other concern on people’s minds was the lack of rotation in office, as people said at the time, or term limits, as we say today. The president could potentially stay in office for life, and this seems to have been cause for great alarm. Anti-Federalist writers raised the subject repeatedly, and four states took definite action to limit the president’s tenure. Virginia’s proposed amendment read, “No person shall be capable of being President of the United States for more than eight years in any term of sixteen years,” and North Carolina used the exact same wording. New York stated, “That no person be eligible to the office of president of the United States a third time,” while Rhode Island asserted that the president and all members of Congress “should at fixed periods be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections.” The subject had arisen many times during the Federal Convention, and not until the dramatic turnaround on September 4, less than two weeks before adjournment, was the president allowed to remain in office for more than a single term. Before that, delegates had repeatedly voted against repeatable terms for the president.33
These amendments suggest that people were more worried about a president abusing his authority on a grand scale—staying in office indefinitely or, worse yet, using an army to keep himself there—than about his limited veto, his relation with Congress, his treaty-making power, his authority to make appointments, his ability to pardon criminals, his salary, or any particular aspect of his office other than his role as commander in chief. Although all of these powers faced resistance, they did not lead to a rash of amendments to change the scope of executive authority. (There was one exception: New York wanted to require congressional assent to presidential pardons, but no other state followed suit.) We can safely infer that if a particular concern did not warrant any proposed amendments, it probably did not, by itself, cause widespread opposition to the Constitution.
A case in point: the fate of George Mason’s proposal for an executive council. To reduce the influence of the Senate and preserve the separation of powers, Mason wanted to strip that body of its “advice and consent” participation in making appointments and treaties, executive functions that were improperly placed in the legislative branch and should be assigned to a more appropriate body. The Federal Convention had turned a cold shoulder to this idea, but Mason continued to push it at Virginia’s ratificatio
n convention. There, he chaired a caucus of Anti-Federalists who compiled a list of amendments, and to this group he proposed the creation of a separate council “to assist in the administration of government.” The council would join with the president in “making treaties” and “appointing ambassadors, other public ministers and or counsels, judges of the Supreme Courts, and all other officers of the United States, whose appointments are not otherwise provided by the Constitution.” It would also select its own leader, who would succeed the president. With this bold stroke, Mason proposed to circumvent two troublesome features of the Constitution: the vice president’s role as president of a legislative body and the convoluted method of choosing a vice president through the elector system. Mason’s amendment, though, would have required dramatic revisions in several places within the Constitution. Even his Anti-Federalist allies reasoned that this would never happen, and they failed to report his amendment out of committee.34
Apparently, delegates to the Federal Convention had succeeded in creating a presidential office that triggered only two red flags that might endanger ratification. Yet if people worried about presidential abuse on a grand scale, why did they not seek an amendment to alter the method of presidential selection? The electoral system was new and untested, and some thought it could undermine the entire new plan of government. William Grayson, a former officer in the Continental army and future U.S. senator, explained at the Virginia convention that if only two of the ninety-one electors voted for a particular candidate, yet nobody else appeared on the majority of the electors’ ballots, that candidate could still be one of the five leading contenders. Then, when the sixty-five members of the House of Representatives voted by state delegation on these finalists, this candidate could be elected president with as few as fifteen votes from small-state delegates. A distinct minority in Congress could thereby conspire to select a president who would do its bidding. The United States would have “a government of a faction,” not of the people.35