Mr. President

by Ray Raphael

  Understanding they could not define the office of the presidency beyond the broadest outline, the framers expected details to be worked out later, as in fact they were. If the president and the Senate combined to make appointments, did that mean they had to concur in removing the officials they had appointed? In treaty making, what, exactly, would the “Advice and Consent” of the Senate entail? Answers would have to be honed by subsequent statesmen. Whether or not those later formulations reflected the framers’ true intentions, answers were provided, fleshing out the office more fully than anyone could possibly have done in advance. This organic evolution did not violate the framers’ wishes but embodied them. The last thing they wanted was for their new government to be completely codified, unable to adjust to the needs of the people it was intended to serve.

  Yet political, societal, and even technological changes in later years have not only fine-tuned the office the framers conjured but altered it in significant ways. The framers, of course, cannot be held responsible for alterations due to causes they did not and in many cases could not foresee, but to understand the differences between the presidency as it was originally intended and the office it was to become, we need to take stock of these various transformations.

  Consider the immediate distortion of the framers’ most unique contribution to governmental forms—the system of presidential electors—and the political realities that prevent it from being altered or abolished. The partisan divide in the 1790s made clear from the outset that the system could be gamed, thus negating individual discretion and undermining the entire scheme. This much the framers might have foreseen had they asked tougher questions, and indeed, judging from the lukewarm support of many Federalists—“it’s not perfect, but it’s the best available option”—they would not have been surprised to see their complicated formula modified, as it was in 1804 with passage of the Twelfth Amendment, which allowed electors to vote separately for president and vice president. Yet they could not have been expected to predict that the nation would be saddled indefinitely with the rest of their elector scheme because of the political difficulties in gaining the approval of three-quarters of the states, the threshold for amending the Constitution. Three types of states have vested interests in preserving what we now call the Electoral College—small states, battleground states, and early primary states—and while the framers did notice that the system gave small states a slight advantage, they failed to anticipate the significance of battleground states, and they had no conception of what early primary states might be, much less how these would help preserve their dubious creation.

  The framers understood the dangers that state and regional rivalries posed in electing a president, and they tried to mitigate these by requiring each presidential elector to cast at least one of his votes for a person from outside his own state. This was not nearly enough to prevent regional interests from driving presidential elections, and worse yet, another provision highlighted regional rivalries: the notorious three-fifths clause, which increased representation from the South not only in the House of Representatives but also in the Electoral College. With this added benefit, slave states in the early Republic were able to capture the presidency by picking up only a handful of electoral votes north of the Mason-Dixon Line. The impact on the nation’s political complexion, and specifically on the presidency, can be gleaned from some basic statistics. Without the extra electors resulting from the three-fifths clause, Jefferson would have dropped at least twelve electoral votes in 1800, resulting in his defeat; in effect, he was elected by slaves who could not vote, an ironic outcome not lost on Federalists who labeled him “the Negro president.” Before 1850, slaveholders held the presidency for all but twelve years. The five presidents who repeated in office—Washington, Jefferson, Madison, Monroe, and Jackson—were all slaveholding southerners, and this was no accident. Presidential candidates at that time were determined by congressional caucuses within each party, and the three-fifths clause increased the relative strength of southerners within the Republican caucus. No Republican could receive his party’s support without the full concurrence of its pro-slavery majority, which helped determine both the party’s and the president’s agenda.4

  Once in office, these slaveholding presidents strengthened their regional grip on the federal government by filling half the high offices with southerners, even though the South accounted for just over one-third of the free population. Of the thirty-one presidential appointees to the Supreme Court prior to 1850, eighteen owned slaves. Presidential actions were influenced by inflated numbers of southerners in the House of Representatives, who killed measures that banned slavery from the territories. When Jefferson purchased Louisiana, Monroe annexed Florida, and Polk went to war with Mexico, each was aiding slavery’s expansion and through the three-fifths clause further increasing the number of southern votes in presidential elections. Even Washington, who more than any other tried not to be a regional president, supported southern interests on at least one hotly contested issue. In 1793 the Federalist Congress, to conform with the 1790 census, passed a reapportionment bill that gave the North a net gain of four seats in the House. When considering whether or not to sign the measure into law, Washington consulted his closest advisers. Hamilton and Knox supported the bill, but Jefferson, Madison, and Randolph opposed it and argued for an alternate construction of the numbers more generous to the South. Despite his reluctance to cross Congress, Washington sided with his fellow Virginians and delivered the nation’s first presidential veto.5

  The three-fifths clause only heightened the regionalism that created it. Delegates to the Federal Convention were already divided along regional lines, and few would have been surprised to see that rift widened by their own doing. They understood the compromise for what it was, a measure grounded in political realities rather than in solid republican theory.

  The framers would more likely have been surprised by the rapid expansion of executive positioning relative to Congress in the first twenty years. As much as they admired George Washington, they had no way of foreseeing that every contested authority during his administration would be determined in favor of the president, nor that their initial decision to create a single chief executive, coupled with their later resolution to limit Congress’s role in selecting him, would result in a power trajectory that leaned strongly in the executive’s direction. Madison certainly didn’t see this trend coming, and he soon found himself resisting it. Jefferson, who was not present at the convention, hesitated to grant his assent to a presidential office unbounded by any temporal limits. He seems to have sensed that a president’s power would tend to expand, but even he would have been surprised if informed by some soothsayer of his own high-handed enforcement of the Embargo two decades later. Would the framers have been pleased or displeased with these developments? Answers would no doubt have varied across the spectrum, from hearty approval by Hamilton to scolding disapproval by the already disgruntled Gerry.

  Over time, the premier expansion of the president’s authority has been his ability to “make war,” in the framers’ words, without approval from Congress. At the Federal Convention, immediately following James Wilson’s proposal for a single chief executive, Charles Pinckney pronounced he “was for a vigorous Executive” but feared his powers “might extend to peace & war &c., which would render the Executive a monarchy, of the worst kind, to wit an elective one.” Today, the president does indeed possess de facto powers of war and peace. The movement in that direction started in 1793 with Washington’s proclamation of neutrality, which, its critics argued, prevented Congress from exercising its constitutional authority to declare war. Then came the Quasi-War with France, which hinted at a breakdown in the demarcation between declared and undeclared wars. In the nineteenth century the United States engaged in military actions across the globe without declarations of war, and not since World War II has a single American soldier gone into battle under a formal declaration. Constitutional law has yet to catch up with t
his turn of events, which has placed the president front and center and forced Congress to resort only to the power of the purse to have any real say in matters of “peace & war.” Occasionally, as with the War Powers Resolution of 1973, Congress tries to reaffirm that fundamental principle of republican governance that the framers thought they had safely embedded within the Constitution: citizens cannot be forced to sacrifice their blood and treasure in warfare without the consent of their direct representatives. Yet even at best, Congress’s role has become reactive, not proactive. It receives reports of policies and actions the president has already put in place and is then asked to grant its assent and finance the measures. Has this created “a monarchy,” as Pinckney warned? Not exactly, but the increasing complexities of international relations and the complete breakdown of eighteenth-century standards for what differentiates war from peace have certainly altered the balance between the executive and the legislative branches.

  Would the framers be pleased with this reallocation of authority? Once more, opinions would differ, but Hamilton, who was out of sync with the rest at the time, does seem to have had the last say in this matter as well—or almost the last say. There is no telling if or when Congress will again insist on taking a larger role, how vigorously the executive will object if it does, or what the results of that intra-governmental struggle might be.

  Finally, the presidency has been transformed by the restructuring of political life. In 1787 delegates to the Federal Convention begrudged democracy and did their best to contain it by the “successive filtrations” (Madison’s term) they placed between the people and governmental leaders, but Americans today embrace democracy as their guiding principle; no modern political figure, in public, would dare come forth with the kinds of statements denigrating popular government that were common currency among the framers. Yet democracy itself has been profoundly altered due to the combined effects of concentrated wealth and technological advances in communications. The perpetual mega-campaign of today, driven by hundreds of millions of dollars and extending by television, radio, print, and the Internet into the daily lives of every potential voter, bears little resemblance to the town meeting/county convention democracy of Revolutionary days. Money, media, and influence constitute the very grit of politics. The old-fashioned ideal of a statesman’s “honor,” which in the founding era required independence from outside influence, is no longer a prerequisite for public life.

  Lest we become too nostalgic, we should understand that the founding generation was not so politically naïve as to think that what we call influence, and they considered a form of corruption, would not pose a threat to their experiment in republican government. John Adams, for one, predicted that democracy would inevitably revert to aristocracy because some men would learn to command the votes of others. “By an aristocrat,” he wrote in 1814, “I mean any man who can command or influence two votes, one besides his own.” Aristocracy, or rule by the few, did not have to be marked by “artificial titles, tinsel decorations of stars, garters, ribbons, golden eagles and golden fleeces, crosses and roses and lilies, exclusive privileges, hereditary descents, established by kings or by positive laws of society.” Instead, his “aristocrat” might command or influence votes “by his virtues, his talents, his reserve, his face, figure, eloquence, grace, air, attitude, movements, wealth, birth, art, address, intrigue, good fellowship, drunkenness, debauchery, fraud, perjury, violence, treachery, pyrrhonism [skepticism], deism, or atheism; for by every one of these instruments have votes been obtained and will be obtained.”6

  Today, Adams’s various means of influence, more often devious than virtuous, are embodied in the political vernacular of campaign advertisements. Had he foreseen the transformative reach of concentrated wealth and mass media, he would not be so surprised by the degradation of political dialogue. Even so, he and his contemporaries would of course be disappointed that the office of the presidency has not been able to rise to a higher level. With hindsight, we can easily see why it has not. Almost from the outset, presidential politics both reflected and augmented partisanship. “Our parties in Congress seem to regard the approaching election as the only object of attention,” wrote Fisher Ames toward the beginning of election season in 1800. Now, with partisanship magnified by the infusion of money and stirred to a frenzy by media, this obsession never ceases for a moment. Instantly after a presidential election, the jockeying and scheming commence for the next. This has turned the framers’ dream of a transcendent president nightmarish. Since the political fate of a sitting president is directly linked to the well-being of the nation, and since the party that does not control the presidency figures it will never get its way until it captures that office, that party assumes a vested interest in seeing the nation fail. Further, if leaders of that party follow the inexorable logic of game theory, which many do, they will act on this premise. The framers had hoped for enlightened governing; instead, in our current political landscape, governing is held hostage to politics.7

  The challenge we and the president face is to change the game and break the cycle. For the citizenry, this would entail suspending the frequent and visceral assault on the very idea of government, an attack that amounts to a sweeping negation of the framers’ work. For the three branches of government, it would mean finding some means, consistent with the First Amendment guarantee of free speech, of containing the impacts of unlimited political expenditures and perpetual campaigns, which together have tarnished our democracy. For the president, it would mean trying to maintain a reasonable balance between governance and politics, admittedly a difficult task if undertaken unilaterally. While the ideal of a truly transcendent presidency was not realized in the founding era and appears even more implausible today, this is not to say that ideal was without valid purpose. Imagine for a moment the consequences had Washington not even aspired to that high goal; the new nation, frail and divided, might well have split apart at the outset. Imagine, too, if a modern president were successful in using his or her immense powers to place political operatives in positions authorized to oversee fair elections, thereby perpetuating one party’s control of the government indefinitely. As frightful as a complete politicization of the presidency could be, any movement in the opposite direction is equally uplifting. While the presidency has not turned out entirely as the framers intended, we would still do well to embrace the values of governance they expected the chief executive of the United States, in whom they placed great trust, to exemplify.

  POSTSCRIPT

  Why the Story Has Not Been Told

  The narrative of Gouverneur Morris’s relentless push to free the executive from Congress can be readily surmised from James Madison’s Notes of Debates in the Federal Convention of 1787, yet strangely, in the 225 years that have passed since the Constitutional Convention and 172 years since the first publication of Madison’s Notes, it has never before been chronicled in full detail. This gives cause for wonder and calls for some explanation.

  To uncover Morris’s role, a researcher needs only to ask, “How did the presidency develop day by day, speech by speech, and vote by vote at the Federal Convention?” Yet not many have journeyed down that path, and to understand why they haven’t, we need to look at the different genres in which the subject might be raised: academic studies of the origins of the presidency, biographies of Gouverneur Morris, and narrative accounts of the Constitutional Convention.

  Scholarly treatments of the presidency at the convention tend to be studies, not narratives. Typically, they elucidate the positions of the various delegates and use these as organizing principles. By conjoining what was said by a given person at different points in time to construct a coherent philosophy, they miss the day-by-day and even minute-by-minute dynamics of the dialogue. Concerned more with theory than process, they fail to utilize narrative as an analytical tool, which is the only way to access this story. Gouverneur Morris favored a strong and independent executive, they all observe. He opposed selection by Congress. True
, all true, but dissecting his speeches and expounding on his positions will not reveal his influence. Only close scrutiny of the interchange, keeping the exposition in strict chronological order, can demonstrate his agency.1

  Since biographies, by nature, are narratives, we might expect Morris’s several biographers to have picked up on the story, and perhaps they would have, had Morris not penned the final draft of the Constitution. This low-hanging fruit, impossible to resist, has obscured other fruit just a bit harder to see; one recent title, for example, is Gentleman Revolutionary: Gouverneur Morris, the Rake Who Wrote the Constitution. Morris’s rewording of the preamble has provided biographers with a clear and dramatic theme that anchors the single chapter each devotes to the convention. Eager to move on to subsequent chapters, which dramatically place Morris in the midst of the French Revolution and the Reign of Terror, they let his “authorship” of the final draft of the Constitution define his participation at the convention. While they do state his arguments for a strong and independent executive, they divorce these from the vibrant give-and-take that would reveal his influence and importance.2

  Narrative accounts of the convention, because they must cover the full sweep of topics, breeze through the messy, looping, we-can’t-decide debates on the presidency. Slavery, federalism, the small-state/large-state controversy, defining the powers of Congress, and fine-tuning a system of checks and balances require extensive treatment, complicating the narrative arc. Of course all authors deal with the creation of the presidential office, but the back-and-forth chronology of this story does not present a clean, linear progression, and dealing with the befuddling daily minutiae would slow down the telling. Authors generally credit Morris for his authorship of the final draft, his heartfelt speech against slavery, his ardent nationalism, and his advocacy of an independent executive—shouldn’t that suffice? They have fifty-four other framers to include and a few they need to feature; so much to discuss in so little space. Again, the genre sets its own limits.3