by Ray Raphael
4. Jefferson, “Draught of a Fundamental Constitution for the Commonwealth of Virginia,” in Jefferson, Papers, 6:298–99.
5. Jefferson to Adams, November 13, 1787, in ibid., 12:351; and Jefferson to Madison, December 20, 1787, in ibid., 12:439–40.
6. Jefferson, “Opinion on the Powers of the Senate Respecting Diplomatic Appointments,” April 24, 1790, in ibid., 16:378–79.
7. For the context of the arguments over Washington’s proclamation of 1793, see chapter 8. For Jefferson’s and Hamilton’s arguments within Washington’s cabinet, see ibid., 27:411–12.
8. Jefferson to James Monroe, March 21, 1796, in ibid., 29:42. Jefferson included the president, who could sign or veto a law, as a branch of the legislature.
9. Jefferson to Madison, March 27, 1796, and November 26, 1795, in ibid., 51, and 28:539–40.
10. Ibid., 33:134–35, 148–52. Contemporary quotations, cited by the editors, are from Margaret Bayard Smith.
11. Jefferson to Monroe, March 7, 1801, and Giles to Jefferson, March 16, 1801, in ibid., 208–9, 311.
12. Jefferson to Monroe, March 7, 1801, in ibid., 209; Jefferson to Nicholson, May 13, 1803, in Jefferson, Writings, 10:389.
13. Jefferson to Henry Knox, March 27, 1801, in Jefferson, Papers, 33:466. See also ibid., 172–73, 436–37, 460–61, 555, 663.
14. Jefferson to Benjamin Rush, March 24, 1801, in ibid., 437.
15. Ibid., 36:63.
16. Jefferson to Benjamin Rush, December 20, 1801, in ibid., 178; Cutler to Dr. Torrey, February 27, 1802, in Life, Journals, and Correspondence of Rev. Manasseh Cutler, ed. William Parker Cutler and Julia Perkins Cutler (Cincinnati: Robert Clarke, 1888), 2:87, quoted in James Simon, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (New York: Simon & Schuster, 2002), 164. For Jefferson’s behind-the-scenes influence in Congress, see Robert M. Johnstone, Jefferson and the Presidency: Leadership in the Young Republic (Ithaca, N.Y.: Cornell University Press, 1978), 130–53; Forrest McDonald, The Presidency of Thomas Jefferson (Lawrence: University Press of Kansas, 1976), 38–41; Simon, What Kind of Nation, 200.
17. Morris to Hamilton, June 13, 1788, in Hamilton, Papers, 5:7; Morris, “Notes on the Form of a Constitution for France,” in Sparks, Gouverneur Morris, 3:481–500; for dating this document, see The Diary and Letters of Gouverneur Morris, ed. Anne Carey Morris (New York: Charles Scribner’s Sons, 1888), 1:484. Even allowing for the differences between France and the United States, Morris’s French constitution shows an extreme preference for executive authority. “It is essential to the free exercise of the executive power, that the chief be inviolable,” he wrote. The monarch would be “hereditary in the male line, in the order of primogeniture,” and he would have exclusive power to make war, conclude peace, and control all foreign policy. The king would appoint not only his council and ministers but also members of the Senate. Morris’s only nod to republican government was the National Assembly, which would represent the nation and share legislative authority with the Senate and the king. Even within this three-way partnership, Morris made clear which partner was supreme: “The style of the laws shall be, ‘The King, by common consent with the Senate and the French Nation, orders that, &c.’ But the style of the laws which levy imposts shall be, ‘The nation [National Assembly] grants to the King for the necessities and honor of the State the imposts, which the Senate has consented to, and which his Majesty accepts, to be employed for the objects designed by the people in granting them.’ ” We can safely infer from this work that Morris failed to grasp the depth of the French Revolution already under way, that he believed a strong executive was key to a strong state, and that in 1787 he had modified his natural inclination for top-down rule to suit the particular “habits and manners” of the United States, with its demand for a republican government. Regardless of the change in venue, the pro-executive tilt of Morris’s French constitution sheds light on his relentless push to free executive authority in the United States from the control of Congress. In his mind, dominance by the legislature provided a path to tyranny, which he believed was evidenced by the French Revolution. Under the unicameral French system, he wrote in 1792, with monarchical power faded and without an upper house of the legislature, the Assembly was “under no control except some paper maxims and popular opinion.” “The People or rather the Populace, a thing which thank God is unknown in America,” he added, were “flattered with the idea that they are omnipotent.” The fears he had originally voiced about the American Revolution back in 1774—“The mob begin to think and to reason. Poor reptiles: it is with them a vernal morning, they are struggling to cast off their winter’s slough, they bask in the sunshine, and ere noon they will bite”—were to his horror realized in France (Morris to Rufus King, October 23, 1792, in Sparks, Gouverneur Morris, 2:241).
18. Madison, Notes, August 23; Annals, 11:77, 92.
19. Jefferson to Morris, March 6, 1801, in Jefferson, Papers, 33:201.
20. Jefferson to Abigail Adams, September 11, 1804, in Jefferson, Writings, 11:51.
21. R. W. Carrington, “The Impeachment Trial of Samuel Chase,” Virginia Law Review 9, no. 7 (May 1923): 489; Jefferson to Nicholson, May 13, 1803, in Jefferson, Writings, 10:390. The complete proceedings of Chase’s impeachment trial appear in Annals, 14:81–676. A vivid description of the trial setting in the Senate chamber is on page 100. Chase’s remarks to the Baltimore jury are on pages 673–76.
22. Jefferson, Works, 10:346–56.
23. Jefferson to Giles, April 20, 1807, in ibid., 383–88.
24. Jefferson to Hay, May 26 and 28, June 2, 5, 12, 17, 19, 20, and 23, August 7 and 20, and two letters dated September 7, 1807, in ibid., 394–409.
25. Jefferson to Hay, June 2, 1807, in ibid., 396–97.
26. Jefferson to Hay, June 12, 1807, in ibid., 398.
27. Jefferson to Hay, September 4, 1807, in Jefferson, Writings, 11:360; Seventh Annual Message to Congress, October 27, 1807, in Jefferson, Works, 10:523–24.
28. Jefferson to James Pleasants, December 26, 1821, in Jefferson, Works, 12:214.
29. Jefferson to Livingston, April 18, 1802, in ibid., 9:364.
30. Gallatin to Jefferson, January 13, 1803, and Jefferson to Gallatin, January [n.d.], 1803, Henry Adams, ed., The Writings of Albert Gallatin (Philadelphia: J. B. Lippincott, 1879), 1:111–15.
31. Jefferson to Dickinson, August 9, 1803, in Jefferson, Works, 10:29; Jefferson to Breckinridge, August 12, 1803, in ibid., 5–7.
32. Jefferson to Breckinridge, August 18, 1803, Jefferson to Paine, August 18, 1803, Jefferson to Madison, August 18, 1803, Jefferson to Lincoln, August 30, 1803, in ibid., 7–10.
33. Jefferson to Nicholas, September 7, 1803, in ibid., 10–11.
34. Ibid., 3–8.
35. Jefferson to Gallatin, July 12, 1808, in Jefferson, Writings, 12:83.
36. Gallatin to Jefferson, December 18, 1807, quoted in Johnstone, Jefferson and the Presidency, 266.
37. Annals, 17:50–52, 1217–23.
38. Ibid., 2870–74.
39. Jefferson to Gallatin, May 6, November 13, and December 7, 1808, in Jefferson, Writings, 12:52–53, 194, 209.
40. Jefferson to Gallatin, July 29 and September 9, 1808, in ibid., 109, 160; Leonard W. Levy, Jefferson and Civil Liberties (Cambridge, Mass.: Belknap Press, 1963), 130–31.
41. Levy, Jefferson and Civil Liberties, 131–32.
42. Ibid., 126–30, 133–34.
43. Jefferson to Gallatin, August 11 and December 28, 1808, in Jefferson, Writings, 12:122, 221; Levy, Jefferson and Civil Liberties, 125.
44. Annals, 19:1798–804.
45. Jefferson to Gallatin, May 6, 1808, in Jefferson, Writings, 12:52.
46. Jefferson to J. B. Colvin, September 20, 1810, in ibid., 418–22.
47. Some historians and legal scholars argue that the executive vesting clause, because it is unqualified, is more sweeping than the legislative vesting clause, which is qualified: “All legislative P
owers herein granted shall be vested in a Congress.” This argument ignores both the extreme imbalance in specific powers granted, heavily weighted in Congress’s favor, and the elastic “necessary and proper” clause that concludes the grants of congressional authority and has no parallel in the executive grant. Further, a qualification is implicit in the very nature of executive authority, “to carry into execution the national laws” that are passed by the legislative branch—this is the wording of the general grant of executive authority in the early drafts, only to be supplanted by a list of specific grants in the Committee of Detail’s report. In the absence of any elastic clause, the final list of executive powers can easily be construed as exhaustive; so said Jefferson and Madison in the 1790s, in any case. This remains a reasonable reading of the Constitution, although historically it has lost out. All this is to say that the presence of two words in the legislative grant that do not appear in the executive grant does not in itself signify any great preference for executive power over legislative power, as is often suggested.
48. There is one respect in which the power of the presidency arguably contracted rather than expanded: its relationship with the judiciary, which culminated in judicial review. The Constitution did not stipulate who was to have the final say on the constitutionality of laws and executive actions, and Jefferson and future presidents had good reason to contend that the oath they took to “preserve, protect and defend the Constitution” implied it was their responsibility to interpret the Constitution as well. Today, though, we assume the Supreme Court, not the president, is the final arbiter, and the notion that any particular body outranks the presidency can plausibly be seen as a diminution of his authority, as originally construed.
EPILOGUE: THEN AND NOW—TRANSLATIONS
1. Washington, Diaries, 5:461–62.
2. Some scholars, reading history backward, claim that this democratic thrust was implicit within the Constitution and that the framers favored democracy as we know it today. (See Akhil Reed Amar, America’s Constitution: A Biography [New York: Random House, 2005].) They do so by ignoring key historical contexts. The absence of federal property qualifications for the franchise, which some claim was a reflection of democratic principles, was actually a political necessity. Any attempt to impose such uniform standards would have created a host of troublesome problems, such as how to count (or not count) slaves. The absence of property qualifications for national officeholders, allegedly another democratic move, was also a political necessity because of the dissimilarity among state economies; further, it was not deemed necessary, for the framers assumed that only men of means would ever be considered for such positions. The direct election of House members, truly a democratic element, met the minimum standard for republican government, but the framers ensured that no other federal officeholders would be elected by the people. Instead of insisting that presidential electors be chosen by the people, they left the matter in the hands of state legislatures; this was a states’ rights issue, not a democratic one. In sum, the Constitution itself did not “pull … America toward a populist presidency,” in Amar’s words (152); later events did, and as they did, they subverted the basic intentions of the framers. Mass campaigning and pandering to voters, hallmarks of modern democracy and a “populist presidency,” were anathema to the men who wrote the Constitution. Such phenomena they would view as signs of decay, the beginning of the end of true republican government. Gouverneur Morris, when recalling the mood among the framers, later wrote, “History, the parent of political science, had told them, that it was almost as vain to expect permanency from democracy, as to construct a palace on the surface of the sea” (Morris to Robert Walsh, February 5, 1811, in Farrand, Records, 3:418).
There is one respect in which the Constitution was indeed democratic, but this did not pertain specifically to the presidency. The ratification process called for conventions in each state to legitimate the proceedings in an uncontestable fashion. Here, the framers remained true to the basic premise of popular sovereignty: only the people themselves had the right to establish a constitution. Even this move, though, was motivated in part by the need to bypass state legislatures, which had good reasons to oppose the new Constitution because it usurped the authority of state governments and therefore the political power of each state legislator.
3. “There are a number of us in the caucus now pushing back very hard on our leadership. Who knows where they’ll end up, but maybe we can take enough Ds with us to make them uncomfortable and to make them stick with making the president act like a Democrat.” Peter DeFazio (D-Ore.), interviewed on MSNBC, April 11, 2011.
4. Garry Wills, “Negro President”: Jefferson and the Slave Power (Boston: Houghton Mifflin, 2003), 5–6, 234; Leonard L. Richards, The Slave Power (Baton Rouge: Louisiana State University Press, 2000), 9, 42; William W. Freehling, The Road to Disunion (New York: Oxford University Press, 1990), 1:147.
5. Wills, “Negro President,” 6–8; Richards, Slave Power, 9; Douglas Southall Freeman, George Washington: Patriot and President (New York: Charles Scribner’s Sons, 1954), 6:343–48.
6. Adams to John Taylor, April 15, 1814, in Adams, Works, 6:456–57.
7. Ames to Christopher Gore, March 5, 1800, cited in Edward J. Larson, A Magnificent Catastrophe: The Tumultuous Election of 1800 (New York: Free Press, 2007), 84.
POSTSCRIPT: WHY THE STORY HAS NOT BEEN TOLD
1. Even when specifically focusing on Morris’s views and impact, scholars studying the presidency at the Constitutional Convention who do not take a narrative approach have missed Morris’s maneuverings. See, for example, Donald L. Robinson, “Gouverneur Morris and the Design of the American Presidency,” Presidential Studies Quarterly 17, no. 2 (Spring 1987): 319–28. (This bicentennial issue, titled The Origins and Invention of the American Presidency, also featured separate articles on the influence of Madison, Wilson, Hamilton, Washington, and Adams.)
Although most studies eschew the narrative form, not all do. One of the classics in this field, Charles Thach’s 1923 The Creation of the Presidency, 1775–1789 (repr., New York: Da Capo Press, 1969), was based loosely on a narrative construction, and this led Thach to observe that Morris was “the real floor leader of those attached to the idea of the independent executive” (99). Even so, Thach’s focus on Morris’s intellectual positions led him to overlook the actual dynamics of Morris’s floor leadership. After analyzing at some length Morris’s impressive speech on July 19, he failed to mention that those words caused the convention to reverse its earlier preference for a single term, seven-year president chosen by Congress, only to return to that default mode a few days later. Similarly, because he focused on positions to the exclusion of procedures, Thach missed Morris’s maneuverings of August 24 and 31 that sent the selection of the president back into committee. Subsequent studies, following Thach, have declared Morris a “floor leader” without demonstrating what that entailed. His speeches are quoted but his actions overlooked. One such work, William B. Michaelsen, Creating the American Presidency, 1775–1789 (Lanham, Md.: University Press of America, 1987), agrees with Thatch’s “real floor leader” assessment and notes in particular that Morris “took things into his own hands” by bringing up presidential selection in the Committee of Eleven (Michaelsen, with other modern commentators, calls it the Committee on Remaining Matters). By organizing his brief work around twelve subject heads (“presidential selection,” “Impeachment,” “Veto Power,” etc.), however, he misses the narrative thread that would reveal Morris’s machinations.
One recent study that does treat the debate on selection of the president as a dynamic process and therefore takes note of Morris’s “omnipresence” is William H. Riker, “The Heresthetics of Constitution Making: The Presidency in 1787, with Comments on Determinism and Rational Choice,” American Political Science Review 78, no. 1 (March 1984): 1–16. As the title suggests, Riker’s narrative supports his “heresthetic” analysis (a term Riker coined), which is intended to reveal how pol
itical actors reframe debates to break apparent deadlocks and achieve their preconceived ends. Riker’s protagonist in this case is Gouverneur Morris—“ever the opportunist and an exceptionally adroit parliament man”—but as Gerry Mackie observes in Democracy Defended (New York: Cambridge University Press, 2003), Riker’s argument is essentially reductionist, forcing the narrative into the narrow confines of his structural model. While Riker gives credence to Morris’s strategic maneuvering, he does so mechanistically, failing to allow for the organic evolution of Morris’s own thoughts or give much credence to the meaningful philosophic argumentation at the convention. Further, because both Riker’s presentation and Mackie’s rebuttal are framed in such technical terms, their debate has done little to advertise Morris’s role in shaping presidential selection. A more accessible treatment, which highlights the small-state/large-state theme discussed by both Riker and Mackie, is 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): 35–58. While Slonim’s narrative approach allows him to uncover the basic outline of the elector compromise, he does not dig deeply into the strategies and political maneuvering that breathe life into the tale, and he therefore underplays Morris’s role.
2. Morris’s recent biographers, none of whom give Morris sufficient credit for his dynamic role in restructuring the presidency, include William Howard Adams, Gouverneur Morris: An Independent Life (New Haven, Conn.: Yale University Press, 2003); Richard Brookhiser, Gentleman Revolutionary: Gouverneur Morris, the Rake Who Wrote the Constitution (New York: Free Press, 2003); James J. Kirschke, Gouverneur Morris: Author, Statesman, and Man of the World (New York: Thomas Dunne Books, 2005); Melanie Randolph Miller, An Incautious Man: The Life of Gouverneur Morris (Wilmington, Del.: ISI Books, 2008). Of these writers, only Miller takes any note of Morris’s participation in the Committee of Eleven’s restructuring of the presidency, and even she does not disclose Morris’s maneuverings on July 19 and August 24 and 31, or in fashioning the committee’s reversals of the working draft. While Kirschke, following Thach, states that Morris “was the floor leader of the drive for a strong and independent chief executive” (187), he does not provide a narrative of what that floor leadership entailed.