Over the last couple of weeks we’ve discussed how the Constitutional convention wanted the new US Congress to operate. The Congress was by far the most important and powerful branch of government. It was the only branch that existed above the state level under the Articles of Confederation.
The delegates, however, also recognized the need for an executive branch. They had trouble trying to oversee the execution of their own laws under the Articles. By the end of the war, the Confederation Congress was appointing secretaries to manage important components of the government. Most delegates recognized the need to create a better structure to execute and enforce the laws. All the states had some form of executive, which was the model that also existed in Britain.
Of course, in Britain, the executive branch was headed by the king. No one at the convention, with the possible exception of Hamilton, wanted a king to rule over the United States. So there was great debate on what an executive Branch would look like.
Chief Executive or Executive Committee:
One question which the delegates debated was whether there should be a single chief executive or an executive committee. Madison’s Virginia Plan had called for the creation of a single chief executive who would be appointed by Congress for a fixed term and that the executive could not serve a second term. Paterson’s New Jersey Plan called for a group of executives to be chosen with similar restrictions.
Proponents noted that every state had a single governor. A single chief executive would have more accountability to Congress, would be more capable of secrecy, dispatch and decisive action, and would simply be most efficient.
There were those who had concerns about granting so much power to a single person. So much of the convention’s debate centered around checks and balances that would prevent any single faction from gaining an upper hand. Turning over so much power to a single person could thwart those protections and give an ambitious man a path toward becoming a tyrant.
While all states did have a governor, many of the executive functions were done by a governor’s council. In the colonial era, while there were governors, many of them were absent or inactive, allowing local councils to perform many of the executive functions.
Virginia Governor Edmund Randolph strongly opposed a unitary executive. For him it came to close to monarchy. George Mason similarly opposed it, calling the proposed presidency an elective monarchy.
For opponents, a plural executive created more checks and balances. Randolph even suggested a three member executive council, with each member being drawn from different parts of the country in order to ensure no region of the country could dominate.
Despite these objections, the convention voted seven states to three in favor of a unitary executive. New Jersey did not vote on the matter, which was decided even before its delegates proposed the New Jersey Plan. Despite a minority’s efforts to reopen debate later, the majority considered the issue settled. When, on July 17, a proposal was put forward to formalize the clause establishing a “National Executive” consisting “of a single person,” it was agreed to unanimously.
Opponents, however, conceding that point, argued that there should also be an executive council to constrain the president. Some argued this council should have the power to vote on vetoes of congressional legislation. The idea of creating a council was more divided. On the same day in July when the convention voted in favor of a unitary executive. It voted only 4-3 against creating an executive council. Connecticut, Maryland, and Virginia supported the creation of a council. Massachusetts, Delaware, North Carolina, and South Carolina voted it down. Pennsylvania and Georgia had split delegations and could not vote. New Jersey was absent. The New York delegation had already gone home.
Selection of the Executive
The delegates also had to contend with how the executive would be selected. Both the Virginia and the New Jersey plans suggested that the Congress select the executive. This was how many states did it. The state legislature would choose the governor after a legislative election. This helped to ensure that the executive would be someone who would faithfully execute the laws as passed by the legislature.
Even in states that independently elected a governor, they usually had a governor’s council chosen by the legislature to ensure the executive would act in compliance with the legislature’s wishes. The people at this time were especially dubious of an independent executive for fear that this person could easily turn into a monarch and a tyrant.
Many delegates, however, favored an executive elected by the people. James Wilson and James Madison both spoke passionately on the issue. Many of the proponents were the same as those who had supported proportional representation in congress. This new national government was supposed to be a government of the people, not of the states. The direct election of the executive would be part of that.
Proponents of an elected executive noted that direct elections of governors in Massachusetts and Pennsylvania had led to capable and well respected leaders who had tended to respect the will of the people. As long as there were other limitations on the executive, that would prevent any tendency toward tyranny.
These same proponents also noted that this was to be a government of checks and balances. If the executive was truly to be a check on the legislature, then the executive could not be completely dependent on the legislature.
One of the biggest arguments against the direct election of an executive was that it was impractical. There would be almost no leaders who were known nationwide. Different states or regions would support local leaders, but none who could truly have the confidence of the entire nation.
One factor that sat in favor of an elected leader was sitting right there in the convention. Pretty much everyone at the convention assumed that George Washington would become the first executive. That fact had also probably influenced the decision to have a unitary executive. It also encouraged the idea of a directly elected executive. Washington was one of very few men who were known nationally and could be a favorite by voters everywhere. But what happened after Washington? He had gained notoriety through his war leadership. How would future executives come to be known by the people in all regions?
During the first week of debate at the Convention, Wilson brought up the idea of dividing the country into electoral districts. The people would vote for an elector. Then electors from all over the country would meet to select the executive. This would keep the process separate from congress, and would prevent the executive from being so dependent on Congress. At the time, the delegates were not happy with the idea, and voted it down, with only Pennsylvania and Maryland supporting the proposal. The majority supported having the legislature choose the executive.
The delegates tabled the matter for about six weeks until July 17, the same day the convention agreed to a unitary executive. By that time the delegates had also agreed on a proportional house and a senate chosen by the states.
Once again, the debate seemed to come down to not wanting the executive to be chosen by the legislature, by also not thinking the people could coalesce around a single choice. Congress also decided to remove the restriction that prevented the executive from being reelected. If Congress chose the executive, then the executive would simply act to please Congress, and then Congress would re-elect him, thus effectively creating what could be a lifetime tenure. Some delegates were ok with that, and even suggested making it a lifetime tenure, with congress having the ability to remove him for malfeasance.
Madison opposed the idea of having an executive that was completely dependent on congress to remain in office. It went against his principles of check and balances. The executive simply became subservient to congress. Mason also opposed the idea, thinking that an executive who essentially had office for a lifetime would become a king and eventually evolve into a hereditary monarchy.
Some delegates suggested a third option. Elbridge Gerry of Massachusetts and Roger Sherman of Connecticut argued that the executive should be chosen by state legislatures or state governors. That way, the executive would serve as a check on the abuse of power by Congress over the states.
Debate in late July turned back to the idea of having people select electors who would choose the executive. Even at that point, there was no good consensus on how to do it. By late August the Convention established a committee of detail to try to create a coherent system based on the many votes that had already been taken. The committee’s report on August 24 proposed an election by the congress, but still left the details vague.
In early September, another committee took a stab at the issue, this time essentially punting on the selection entirely. The committee proposed that each state select electors based on whatever the criteria that state wanted. If they wanted the people to vote for electors, fine. If they wanted the governor to appoint electors, that was fine too. Each state would get electors equal to the state’s representation in Congress. That meant that smaller states got more votes per capita since each state got two electoral votes for their Senators, but larger states would still have a greater say based on the number of Representatives that they had.
The electors would then meet at the nation’s capital and vote on the executive. If no candidate received a majority of votes, the Senate would choose from the top five candidates in the electoral college.
This was a win for the small states since delegates believed that in most cases there would be no national consensus for the chief executive. By letting the Senate make the selection, small states would have a much greater say over the office.
Those who wanted the people to elect the executive opposed this idea. First, there was no guarantee that people would have a say in choosing electors since that was left up to each state. Secondly, the Senate was made up of people appointed by state government’s, meaning voters would be even more distant from influencing who would serve as chief executive. Further the Senate was made up of only 26 people. In a heavily divided race, an executive could win office with less than 10 votes of unelected politicians. At the very least, the election should be in the House, which was directly elected by the people.
Of course, the smaller states did not like that idea. Election by the House meant that larger states would have a much greater say in choosing the executive. Eventually, the two sides reached a compromise, proposed by Roger Sherman of Connecticut. When the Electoral College failed to give a majority to a single candidate, the House would vote for the executive instead of the Senate, but each state delegation in the House would only get one vote. So smaller states would still have a much greater say in the selection.
Term Length and Term Limits
Because the Chief executive was an entirely new position, there were all sorts of debates on how long a term in office should be. In the first week of deliberations, the convention agreed that the executive, selected by Congress, would serve a seven year term and would not be eligible for reelection.
The delegates, however, returned to this question several times. Proponents of a longer term for the executive wanted a stronger executive that was not dependent on the legislature or anyone else to make decisions on behalf of the country. Even seven years might not be long enough. Gouverneur Morris suggested that if an executive only had a few years in office, he might be more prone to go to war to win glory during his short time in office. Others made suggestions for a longer term including 15 years. A few, like Hamilton, supported an executive appointed for life. This would allow him to look toward the long term needs of the nation without having to worry about disapproval or what he would do after leaving office.
Others, however, wanted to keep the executive on a short leash. Some proposed short terms of two or three years, allowing the executive to serve multiple terms. This would ensure that he would remain obedient to the wishes of Congress, or the people, at least if he wanted to keep his job.
In the end, the convention went back to the delegates original agreement. In late July, they voted that the president would serve a single seven year term and could not be reelected. This passed by a vote of six to three.
In August, the Committee of Detail, who was the first to decide that the executive should be called the “president” included the Convention’s decision that the president should serve a single seven year term. Up until this time, the convention simply referred to him as the executive. Then in August, the Committee on Unfinished Parts, which was supposed to fill in items where there was no consensus, changed the term to four years, and removed the bar against reelection.
It’s not clear who made this change, but several committee members did not like the seven year term.
Similarly, the Committee of Detail came up with the requirements that the President be at least 35 years old, a natural born citizen, and be a resident of the US for at least 21 years. There seems to have been almost no debate at the convention on any of those qualifications. The Convention agreed to all those requirements unanimously. However about a week later, another committee reduced the residency requirement from 21 to 14 years, and no one complained about that either. No one seemed to think these requirements were particularly controversial, and since it was near the end of the Convention, I suspect most delegates were getting tired of arguing about most matters.
Executive Powers
The Delegates also determined that the president should be the commander-in-chief of the army, navy, and state militia. While Congress had the exclusive power to declare war, the president would be in command of the military. During the Revolutionary war, there was no civilian commander in chief. George Washington, as head of the army, was given that role. Since most delegates took for granted that George Washington would be the nation’s first president, it probably seemed natural to give him command of the military.
Much more debate was given to the idea of whether there should be any approval for a standing army. After all, standing armies in time of peace had been considered part of the British tyranny that justified independence. One delegate joked that a standing army was like an erection “an excellent assurance of domestic tranquility, but a dangerous temptation to foreign adventure.”
Elbridge Gerry proposed that any standing army be limited to two or three thousand troops. Luther Martin and Roger Sherman expressed some agreement. Although not noted in the minutes, stories afterward claimed that Washington commented in a loud whisper that perhaps the constitutions should also limit an invading army’s forces to the same number. This obvious joke pointed out the obvious problem with placing an artificial limit on the size of the army. Other delegates noted that the US should not be hamstrung during a time of build up to war and that a standing army also had the benefit of deterring an attack. In the end, the convention was silent on the matter, neither requiring nor prohibiting an army of any size.
The delegates also gave the president the power to appoint judges, ambassadors and other officers in the government. Unless Congress gave power to appoint some offices on his own, the president would have to get the advice and consent of the Senate on all appointments.
There were debates over giving the president exclusive power on appointments. There were also proposals to include the house in approvals. Concerns over factionalism in the House caused that idea to fade quickly. Most delegates wanted congress to have some say in appointments. The Senate was seen as the more deliberative body, similar to the governor’s council in many states. Those state councils often had power of approval, while the general assemblies did not. Since that seemed to work at the state level that seemed workable At one point, Madison suggested that appointment only require support of one-third of the senate. The idea was that the President should get his appointments unless there was an overwhelming majority against. Others argued that the Senate should make appointments and the President would be given the power to veto appointments. In the end, the presidential appointment with majority Senate approval won the day.
For treaties, the convention opted to keep the House out of the process entirely. The need for confidentiality and careful deliberation for diplomatic matters meant most delegates thought the house was ill-suited. The delegates did require a two-thirds vote in the Senate to approve all treaties. The Articles of Confederation had required a super-majority for treaties. Also, the recent fights over the treaty that John Jay had negotiated with Spain convinced many southern states that they needed to make sure there was a larger consensus, and that they did not get out-voted by the more numerous northern states.
Other than foreign policy matters, the convention defined very little for the president,other than to take care that the laws be faithfully executed and the commissioning of government officers. It also stated that the president should provide information to Congress on the state of the union and make recommendations to them.
Finally, congress retained the power over the president by giving the House the power of impeachment and the Senate the power of removal by a two-thirds vote. Originally, the Convention said the president could be removed for maladministration or neglect of duty. Some members argued that there should be stronger reasons for removal, eventually settling on the language of high crimes and misdemeanors.
Next week, we turn to the creation of the courts, and other matters that the convention decided before finally wrapping up its business.
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Next Episode 350 Creating a Judiciary, 1787 (coming soon)
Previous Episode 348 Creating Congress, 1787
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Further Reading
Websites
The Virginia Plan: https://www.senate.gov/civics/common/generic/Virginia_Plan_item.htm
The New Jersey Plan: https://avalon.law.yale.edu/18th_century/patexta.asp
The Constitutional Convention of 1787: A Revolution in Government https://constitutioncenter.org/the-constitution/white-papers/the-constitutional-convention-of-1787-a-revolution-in-government
The Constitutional Convention of 1787: A Day by Day Account: https://www.nps.gov/inde/learn/historyculture/stories-constitutionalconvention.htm
Free eBooks
(from archive.org unless noted)
Secret Proceedings and Debates of the Convention Assembled at Philadelphia, in the Year 1787, Richmond; Wilbur Curtiss, 1839.
Brant, Irving James Madison: Father of the Constitution, 1787-1800. Bobbs-Merrill Co. 1950 (borrow only).
Donovan, Frank R. Mr. Madison’s Constitution: The Story Behind the Constitutional Convention, New York: Dodd, Mead & Co. 1965 (borrow only)
Farrand, Max The Framing of the Constitution of the United States, Yale Univ. Press, 1913.
Farrand, Max (ed) The Records of the Federal Convention of 1787, Vol. 1, Vol. 2, and Vol 3, Yale Univ. Press, 1911.
Ford, Worthington, Chauncey The Federal Constitution in Virginia, 1787-1788. Cambridge: University Press, 1903.
Jameson, J. Franklin Studies in the History of the Federal Convention of 1787, Washington: Government Printing Office, 1903.
Madison, James Notes of Debates in the Federal Convention of 1787, Ohio Univ. Press, 1966.
McMaster, John Bach (ed) Pennsylvania and the Federal Constitution: 1787-1788, Historical Society of Pennsylvania, 1888.
Meigs, William M. The Growth of the Constitution in the Federal Convention of 1787, Philadelphia: J.B. Lippincott Co. 1900.
Richardson, Hamilton P. The Journal of the Federal Convention of 1787 Analyzed, San Francisco: Murdock Press, 1899.
Scott, James B. James Madison's notes of debates in the Federal convention of 1787, New York: Oxford Univ. Press, 1918.
Books Worth Buying
(links to Amazon.com unless otherwise noted)*
Amar, Akhil Reed America’s Constitution: A Biography, Random House 2005.
Beeman, Richard R. Plain, Honest Men: The Making of the American Constitution, Random House, 2009.
Bowen, Catherine Drinker Miracle at Philadelphia: The Story of the Constitutional Convention, Little, Brown & Co. 1966 (borrow at archive.org).
Collier, Christopher Decision in Philadelphia: The Constitutional Convention of 1787, Random House, 1986 (borrow at archive.org).
Morris, Richard B. Witnesses at the Creation: Hamilton, Madison, Jay and the Constitution, Holt, Rinehart & Winston, 1985.
Rossiter, Clinton 1787: The Grand Convention, Macmillan Co. 1966 (borrow on archive.org).
Smith, Page The Constitution: A Documentary and Narrative History, Morrow Quill, 1978.
Stewart, David O. The Summer of 1787: The Men Who Invented the Constitution, Simon & Schuster, 2007.
* As an Amazon Associate I earn from qualifying purchases.
