In his new book, Mr. President How and Why the Founders Created a Chief Executive, Ray Raphael investigates the roots and evolution of the Executive Branch.
Mr. Raphael starts his investigation be examining the colonists’ changing views of executive authority as they experienced royal prerogative first hand, or through the agents of the monarchy who held appointments as colonial governors. The colonial view of executive power went from veneration, to fear and anger.
One contributing factor to this change was the passage of the Townshend Acts which was condemned by the colonists as taxation without representation. One of the objectives of the Acts was to strip the colonial assemblies of their only check on executive authority, by using royal revenues to pay the salaries of the governors. No more could the assemblies use the power of the purse. Even after the Acts were repealed, the governors were paid by the crown, and two years later, so were superior court judges. Thus, both the executive and judicial functions were out of the people’s hands.
The American Revolution was fought to free the United States from the tyranny of a king. However, many of the framers of the Constitution were equally suspicious of the other branches of government. But, they were also cognizant of the need for an effective government, led by an executive branch capable of implementing policy. They all realized the unworkable nature of the Articles of Confederation, which lacked an executive. The delegates at the Constitutional Convention faced a tall order: “… to create an executive office that did not repeat past excesses.”
Under the Continental Congress and during the War of Independence many states tried to govern without an executive. However, Congress was forced to relent on its principles during the course of the war,
With the new nation struggling for survival, however, delegates relented by forming an ad hoc executive branch that was empowered to take independent executive action. If the exigencies of war demanded a distinct executive, so be it, republican principles be damned — at least for the time being, in this state of emergency.
Robert Morris, Financier of the Revolution was the man to whom they turned.
Even after the war, Raphael explains the preponderance of committees which were implemented to get things done because the government under the Articles of Confederation lacked an executive.
The closest thing to an executive body in the Articles was a “Committee of the States,” composed of one delegate from each state, to carry on business “in the recess of Congress.” That committee could only deal with matters that Congress, in advance, had specified, and it could “never” – a key word, tackle a wide range of the most important matters of state …
The confederation’s only executive body, in short, was instructed in no uncertain terms not to take any action on any matter of policy of great consequence.
Even the states that did have governors were very leery about their power, their terms of office, and how and if veto power could be exercised. Two states, Pennsylvania and Delaware opted to call their executive “president,” for one who presides, rather than governor.
And so, it was that this great suspicion of executive power, mixed with exasperation at the ineptitude of the government under the Articles of Confederation that prompted the delegates to the Constitutional Convention undertook to define the Executive Branch.
According to Madison’s notes on the Convention, the topic of the nation’s executive was first discussed on June 1, 1787. Significantly enough, this was but a few days into the proceedings, and on Friday, May 25, the delegates had unanimously chosen Washington to act as President of the convention. In this case, the term “president” meant one who presides, as in over a committee. (When the vice president “presides” over the Senate, he is addressed as “Mr. President” for this reason.) The roots of the modern presidency are derived from this notion of impartial rule enforcement.
Pennsylvania’s James Wilson stunned his fellow delegates by moving that the “Executive consist of a single person.” Raphael points out that,
The concept of a national executive was raw and undefined. It was up for grabs, but nobody reached forward to grasp it.
However, soon the parameters were set — ”a single, strong, and independent executive versus a loose conglomerate subservient to the legislature … “
The delegates were men with an interesting mix of experience and opinions. Many had executive experience or had even served as governors in their home states. Others, like Roger Sherman were strictly legislators. However, most concurred with was Elbridge Gerry, who stated “the evils we experience flow from the excess of democracy.”
Hence, one of the thorniest issues they had to resolve was how to select or elect the president. Raphael points out that this is one of many examples of how the delegates genuinely tried to work through the issues and come to the best solutions, regardless of their own inclinations. For instance, James Wilson shocked the rest of the delegates again when he suggested that the executive might possibly be chosen by popular election. This was especially significant, because Wilson had more reason than most to fear the unfettered power of the people. He and Robert Morris had faced a mob in 1779 in Philadelphia. Nevertheless, he reasoned, that the power of the executive must “flow immediately from the legitimate source of all authority … the people at large.”
In this, he was alone,
All delegates wanted the government they created to be philosophically grounded in the people, yet not one of them wished to place the operations of that government under the people’s direct control.
It was Wilson again, who provided what he thought was a brilliant compromise, the outline of what we now know as the Electoral College.
The concept was simple, even if the mechanisms were not. The people would remain in the picture, but others would make the final choice.
(Raphael is clearly no fan of the system.)
Many issues, other than the mechanism for choosing a president, had to be worked through in the convention. These included:
In all of these, the delegates had to balance their desire for an effective implementer of policy, with their fear of government power. Benjamin Franklin predicted the type of men who would be attracted to the presidency.
It will not be the wise and moderate; the lovers of piece and good order, the men fittest for the trust. It will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pursuits. These will thrust themselves into your government and be your rulers.
He continued, observing,
It will be said, that we don’t propose to establish Kings. I know it. But there is a natural inclination in mankind to Kingly Government. It sometimes relieves them from Aristocratic domination. They had rather have one tyrant than five hundred. It gives more of the appearance of equality among citizens, and that they like.
Raphael’s account of the convention proceedings covers a great deal of territory and includes some bizarre arguments made by Alexander Hamilton in favor of a strong executive, which could can be summed up thusly. The only way to prevent an executive from abusing his power in an effort to obtain more, was is to give him all the power he could want to start with!
There is also a fascinating discussion of the almost accidental creation of vice presidency. But perhaps most interesting was the role of Gouverneur Morris, protege of Robert Morris (no relation), in shaping the character of the office. Gouverneur Morris provides another example of a delegate who evolved throughout the course of the convention.
... Gouverneur Morris, as aristocratic as any of the delegates, and as haughty in his demeanor, was moving in a direction that ran counter to his class interests. He challenged some of his very own prior notions. Openly he was changing his mind, and following his lead, others granted themselves permission to do likewise.
And it was Gouverneur Morris who ended up having, possibly, the most profound effect on the definition of the presidency. Morris was the driving force in several key committees at the end of the convention. These were the Committee of Detail, the Committee of Eleven, and the Committee of Style. Through subterfuge and legerdemain, Morris was able to get his way on a number of issues handled by these committees, including the Electoral College, the role of the president in setting the agenda for legislation, and the power of negotiating treaties and appointing ambassadors, supreme court justices, and other key officials.
The power of appointment was further enhanced thanks due to delegate Richard Dobbs Spaight, who argued for the power of recess appointments, without the advice and consent of the Senate.
This last minute, “recess appointment” addendum seemed a corollary to the committee’s recommendation; since Congress in those days met only sporadically and the Senate would be unable to approve or disapprove the president’s nominees, it fell to the president alone to keep the government functioning in its absence. Yet by stating this explicitly, the convention opened the door to a a later, pro-executive interpretation, which allowed the president to make appointments opposed by the Senate.
(The office’s current occupant has stretched this concept even further, by making recess appointments when the Senate is in session!)
After covering events and decisions made in the Constitutional Convention, Raphael covers some of the arguments made in the ratification process and points out the freedom that the private nature of the Convention afforded apologist Alexander Hamilton. None save fellow delegates knew when he was contradicting himself as he argued in support of many things he had theretofore opposed. But he wasn’t the only one. James Wilson did his best to sell the plan, even though it included many things that he had opposed. The same was true for James Madison. It was for this reason that, in dividing up the writing of the Federalist Papers, they agreed that Hamilton would write those extolling the advantages of the new Executive Branch.
After ratification, Raphael explores how the first three occupants of the office shaped it and expanded its power. He does a great job in of referring back to the arguments and decisions of the Convention and in of revealing what their results were in practice.
Washington understood the importance of precedence and, as the nation’s first president, set a great many. Not all of these related to presidential power, however, and, in his words,
Many things which appear of little importance in themselves and at the beginning, may have great and durable consequences from their having been established at the commencement of a new general Government.
It was under Washington’s administration that the role of the cabinet would develop. Many at the Convention, including George Mason, had advocated for an advisory council for the President. The Senate was ostensibly given that role, but quickly proved inadequate and impractical. The heads of the various departments who served at the pleasure of the Executive, came to fill that function.
By the end of Washington’s first term, party politics were becoming a de facto part of the American political scene. By the end of his second term, the president was no longer just the head of the Executive Branch, he was also the leader of his party. Raphael points out the consequences,
… once the president had become the head of his party as well as the nation, he had every incentive to stretch the limits of his powers to overcome political opposition.
The Alien and Sedition Acts enacted by Adams are an extreme example. of this. However, Jefferson, the father of the anti-Federalist Republican party, stretched the power of the office in total contradiction to the beliefs he espoused. He found that he could not help but act as did.to do otherwise. But, his hubris has a familiar ring today.
A strict observance of the written laws is doubtless one of the highest duties of a good citizen, but not the highest. The laws of necessity, of self-preservation, of saving the country when in danger, are of higher obligation. To lose our country by scrupulous adherence to written law, would be to lose the law itself … thus absurdly sacrificing the end to the means.
Jefferson was perhaps referring to his enforcement of the Embargo Act, in which he literally argued that he should have the final say in about which guilty parties would be executed! The case involved some lumberjacks, caught smuggling lumber to Canada, who were apprehended and charged with treason. In a letter of Albert Gallatin, he wrote:
If all these people are convicted, there will be too many to be punished with death. My hope is that they [the US Court in Burlington, where the case was being tried] will send me full statements of every man’s case, that the most guilty may be marked as examples, and the less so suffer long imprisonment under reprieves from time to time.
Fortunately, the Republican judge presiding over the trial, a judge appointed by Jefferson only a year earlier, refused to play along. He instructed the jury that smuggling lumber was not equivalent to treason. He was appalled at the abuse of power. The United States wasn’t even at war, and yet the government was trying to convict men of treason.
Jefferson saw no problem with this and explained to Gallatin basically that the ends justify the means.
Congress must legalize all means which may be necessary to obtain its end. (emphasis Jefferson’s)
This account of Jefferson’s expansion of executive power left this reader rather less enamored with him.
Raphael concludes his study of the formation of the American presidency with some remarks on where the office has evolved and how it compares to what was intended. It is a very illuminating book, packed with meticulous research, and chock full of insights. For anyone wishing to understand how the presidency came to be what it is, this is the book to read.