The Man of the People: Part I - Cracks in the Dam
By Scott Lipkowitz
Citizens of the United States do not actually vote - at least not in the direct democracy sense - for President. At each step in the process their preferences are filtered through delegates and then electors, until the 'will of the people' seems more like an over-glorified game of telephone than it does democracy. Very rarely, if at all, does the electorate seem to reflect upon this; but in a Presidential race overflowing with allegations of corruption, super-delegates, and party implosions, it seems impossible to ignore. Thus, as the anonymous writer of the Anti-Federalist 72, "Republicus", we too question the wisdom "that the sacred rights of mankind should thus dwindle down to Electors of electors, and those again electors of other electors." To modern sensibilities, choosing a President should be a straightforward task: you cast a vote for a specific individual, and if that individual receives a majority of the vote, they become President - no filters or gatekeepers required.
But this modern thinking about Presidential elections, and about the Constitution as a whole, is a by-product of the myth of America's creation. We like to believe that the thirteen colonies were a united force, boldly fighting for the ideals of democracy and liberty - after all they stated as much in the Declaration of Independence - and that in the war's aftermath, these very same ideals motivated the creation of the American government and of the office of the President. In reality - as in so many other revolutions - the leaders of the American Revolution had put little thought into what would come to be should the war prove successful. Even independence from Britain was not a strategic goal from the outset; it, along with most of what has transpired over the course of our history, came about only as circumstances presented themselves. Once independence had been achieved, the one thing of which Americans were sure, was that they did not want to give it up, under any circumstance, or to any group or institution.
This included any form of national executive; and it is why, in the first attempt by the newly independent states at unified government, a national executive was deliberately left out. Even the initial Continental Congress, first convened in 1774, was essentially a war time expedient - necessary for coordination of the war effort - but its creation did not mean that the individual states desired to substitute the rule of remote British authority for that of remote Congressional Authority. Few, if any, of the new citizens of the so-called United States (and perhaps just as few even today) thought, as Alexander Hamilton desired, "continentally." During the war, in the midst of the fighting, George Washington himself would run into the narrow, state-based thinking which had been the wont of the states prior to the Revolution. During his command of the Continental Army, Washington asked militia members from New Jersey to swear allegiance to the United States; receiving back the statement, "New Jersey is our country" by way of a reply. Such thinking was not uncommon among the thirteen states, who were, in essence more akin to proto-nations, each having a different founding charter, principle, ideals, economies, and interests.
Once their common enemy had been removed, the states sought to safeguard their liberty by holding it firmly within their borders. The Articles of Confederation and the Continental Congress were maintained as a way to establish the "close friendship" of the states and to theoretically provide for their "common defense." The war may have concluded, but it did not mean that the British had been expelled from North America. They still maintained garrisons along the American western frontier, and controlled all of Canada to the north. During the war the French had provided naval assistance to the Continental Army; but in its aftermath, no such protection was guaranteed. To the south, Spain controlled Florida and Cuba, and though anti-British during the war, they were by no means pro-American either. And along all of the western frontier, Native American tribes hostile to the states' westward ambitions, threatened violence. In this tenuous strategic situation it was necessary to maintain some method of dealing with external threats; but the Articles did little to protect the states from each other.
Larger states such as New York and Virginia placed trade barriers and import taxes on goods brought in through their ports and destined for smaller states such as New Jersey and Delaware. New Jersey, trapped between Pennsylvania and New York would be described by James Madison as "a cask tapped at both ends." Each state issued its own unique currency, making inter-state trade a nightmare. Lacking any desire to help one another maintain order, rebellions in one state - such as Shays' Rebellion - were viewed in other states with understandable apprehension; but without any real possibility of lending support. The same Articles which created a "firm league of friendship" also allowed for each state to "retain its sovereignty, freedom, and independence." These two statements proved to be mutually exclusive, as each state viewed the others almost as potential enemies, plotting to place the yolk around the neck of their supposed countrymen if given half a chance.
Eventually, something would have to give. With all real power tied to the state legislatures, the Continental Congress was impotent; it could only do what the states allowed it to; and even then there was little uniformity or direction of purpose. The lack of a national executive did not help. When Spain closed the port of New Orleans to American merchants, Congress was powerless to resolve the situation. No longer protected by the British Navy, American merchants were harassed in the Mediterranean off the African coast and were barred from entering the West Indies. In the south, conflict with Native American tribes loomed; but lacking the ability to raise funds for military intervention, the Continental Congress was forced to remain on the sidelines as the governments of Georgia and North Carolina negotiated independent treaties to secure the peace. As a means of providing for the common defense and for mutual friendship, the Articles of Confederation were an abysmal failure. If the states were to survive on the international stage, or at all, they would need to subjugate their individual independence to a stronger national government - a notion which struck many as merely enabling a return to the authoritarian and tyrannical rule of the British Parliament and King.
When Edmund Randolph stood before the Constitutional Convention in the summer of 1787 to present the Virginia Plan for a stronger national government, consisting of an independent legislature, judiciary, and executive, it seemed that the fears of many prominent Americans were justified. An independent legislature already existed under the Articles, and while the newly proposed Congress would have greater authority to regulate trade, monetary policy, law, and taxation, it would none-the-less be a body representative of the entire nation. An independent executive, on the contrary, smacked of monarchy, and would later be described by the very same Edmund Randolph who first rose to propose its creation as "the feotus of monarchy." (Though to be fair to Edmund Randolph, the Virginia Plan was, in truth, the work of James Madison.) If allowed to gestate, opportunity, greed, and the lust for power would allow this fetus to become the harbinger of tyranny.
Yet, Madison, Hamilton, and others who supported the institution of a strong national executive shared just as dismal a view of human nature as those who argued against it. Both Hamilton and Madison were fearful of the factions and divisions which put humans in opposition to one another and feared that "different leaders ambitiously contending for pre-eminence and power" would be able to sway the various factions, or even whole states and regions, to their banner, and thus become king in all but name. The great power with which any national executive would necessarily be entrusted was again liable to corrupt and to produce the potential for dictatorial rule, but both Madison and Hamilton placed their faith in the balance of power arrangement their proposed federal government would enact to reign in any such tendencies. To the delegates debating the creation of the President, the tyranny induced by concentrated power was akin to water seeping through the cracks of an aging dam - many potential pathways, all ending in the same result. Thus, the proposals eventually codified in Article II of the Constitution were designed to plug as many of those cracks as possible, both by narrowly defining the executive and its powers; and by attempting to control the flood waters of tyranny and corruption inherent in the chief executive's selection.
The primary method employed by the Constitution to place a speed break on the President's march toward monarchy was to center the primary focus of power and of the people's will in the hands of the legislature. Congress, and not the President, takes top billing. The founders envisioned a chief executive who would simply do what the title suggests: execute the laws, ordinances, and statutes enacted by Congress. The executive would be independent, but it would not be the primary organ of government. Connecticut's Roger Sherman affirmed this view of the office of the executive as "nothing more than an institution for carrying the will of the Legislature into effect." Congress was the "depository of the supreme will of the Society", he would continue, and as such, the powers of any executive authority would be strictly limited. This is of course in sharp contrast to how we view the President's role today; but it is without a doubt that the 'imperial' nature of the modern presidency would strike deep at the fears expressed by the founders.
Military force was also of prime concern to the delegates, and the Constitution gave its control and direction to the office of the President. But this again created a potential crack through which tyranny could seep. How many men, from Caesar to Cromwell, had used their control of the military apparatus to rise to power? Would placing the loyalty of the armed forces in the hands of a single individual lead to anything other than the establishment of a king? During the tensions leading up to the outbreak of the Revolution, George III had used the British army to strip Massachusetts of its right to self government, garrisoned troops in the homes of its citizens, and placed the entire colony under the rule of a military governor. A President at the head of an army could do the same to the entire nation. In order to avert such an outcome, Congress, and not the President, was vested with the authority to declare war; and most importantly, the 'power of the purse'. Congress, and Congress alone, would be able to raise the funds necessary to supply, arm, and pay the members of the military, thus choking off, theoretically, any loyalty the armed forces might feel to the President, and instead ensuring it remained where it belonged: with the will of 'the people'.
This same logic behind the power of money to control the ambitions of a would-be despot would also be employed in the area of the President's salary. While this may seem like a trivial matter, Benjamin Franklin would point out that "the love of power, and the love of money" would inspire anyone to "move heaven and earth to obtain it." If the national executive's salary was limited and fixed during his tenure in office, it would prevent the possibility that an individual's lust for power could grow out of hand. There was again colonial example which spoke to the logic of this. Prior to the mid-1770's, colonial legislatures raised the funds to pay their royal governors, enabling them to exert some degree of control over the governors who otherwise would have been solely at the command of the king. When Parliament removed that ability from the colonial legislatures with the colloquially named 'Intolerable Acts', the royal governors became yet another joint in the long arm of royal tyranny. Controlling the President's recompense was just as important to controlling the funds which backed the military he would command.
To remedy the United States' horrific diplomatic record, the executive would be empowered to enter into diplomatic arrangements with foreign powers; but even this had to be severely limited to prevent the possibility of tyranny. The United States was a new player on a potentially deadly world stage. Still surrounded by threatening powers, the potential for any President to negotiate away the nation's sovereignty in return for reward and self-aggrandizement certainly would be present. In the preceding century, both the War of Austrian Succession and the War of Spanish Succession saw the great powers fight for the control of their European neighbors through the influence of their sovereigns. The same could happen to the United States. To head this danger off, the Senate would be given the final vote of approval over any treaty or international agreement entered into by the President.
Congress would also be given final say over who the President could appoint to staff the various departments of the executive branch. As the only truly national officer, the President would quickly come to occupy the center of a national web of bureaucrats and officials all looking to him for direction. Any apparatus that enabled the "deposit of vast trusts in the hands of a single magistrate" would, according to Virginia delegate George Mason, "[enable] him in their exercise to create a numerous train of dependents." In that event, it would not be long before an American monarch and a supporting aristocracy challenged the liberties of every day citizens. Placing the authority to confirm or deny the appointment of the President's support staff in the hands of the Senate might not completely keep this from happening; but it would at least give 'the people' some degree of control. (It should be noted that in its initial incarnation the Senate was appointed by the state legislatures, and not through the direct election of the citizenry).
Other potential cracks were identified and mended, such as the need to limit the length of the President's term in office. Allowing the President to serve for life, along the lines of a Cromwell as Lord Protector of the English Commonwealth, would not suffice to prevent monarchy. Nor would limiting the term to one, seven year period, as advocated by George Mason. Instead of a lifetime of potential cruelty, a seven year term could still doom the nation to an extended period of it, and worse still, it would both prevent the continuation of good governance when it arose and make the removal of incompetence that much harder. Eventually Mason would change his mind, stating:
"It is remarked by Montesquieu, in treating of republics, that in all magistracies, the greatness of the power must be compensated by the brevity of the duration, and that a longer time than a year would be dangerous. It is, therefore, obvious to the least intelligent mind to account why great power in the hands of a magistrate, and that power connected with considerable duration, may be dangerous to the liberties of a republic."
The President's term would thus be limited to four years, with the option to serve again. As a final check, the Congress would be empowered to police the executive and to remove any executive whose time in office began to smell of "high crimes and misdemeanors" or of "treason and bribery."
All was done to anticipate every possible weakness in the creation of the national executive, every avenue down which the corruption and avarice of humanity could go, and to seal the cracks in that dam which held them all back. A return to monarchy could not be an option. The founders wanted to uncouple the worst of human nature from the person who occupied the President's office; and sought to do so by accepting the stark realities of human temptation and ambition. They aimed to create an executive who would not lead; but who instead would be a tool through which the decrees of Congress could be faithfully and justly applied throughout the nation as a whole. Yet while they had filled the cracks by boxing in the scope of Presidential authority, an equally as dangerous crack still remained. State and regional animosities lingered, and as the only national officer, the President would naturally be drawn from among the citizens of a particular state and region. In all likelihood, the President would bring with them to the national stage their state allegiances and regional biases. If said executive thought of themselves more as a 'Virginian' or a 'New Yorker', than it might not be possible for them to benevolently and fairly execute the laws and statutes enacted by the Congress. The only way the founders saw to remedy this problem was through the method in which the President was selected. And as we shall see, even this would prove to be fraught with the potential for corruption and tyranny.
Bailyn, Bernard. The Ideological Origins of the American Revolution. Harvard University Press. 1992.
Berkin, Carol. A Brilliant Solution (Inventing the American Constitution). Mariner Books. 2002.
Clinton, George. Anti-Federalist 67. The New York Journal. 1787. http://www.thefederalistpapers.org/antifederalist-paper-67
Grayson, William. Anti-Federalist 68. 1788. http://www.thefederalistpapers.org/antifederalist-paper-68
"REPUBLICUS". Anti-Federalist 72. The Kentucky Gazette. 1788. http://www.thefederalistpapers.org/antifederalist-paper-72
Madison, James. Federalist 10. The New York Packet. 1787. http://avalon.law.yale.edu/18th_century/fed10.asp
The United States Constitution.1787. https://www.billofrightsinstitute.org/founding-documents/constitution/
Articles of Confederation. 1777. http://www.ourdocuments.gov/doc.php?flash=false&doc=3