The Chief Executive & The Constitutional Convention

Key Facts

--resistance to a strong executive at the convention

--single executive v executive council

--selection of executive

--"energy" and the executive

--significance of G. Washington's presence

--22nd Amendment

The design of the executive office was one of the most contentious issues at the Constitutional Convention. Some felt a strong executive necessary to the carrying out of the laws passed by the legislature; others, however, felt an executive not only unnecessary but dangerous. But all of the major plans included some kind of executive. In the Virginia Plan, the executive was a single person with considerable power, who, along with the judiciary, would have some veto power over the legislature. In the New Jersey Plan, the executive was not one person, but a council of sorts, a sort of "co-presidency." In both cases, the executive was chosen by the legislature. These proposals for the executive  were nothing like the president we know today.

It is not hard to understand the controversy: the royal governors and the King, with their love of power and loyalty to England, were fresh on the minds of the Framers. The need for a third and distinct branch of government, a branch whose task is the carrying out of the laws, seemed clear under the concept of the separation of powers, a concept that everyone revered. But the Framers wanted to be careful, to avoid creating a position from which a tyrant could rule over the states.

So, when the Convention took up the question of the President, they had a few decisions to make: single individual executive or executive committee? Appointed or elected? And what powers should the President, in whatever form, be able to carry out? The debate started when James Wilson moved that the Executive be a single person. Roger Sherman was opposed. The battle lines were drawn. States rights advocates wanted a weak executive; nationalists believed the country needed a strong one. In the debate, Wilson noted that each of the states had single executives. The idea was familiar and it seemed to work. When it came to a vote, the single executive prevailed.

The next task was to decide on the term of office and the manner in which the President would be chosen - by the people or by the legislature? The idea of direct election sounds so simple to us today, but in eighteenth century America, there were no parties, no conventions, no mass media . . .  how would the people know who to vote for? Many supported the idea of direct election, but considered it impractical. Accordingly, the Founders eventually adopted the idea of the Electoral College.

There was considerable debate at the Constitutional Convention about just how strong the chief executive should be. Those who argued for a strong chief executive won the day. The idea, then, behind the chief executive is summed up by Alexander Hamilton in Federalist #70 who explains that the defining characteristic of the executive office should be "energy"--by which he means an ample amount of constitutionally based power. Hamilton argues that this "energy" is essential for protection against foreign attack, the stability of public administration, security against those who would violate the right to property--and protection against anarchy and tyranny. In other words, a strong executive is essential for a safe and healthy republic! Publius (Hamilton) writes:

Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: It is not less essential to the steady administration of the laws, to the protection of property against those irregular and high handed combinations, which sometimes interrupt the ordinary course of justice, to the security of liberty against the enterprises and assaults of ambition, of faction and of anarchy.

For this reason, there were some who wanted the president to be eligible for re-election an unlimited number of timess; others wanted more limited tenure. The compromise was election to a fixed four year term an unlimited number of times. This, though, was overruled by the 22nd Amendment (1951), passed in response to FDR’s four terms of office. The 22 Amendemt limits the president to only two terms of office. This means that, even if he (or she?) is re-elected for a second term, his political power (not necessarily his constitutional power) gradually weakens, the farther he moves into his second term. This is true even though the president’s constitutional power does not change in his second term.

Another factor in creating a strong executive was the presence of George Washington at the Constitutional Convention. Everyone knew that he would be the next president so they were somewhat assured that the first president at least would not be a tyrant. In fact, it was difficult to even warn about a potentially tyrannical president, because, well, George was sitting right there and no one believed that he would be a tyrant. It would have seemed irreverant to even suggest the possibility!  In conclusion, the founders created what some now call “The most powerful man in the world.” (Or, potentially the most powerful woman.) That’s not far from the truth.

To see a spoof on just how powerful the president might be, see this  homemade rendition of George Bush’s State of the Union address HERE.

© Hank Edmondson 2012