by Ray Raphael
On the surface, it would seem a single executive was a victory for those who favored a strong executive, but in fact it was not, for now delegates had to work even harder to allay fears of a regression toward monarchy. This became immediately apparent as they pondered the executive’s authority to review and possibly overturn acts of the legislature—what the delegates called bluntly a “negative” or more politely the power of “revision,” and what we call today a veto. Here were the options:
The executive could have an absolute negative.
The executive could negative an act, but a supermajority of the legislature could overturn this; just how “super” the majority must be was open to question.
The executive would possess no authority to interfere with acts of the legislature.
Arguing for the most extreme form of the veto, James Wilson and Alexander Hamilton contended that “the Executive ought to have an absolute negative. Without such a self-defense the Legislature can at any moment sink it into non-existence.” Pierce Butler of South Carolina vigorously objected. He had voted in favor of a single executive, but he never would have done so had he suspected that one man would be granted such power. Benjamin Franklin declared “he had had some experience of this check in the Executive on the Legislature” under the proprietary governor of Pennsylvania. There, “the negative of the Governor was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him. An increase of his salary, or some donation, was always made a condition.” Not a single state delegation voted in support of an absolute veto.
On the other extreme, Roger Sherman, devotee of legislative power, argued predictably “against enabling any one man to stop the will of the whole. No one man could be found so far above all the rest in wisdom.” Delaware’s Gunning Bedford also felt the executive should stay out of legislative matters: “The Representatives of the people were the best judges of what was for their interest, and ought to be under no external controul whatever.” This position, like Wilson’s, failed to garner much support. Most delegates had bought into the general notion of checks and balances, and they wanted somebody, somehow, to exert some sort of check on the legislative branch.
Save for the Wilson-Hamilton and Sherman-Bedford extremes, there was nearly a consensus. The legislature should be checked, but it should also be able to override that check with a supermajority. From Madison’s notes: “On a question for enabling two thirds of each branch of the Legislature to overrule the revisionary check: it passed in the affirmative sub silentio.”
Delegates had taken up the matter of a national executive on Friday morning, June 1; by noon the following Monday, after two-plus days of debates and deliberations, they had sketched the outlines of a new office. A single executive, appointed by Congress, would serve a seven-year term but be ineligible for reappointment. He would have the authority to negative a congressional bill, but two-thirds of each legislative branch could override his negative. Congress, which had appointed him, could also remove him for “mal-practice or neglect of duty.” His scant powers were loosely stipulated—“to carry into execution the national laws” and “to appoint offices in cases not otherwise provided for”—but even so, delegates had created and defined the broad parameters for a “chief magistrate,” as they referred to the office.
But wait: Were these matters really settled?
Not according to George Mason, who had missed the critical vote on a single executive. The day following that decision, Mason announced he was not ready to abide by it, and his tirade against a single executive was at least as passionate as Edmund Randolph’s had been. Mason “never could agree to give up all the rights of the people to a single Magistrate.” An American chief executive, no less than the British monarch, would be tempted to use “bribery and influence” to augment his powers. The American version would be an even “more dangerous monarchy, an elective one.”
People out of doors feared this, and they were the ones with the final say. “Notwithstanding the oppressions & injustice experienced among us from democracy, the genius of the people is in favor of it, and the genius of the people must be consulted.” Further, the “genius of the people” would certainly reject one-man rule, thereby dooming the entire plan “not for a moment but forever.” Eventually, Mason predicted, his colleagues would realize the disastrous consequences of their decision. Then, so as not to offend the people, they would strip the unitary executive of all significant powers. Finally, seeing that they were undermining their goal of a stronger government, they would reverse their decision, “increase the number of the Executive,” and grant the office the powers it needed.
We have no record of how delegates received George Mason’s lecture, but we know they could not summarily dismiss it. Mason had all the key characteristics of convention delegates, but in the extreme. Land and slave rich, he was wealthier than most. Although all delegates were learned to a degree, Mason was recognized and respected as among the best read of the lot. He had been at the inner core of Virginia’s intellectual leaders for more than two decades. His neighbor George Washington had looked to him as a mentor during his politically formative years before the Revolution. With Washington, Mason had spearheaded the Virginia Nonimportation Resolves of 1769, and he had helped author the Fairfax Resolves of 1774. He had contributed to the Virginia Constitution of 1776, which opened with his trendsetting Declaration of Rights, a document that became a model for several state constitutions and the eventual Bill of Rights. Mason served only rarely in elective office, despite repeated badgering from numerous compatriots, but that only seemed to heighten his status as the ultimate political philosopher. William Pierce summed up his standing: “Mr. Mason is a Gentleman of remarkable strong powers, and possesses a clear and copious understanding. He is able and convincing in debate, steady and firm in his principles, and undoubtedly one of the best politicians in America.” We can be sure that Mason’s vehement opposition to a single executive, although a minority view at that point, was duly recorded in the minds of his fellow delegates.5
Immediately following Mason’s harangue, the venerable Dr. Franklin added some cautionary words of his own, more casually presented than Mason’s but no less effective. He started with a rambling tale of executive abuse, from the Netherlands this time, then came abruptly to the moral. “The first man put at the helm will be a good one,” he said flatly. Nobody had a problem with that; the presence of George Washington in the room, and the shared assumption that he would become the first executive officer, did ease people’s apprehensions to some extent. But then Franklin observed, “No body knows what sort may come afterwards.” True, all too true. Delegates should not be seduced into thinking all executives would be of Washington’s caliber, so they had better take care. Could they ever be careful enough? Perhaps not, Franklin feared, and he closed with a stinger: “The Executive will be always increasing here, as elsewhere, till it ends in a Monarchy.”
That was precisely what nobody wished to hear. All the votes on this particular matter or that—three years versus seven, manner of selection, and so on—paled by comparison with the meta-issue the delegates could not escape: If they created a single executive, and made him in any way independent of Congress or the people, were they in danger of sowing the seeds of another monarchy?
CHAPTER FOUR
Second Guesses
The best argument for a new and independent executive branch of government was the extreme inefficiency of the competition—administration by deliberative bodies. A case in point was the current convention.
On June 15, after delegates had discussed, debated, and amended the fifteen resolutions in the Virginia Plan, working in earnest day after tedious day, New Jersey’s William Paterson took the floor and announced that he and some colleagues wanted to throw out everything and start anew. This categorical dismissal could be defended, if necessary, by pointing to a recent precedent. On the very first day of deliberations, prodded by Gouverneur Morris
, the convention had dismissed the Articles of Confederation in their entirety.
Paterson’s caucus—the majority of delegates from New Jersey, Delaware, Connecticut, and New York, plus one from Maryland—proposed a return to the Articles, resolving only that they “be so revised, corrected & enlarged, as to render the federal Constitution adequate to the exigencies of Government, & the preservation of the Union.” Word for word, this was what the states had charged them to do. Speaking on behalf of those states, they refused to cede all authority to a unitary body. Under the New Jersey Plan, the United States was to remain a confederation. There was no mention of a supreme national government.
The central reason for calling the convention was that Congress depended on the states for all its funds and was therefore perennially broke. In its second resolution the New Jersey Plan did speak to that need by granting Congress the right to raise its own money through import duties and postage fees, but it would remain a unicameral legislature. Each state would have one vote, as before. There would be no Senate. The underlying structure would not change.
To provide greater efficiency, the New Jersey Plan included an executive but referred repeatedly to the “persons” filling the office. So it was back to a multiple executive, as if James Wilson had never offered his motion, the convention had never discussed it, and no decision had been made.
The following day, a Saturday, delegates considered whether or not to revisit the myriad decisions they had made when pursuing the Virginia Plan. Old arguments resurfaced, with resolution nowhere in sight.
At 10:00 Monday morning, June 18, Alexander Hamilton entered the fray. A longtime proponent of centralized authority, he took the floor, and he held it for five or six hours, uninterrupted by any other speaker. With the help of William Pierce, we can imagine the youthful military man, only thirty years old, “of small stature and lean,” his “manners tinctured with stiffness,” holding forth to his peers, “sometimes with a degree of vanity that is highly disagreeable,” and remaining “highly charged” for the better part of a day, nonstop.
Hamilton’s speech would prove by far the longest of the convention, and also the broadest in its intent and scope. For every step taken by Paterson and company away from national government, Hamilton took two steps toward it, insisting, “We ought to go as far in order to attain stability and permanency as republican principles will admit.” That was Madison’s generous rendition. Hamilton himself jotted down notes to organize his speech, and his extant words reveal a deep disregard for the republican notions that had shaped political dialogue during the Revolutionary era: “It is said a republican government does not admit a vigorous execution. It [republican government] is therefore bad; for the goodness of a government consists in a vigorous execution.”1
Fearing rule by the untutored masses, several delegates grumbled freely about democratic government, but republican government, in which educated men like themselves deliberated on public affairs, was not to be so readily dismissed. Almost to a man, they had been reared on a steady diet of republican virtue. Hamilton had not. He was a child in the West Indies during the Stamp Act and Townshend Act crises and did not become politically active until late in 1774, just as resistance was turning into revolution, so he never did internalize a commitment to the progressive ideals that pervaded those times. Within two years he was a professional soldier, an experience that shaped his thinking along very different lines. He pegged his career to his mentor, George Washington, and adapted readily to the military’s top-down chain of command. Now, a decade later, he showed no special attachment to the notion that people must freely and frequently choose their own leaders.
Hamilton admitted that republicanism could not be entirely abandoned, but he would limit its reach as best he could. He started with a frontal assault on confederations, which could not produce viable governance. All confederations were doomed to fail, he asserted. He produced numerous examples from history, he leaned on political philosophy, and, most significantly, he pointed to human nature, to people’s timeless pursuit of power, influence, and their own parochial interests. Judging from the proportion of notes that Madison and three other delegates took on this subject, Hamilton spent a good two hours demolishing New Jersey’s plan for continuing the confederacy.
Did Hamilton think the Virginia Plan was any better? A little, perhaps, but not much. The states still retained some degree of sovereignty, which would hamper the national government. Worse yet, its solution to the “excess of democracy” (here Hamilton echoed the words of Elbridge Gerry) was yet more democracy. From Hamilton’s own cryptic notes: “Gentlemen say we need to be rescued from the democracy. But what the means proposed? A democratic assembly is to be checked by a democratic senate, and both these by a democratic chief magistrate. The end will not be answered—the means will not be equal to the object. It will, therefore, be feeble and inefficient.” And from notes taken by the delegate Robert Yates: “What even is the Virginia plan, but pork still, with a little change of the sauce.”2
To find a better way, Hamilton proclaimed, delegates need look no further than the government they had rejected eleven years earlier. “British constitution best form,” he wrote cryptically in his notes. According to Madison, Hamilton stated “he had no scruple in declaring … that the British Government was the best in the world; and that he doubted much whether any thing short of it would do in America.” At the outset, delegates had promised to share their thoughts, even if unpopular, and Hamilton, with heightened drama, indulged liberally, even gleefully, in that permission.
Ironically, Hamilton was the only delegate not taught obedience to the British Crown as a child; he came to this view not from nostalgia but by some combination of reason and taste. The House of Lords was “a most noble institution.” As to the executive branch, “The English model was the only good one.” A hereditary monarch possessed so much power, privilege, and influence that he was above corruption. “See the excellency of the British executive,” he said according to Yates’s notes. “He can have no distinct interests from the public welfare. Nothing short of such an executive can be efficient.” Only the House of Commons failed to receive any praise.
There was no place in a strong government such as Great Britain’s for shared sovereignty, as proposed in both the New Jersey and the Virginia Plans. The individual states of the confederacy only added to the expense of government and made administration less efficient. If state governments “were extinguished,” Hamilton argued, “he was persuaded that great œconomy might be obtained by substituting a general Govt.” States were simply “not necessary for any of the great purposes of commerce, revenue, or agriculture.”
Hamilton said he was not advocating a return to monarchy and abolition of the states, even though those were his preferences. He understood he might have to modify his wishes to suit “public opinion,” or what Mason and others referred to as “the genius of the people.” Still, he argued that public opinion was changing and might soon conform more closely to his views. He also reminded his fellow delegates that they were duty-bound to seek the optimal form of government and then come as close to that as they could. That is why he formulated his own schema, which he presented not as a “proposition” like the others but “to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the plan of Mr. R. [Randolph] in the proper stages of its future discussion.”
In Hamilton’s plan, the lower house of the legislature, representing “the mass of the people,” would fight incessantly with the upper house, modeled after the British House of Lords and representing “the rich and the well born.” To prevent this incessant conflict from immobilizing the government—to provide a “mutual check” on the two competing branches of the legislature—he called for a strong executive, very strong indeed. His notes labeled the executive a “monarch”:
The monarch must have proportional strength. He ought to be hereditary, and to have so much power, that it will
not be in his interests to risk much to acquire more. The advantage of a monarch is this—he is above corruption—he must always intend, in respect to foreign nations, the true interest and glory of the people.3
In his speech, Hamilton elaborated. Any finite term of office—even seven years, as in the working draft of the Virginia Plan—would be insufficient to guard against an executive’s power lust. Being ambitious, as men are, the executive would wish to “prolong his power.” To this end he might even use the excuse of a war to create an “emergency to evade or refuse a degradation from his place.” Only a monarch who already possessed all the power he could ever hope to obtain would be impervious to the pursuit of more. It was Hamilton’s eeriest and most dangerous argument, and strangely naïve. The notion that the lust for power could be satiated, that some absolute ceiling would satisfy all monarchs, had already been disproved countless times in history. Hamilton himself could have torn his argument apart, had he been inclined to do so.
In the formal outline for his plan of government—written out in advance and read from the floor—Hamilton refrained from the use of the term “monarch,” even though he had used it liberally in his speech. Instead, he used the term “governour,” one who governs, still a step up from “president,” one who merely presides. The governour would be selected by special electors, not by the people, and once elected he would serve for life if not impeached, entirely free from popular influence. Once in a generation, people would choose electors, who would in turn choose their governour; this one slender thread, which tied the people with their leader in the most tenuous manner, permitted Hamilton to label his plan “republican.”
