by Ray Raphael
Morris’s arguments failed to convince, and Wilson, among others, continued to challenge senatorial involvement. The new plan, Wilson argued, evidenced “a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the Senate. They will have in fact, the appointment of the President, and through his dependence on them, the virtual appointment to offices…. The President will not be the man of the people as he ought to be, but the minion of the Senate.” Wilson’s vociferous and continuing denunciation of the plan clearly annoyed his closest colleague. “Mr. Govr. MORRIS expressed his wonder at the observations of Mr. Wilson,” Madison wrote in his notes. Morris observed, correctly, that in several ways the committee’s plan granted the Senate less power, not more. Within the Committee of Eleven, he had engineered a shift of two highly significant powers—negotiating treaties and appointing ambassadors, Supreme Court justices, and other key officials—from the Senate to the president. (More on these shortly.) Very likely, small-state members of the committee had opposed these moves or at least were reluctant to embrace them, since the Senate, with its equal voting for each state, provided the strongest protection against large-state domination. Also likely, they managed to extract from Morris, as compensation, the Senate runoff, which would give more of a voice to small states. If Morris truly believed that a runoff would rarely be required, he would have thought this a worthwhile trade.8
Of the speakers on the convention floor, only Roger Sherman acknowledged the particular interest of the small states’ position in the debate over the Senate runoff. The reason for choosing the Senate over the House was to counteract the large-state advantage in the allocation of electors, he stated openly. Further, when James Wilson suggested that the number of finalists should be fewer than five, Sherman parried that he “would sooner give up the plan.” He preferred “seven or thirteen,” the more the merrier in order to allow the Senate maximum discretion. Never an advocate of executive independence, Sherman had achieved a backdoor entry to congressional control and was reluctant to give it up. He did make one practical suggestion, and this too demonstrates how small-state interests were driving the debate. He would not be averse to moving the runoff from the Senate to the House if the House voted “by states,” one vote for each delegation.
Sherman’s new idea did not take hold when he first mentioned it. Large states opposed it, and so did slave states, which enjoyed not merely proportional but disproportional representation in the House because each slave counted as three-fifths of a person and therefore boosted the number of slave-state representatives. Small states and large, slave states and free—hadn’t the convention resolved these troublesome differences? Not exactly. The Great Compromise determined the differing compositions of the House and the Senate, but now proponents of each body wrangled over who would have the final say in determining the president, should the electors’ voting prove inconclusive.
Only the late hour and the delegates’ collective desire to be done with the matter prevented the debate from extending beyond its third day. Finally, Hugh Williamson of North Carolina, a harsh critic of the Senate with its equal-state voting, conceded the issue. The final choice of the president “should be made by the Legislature [the House], voting by States and not per capita,” Williamson stated. With Williamson’s support, Sherman’s motion to that effect passed easily, with only one state dissenting.
Except for that one amendment, moving the runoff from the Senate to the House, the Committee of Eleven had its way, and it fundamentally altered the president’s manner of selection and time in office. The debate on choosing the president consumed so much time and attention that the committee’s adoption of a four-year term squeaked through with only token discussion. Another key change in the committee report, reeligibility, was mentioned occasionally, but only as a component of the elector plan. The revised and almost-final draft of the Constitution, which incorporated the Committee of Eleven’s suggestions, theoretically allowed an ambitious and enterprising president, reelected every four years, to serve for life. If this attracted little notice among the harried delegates, it would certainly grab the attention of people out of doors, once the convention adjourned.
The Committee of Eleven also proposed two striking expansions of executive power. With the “advice and consent” of the Senate, the president could appoint ambassadors and Supreme Court justices. He could also make treaties, pending approval of two-thirds of the Senate. Both recommendations signaled major reversals. In the Committee of Detail’s report of August 6, still the working draft except where amended, powers granted to the Senate alone, exclusive of the House or the president, were spelled out clearly in Article IX, Section 1: “The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court.” Now, in an instant, those powers had been transferred to the president, leaving the Senate with only the residual “advice and consent.”
Each of these alterations bore Gouverneur Morris’s fingerprints. When appointments were discussed on the floor on August 23, he had “argued against the appointment of officers by the Senate.” That body, he said, was “too numerous for the purpose,” “subject to cabal,” and “devoid of responsibility.” Although Wilson “was of the same opinion & for like reasons,” nobody else came to his support, and the best he could do was get the matter remitted to committee. Since no other member of the Committee of Eleven had voiced opposition to the appointive powers of the Senate, we can safely infer that Morris played a key role in executing the transfer of that authority from the Senate to the president.9
Also on August 23, Morris, Madison, and Dickinson had challenged the Senate’s exclusive treaty-making authority, with Morris taking the lead. According to Madison’s notes, Morris “did not know that he should agree to refer to the making of treaties to the Senate at all.” Suspecting he did not have the votes to transfer authority to the president, he dropped the matter “for the present,” offering instead an amendment that would require any treaty to be “ratified by a law,” meaning that the House, the Senate, and the president would all have to sign on. His amendment failed, but the authority to make treaties, like appointive powers, was referred to the Committee of Detail and finally taken up by the Committee of Eleven, where Morris could finally address a small audience easier to convince.10
Although delegates discussed both these dramatic new alterations, they did so more briefly than one might expect. The scant attention is somewhat of a puzzle. Perhaps these changes represented a near consensus, but if so, why hadn’t they been suggested and approved before the committee reported them out? More likely, they appeared as reasonable compromises, similar to the two-step procedure the committee implemented for presidential electors. The president would nominate a candidate for office or propose a treaty, which the Senate had to approve. When viewed as safeguards, with each branch checking the other, such measures were less likely to provoke concern and stimulate debate.
Even with modifications that kept the Senate in the mix, these two changes signaled a marked increase in executive powers. The full extent of the shift, though, would not be apparent until the new government was up and running. From the 1790s to today, the president’s treaty-making authority has been used to partially offset and to some extent undermine Congress’s unique authority to declare war, and his appointive powers have allowed him to shape the direction of the judicial as well as the executive branch of the federal government. We can certainly understand why Morris felt unappreciated when his cohort Wilson, claiming the Committee of Eleven had turned the president into “the minion of the Senate,” failed to notice what he had done on behalf of creating a strong executive. A month earlier, Wilson and the five-man Committee of Detail had granted treaty-making and major appointive powers to the Senate; now Morris and the Committee of Eleven were giving the president the lead role. If Wilson failed to take note, we certainly can. Without this move, the office of the president today would be considerably different, and
far weaker, than it is.
Time certainly favored Morris and the committee, whose report was in effect a working draft. Many delegates were unwilling, at this late date, to expend energy in overturning proposals within that document. Had such a dramatic leap in presidential powers been suggested in June, July, or August, it would probably have stirred more opposition. By September, the likelihood of major alterations skirting through without full scrutiny was much higher.
The only strong challenge to the committee’s recommendation on powers of appointment came from George Mason. Part of the new plan he liked—taking appointive authority away from the Senate—but he didn’t understand why the committee ceded that same body the partial power of “advice and consent.” That should be the province not of a legislative body but of a separate executive council, which could both aid the president in executing the laws and keep him from abusing his powers. A longtime opponent of a single executive, Mason was still looking for ways to keep “dangerous” powers from being exercised by “the President alone.”
Rufus King, opposing Mason, claimed it was simply too late to introduce yet another body into the mix: “The people would be alarmed at an unnecessary creation of a new corps which must increase the expence as well as the influence of the Government.” Morris argued more substantively that the president, a single person, was best able to assume “responsibility” for the appointments he made, while the Senate would serve as well as a council to check the president. He then added flatly that an executive council had been proposed but rejected by the Committee of Eleven, as if this alone somehow invalidated Mason’s proposal. Despite support from Wilson, the first to propose a single executive, and Franklin, who warned once again not to place “too much confidence in a single person,” and Madison, who thought a committee should prepare a detailed draft for the establishment of an executive council, Mason’s plan for an independently elected six-man council was rejected, eight states to three.
Once Mason’s challenge had been rebuffed, delegates affirmed the Committee of Eleven’s recommendation to give the president, with the advice and consent of the Senate, appointive powers. Further, at the urging of Richard Dobbs Spaight, they allowed the president, during a Senate recess, to make appointments on his own “which shall expire at the end of their next session.” This last-minute “recess appointment” addendum seemed a natural 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 later pro-executive interpretation, which allowed the president to make appointments opposed by the Senate.
The Committee of Eleven’s proposal to give the president treaty-making powers provoked additional opposition. Again, though, the basic disagreement focused not on granting the initial power to the president but on the second step, treaty ratification. James Wilson thought that the House of Representatives, in addition to the Senate, should be required to approve the president’s treaties, but as usual his protestations on the part of the people’s direct representatives were in vain. Another challenge came from Madison, who preferred a low hurdle for treaties of peace. According to the committee recommendation, two-thirds of the Senate would have to approve all treaties, but Madison thought one-half should suffice for “treaties of peace.” Without a single speaker for or against, Madison’s motion passed “nem con,” without dissent.
Immediately, Madison followed with a more striking proposal: two-thirds of the Senate could “make treaties of peace, without the concurrence of the President.” Most shocking of all, in retrospect, was this future president’s reasoning. “The President would necessarily derive so much power and importance from a state of war that he might be tempted, if authorised, to impede a treaty of peace.” If a war-happy president did not want peace, a peace-loving Senate could override him. Gouverneur Morris, quick to respond, assured his fellow delegates that “the power of the president in this case [was] harmless” and that “no peace ought to be made without concurrence of the president, who was the general guardian of the National interests.” Morris’s president—one man above the political fray—could serve the nation better than those who represented specific interests. In a similar vein, Elbridge Gerry cautioned that the Senate might sell out the nation’s “dearest interests,” such as “fisheries, territory, etc.” By eight states to three, the convention denied the Senate authority to make peace on its own. The president would still have to take the initiative in negotiating a peace treaty.
The following day, September 8, as the first order of business, Rufus King moved to reestablish the two-thirds requirement for Senate ratification of peace treaties. Hugh Williamson, supporting King, noted that one-half of the Senate, if only a bare quorum were present, might be only eight men, possibly from the smallest states. Gouverneur Morris, offering one of the strangest arguments of the convention, came down on the side of Madison and the minimum one-half requirement for treaties of peace. While Madison and others who favored the lower hurdle did so because peace is preferable to war, Morris preferred that option because it would encourage the waging of war to pursue national interests. He reasoned that if Congress thought peace would be more difficult to obtain, it would be “unwilling to make war for that reason on account of the Fisheries or the Mississippi, the two great objects of the Union.” Facilitating peace would facilitate war, and war, for Morris, had the beneficial effect of making people willing to tolerate a strong, central government. This convoluted argument failed to convince, and Madison’s motion was overturned, again eight states to three. Morris’s preference for war, though, was in fact reflected in the latest draft, soon to become the final document. To this day, it takes a simple majority of Congress to declare war but a supermajority of the Senate to end one.
By September 8 the two new presidential powers had been confirmed, exactly according to the committee’s recommendations. Collectively, they gave more power to the president than they did singularly, for the authority to appoint ambassadors and make treaties signaled executive leadership in the shaping of foreign policy. Following the Committee of Eleven’s report, delegates overturned the sense of the convention that had prevailed for over three months. Perhaps, the way the pendulum kept swinging that summer, a few more days might have produced yet one more reversal, and these powers would have reverted back to the Senate or been apportioned in some other combination. The delegates, though, had wearied of these twists and turns, and the convention ended when it did, with presidential powers ascendant.
Even so, the president’s clout still paled by contrast with that of Congress. None of his increased powers were intended to affect domestic policy. He possessed no more authority to levy taxes, regulate commerce, borrow and coin money, raise and supply an army, constitute courts, or suppress domestic insurrections than he had when the Committee of Detail submitted its draft a month earlier. The only phrase in the Committee of Eleven’s report that could be construed as applying to domestic affairs was his power to nominate, along with ambassadors and Supreme Court justices, “other public ministers,” and even here there is no stipulation that these ministers should set basic policy.
The president’s augmented powers in the realm of foreign affairs, though striking, were also circumscribed. From the beginning, the “power of war” was off-limits, and that had not changed. The very first response to Randolph’s resolution to create a separate office of the executive, back on June 1, had come from Charles Pinckney, a firm proponent of executive power. A “vigorous Executive” was an excellent idea, he declared, but giving the office powers of “peace & war &c.” would make it “a monarchy, of the worst kind, to wit an elective one.” This was certainly the sense of the convention at that time, echoed by several other delegates. Now, although the “power of peace” (or at least a sizable portion of it) had been handed t
o the president, the power of war remained precisely where it always had been—with Congress. Unlike discretionary resolutions, which were subject to reversal, this cardinal principle was likely to remain in place no matter how long the convention stayed in session. Not even Gouverneur Morris could devise a plan to challenge Congress’s unique prerogative in this matter, and we have no evidence that he tried to.
Any attempt to marshal support for the executive’s taking over the power of war would be compounded by lingering suspicions of a standing army. At the convention, attempts by Mason and others to prohibit professional armies fell short. This failure was certain to be noticed out of doors. Imagine how resistance to the final plan would have been magnified if one man alone, the president, were granted the authority to raise and deploy armies as he saw fit. People would insist that America’s blood and treasure could not be expended so easily, without discussion, debate, or dissent, and they would probably reject the entire plan.
Without the power of war, the president’s authority over foreign policy, although augmented by the Committee of Eleven’s alterations, was far from absolute. The convention had leaned in the president’s direction as far as it reasonably could, yet he was empowered to “make war” on his own accord in emergencies only, pending approval. That was the way a government must function in a republic.
