by Ray Raphael
There was one last challenge to the committee’s report. The committee had wanted electors to cast two ballots, but the second ballot created a problem: there was no appropriate office for that man to fill. Undaunted, the Committee of Eleven had conjured a new position, just so electors would have somebody to vote for. Williamson, a committee member, explained to the convention: “Such an officer as vice-President was not wanted. He was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time.”
The creation of this new office did address the problem of succession. For the first two months of the convention, nobody had paid any attention to what would happen if a president were killed, incapacitated, or impeached and convicted, for if one president could not serve, Congress would simply choose another. But what if Congress was not then in session? On August 6 the Committee of Detail solved this minor technical problem by specifying that the president of the Senate would fill the office temporarily “until another President of the United States be chosen, or until the disability or the President be removed.” That did not sit well with Gouverneur Morris, always wary of Congress’s influence over the presidency. As Madison, who shared Morris’s concern, pointed out on August 27, “The Senate might retard the appointment of a President in order to carry points whilst the revisionary power [veto] was in the President of their own body.” Who, then, should succeed a president, if only temporarily? Morris suggested the chief justice, but he found no backers. Madison offered up “the persons composing the Council to the President,” which would have made more sense if the president had a council, but none yet existed. Williamson then suggested that determining the “provisional successor to the President be postponed,” and his motion carried the day.
This of course suited Morris, who was able to solve two problems at once within the Committee of Eleven. Morris had wanted the electors to select two candidates, and fortuitously that second candidate would fill a vacant niche in the new scheme. The elector scheme created a successor to the president who was independent of Congress.
What would the vice president do? That was a puzzle. The best the committee could come up with was “ex-officio President of the Senate,” with the power to break a tie vote. This assignment angered Mason, who complained that the vice president’s role, artificially manufactured by the Committee of Eleven, was “an encroachment on the rights of the Senate,” violating the principle of separation of powers. Elbridge Gerry agreed. It was “improper,” he said, to give the new office a function within the legislature, because of “the close intimacy that must subsist between the President & vice-president.” To which Gouverneur Morris responded wittily: “The vice-president then will be the first heir apparent that ever loved his father.”
Morris and the committee prevailed yet again, with only two states voting against the vice president’s minimal job description. What we regard today as the second-highest office in the land was a fluke of circumstance, an inadvertent last-minute addition. Had they not felt rushed, delegates might have taken more care and assigned the infant office more definite and appropriate tasks, but they were worn out, and they discussed the matter no further. The vice president was the bastard son of the convention, which knew not how to deal with him.
The convention finished debating the committee’s report on September 8, having approved all major changes except the settlement of an unresolved presidential election, which was to be decided by the House rather than the Senate. Electors, not Congress, would choose the president, if a majority settled on one candidate. His term was shortened from seven to four years. Instead of being limited to a single term, he could serve indefinitely, subject to reelection. With the advice and consent of the Senate, he was empowered to negotiate treaties, appoint ambassadors, and choose who would serve on the supreme national judiciary. At no other time in the summer of 1787 did any committee alter prior decisions of the convention in such a sweeping manner. To the Committee of Eleven we owe a good share of the American presidency and the very existence of the vice president.
Also on September 8, the convention appointed a five-man committee to “revise the style” and “arrange the articles which had been agreed to by the House.” The committee was to deliver smoother prose, not an altered plan.
Not unexpectedly, Gouverneur Morris was appointed to the new committee. His colleagues were all lucid writers—James Madison, Dr. William Samuel Johnson, Rufus King, and the long-absent Alexander Hamilton, who had returned the week before to play whatever role he could in the final act. Although Johnson, the president of Columbia College, was the senior member and chairman, the committee asked Morris, a supreme stylist, to put his polish on the finished product.11
Many commentators have claimed that Morris reached beyond his limited mandate to further his nationalist agenda. The draft he was handed commenced, “We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations,” and so on, listing the states north to south, while Morris’s version—“We the People of the United States”—left out the individual states, making it clear that this was a direct contract between the people and the national government they were creating. Morris, though, was forced to make this change, for the original made no sense. Rhode Island, which had refused to send delegates, would likely refuse to sign on, as might other states. In that case, the original preamble would become a farcical reminder of the lack of unanimity, and the Constitution would require immediate revision. So a listing of the separate states had to go.
Also in the preamble, Morris expanded the purposes of the new government, and commentators have said this too reflects his preference for a strong central government. The draft he inherited—the people of the states “do ordain, declare, and establish the following Constitution for the Government of ourselves and our posterity”—became in Morris’s hand “to form a more perfect Union,” and so on, the impressive listing of the Constitution’s goals that is with us still. Yet there was nothing new in this. Key phrases such as “common defence” and “general Welfare” were carryovers from the weak Articles of Confederation, as was the idea of securing liberty. Other terms, such as “Justice,” “domestic Tranquility,” “Blessings,” and “Posterity,” were used often at the time and not in the least controversial. Ironically, when Morris was doing no more than expressing the general will, later writers have attributed to him an activist role, yet even his biographers have underplayed his dramatic restructuring of the presidency.12
The Committee of Style submitted its “final” version on September 12. Although the committee’s rewording of the preamble attracted little notice, a few delegates still weren’t satisfied with various clauses. Hugh Williamson wanted “to reconsider the clause requiring three fourths of each House to overrule the negative of the President,” lowering the hurdle back to its original two-thirds. The higher number, he said, “puts too much in the power of the President.” This must have surprised any delegates who recalled that the motion made four weeks past—to change from two-thirds to three-quarters—was made by none other than Hugh Williamson. Back then, Williamson and others had feared the legislature was gaining too much power; now, after the series of recent changes that freed and strengthened the president, he wanted to take a small step in the other direction. Other delegates agreed. In a close battle between fractions, two-thirds beat out three-fourths by six states to four, thereby lessening the presidential veto power by one-twelfth. James Madison, in this particular instance, noted the individual vote within the Virginia delegation: while Mason and Randolph favored the lower threshold, future presidents Washington and Madison preferred to keep presidential power at the higher level.13
The attention given to the veto override reveals how seriously many delegates were committed to a proper balance within their new government. While some, like Morris, voted always with the executive, and others, like Sherman, habitually sided with the legislative branch, most viewed themselves as impartial moni
tors. When one branch seemed to be getting an upper hand, they searched for appropriate adjustments.
In the end, did the convention achieve a proper balance of powers? And just as important: Would the people think it had accomplished that goal? Had the delegates created an office that could further efficiency in government and check abuses of the legislature while remaining clear of any monarchical stigma?
The office of the American president was forged by compromise. No delegate, not even Gouverneur Morris, prevailed on every issue. Although he managed in the end to block legislative selection of the president and add some powers to the office, he would have made the president stronger yet, had he alone been the one to decide.
James Wilson won the battle for a single executive, but his push for popular elections never gained traction. Linking the powers of the president with those of the Senate was fraught with danger, he thought, and he was only partially successful in cutting back the Senate’s role.
George Mason, Edmund Randolph, Benjamin Franklin, and William Paterson had favored a plural executive at the outset. Outvoted on that score, each did what he could to establish the balance of power that worked for him. Mason had the hardest time with this. He predicted that because of the unholy alliance between the president and the Senate, the new government “would end either in monarchy, or a tyrannical aristocracy.” Mason was particularly upset because the convention turned down his suggestion for preventing this, an independent executive council to both advise and check the president.
Roger Sherman was no great fan of executive power, but he ceased complaining about it when it became clear that Congress would still make most major decisions.
On the other hand, the supremacy of Congress worried Charles Pinckney. As late as September 16, the day before the assembly dissolved, Pinckney “objected to the contemptible weakness & dependence of the Executive.” Alexander Hamilton no doubt concurred, but he refrained this time from comment.
If each and every delegate had some reservations, did that mean they would oppose the new constitution?
Benjamin Franklin hoped not. Franklin had expressed his displeasure with a single executive and several other measures, but in a masterly and oft-quoted speech on the closing day he promised to lay his reservations aside. “I confess that there are several parts of this constitution which I do not at present approve,” he opened, “but I am not sure I shall never approve them.” He had lived long, he said, and “the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.” Understanding the necessity of “a general Government” in some form, he would not let his personal reservations get in the way. So Franklin was ready to make his pact:
Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good…. On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.
Franklin’s appeal was good enough for Gouverneur Morris, who had had his way more often than not and needed no convincing:
Mr. Govr. MORRIS said that he too had objections, but considering the present plan as the best that was to be attained, he should take it with all its faults. The majority had determined in its favor and by that determination he should abide. The moment this plan goes forth all other considerations will be laid aside, and the great question will be, shall there be a national Government or not?
It was good enough for Alexander Hamilton as well, who had certainly not had his way. “No man’s ideas were more remote from the plan than his were known to be,” Hamilton admitted, “but is it possible to deliberate between anarchy and convulsion on one side, and the chance of good to be expected from the plan on the other.”
Even Dr. Franklin, though, could not convince Edmund Randolph, Elbridge Gerry, and George Mason. These three wanted a second convention, after the people out of doors had seen the plan and offered their input. “It was improper to say to the people, take this or nothing,” Mason argued. (Back on August 31, according to Madison, Mason had stated “he would sooner chop off his right hand than put it to the Constitution as it now stands.”) Yet the very thought of a brand-new convention, after all the toils of this one, was received as an affront by their fellow delegates. A second convention was rejected out of hand.
The dissent of Randolph, Gerry, and Mason worried others. As Hamilton expressed it, “A few characters of consequence, by opposing or even refusing to sign the Constitution, might do infinite mischief.” That’s why Franklin proposed a way to project the appearance of unanimity, even though none existed. After the document as a whole was approved by a vote of the state delegations, each delegate, even the dissenters, could sign as a “witness” to “the unanimous consent of the States.”
This ploy was not actually Franklin’s, however. According to Madison, the “ambiguous form” was “drawn up” by Gouverneur Morris and then “put into the hands of Doctor Franklin that it might have the better chance of success.” To the end, Morris played the master strategist, devising both the scheme and the devious manner of presentation, but this time his subterfuge failed. Even Charles Pinckney, Morris’s staunch ally on behalf of an independent executive, would not abide it. “We are not likely to gain many converts by the ambiguity of the proposed form of signing,” he said. Instead, Pinckney “thought it best to be candid and let the form speak the substance.”
So it would be. Pinckney, Morris, Franklin, Wilson, Hamilton, Madison, Sherman, and thirty-two others affixed their names to the proposed form of government, with its newly created office of the president. Mason, Gerry, and even Randolph, who had introduced the first draft, did not. Randolph explained that his refusal to sign did not imply he would oppose the plan in the end. He wanted only to remain “free to be governed by his duty” to the people. After apologizing personally to Dr. Franklin, he promised not to “oppose the Constitution without doors.”
Gerry and Mason made no such pledge. Gerry listed eleven specific complaints with the document and predicted it would promote a civil war in his home state of Massachusetts. Mason vowed to oppose the new plan when it came to a vote in Virginia. Back on June 4, as he argued against a single executive, Mason had warned, “The genius of the people must be consulted,” and now at last that would happen.
PART III
Field Tests
CHAPTER SIX
Selling the Plan
George Mason stewed. His last-minute attempt to add a Bill of Rights had failed to garner the support of a single state delegation, his call for an executive council had fallen on deaf ears, and his final warning against “the danger of standing armies in time of peace” had been summarily dismissed. He was greatly concerned for the fate of the nation and the cause of liberty, and nobody seemed to be listening. So on the back of his copy of the Committee of Style’s printed draft, he “drew up some general objections, which I intended to offer, by way of protest,” as he reported to Thomas Jefferson, in France at the time, but he was “discouraged” from reading his objections on the floor “by the precipitate, & intemperate, not to say indecent manner, in which the business was conducted, during the last week of the convention, after the patrons of this new plan found they had a decided majority in their favour.”1
Mason’s first and primary objection was the absence of a “Declaration of Rights.” Since the state declarations did not apply to the new national government, he argued, the people’s liberties were “no longer secured.” Beyond that, Mason listed a dozen other reasons to oppose the Constitution, and several of these touched on the powers allotted to the Senate and the president.
The Senate and the president, in combination, had the power to make treaties and appoint “ambassadors and all public officers” with absolutely no input from t
he people’s only true representatives in the House. Treaties had the force of law, but they were not made like other laws, which required House consent. Further, since the Senate tried impeachments, the president was beholden to it. The Senate, unlike the House, would be “continually sitting,” and members would serve lengthy terms. Senators could “accomplish what usurpations they please upon the rights and liberties of the people.” It didn’t have to be that way, if only the convention had granted Mason his independent executive council.
The stage was set for cabal, Mason continued. If some designing men tried to seize power and were consequently convicted of treason, the president had the full and unchecked authority to pardon them, should they be his friends or allies. Mason also complained of the “unnecessary office of the Vice-President, who for want of other employment is made president of the Senate, thereby dangerously blending the executive and legislative branches.” The Senate-and-president combination was dangerous enough in any case, and the vice presidency seemed to bond them even tighter.2
Mason had presented these objections during the convention and they were rejected, so now he searched for alternate venues. Gouverneur Morris, when his views did not prevail, had also taken them elsewhere, but Morris had narrowed the field, not broadened it. Morris needed to convince only five of ten committee members to go his way, while Mason had to address the entire nation—a tall order. If he succeeded in raising the alarm, the people themselves would then call for a second convention, and that venue would be more conducive to providing safeguards for liberty and guarantees against governmental abuse.
Mason started his mission the moment the convention ended, perhaps even a day or two before. He made copies of his objections and gave them to local political operatives in Philadelphia whom he suspected would be likely allies. He also gave a copy to Elbridge Gerry, a fellow non-signer, to circulate in Massachusetts, and Gerry, on his way home, showed it to like-minded political figures in New York, a state currently ruled by dedicated foes of a centralized government. Most significantly, he sent a copy to Richard Henry Lee, who was representing Virginia in Congress, currently meeting in New York. At least on paper, Congress still exercised whatever authority resided in the Confederation; it was his best, most immediate hope for overruling the group in Philadelphia.
