The Constitution and the American Presidency

Preface

I was stunned but not at all surprised.

On the 5^th of February 2020 I, along with the American nation, watched as the United States Senate acquitted President Donald Trump at the close of his impeachment trial of the charges made against him by the House of Representatives. He had been accused of impounding funds allocated and approved by congress as the means to gain damaging information against a potential opponent in the upcoming presidential campaign, both of which violated federal law. In contrast to the seriousness of the House hearings, the Senate trial was a farce as the majority leader prohibited all pertinent documents from being entered into the official record, witnesses were not allowed to testify under oath, and there was no real interaction between the managers and the defense. Even the role of the chief justice as the presiding officer was diminished to the point of irrelevancy. As the president’s political party rallied around him none of the charges received the 67 votes necessary to convict and the outcome was a foregone conclusion.

The country had seen this before. Over two decades prior the president of the United States had been accused of perjury and obstruction of justice. The charges themselves were the result of a painstaking investigation wrought by a special prosecutor, but which had also taken on the veneer of a political circus. Members of the president’s party in the Senate shrugged off the charges as being ←ix | x→nothing more than lying about extramarital sex, and was therefore much ado about nothing. They too rallied around the president, none of the impeachment charges gained even a bare majority, and as a result the president was acquitted.

Much of what follows in these pages is a clash between the idealism of the Framers and the reality of events and political maneuver. It is filled with the ←x | xi→triumphs of presidential visionaries, the foibles of the ill-prepared, and the travesties of the self-interested. Though it is both an intellectual history and a constitutional study, it is also an innately human story. It is the tale of the rollercoaster ride which occurs when a free people seek to govern themselves believing unreservedly in their ambitions, but entirely aware of their shortcomings. And it is the humanity of the office which draws us to the presidency, for the presidents are one of us, born and bred from within the American nation, and their achievements and failures reflect the reality of our own lives.

Acknowledgments

I want to proffer to Meagan Simpson and all of the staff at Peter Lang Publishing, Inc. of New York my sincerest thanks for your continued support for my work. My gratitude for all your efforts on my behalf knows no bounds.

Also my personal kudos to all the librarians and staff at the Kansas City Public Library Downtown Branch for their assistance during the researching of this book. Their knowledge of both the vast stacks and the special collections housed in the Missouri Valley Room have been of immense assistance in the realization of this work. During this current pandemic these dedicated professionals went out of their way to obtain the books necessary to complete this work for which I sincerely grateful.

Of my friends my foremost thanks goes to Benjamin Corey Feldman for being the first to suggest I write this book. Thank you for planting the seed of curiosity which led to this moment. And to my other family and friends who so generously offered their support for this endeavor: Sandra DeLeon Tucker, Cynthia Becker, Keith Keller, Barry Lee, Richard Franklin, Philip “Blue Owl” Hooser, Susanne McDaniel, Charlene Pryor and Lisa Millham. You have all made my life richer because of your presence in it.

Permissions

This book contains material from the following published works:

A Living Bill of Rights by William O. Douglas. © 1961 Doubleday & Company, Inc. Used by permission of the Douglas estate.

Friends of the Constitution: Writings of the “Other” Federalists. Edited by Colleen A. Sheehan and Gary L. McDowell, eds. © 1998 The Liberty Fund. Used by permission of the publisher.

James Buchanan by Jean H. Baker. © 2004 Times Books. Used by permission of the publisher.

Notes of Debates in the Federal Constitution of 1787 by James Madison. © 1966, 1985 Ohio University Press. Used by permission of the publisher.

The Federalist by James Madison, Alexander Hamilton and John Jay, edited by George W. Carey and James McClellan. © 2001 The Liberty Fund. Used by permission of the publisher.

The Papers of Thomas Jefferson, Retirement Series, vol. 7, 28 November 1813 to 30 September 1814, edited by J. Jefferson Looney. Princeton University Press, 2010. Used by permission of the publisher.

The Revolutionary Writings of John Adams by John Adams. Edited by C. Bradley Thompson. © 2000 The Liberty Fund. Used by permission of the publisher.

Creating the Presidency of the United States

Woodrow Wilson wrote the presidency of the United States was “the vital place of action in the system, whether he accepts it as such or not, and the office is the measure of the man – of his wisdom as well as of his force.”¹ As the elected representative of all the American people, the chief executive sets the agenda, conducts the country’s administrative and diplomatic business, and commands the nation’s military. Thus the country moves for well or for ill in the direction chosen by its elected leader.

Within the broad swathe of American political history the public is a fickle mistress as to whom it chooses to hold this vital office. That is because, as contended by noted political scientist Kenneth Arrow, the people consistently make political decisions based upon their emotions rather than their intellect.² As demonstrated throughout history the public responds more to presidential candidates with excitement and bluster rather than of intellect and ethical grounding. They more respect an aspirant who appeals to their personal convictions than to national goals and ambitions. The most popular image for a presidential candidate is that of an indomitable strongman rather than an individual of character and rationality.

Much of the language of Article II of the Constitution, the section which governs the presidency, was agreed to by the full convention on the 6^th of August 1787.³

This excerpt contains the sole constitutional requirements one must meet to hold the presidency of the United States. Over the years the American people have grafted many preconditions, many of them contradictory. For example on the one hand they want their president to be educated, experienced and erudite, yet they want them to hold a strong affinity with ordinary people. Though they are isolationist in nature, citizens still want their presidents to demonstrate an aggressive diplomatic flair, as well as for the rest of the world to bow to United States’ interests. They want their president as commander-in-chief to be both belligerent in war and magnanimous in peace. Finally they demand all economic policies to be instituted in their favor without any thought as to their repercussions upon the rest of the world. In short Americans want extraordinary presidents with an ordinary touch—a wholly inconsistent paradigm.

The presidency is more than the head of the executive branch of the federal government, it is the focal point of the American identity. Beginning with George Washington’s first inaugural on 30 April 1789 the American people have focused upon their president as a vital figurehead of their government and the barometer of its effectiveness. Through the premise of the federal republic is the rule of the majority reaching even the slimmest numerical consensus has often involved rancorous debate coupled with destructive stalemate. The passage or defeat of a single piece of legislation often hinges upon what the president will sign or veto. If the law is consistent with the chief executive’s professed ideology the public can be rallied to influence their legislators to approve the measure. However should the public not hold their president in high regard the opposite will occur. Thus the foremost administrator of the nation also acts as an arbitrator of what political philosopher Jean-Jacques Rousseau termed “the general will” for in most cases the public is hopelessly divided.⁵

Under normal conditions the chief executive is hamstrung by a myriad of events and causes ranging from a fickle populace, a potent and mobilized ←2 | 3→opposition, personal frustration, and/or a lack of conviction as to the national direction. Even at their most effective presidents have never been able to fully achieve all they have sought, while their historical legacy is based upon what was promised, implemented, and to what degree it was a success both in the short and long term. Sadly the majority will bear the brunt of futility wrought by either the president’s inability to lead, circumstances beyond their control, or both. Furthermore every newly inaugurated chief executive will be compared to their predecessor under criterion determined by citizens along with the popular media.

These circumstances prevail because the presidency matters. Every person elected to the office is in the assessment of the people the embodiment of the nation. The president is the figurehead, a symbol for citizens to rally behind which promotes popular loyalty toward the government. In his “Essay #70” in The Federalist Alexander Hamilton reasoned “Energy in the executive is a leading character in the definition of good government.”⁶ Hamilton argued should an unqualified candidate occupy the position the nation would still willingly follow the course charted out of necessity and habit.⁷

The perception of leadership is often the gauge by which it is measured. A president’s ability to lead is often dictated by whether or not the public wishes to be led. If the public image of the president is one of firm control and steady governance they will be revered regardless of actual success or failure, but if the government is perceived to be in a state of flux or instability the chief executive will be forced from office by popular will. Should the public be divided to the point of political gridlock the president’s ability to competently administrate the government is limited. Yet if the president takes a strong position on a controversial issue and an active sector of the public disagrees the opposition will utilize their influence on legislators to weaken the president and thwart his will.

Such is the nature of federal executive government, a condition which has existed from its very beginning. But is this how sthe Framers of the Constitution envisioned the American presidency when they designed it, and did they anticipate the extraconstitutional mandates and duties that would be placed upon it?

When they contemplated the position of the national executive the Framers did not view the president of the United States as being the living symbol of the American people. During their discussions on its structure they consistently referred to the president as “the national executive”.⁸ The delegates understood the presidency to be purely an administrative position. Consistent with this adage throughout the constitutional convention the chief executive went through a profound evolution.

Connecticut delegate Roger Sherman proposed the office be “nothing more than the institution for carrying the will of the Legislature into effect”.⁹ On 1 June 1787 before the entire convention Pennsylvania delegate James Wilson was adamant the president not exercise the power of a monarch nor be viewed by the people as one, a proposal seconded by Virginia delegate Edmund Randolph.¹⁰ It was also suggested by Randolph the national executive be given broad but checked powers and be restricted to administering the nation’s business.¹¹ Wilson disagreed as such power would prove to be monarchy in its infancy and continue to grow.¹² Virginia delegate James Madison reiterated Randolph’s point by arguing there were powers within government that were exclusively executive in nature and should be allowed to remain, though checked by the legislative branch through oversight and the judiciary through the legal process, a proposal to which Wilson agreed and seconded.¹³ This definition was approved by the Committee of the Whole on the 13^th of June.¹⁴ The entire convention approved the above powers on votes held on the 6^th and 25^th of August.¹⁵ Later Pennsylvania delegate Gouverneur Morris argued the presidency should be the guardian of the people, especially the lower classes against encroachments of wealthier citizens.¹⁶ Morris recognized such a position would influence some occupants to delusions of power and that measures should be enacted within the Constitution to effectively thwart and remove those who sought such authority.¹⁷

Delaware delegate John Dickinson proposed the responsibilities of the nation’s chief executive were too immense for a single individual and put forward the idea of multiple presidents.¹⁸ On 14 June 1787 the entire convention approved a draft proposal which included not only three essential charges for the presidency but also mentioned “the executives”, an acknowledgment of Dickinson’s proposal.¹⁹ Four days later Edmund Randolph and New Jersey delegate William Paterson suggested to the Committee of the Whole the state governors along with the president have the authority to veto federal legislation, but the body adjourned prior to any debate.²⁰ By the 19^th of July, without a resolution in place to confirm it, the entire convention discussed the disposition and responsibilities of a single executive.²¹ By 27^th of August there was no further discussion of multiple executives.²²

On the 4^th of September the Committee of Eleven issued its partial report which put forward the qualifications necessary to hold the presidency:

1.A natural-born citizen or a U.S. citizen at the time of the adoption of the Constitution.

2.Only a person above the age of 35 could be elected to the presidency.

3.To have been a resident of the United States for at least fourteen years.²³

South Carolina delegate Charles Coatesworth Pinckney was ardent no religious tests be required for anyone to serve either as president or in any other office within the federal government.²⁴ Massachusetts delegate Elbridge Gerry objected to the creation of the vice-presidency.²⁵ Gerry contended the relationship between the executive and legislative branches to be critical, therefore the president should also be the presiding officer of the Senate.²⁶ Virginia delegate George Mason thought the vice-presidency was an encroachment upon both the power of the legislature and the president and was against the creation of the office as well.²⁷ The motion to create the vice-presidency passed despite objections.²⁸

At the opening of the convention Edmund Randolph proposed the president be given a fixed salary throughout the entire time of service and not increased except by a resolution passed by Congress.²⁹ Pennsylvania delegate Benjamin Franklin suggested the addition of a clause that all essential incidentals be compensated by budget allocations rather than additions to salary.³⁰ James Wilson contended the presidency must remain a public trust in which profiteering should not be involved for it would inevitably lead to tyranny and monarchy.³¹ Wilson’s motion was seconded by New York delegate Alexander Hamilton.³² On the 13^th of June the report of the Committee of the Whole was issued to the entire convention which contained both Randolph and Wilson’s proposals and it was approved two days later.³³ Afterwards Charles Coatesworth Pinckney argued the amount of the chief executives’ remuneration should be as such as to restrain the office holder from bribery, in doing so he pointed out that England’s King Charles II had solicited and taken bribes from France’s King Louis XIV.³⁴

There were a myriad of suggestions for how the president was to be chosen. During an early meeting of the Committee of the Whole James Wilson proposed a direct election by the American people, while Roger Sherman argued the president should be appointed by a congressional vote.³⁵ On the 15^th of June William Paterson contended the governors of the individual states should possess the power to appoint and remove federal government officers by majority vote.³⁶ The Committee of the Whole was then presented with a proposal from Edmund Randolph that the president be chosen by a body of electors independent from both the people and the federal government in what was to be the first consideration of the Electoral College.³⁷ The plan was rejected the following day but would later be brought up for further consideration.³⁸

There were several schemes offered as to the terms of service for the president, all of which were suggested to restrict the chief executive. Among the first was from James Wilson who contended shorter terms provided less chance of corruption and put forward three years to which Roger Sherman agreed.³⁹ Charles ←5 | 6→Coatesworth Pinckney countered with a seven year term to which George Mason agreed adding a restriction of one term only.⁴⁰ Delaware delegate Gunning Bedford disagreed stating the stress of the position over such a long period of time would break down the mental and physical wellbeing of the person who held it, thus imperiling the country.⁴¹ Bedford also stated a longer term would provide more opportunity for corruption, as well as a situation impeachment could not rectify.⁴² On the 2^nd of June the motion of a single seven-year term for the president was agreed to.⁴³

Later New York delegate Alexander Hamilton argued the institution of the presidency was inconsistent with republican principles and cited the British monarchy following its reformation in 1689.⁴⁴ Though he recognized the contradiction, Hamilton contended republics needed a strong central figure as a protector to survive.⁴⁵ He agreed with the single seven-year non-renewable term for the national executive, for any potential for a lifetime presidency divorced the government from the interests of the people.⁴⁶ It was overwhelmingly passed by the Committee of Detail on 26 July 1787.⁴⁷ Delaware delegate Jacob Broom later suggested a shorter term for the president with the eligibility for a second term but none afterward.⁴⁸ Gouverneur Morris argued the national executive was the effective bulwark against the power of the legislature and therefore should not be limited by the amount of terms that could be served.⁴⁹ Connecticut delegate Oliver Ellsworth sought a compromise and offered a six-year term to which North Carolina delegate Hugh Williamson seconded and it was passed.⁵⁰ On the 6^th of September following much debate within the entire convention Williamson along with his North Carolina colleague Richard Dobbs Spaight offered a further compromise of a four-year renewable term to which the majority of delegates agreed.⁵¹

There was little disagreement among the delegates that the president should have qualified advisors at hand for counsel. Roger Sherman thought it crucial for effective executive government, to which James Wilson added the knowledge of a highly qualified group of advisors around the president provided public confidence in the administration.⁵² Elbridge Gerry viewed a cabinet important especially in military matters and for the defense of the country.⁵³ Benjamin Franklin agreed to both arguments.⁵⁴ Authorization of cabinet officers was placed in the final text of Article II by the Committee of Style and approved by the entire convention on 12 September 1787.⁵⁵

Next was defining the powers and responsibilities of the office. As previously discussed the president was to be the foremost administrator of the federal government and its laws. What needed to be defined was the specific authority of the ←6 | 7→president. The Committee of the Whole issued a report in which the office of the president was defined by the following tenets: