Richard R. Beeman: Why Hamilton's Not the Founder to Follow on Presidential Power
[Richard R. Beeman is a professor of history at the University of Pennsylvania and is currently at work on a book on the Constitutional Convention of 1787.]
We find ourselves at a moment when Americans are bitterly divided on the question of the constitutional limits of presidential power. It is certainly not the first time in our nation's history when the issue has presented itself. From Andrew Jackson's "war" on the Bank of the United States to Abraham Lincoln's suspension of habeas corpus during the Civil War to Franklin D. Roosevelt's attempt to pack the Supreme Court to Harry S. Truman's attempted seizure of the country's steel mills to Richard M. Nixon's incursions on civil liberties in the name of "national security," we have a long history of American chief executives' seeking to expand their powers in the name of the "public good."
I am old enough to have lived through the last two of those presidential controversies, and I will confess that the current controversy over presidential power whether over the ability of the president to issue "signing statements" that allow him to implement only selected parts of a bill enacted by Congress or the legality of ordering electronic surveillance on his authority alone — seems to me both more serious and more seriously compromised by partisanship on both sides than anything I have experienced in my lifetime. In this climate of confusion and consternation, perhaps an appeal to the wisdom of the founding fathers might provide us with some perspective.
In fact, the task of discerning the "original intent" of the 55 men who took part in the framing of the U.S. Constitution is tricky business indeed. Not only did the delegates disagree on virtually every important subject that came before them, but they also frequently shifted their positions on those issues over the course of the convention. Nor is the task of discerning the "original meaning" of the words finally inscribed on the final draft of the Constitution, signed by 39 of the delegates on September 17, 1787, much easier. Such was the experimental nature of the new government that emerged from the convention that concepts so central to our contemporary understanding of the Constitution — "federalism," "commerce," "necessary and proper" — were subject to a multitude of meanings among those who were asked to add their assent to the document. In no case is this uncertainty and confusion more evident than in the matter of "executive power."
The first sentence of Article II of the Constitution is both remarkably simple and maddeningly vague. "The executive Power shall be vested in a President of the United States of America." But what did "executive power" mean? James Wilson and Gouverneur Morris, of Pennsylvania, were outspoken in support of a strong executive capable of giving "energy, dispatch, and responsibility" to the government. Toward that end, they urged their fellow delegates to give the president an absolute veto over Congressional legislation. At the other end of the spectrum, Roger Sherman, of Connecticut, spoke for many delegates when he declared that the "Executive magistracy" was "nothing more than an institution for carrying the will of the Legislature into effect." This led Sherman to the conclusion that the president could be removed from office "at pleasure," any time a majority of members of the legislature disagreed with him on an important issue.
There were other issues that divided the delegates. Many wanted not a single but a plural executive; Edmund J. Randolph, of Virginia, believed that a single, powerful president would constitute "the foetus of monarchy," and he, along with his Virginia colleague George Mason, refused ultimately to sign the Constitution, in part because of their fear of excessive executive power. Still others thought the executive should be elected by the state legislatures or by the governors of the states, a mode of election that would have made the president a broker among the varying interests of the state governments.
James Madison kept changing his mind. His initial version of the "Virginia Plan" called for the president to be elected by and answerable to the national legislature. Although supposedly one of the foremost proponents of the doctrine of separation of powers and checks and balances, he muddled things by proposing a merging of the executive and judicial powers in a "Council of Revision," composed of both the president and a "convenient number of the National Judiciary" and empowered to "examine every act of the National Legislature before it shall operate." Madison gradually came around to the idea that the executive and judicial functions should be separated, but he continued to argue in favor of some form of presidential election by the Congress up until the final days of the convention. After reading Madison's notes on the debates in the convention, one gets the sense that his eventual acquiescence to the idea of an electoral college as the method of presidential election was marked as much by weariness as by enthusiasm....
It may not be possible to discern with precision either the "original intent" of the founding fathers or the precise "original meaning" of the words on the document they crafted, but if we are seeking to comprehend their general understanding of the limits of executive power, then it is best to regard Hamilton as an exception to be avoided, not an authority to be cited in defense of extraordinary uses of presidential power. As George W. Bush ponders his place in the history of the American presidency, he might be better served if he paid less attention to the words of Hamilton, an avowed admirer of monarchy, and more attention to the overwhelming majority of founding fathers who greatly feared the evils of an "elective monarchy."
Read entire article at Chronicle of Higher Education
We find ourselves at a moment when Americans are bitterly divided on the question of the constitutional limits of presidential power. It is certainly not the first time in our nation's history when the issue has presented itself. From Andrew Jackson's "war" on the Bank of the United States to Abraham Lincoln's suspension of habeas corpus during the Civil War to Franklin D. Roosevelt's attempt to pack the Supreme Court to Harry S. Truman's attempted seizure of the country's steel mills to Richard M. Nixon's incursions on civil liberties in the name of "national security," we have a long history of American chief executives' seeking to expand their powers in the name of the "public good."
I am old enough to have lived through the last two of those presidential controversies, and I will confess that the current controversy over presidential power whether over the ability of the president to issue "signing statements" that allow him to implement only selected parts of a bill enacted by Congress or the legality of ordering electronic surveillance on his authority alone — seems to me both more serious and more seriously compromised by partisanship on both sides than anything I have experienced in my lifetime. In this climate of confusion and consternation, perhaps an appeal to the wisdom of the founding fathers might provide us with some perspective.
In fact, the task of discerning the "original intent" of the 55 men who took part in the framing of the U.S. Constitution is tricky business indeed. Not only did the delegates disagree on virtually every important subject that came before them, but they also frequently shifted their positions on those issues over the course of the convention. Nor is the task of discerning the "original meaning" of the words finally inscribed on the final draft of the Constitution, signed by 39 of the delegates on September 17, 1787, much easier. Such was the experimental nature of the new government that emerged from the convention that concepts so central to our contemporary understanding of the Constitution — "federalism," "commerce," "necessary and proper" — were subject to a multitude of meanings among those who were asked to add their assent to the document. In no case is this uncertainty and confusion more evident than in the matter of "executive power."
The first sentence of Article II of the Constitution is both remarkably simple and maddeningly vague. "The executive Power shall be vested in a President of the United States of America." But what did "executive power" mean? James Wilson and Gouverneur Morris, of Pennsylvania, were outspoken in support of a strong executive capable of giving "energy, dispatch, and responsibility" to the government. Toward that end, they urged their fellow delegates to give the president an absolute veto over Congressional legislation. At the other end of the spectrum, Roger Sherman, of Connecticut, spoke for many delegates when he declared that the "Executive magistracy" was "nothing more than an institution for carrying the will of the Legislature into effect." This led Sherman to the conclusion that the president could be removed from office "at pleasure," any time a majority of members of the legislature disagreed with him on an important issue.
There were other issues that divided the delegates. Many wanted not a single but a plural executive; Edmund J. Randolph, of Virginia, believed that a single, powerful president would constitute "the foetus of monarchy," and he, along with his Virginia colleague George Mason, refused ultimately to sign the Constitution, in part because of their fear of excessive executive power. Still others thought the executive should be elected by the state legislatures or by the governors of the states, a mode of election that would have made the president a broker among the varying interests of the state governments.
James Madison kept changing his mind. His initial version of the "Virginia Plan" called for the president to be elected by and answerable to the national legislature. Although supposedly one of the foremost proponents of the doctrine of separation of powers and checks and balances, he muddled things by proposing a merging of the executive and judicial powers in a "Council of Revision," composed of both the president and a "convenient number of the National Judiciary" and empowered to "examine every act of the National Legislature before it shall operate." Madison gradually came around to the idea that the executive and judicial functions should be separated, but he continued to argue in favor of some form of presidential election by the Congress up until the final days of the convention. After reading Madison's notes on the debates in the convention, one gets the sense that his eventual acquiescence to the idea of an electoral college as the method of presidential election was marked as much by weariness as by enthusiasm....
It may not be possible to discern with precision either the "original intent" of the founding fathers or the precise "original meaning" of the words on the document they crafted, but if we are seeking to comprehend their general understanding of the limits of executive power, then it is best to regard Hamilton as an exception to be avoided, not an authority to be cited in defense of extraordinary uses of presidential power. As George W. Bush ponders his place in the history of the American presidency, he might be better served if he paid less attention to the words of Hamilton, an avowed admirer of monarchy, and more attention to the overwhelming majority of founding fathers who greatly feared the evils of an "elective monarchy."