September 7, 1787: Presidential Power

George Washington by Rembrandt Peale, 1795

National Portrait Gallery, Smithsonian Institution, https://npg.si.edu/object/npg_NPG.65.59?destination=node/63231%3Fpage%3D1%26edan_local%3D1%26edan_q%3Dgeorge%252Bwashington

"I solecet this favour for my Self my Children and posterity and for the benefit of all the Israelites through the 13 united States of america.”

--Jonas Phillips, a Jewish merchant, former indentured servant, and a founder of one of America's oldest synagogues, writing to Washington to request that Jews be permitted to serve in the federal government.

Friday, September 7, 1787: The Convention Today

The convention resumed consideration of the Presidency. On a motion of Randolph (VA) and another of Madison (VA) and Gouverneur Morris (PA), the Legislature was authorized to declare by law who would serve as President if the President and Vice President were dead or disqualified. The convention decided that when the House elected the President, a quorum would be a member or members from three-fourths of the states, and election would require a majority of the delegations of all the states. Requirements that the President be thirty-five, a natural born citizen, and resident for 14 years, passed without opposition.

The draft Constitution said, “The Vice President shall be ex officio President of the Senate,” which meant that the Vice President would ceremonially preside over the Senate, but only vote in tie-breaking circumstances.

Gerry (MA) thought this violated the separation of power principle. “We might as well put the President himself at the head of the Legislature. The close intimacy that must subsist between the President and Vice President makes it absolutely improper.” Gerry wished that the Constitution didn’t even include the Vice Presidency. Mason (VA) and many others agreed with some or all of these points.

Sherman (CT) didn’t share Gerry’s concern. He admitted that presiding over the Senate was make-work for the Vice President: “If the Vice-President were not to be president of the Senate, he would be without employment.”

Williamson (NC) observed “that such an officer as Vice President was not wanted.” The only reason the office existed was because each elector in the Electoral College had to vote for two candidates, one of whom wasn’t from their home state, a provision which was intended to force each elector to cast at least one vote for someone from another state. The Vice President was an accidental byproduct of the complicated compromises they’d made in creating the Electoral College.

Despite these arguments, the clause making the Vice President of the United States the President of the Senate passed 8–2–1, with New Jersey and Maryland “no,” and North Carolina absent.

The draft Constitution said the President made treaties with foreign nations “by and with the advice and consent of the Senate.”

Wilson (PA) moved to rope the House of Representatives into the process. Since treaties had the force of law, both Houses of Congress should be needed to pass them. Fitzsimons (PA) seconded him.

Sherman countered that treaties often needed to be negotiated in secret, so it was better to keep the more numerous House of Representatives out of treatymaking.

Wilson’s motion failed 1–10, with Pennsylvania in support.

The Convention approved clauses related to Presidential appointments: permanent appointments needed ratification from the Senate and temporary recess appointments could be made unilaterally.

Madison had two proposals to make it easier for peace treaties to be created than treaties obligating the nation to go to war. The draft Constitution required two-thirds of the Senate to concur in all treaties the President made. Madison moved to lower the threshhold to a bare majority for peace treaties. The motion passed unanimously.

Madison then moved for two-thirds of the Senate to be able to make peace treaties even without the President’s support. He observed that executives (kings, presidents, etc.) amass extra power during wartime. In Europe, rulers often prolonged wars in order to hold onto their power. Butler (SC) seconded Madison’s motion and sentiments.

Gorham (MA) thought the proposal unnecessary. Congress funded the military. If it didn’t like the President’s war, it could defund the military.

G. Morris thought the President, as “the general guardian of the national interests,” should be needed for the creation of peace treaties.

Gerry agreed. Peace treaties could be dangerous. In order to end a war, the Senate might be willing to sacrifice some part of the national interest by ceding territory or local interests.

Madison and Butler’s motion failed 3–8, Maryland, South Carolina, and Georgia in support.

The next executive power considered was that the President “may require the opinion in writing of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices.”

Mason was emphatically against the President appointing officers who would then be accountable to the President, proclaiming that even “the most despotic government had never ventured” to give the executive such power. He countered with a proposal for the President to have an Executive Council with six officers (two each from New England, the Middle Atlantic states, and the South) appointed by Congress.

Franklin seconded Mason’s proposal. “A Council would not only be a check on a bad President, but be a relief to a good one.”

Wilson, Dickinson (DE), and Madison all supported Mason’s motion. Only G. Morris spoke against it, saying that the Committee of Detail had considered and discarded such an idea when drafting the Constitution.

Mason’s motion for an Executive Council failed 3–8, with Maryland, South Carolina, and Georgia supporting.

The wording created by the Committee of Detail was then approved: the President would appoint officers, with the Senate’s approval, and those officers would be responsible to the President. Left unstated: what departments should be part of the executive branch, the responsibilities of their officers, and whether they should meet with the President periodically. It would be up to Congress to create departments, and the first President to decide how to use them.

Synopsis

• More work was completed to create the offices of the President and Vice President.
• The Vice President would ceremonially preside over the Senate.
• The President would make treaties with the approval of two-thirds of the Senate.
• The President would appoint executive officers with the Senate’s approval.
• The Constitutional was light on detail regarding the composition of the executive branch, leaving Congress and the President with much flexibility (and no clear guidelines) when deciding how to organize the federal government.

Delegates Today

• Johnson (CT) dined with former Pennsylvania Chief Justice Benjamin Chew at Chew’s house on Third Street.
• Jonas Phillips, a Jewish Merchant in Philadelphia, sent a letter to Washington (VA). The letter called attention to the oath of office in Pennsylvania’s constitution, which required all office holders to swear: “I do believe in one God, the Creator and Governor of the Universe, the Rewarder of Good and Punisher of the Wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine Inspiration.” Phillips asked that the Convention leave out such wording in any oath it might require of officers in the federal government. The letter was well aimed—Washington seems singularly devoid of the prejudice against Jews and Catholics which characterized many of his contemporaries—but also no longer relevant. The Convention had just a week earlier added this language to the Constitution: “No religious test shall ever be required as a qualification to any office or public trust under the authority of the United States.”

Philadelphia Today

• Today was clear, cool and pleasant.