Orientation and Getting Started
The Creation of the Constitution
The Road to Philadelphia
Federalism
Congress
Slavery and the Constitution
The Presidency
The Federal Judiciary
Some Other Important Details
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A New Kind of Executive

Arguably the most innovative part of the Constitution is its approach to federalism—the balance of power that was achieved between the state and federal governments. But if that is the case, then the second most creative part of the Constitution is probably the office of the presidency. The American presidency is a singular departure from executive power as it had existed in Europe, where it was typically exercised by a monarch. But it is also significantly different from the way that executive power had previously been exercised in America, whether under the state constitutions or under the Articles of Confederation. The Framers of the Constitution consulted all of these previous models, but they rejected anything approaching monarchy outright, since such a system would be unacceptable to a people with such republican habits and ideals. And they also concluded that the executive forms that had already been tried in America were typically too anemic to resist legislative encroachment, and they believed that one of the most important reasons why the powers of government were separated at all was to provide a check against the abuse of power by the legislative branch. Consequently, the Framers chose to adapt and innovate. They grappled not only with the question of which powers were genuinely executive in nature, but also how many individuals should serve in that office, how the executive should be chosen, the length of tenure for the office, and whether the executive should be reeligible. No one who attended the Convention had arrived on the scene with a clear idea of the kind of executive that would eventually take shape in Article II of the Constitution; instead, the attributes and powers of the presidency developed over the course of prolonged debate and numerous trials, variations, and revisions. The office that finally emerged, the American presidency, was an executive that they believed would be a powerful leader, would provide an effective check against the legislature, and yet would be safe for a republican form of government. 

An Unsettled Question

As James Madison was preparing for the Constitutional Convention, he was still uncertain about the best way to arrange the executive branch, although he had already formed strong opinions about how not to arrange it. As early as 1785 he had called Virginia’s executive office “the worst part of a bad Constitution.” He thought the organization of this branch was “vague & perplexed,” and its members were too numerous and far too dependent on Virginia’s legislature. The result was an executive office that was powerless—a mere creature of the legislative branch. 

Virginia’s constitution was typical of the way that other states had chosen to separate powers at this time. Madison complained in the Convention that “the executives of the states are in general little more than ciphers; the legislatures omnipotent.” And unless the Framers could find a solution to this threat of legislative tyranny, Madison believed that the fate of republican government itself was in doubt. Yet Madison was by no means confident that he knew how to remedy these defects. Just one month before the Convention was due to meet, he acknowledged to George Washington: “I have scarcely ventured, as yet, to form my own opinion either of the manner in which [the executive] ought to be constituted, or of the authorities with which it ought to be cloathed.” His fellow Virginians may have been equally uncertain, because the Virginia Plan contained only the barest outlines prescribing what that office should look like.

The question of the executive was one of the last resolved by the Convention. With less than two weeks to go before the Convention completed their work, Madison confided to Thomas Jefferson that, among the important features of the Constitution, “the mode of constituting the Executive is among the few points not yet finally settled.” The Convention struggled “to unite a proper energy in the Executive … with the essential characters of Republican Government.” In essence, they wanted an executive that would be energetic enough to perform its most crucial functions effectively—which meant having enough power and independence to defend the country from internal and external foes and to check the legislature when needed—yet they wanted the executive to be thoroughly republican and restrained from growing too powerful. 

Fear of Tyranny

The difficulty encountered when designing the executive largely stemmed from their own circumstances, history, and predilections. Immediately after the Revolution, a very pro-democratic and anti-monarchical fervor had swept through the former colonies. Americans were prone to view executive power as the equivalent of monarchy and monarchy as the equivalent of tyranny. After bouncing the royal governors, the newly independent states were loath to replace them with an office of similar power and prestige. Consequently, state constitutions typically provided for very weak executives. The legislature was seen as the repository of the people’s will, and it was therefore the legislature that received the public trust (and most of the political power). The executive branch was frequently made very dependent on the legislature, usually for its election and sometimes even for its salary. Even more frequently, the state executives were dependent on a privy council in order to exercise some or all of their functions. The president of Pennsylvania was arranged very much like the president of Congress under the Articles of Confederation: he merely “presided” over an executive council, but he had very few powers that he could exercise independently. The federal exercise of executive powers was certainly no improvement. Under the Articles of Confederation, very few powers that were strictly executive had been granted to the confederacy at all (most federal laws were supposed to be executed by state governments). And when certain powers, such as foreign policy, were executed centrally, there was no real separation of powers: Congress either executed the powers themselves or delegated them ad hoc to individual bodies under their control. The Articles had simply not provided for a separate and independent executive branch.