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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Foreign Relations Powers

Traditionally, the executive’s most important role was in the sphere of international relations, especially during times of war. In 1785, when Madison was contemplating the nature of the executive departments within the state constitutions, he concluded that these offices were not as important as they purported to be, since “all the great powers which are properly executive [were] transferd to the Fœderal Government.” What he meant by these “great powers” were those activities that Locke had called the federative powers: treaty-making, sending and receiving ambassadors, and the all-important power over war and peace. The Articles of Confederation had forbidden the states from exercising any of these powers; hence, what Madison had referred to as the “great powers which are properly executive” had, in point of fact, been taken out of the hands of any executive branch. They had instead been assigned exclusively to the Confederation Congress. 

But in the Convention of 1787, the Framers were going to revisit the question of whether these powers were in fact “properly executive” in their nature. It was never contested among the delegates that international relations, including the powers over defense, treaties, and foreign commerce—what Sherman named as being the primary “objects of the Union”—would remain in the hands of the central government. Even the most committed defender of the states’ prerogatives knew that it would be dangerous to allow the states to exercise these powers independently. But since the new Constitution would be instituting a real government, one that would be separating powers into three different departments, the real question was: how should these powers be divided among the newly created branches of government? 

War & Peace

When the Committee of the Whole first began debating the executive branch on June 1, Charles Pinckney declared that he was in favor of “a vigorous executive”; nonetheless, he was concerned that Resolution Seven of the Virginia Plan, which proposed that the national executive “ought to enjoy the Executive rights vested in Congress by the Confederation,” might be construed to “extend to peace and war, &c.; which would render the executive a monarchy of the worst kind, to wit, an elective one.” Rutledge and Wilson agreed with him. In fact, over the entire course of the summer, there was not a single delegate who defended the idea that the executive should be granted the authority to declare war. Their debates on this subject centered on the president’s authority to conduct a war, to repel sudden attacks, or to conclude peace. But on the question of declaring war it was a matter of common agreement that the United States should depart from the examples of prior kingships. Everyone agreed that the Constitution should establish a new republican precedent by lodging the ostensibly “executive” power to declare war in one or both branches of the legislature. 

The Pacificus-Helvidius Debates 

Six years after the Constitutional Convention, Madison engaged Alexander Hamilton in an important set of written exchanges about the Presidential power, specifically the proper role of the executive and legislative branches in conducting American foreign policy. Prompted by the Neutrality Proclamation of 1793, Pacificus and Helvidius argued over whether or not Washington had the authority to declare neutrality even though the United States had a treaty with France. Hamilton took the stance that the proclamation was constitutional—friction between the Executive and Legislative branch was natural consequence of the separation of powers—while Madison argued it would introduce “new principles and new constructions” into the Constitution. 

The New Jersey and Hamilton Plans

In the Convention’s opening weeks, however, this and other questions of foreign relations took a back seat to domestic concerns, and these matters would not be definitively settled for some time to come. Although certain comments during the delegates’ early debates seemed to suggest that the executive would be involved in directing or commanding military actions (while precluded from actually declaring war), these sentiments were never codified into a specific proposal until James Paterson laid the New Jersey Plan before the Convention. According to this plan, Congress would retain all the powers it had enjoyed under the Articles, which would include “the sole and exclusive right and power of determining on peace and war.” Yet an executive department would be added to the mix, and the person or persons filling this office would be empowered “to direct all military operations;—provided, that none of the persons composing the federal executive shall, on any occasion, take command of any troops, so as personally to conduct any military enterprise, as general, or in any other capacity.” The plan offered just a few days later by Hamilton, the champion of a strong executive, was almost identical with respect to these questions. There seemed to have been universal consensus that while the legislature should commence war, the executive ought to direct it. 

The Divided Power of War-making

The Convention never directly addressed either of these proposals, nor any other on this question, and so it was left to the Committee of Detail, which met between July 26 and August 6, to suggest a resolution for this important power. This committee, which was very proactive in many ways, drew up a list of powers for Congress, among which was the power “to make war.” It also gave for the first time a clear shape to the executive, which until then had languished in obscurity. They determined that the executive “shall be commander-in-chief of the army and navy of the United States, and of the militia of the several states.” 

The phrasing of the power given to Congress, “to make war,” provoked a small skirmish over semantics, because some believed it placed more authority in the hands of an inefficient Congress to wage war. Madison and Gerry proposed replacing that phrase with “declare war.” In general, all seemed to be agreed that the power of deciding whether or not the nation was at war should be assigned to the Congress, and the business of conducting war was properly exercised by the executive. This brief exchange in mid-August settled the business in the Convention. 

By dividing the war-making powers between the executive and Congress, the Framers would create a presidency that exercised far more important powers during periods of conflict than during times of peace. Congress would be the dominant branch most of the time, when the need for cool deliberation was paramount, but the president could exercise decisive and unilateral powers during the crisis of war. In a similar vein, it was Congress that was in charge of “calling forth the Militia” when necessary, and they were also responsible for providing rules for “organizing, arming, and disciplining” them during ordinary times. But the president was to serve as commander-in-chief of the state militias only “when called into the actual Service of the United States.” The Framers knew that the powers, prestige, and importance of the executive are always inflated during wartime, and that tendency was one of the most compelling reasons for excluding the president from the initial decision to go to war. The person who most benefits from the commencement of war ought not have the authority to commence it.