In colonial America, the “executive magistracy,” as Edward S. Corwin wrote, was widely regarded as “the natural enemy, the legislative assembly the natural friend of liberty.” This belief was understandable. After all, governors, like judges, were imposed by the Crown, while the colonists elected members of the colonial legislatures. The views of the colonists, moreover, were shaped by history; they viewed the 17th Century House of Commons as a bulwark of liberty against the absolutism of the Stuart monarchies. The colonial sentiments against the executive were given force in the early state constitutions, which reduced the power of governors to mere symbols and severed all roots to the royal prerogative. James Madison rightly stated that the state executives “are in general little more than Cyphers.” The pervasive distrust of the executive led the Continental Congress, in their drafting of the Articles of Confederation, to dispense with an executive branch.
Let us briefly consider the powers and place of the executive in early state constitutions. What emerges is that the various early state constitutions denied to their governors those prerogatives relative to legislation. There was, of course, no dispensing or suspending power. There was, moreover, no authority to convene, prorogue or dissolve the legislature. Nor was there a veto power. The exercise of executive functions was closely tied to the advice of a council of state, which was selected by state legislatures. The governing documents did embrace the separation of powers which, manifestly, limited the power of the governors. The deep-seated opposition to executive power was captured by James Madison in Federalist No. 48: “The founders of our republics . . . seem never for a moment to have turned their eyes from the overgrown and all-grasping prerogative of an hereditary, supported and fortified by an hereditary branch of the legislative authority.” But the prescient Madison observed in the same Federalist essay the limited vision that hampered some constitution makers: “They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.”
The Virginia Constitution of 1776 illuminated the concerns about the executive. There, it was provided that “executive powers of government” were to be exercised “according to the laws “ of the Commonwealth. It was emphatic its repudiation of the prerogative: no power or prerogative could ever be asserted “by virtue of any law, statute, or custom of England.” Virginia had effectively cut off the concept of executive power from the English tradition, including its constitutional practices and the common law, and subjected it to legislative definition.
In time, drafters of subsequent state constitutions would recognize the need to strengthen their state executives in light of the fact of nearly all-powerful legislatures, but this was done against a backdrop of persistent fears of executive tyranny. The New York Constitution of 1777, for example, provided for the election of the Governor by freeholders, rather than selection by the legislature. The Governor was elected to a three-year term and was eligible for reelection. He could exercise, in conjunction with a Council of Revision, a veto over legislation he thought “inconsistent with the spirit of the Constitution or with the public good.”
In New York, Pennsylvania and Vermont, the Governor was required to faithfully execute the laws. The Governor, moreover, was commander-in-chief of the militia, although legislatures made the appointments and promotions to military office. But the shortcomings of executive power, if we may call them that, did not tempt any of the states to even flirt with a prerogative power or broad executive discretion, as Thomas Jefferson explained in 1783 in his “Draft of a Fundamental Constitution for Virginia.” Jefferson stated: “By executive powers, we mean no reference to those powers exercised under our former government by the Crown s of its prerogative . . . We give to them these powers only, which are necessary to execute the laws (and administer the government).” That was the foundation for the Virginia Plan– introduced by Governor Edmund Randolph to his colleagues in the Constitutional Convention—which called for the creation of an executive to administer laws and make appointments to office in cases not provide by law.
The trend in state constitutions of vesting in the state’s executive additional powers so as to balance the power of the legislature, emphatically did not carry over the state’s creation of an executive in the Articles of Confederation. The states, it will be emphasized, dispensed with the creation of an executive altogether, a decision that reflected the deep concerns about executive power that resonated throughout the nation. The lack of an appetite for an executive was reflected in the specific rejection in 1777 by the Continental Congress of the “Dickinson Draft,” which proposed a plan for an executive. The plan would have created a “Council of State” appointed by Congress that would manage “the general affairs of the United States.” The Council would sit while Congress was in session and continue during its recesses, exercising broad powers: command of the military, administration of finances and diplomacy, and “the execution of such Measures as may be resolved on by the United States.”
The weak Articles of Confederation left government operations to ad hoc or standing committees of Congress, supplemented by boards operating under their direction. But the effort by Congress to “play the executive,” as Alexander Hamilton noted, was ineffective and doomed from the start. The Framers of the Constitution found nothing of appeal in the concept of a government without an executive, and moved, as we have seen in the introduction of the Virginia Plan, to correct that mistake in their invention of the American Presidency.