How the Constitutional Convention Vastly Expanded the Powers of the President

 

How the Constitutional Convention Vastly Expanded the Powers of the President

By Murray N. Rothbard

Mises.org

May 28, 2021

 

[This passage is excerpted from Murray N. Rothbard’s Conceived in Liberty, vol. 5, The New Republic: 1784–1791.]

All the articles of the draft plan having been considered by the convention, the amended draft was referred on August 31 to a grand Committee of Unfinished Parts. In the committee, the nationalists, not content with their plethora of victories, launched several important offensive strikes and secured crucial victories. It was confirmed that the Senate was allowed to amend money bills originating in the House, and the vital treaty-making and appropriations powers were transferred from the Senate to the president, although the sop was there to the small states that the Senate must approve all appointments, and two-thirds must ratify treaties. The general welfare clause was added to the power to tax, a clause of ambiguous meaning at the time, which much later became a vehicle for unchecked expansion of the

federal government’s powers. Most significantly, Madison and Morris were able to alter the convention’s decision for Congress to choose the president and provide for an independent executive chosen by electors, who in turn were chosen directly by the legislatures of the various states. It was assumed, however, that the Senate, by having the ultimate power to choose among the candidates if none received an electoral majority, would really be exercising the decisive electing power. For it was believed that many candidates would be voted for by the electors. Furthermore, the president’s term was reduced from seven to four years, he was made eligible for indefinite reelection, and he was required to have been an American citizen for fourteen years before becoming president. A major advocate of the new plan was Morris, who emphasized the “indispensable necessity” of an independent and powerful executive. Randolph and Rutledge inserted that Congress should elect, and Mason, Wilson, and Dickinson wanted the more popular House rather than the more oligarchical Senate to have the ultimate decision to choose the president. From the Right, Madison tried to bypass Congress almost completely by allowing any candidate with one-third of the electoral vote to become president, but this suggestion was overwhelmingly defeated.

The committee report was presented back to the convention on September 4 and the day following. The major struggle was waged over the suddenly new model of selecting the president. Rutledge attacked the president’s reeligibility and denounced the Senate’s new ultimate decision-making role as creating “a real & dangerous Aristocracy” to go alongside the quasi-monarchic development of the executive office. Wilson and Randolph, however, led the attempt to give the entire Congress, rather than the Senate, the ultimate power of choice by a vote of 3-7-1 (Pennsylvania, Virginia, South Carolina for, and New Hampshire divided).

While Wilson, Mason, and others continued to attack the “dangerous” and “inadmissible” aristocracy this placed in the Senate, Hamilton predictably urged the ultra-nationalist Madison idea of bypassing Congress by electing the man with the highest number of electoral votes. Finally, the question was resolved by Roger Sherman, who suggested that the House hold the ultimate power of choice, but one vote per state rather than per congressman. This obviously sensible compromise—taking the power out of the oligarchical Senate but giving the small states equal voting in the House for their particular vote—was voted for overwhelmingly with only Delaware in opposition. The clause was also clarified to provide that a majority of states in the House be required to elect a president.

One concession that the committee had made to the anti-nationalists was to transfer the power to impeach the president and other appointed officers from the House and the Supreme Court—appointed by the president—to the independent Senate. The committee had very narrowly limited the grounds for impeachment, treason, and bribery. George Mason made a critical point in checking the executive power: that “maladministration” be added to the grounds for impeachment. Such a clause could have made the president and the rest of the executive truly dependent on the representative body, the Congress; but Madison persuaded Mason and the convention to substitute the still formidably narrow “other high crimes & misdemeanors agst. the State.” From the other side, Madison and Pinckney tried to free the executive from the Congress altogether by putting the impeachment power back in the Supreme Court, but even Gouverneur Morris objected to a small corruptible Supreme Court having such power, and this proposal was defeated.

The committee’s transfer of the critical appointment power from the Senate to the president produced opposition by the moderates; Mason expressly urged that appointments were too dangerous a power to treat to a president, and that it instead should be given to an executive council. On the ultra-right, Wilson proposed that the Senate be stripped even of its power to ratify presidential appointments. The Constitution, indeed, had further strengthened the presidential appointment power, allowing him the sole right to make lengthy appointments during the recesses of the Senate. The convention, at nationalist behest, had earlier changed the power to override the presidential veto to three-fourths of each house, but now, over bitter objections, the convention narrowly returned to the two-thirds clause.

As to the treaty-making power, which the committee had given to the president while leaving the ratification power to two-thirds of the Senate, the debate in the convention was brief but illuminating. The nationalists, who wanted to strip Congress of as much treaty power as possible, were here split on North-South lines. The South bitterly remembered the Jay-Gardoqui Treaty, and any further treaties might also be expected to benefit northern merchants and shippers, perhaps at the expense of southern planters or western settlers. The two-thirds clause was then a concession to southern interests. Thus, Wilson argued for a simple majority of both houses in order to ratify, while even Madison, on the other hand, proposed that two-thirds of the Senate be empowered to make treaties on its own without consent of the president, for he argued cogently that a war-time president would have so much power that he might well balk at making peace. He was seconded by Pierce Butler of South Carolina, who defended the proposal as “a necessary security against ambitious & corrupt Presidents.”

For the ultra-nationalists, Gouverneur Morris spelled it out: a simple majority is necessary for peace treaties, otherwise Congress would not be willing to make war to gain the fisheries and the Mississippi River, “the two great objects of the Union.” Here was a clear-cut indication of the neglected role that the power for aggressive war and any adventurous foreign policy played in the drive for the new Constitution. Thus, as in the struggle over the navigation acts, export taxes, the power to admit new states, and the protection of the slave trade, northern nationalists showed themselves to be a bit more motivated for absolute central power than were the southerners, who were continually checked by their economic interests. For their part, Gerry and Sherman predictably urged an even greater majority than two-thirds as needed for the treaty power. The convention quickly concluded the issue by retaining the committee provisions.

On September 8, the convention chose a Committee of Style to draw up the final draft of the Constitution. Of the five members in the committee, four: Hamilton, Madison, Gouverneur Morris, and King were ultra-nationalist, and only one—William Samuel Johnson of Connecticut—was a moderate. The committee’s stylistic revision, submitted to the convention, was ultimately the sole work of Morris, who, by slyly substituting a semicolon for a comma, tried to erect an unambiguously independent, and therefore very broad, general welfare clause. The Convention, however, returned the vital comma. Morris also added a grandiose preamble, which, however, was partially based on the preamble clause of the Articles of Confederation, and in any case conferred no substantive powers whatever. On September 15, the final revised draft of the Constitution was submitted to the convention and passed unanimously in essentially the same form. A last-minute, unanimously approved change on the seventeenth revised the number of representatives to one for every 30,000 instead of every 40,000 people. This made the House a bit more democratic and closer to the people. Then, after some quibbling about the form of signatures of the Constitution, and the entrusting of the secret records of the convention to George Washington, the Constitutional Convention ended on September 17. The nationalists had succeeded, and the new Constitution was ready to be sprung upon an unsuspecting country.1

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1.[Editor’s footnote] Farrand, The Records of the Federal Convention, vol. 2, pp. 500, 513, 541, 548–50, 638.

The Best of Murray N. Rothbard

Murray N. Rothbard (1926–1995) was dean of the Austrian School, founder of modern libertarianism, and academic vice president of the Mises Institute. He was also editor – with Lew Rockwell – of The Rothbard-Rockwell Report, and appointed Lew as his literary executor. See his books.