Federalist 69
The Constitution did not spring fully formed from Zeus’s head. That much should be obvious to readers by now. Both proponents and opponents alike turned to history and experience as guides for shaping what some hoped would be the new government. Whereas defenders of the Constitution thought a more energetic government would deal with the nation’s problems, critics believed that an energetic government posed a perpetual threat to liberty. Every line of the Constitution was deliberated over on these terms: were the increased powers absolutely necessary and to what ends were they to be exercised, or did they pose a threat to the basic liberties citizens had come to enjoy, those liberties themselves the result not only of hard-won experience but of bloodshed?
Experience may be the essential teacher but doesn’t provide us with a blueprint that fits all situations. Experience with one child doesn’t necessarily teach us the best way to raise the next, although our mistakes are far more fungible than our successes. Whereas parental authority wanes over time government power seldom does. This central lesson of political experience, a power once acquired is seldom rescinded, may have impressed all authors of the age, but some more than others. Checking power requires addition by division: put more cooks in the kitchen and you’ll seldom get a good meal but you’ll even more rarely get a really bad one. And that’s ok because politics isn’t designed to tickle our taste buds.
The Chief Executive
The lessons of experience applied especially when considering the creation of an executive. Remember that the Articles of Confederation provided for no executive; Congress was to exercise authority for all matters pertaining to common state interests while state and local governments took care of most citizen’s strictly political concerns. Most of the details of common life were left to the free decisions of people in their associative life. Gouverneur Morris, the most loquacious member of the convention — no small feat with Luther Martin in the room — insisted on an independent executive. I’ll be talking more about Morris in the weeks to come; his contributions to the final form of the Constitution are legion: to fans of the Constitution he’s a hero while to its detractors he’s a villain. I can’t resist noting that, independent of the Constitution, he was not without villainy in other respects and also met with a particularly unpleasant fate.
What role did experience play in the creation of an office even its defenders admitted was a bit of a novelty? Three important experiences formed the background. The first was the experience of the British monarchy, the central features of which were that the transition of power occurred on a hereditary basis, the position was held for life, and the monarch (still at that time) exercised extensive powers over war-making, foreign policy, commerce, and regulation of domestic affairs. Many Americans defended the monarchy deeper into the 1770’s than most people now realize, but once they had thrown off the crown few were inclined to welcome it back.
The Leadership of Washington
The second important experience was the leadership of George Washington throughout the revolutionary era and beyond. Having done his duty Washington, like Cato, sought the comforts and repose of home. The unthinkable act of resigning his commission — virtually unprecedented by a military leader with an opportunity to seize power — elevated him in the minds of his fellow citizens and also led them to believe he could be trusted with power. This old lesson of politics had already been taught by Plato: the only people you can trust with power are those who don’t seek it. Furthermore, Washington’s quelling of the Newburgh conspiracy raised him even further in people’s esteem.
The facts of the Newburgh conspiracy are pretty straightforward: The Continental Congress had not met its obligations to pay the military for its service, resulting in officers of the Continental Army challenging the authority of the Congress and preparing for mutiny. Officers threatened to disband the military, leaving the country at risk, or not disband at all, threatening a military takeover of Congress. Washington opposed all this and called for a meeting of his officers to resolve peacefully, implying he would not be present at the meeting. Show up he did, his mere presence already silencing the dissent, his passionate speech was punctuated by pulling a pair of spectacles from his pocket. Telling his men that having already gone gray in service of his country he was now going blind as well, no further words were really needed.
All this came on the heels of efforts of some members of the military to make Washington a king. The General’s response was clear: “With a mixture of great surprise & astonishment I have read with attention the Sentiments you have submitted to my perusal. Be assured, Sir, no occurrence in the course of the War, has given me more painful sensations than your information of there being such ideas existing in the Army as you have expressed, & I must view with abhorrence, and reprehend with severity… I am at a loss to conceive what part of my conduct could have given encouragement to an address which to me seems big with the greatest mischiefs that can befall my Country. If I am not deceived in the knowledge of myself, you could not have found a person to whom your schemes are more disagreeable.” Washington’s constant willingness to resist power strangely enough seemed to some to provide justification for offering it. Not everyone, however, was possessed of Washington’s temperament and self-restraint.
The State Governors
The third experience in the background was the existence of governors in the states. Initially chartered by the king to be his agents in the various colonies, some holding office by appointment and others by election, many of them took on additional power during the Revolutionary War since the states were the primary directors and founders of the war effort. War always expands executive power. Most states had rewritten their constitutions in the era between the Revolutionary War and the Philadelphia Convention, and while all had governors most of those governors had been weakened as a result of the revolutionary experience. Having tossed a king, most citizens were wary about giving the governor too much power. Executive power was subordinate to legislative.
Hamilton’s Response
In Federalist #69 Hamilton waded through these different experiences in trying to reassure readers that the president would look far more like a state governor than he would a king. Here is where things got interesting, for Hamilton’s specific audience was the people of New York, and the governor of New York, George Clinton, was hardly an ally of Hamilton’s. Clinton had initially supported efforts to create a stronger central government but soon turned against the efforts of those at the Philadelphia Convention to replace rather than amend the Articles of Confederation. He and Hamilton had a protracted dust-up in the New York press during the summer of 1787. Hamilton publicly accused Clinton of trying to prevent any New York delegation from attending the convention and also accused Clinton of being more committed to his own power than the public good, suggesting that Clinton posed a great danger to the people of New York and was attempting to “wreck” the union. There were calls in the press by friends of Hamilton to replace Clinton — that “thick skulled and double-hearted Chief” — as governor. Clinton became one of the great opponents of ratification; indeed, the historian Herbert Storing identified Clinton as the author of the Cato essays, although that claim is much disputed by scholars. In any case the Cato essays accurately reflect Clinton’s views.
It is curious, therefore, that Hamilton used Clinton as his defense for Article II of the Constitution. Curious, but also shrewd. Since Clinton, along with Robert Yates and John Lansing, were three prominent New York critics of the Constitution, what better way to defang their arguments against the consolidation of power than to suggest that the power Clinton argued against was one he already enjoyed? Allies of Hamilton had taken to the press before the convention even finished to accuse Clinton of bad faith but also as having abused his power as governor. How could Clinton defend against the concentration of power when he seemed so prepared to exercise it himself?
On September 15, two days before the conclusion of the convention, Hamilton took again to the press, once again accusing Clinton of trying to destroy the union and constantly expanding his power but also, tellingly, drawing attention to the fact that Clinton possessed “all the influence to be derived from long continuance in office.” Indeed, Clinton served as governor from 1777-1795, making arguments for limiting the terms of presidents seem somewhat hypocritical. It should be noted that Clinton later served as Vice-president during Jefferson’s second term.
The Substance of 69
It made rhetorical sense for Hamilton to compare the powers of the president to that of one of his greatest political rivals. Maintaining the tone he established in 68, Hamilton expressed incredulity at the “unfairness of the representations that have been made in regard” to the presidency. Yes, critics had compared the president to the king, but so ludicrous was the comparison that they might as well have invoked “a resemblance to the Grand Signior, to the Khan of the Tartary, to the man of the seven mountains, or to the governor of New York.” By including Clinton on that list Hamilton tried to persuade readers that the governor looked far more like a sultan than a president. All the fears about monarchy, he seems to have suggested, were chimerical. The powers of the president paled compared to those of the governor.
Indeed, throughout the essay Hamilton compared the governor’s power to the king’s. Hamilton used the office of the governor in two ways: on the one hand it was much like kingly power, and if voters opposed the president as being too monarchical then they ought to oppose their state constitutions giving powers to a governor; on the other hand, the powers being given to the president were very much like the minimal powers that governors already enjoyed, and since governors posed no serious threats to liberty, why presume a president would? To make his argument Hamilton toggled between the idea that governors had both too much power and too little, each emphasis deftly used to defend all the specific powers discussed in Article II of the federal constitution. In some instances the powers of the president would be inferior to those of the governor, and in other instances superior to, as circumstances warranted. In every instance, however, the power of the president was far inferior to that of the king.
Hamilton painstakingly compared Article II powers with those of the British monarch, always to the disadvantage of the former. “Hence it appears,” he wrote, “that, except as to the concurrent authority of the president in the article of treaties, it would be difficult to determine whether the magistrate would, in the aggregate, more or less power than the governor of New York. And it appears more unequivocally, that there is no pretence for the parallel which has been attempted between him and the king of Great Britain.” Whereupon Hamilton provided a side-by-side comparison of presidential and kingly power, the contrast starkly demonstrating the limits of presidential power.
If the Anti-federalists are so wrong about the presidency, Hamilton wanted to argue, could they possibly be right about any criticism they had? Or was it rather the case that they kept striking at phantoms of their own imagination? “What answer shall we give to those who would persuade us, that things so unlike resemble one another? … The same that ought to be given to those who tell us, that a government, the while power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, a despotism.”
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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