Federalist 70
“Energy in the Executive is a leading character in the definition of good government.”
I think that gets a nomination for most controversial and, maybe, chilling line in all The Federalist. Over the last few weeks I’ve highlighted the ways in which Article II generated controversy, Hamilton (and Gouverneur Morris) especially wanting a powerful executive, and the Anti-Federalists, as well as some of the Federalists, worrying that the presidency was, in the words of Virginian Edmund Randolph, “the foetus of monarchy.”
The concern was repeated at The Constitutional Convention, the state ratifying conventions, and in asundry essays. A succinct example was provided by “An Old Whig” in his fifth essay:
“In the first place the office of President of the United States appears to me to be clothed with such powers as are dangerous. To be the fountain of all honors in the United States, commander in chief of the army, navy and milita, with the power of making treaties and of granting pardons, and to be vested with an authority to put a negative upon all laws, unless two thirds of both houses shall persist in enacting it, and put their names down upon calling the yeas and nays for that purpose, is in reality to be a KING as much a King as the King of Great-Britain, and a King too of the worst Kind;-- an elective King.”
It may surprise readers to read that last clause. In fact, this was a common criticism; the election of a president, objectors to the system realized, would repeatedly cause turmoil and factional division in the political community. A hereditary monarchy would be more stable but also would solve the problem of the transition of power. Without it, the office would often fall into the hands of the most ambitious and power-hungry and, without terms limits, the office-holders would cling to their power in perpetuity.
An adjacent fear was that, once entrenched in power, the president would gather around himself similarly ambitious individuals who would gradually usurp congressional power, especially since they expected constant turnover in the House, enrich themselves and no longer operate in the public interest. Old Whig again:
“The King of Great-Britain it is true can create nobility which our President cannot; but our President will have the power of making all the great men, which comes to the same thing.
To be tumbled headlong from the pinnacle of greatness and be reduced to a shadow of departed royalty is a shock almost too great for human nature to endure. It will cost a man many struggles to resign such eminent powers, and ere long, we shall find, some one who will be very unwilling to part with them.-“
For those worried that Article II squinted at monarchy, Hamilton’s arguments in Federalist 70 provided no solace. “Energy in the executive” amounted to taking on the responsibilities for national defense, administering the laws, providing for public order, and in a particularly interesting dictum, “the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice.” I would expect that this refers to Shays’s rebellion and Hamilton’s particular interpretation of it. Even if it isn’t referring to that event it indicates something about Hamilton’s general attitude about democracy. In his mind democracy always devolved to mob violence. Henry Adams believed that “Mr. Hamilton considered democracy a fatal curse, and meant to stop its progress.” That sounds about right.
Hamilton was accused of being more than a closet monarchist, however. Charges of “Caesarism” dogged him throughout his life, and his opening paragraph of 70 may have fed the beast, as he reminded readers that when the Roman Republic got shaky it took “refuge in the absolute power of a single man, under the formidable title of Dictator.” This practice was engaged in for hundreds of years until the final appointee, Julius Caesar, declared himself “dictator in perpetuity,” which brought an end to the experiment. It’s curious, therefore, that Hamilton seemed eager to resurrect it.
Hamilton argued that energy in the executive consisted of four parts: unity, duration in office, having sufficient and properly apportioned powers, and “an adequate provision for its support.” Subsequent papers deal with different parts of that formula but in 70 he deals largely with the idea of a “united” executive. The term might cause some confusion because conservatives have, since the Reagan administration, talked about a “unitary executive,” an idea that the president has untrammeled authority over the executive branch. The Court is in the middle of yet another battle over that idea.
That’s not what was at stake here, however. One of the heated debates during the Convention involved the organization of the presidency. There were many options on the table, most of them designed to rein in the president’s presumptive power. A central point of debate involved whether there should be one president or one president with an advisory council or two or three chief executives. Edmund Randolph was especially adamant on a trinitarian executive – three persons in one position. According to Madison’s notes:
“Mr. Randolph opposed it with great earnestness, declaring that he should not do justice to the Country which sent him if he were silently to suffer the establishmt. of a Unity in the Executive department. He felt an opposition to it which he believed he should continue to feel as long as he lived. He urged 1. that the permanent temper of the people was adverse to the very semblance of Monarchy. 2. that a unity was unnecessary a plurality being equally competent to all the objects of the department. 3. that the necessary confidence would never be reposed in a single Magistrate. 4. that the appointments would generally be in favor of some inhabitant near the center of the Community, and consequently the remote parts would not be on an equal footing. He was in favor of three members of the Executive to be drawn from different portions of the Country.”
George Mason, likewise, argued for a tripartite division based on geography. A single president could never know the interests, needs, and cultures of all the different places that made up the nation, and therefore it made sense to have regional representation in that office. Three men would have a “more perfect and extensive Knowledge of the real Interests of this great Union” than one.
The debates lasted the length of the convention. In a letter he wrote to Jefferson in October of 1787, Madison lamented that “The first of these objects as it respects the Executive, was peculiarly embarrassing. On the question whether it should consist of a single person, or a plurality of coordinate members, on the mode of appointment, on the duration in office, on the degree of power, on the re-eligibility, tedious and reiterated discussions took place.” Madison’s own favoring of a single executive was made clear to all, although he qualified that by repeating Elbridge Gerry’s plan that the president be attended by a council.
The record doesn’t show Hamilton speaking much about this at the Convention. Gouverneur Morris was the main architect of the final plan, and it probably nearly matched Hamilton’s own inclinations. Undoubtedly Hamilton wanted a powerful, singular executive, preferably a military chieftain who would be quick to suppress any kind of popular uprising. Jefferson saw people taking up arms on occasion as essential to liberty, but Hamilton saw it as the democratic "poison” that constituted “the real disease” of republican politics. In 70 he makes it clear that the president is a safeguard not primarily against foreign foes, but domestic ones, those “seditions of whole classes of the community whose conduct threatened the existence of all government.”
Those who argued for a tripartite executive believed that such division was essential to keeping that power in check, but at a price. Adding more people to the mix means that action will get delayed. “Decision, activity, secrecy, and dispatch,” Hamilton observed, “will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.” Hamilton believed this was equally true of attaching a council to the presidency. For one thing, in both a plural executive or one beholden to a council it would be difficult to determine who is responsible when things go sideways. It would “conceal faults,” making the office less transparent. “It is far more safe,” he wrote, that “there should be a single object for the jealousy and watchfulness of the people.”
Of course, action made with dispatch may often be ill-considered. Most of us don’t have great track records when making snap decisions under pressure. And, Hamilton conceded, the legislature does move slowly, and this is probably a good thing for they are as likely to act foolishly as wisely. Making legislation difficult may thwart “salutary plans,” but will also serve to check excesses in the majority. The executive, however, operates on different principles, in part because it can’t make laws, only enforce them. This, too, proves something of a red herring.
John Locke had observed in his Second Treatise that government needed some permanency to it, “a power always in being,” in his words. Congress and courts adjourn, but government has to remain open (I mean, what if it shut down and no one noticed?). Presidents sleep, it is said, but the presidency never does. Having an independent executive keeps the government in operation even when Congress is not in session.
The feature Hamilton highlighted is the ability of the president to marshal power in emergent situations and act quickly and decisively. He envisioned the president as a check upon democratic excess, not only in Congress but also in the public sphere, and had to have placed in his hands the means to restore “proper” order. A plural executive would not be able to act, and indeed might be ripped apart by simply representing and encouraging that factionalism manifesting itself in public unrest. Of course, a great deal of Hamilton’s argument is buttressed by his confidence that only honorable men of virtue, such as Washington, would occupy the office.
Hamilton provided his readers with an historical and comparative overview of unitary or plural executives, conveniently picking examples that supported his thesis. But, he said, once you quit “the dim light of historical research” and operate by “the dictates of reason and good sense,” the idea of a plural executive seems even more ludicrous.
So ludicrous, in fact, that he couldn’t resist taking pot shots at those who proposed it. Accusing opponents of inconsistency and incoherence, he also wondered how “the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind.” Tough stuff, that. Further: “Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character.” I’ll allow there was no shortage of vanity in that era, but I am not sure how Hamilton exempted himself.
I’m largely agnostic about the question of a unitary or plural executive. I’m not sure that a plural executive would have solved the problem of the imperial presidency that is a prevailing pathology of our Constitutional system. The critics worries, however, that the office would not represent the interests of the parts, not be sufficiently democratic, and would constantly accrue power to itself seem well-founded. In any case, they didn’t deserve to be made fun of.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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