Federalist 72
After a two-week hiatus (Happy New Year, everyone), I return to the series on The Federalist. I left off on number 71 (out of 85 total, if you’re keeping track), the last few papers all dealing with the presidency. Our current obsessions with presidential politics, as well as the extensive powers now wielded by the executive branch, obscures the more limited vision the framers had for the second branch. The debates at the convention as well as the documents filed during ratification all indicate that many of the writers of the Constitution feared the legislative branch, which they thought would be a “vortex” of power, absorbing all other power into itself. Granted, the rumblings of a nascent monarchy made Article II controversial enough, but those who (rightly) foresaw the dangers of executive power and its gradual increase were largely consigned to the margins.
The three main issues concerning the executive involved the nature of executive power, the mode of selection, and how long someone could serve in office. Debates at the Constitution on that last matter depended largely on where speakers stood on the first two. Some of the delegates argued that there was little point in arguing the length of terms and whether they ought to be renewable unless they had a clear picture of what the president’s powers were going to be.
Hamilton addressed the issue of term lengths and limits in Federalist 72, vigorously defending the Convention’s decision not to settle for non-renewable terms. Madison’s notes do not indicate participation on this issue from Hamilton at the Convention itself, although his view that the presidency ought to be a lifetime appointment was well known. The Convention records show a lot of indecision, with votes being reversed and settled issues getting reopened. This indicates not only the novelty of the enterprise but also the Machiavellian impulses of some of the delegates who insisted on reopening the issue until they got what they wanted. Foremost among these was Gouverneur Morris, but Madison and Wilson were not blameless.
Early votes indicate that delegates favored a longer term — typically seven years — with no reeligibility. This was initially Madison’s view as well, although he changed his mind about a month later. Some delegates worried that allowing for reelection would permanently entrench a person in the office, leading to all kinds of corruption, including rigging the system to make it unlikely he could ever get voted out. Others worried that a politician facing the end of his term with no hope of renewal would throw caution to the winds.
The seven-year term still made some delegates nervous. They intended the impeachment power as a safeguard, but even then they thought the impeachment clause set too high a bar. Madison suggested in response that the bar for impeachment and removal be changed to “malpractice or neglect of duty.” It shifted the tone of the whole conversation, because this less demanding standard meant for Morris and others that there was no reason not to allow presidents to run for reelection, and this in turn led them to discuss shorter terms as well. Madison’s phrase was replaced by “during times of good behavior,” but a July 17th vote removed any qualifier. This, in turn, led Mason to reintroduce the idea of a single term.
Morris took up the challenge. Skeptical of giving the legislature impeachment authority, Morris admonished his fellow delegates “Our Country is an extensive one. We must either then renounce the blessings of the Union, or provide an Executive with sufficient vigor to pervade every part of it.” Not content to make the positive argument he turned to the negative one. “Shut the Civil road to Glory & he may be compelled to seek it by the sword.” Morris’s insistence that the executive had to be kept completely independent of the legislature carried the day.
Morris’s allies quickly seized the initiative. Elbridge Gerry insisted that “the longer the duration of his appointment the more will his dependence be diminished--It will be better then for him to continue 10, 15, or even 20--years and be ineligible afterwards.” In a claim unlikely to settle the fears of those worried about monarchy, Rufus King argued for twenty year appointments since that was “the medium life of princes.” Even Luther Martin argued for an 11 year term, although he consistently argued for ineligibility for reelection.
Anti-federalists, more fearful of executive power, argued, in the words of Cato, that “the greatness of the power must be compensated by the brevity of the duration.” Cato repeated the worry about sycophants and hangers-on gathering around the executive, replacing public service with self-promotion. As the court would gain power it would use that power not for the common good but for self-aggrandizement. Long terms in office would give the president “the means and time to execute his designs — he therefore fancies that he may be great and glorious by oppressing his fellow citizens, and raising himself to permanent grandeur on the ruins of his country.” Anti-federalists further worried that the opulence of the job and the opportunities for self-enrichment, especially when compared to life outside of office (for they did not assume that rich men would always win), would mean that “such a man would die a thousand deaths rather than sink from the heights of splendor and power into obscurity and wretchedness.” (An Old Whig, V)
The most extensive Anti-federalist treatment came from a Federal Farmer in his 14th letter. Arguing that the essence of republicanism was preventing “the perpetuation of power” in the same person, Federal Farmer realized that “the greatest object” of a person holding office “will be to keep it.” And while holding office “he will spare no artifice, no address, and no exertions, to increase the powers and importance of it.” Crises and convulsions would only serve to increase that power, and so the president would be inspired to create crises. “If we reason at all on the subject,” he continued, “we must irresistably conclude, that this will be the case with nine-tenths of the presidents; we may have, for the first president, and, perhaps, one in a century or two afterwards (if the government should withstand the attacks of others) a great and good man, governed by superior motives; but these are not events to be calculated upon in the present state of human nature.”
Short terms with limits would slacken the resolve of the ambitious and unscrupulous. Given that most presidents would still be in their 40s when they retire from office, they’d have to figure out a way to go make an honest living once they rejoin public life.
Like the Anti-federalists, Hamilton addressed the issue of terms mainly as a matter of incentives, although he favored longer terms because they provided “energy” as well as stability — both of which were consistent Hamiltonian themes.
“This view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert; and in addition to this propensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of his predecessor has proceeded from a dislike to his measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. These considerations, and the influence of personal confidences and attachments, would be likely to induce every new President to promote a change of men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government.”
Hamilton’s argument for long terms with endless renewal had five related points. First: the public had to have time to judge the conduct and policies of the president in order to determine whether they wanted him to stay in office. Short terms made that impossible. Second: it added an element of “continuity” and “permanency” in government, especially when contrasted with the constant upheavals likely to take place in the legislative branch. Third: if they can’t be reelected they would be more likely to misbehave or violate the public trust. Fourth: reelection would be a reward for those with “a love of fame” which was “the ruling passion of the noble mind.” By pleasing the public the president’s “interests would coincide with their duties.” Fifth: without the incentive of getting elected again presidents would only be interested in not doing harm and not in doing good. I expect that a number of Anti-federalists would have cheered that notion. Sixth: the community would be robbed of the leadership of its best and most experienced leaders.
Hamilton was especially attuned to the role that ambition would play in presidential politics. Absent a hope of a renewed term, the most ambitious and unscrupulous people would likely seek office in order to advantage themselves and their friends. The temptations to corruption would be intense. Once ensconced in power they would not want to leave and, as leaders of the military, would call upon troops and supporters either to rig the election or to refuse the results — anything to avoid having to return to private life.
“Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess?”
The Federal Farmer expressed concern that someone with Washington’s character and self-restraint would come along only once a century. He was too generous in his assessment. The worries of both Hamilton and the Anti-federalists have been realized, and this in no small part because debate over the length of time someone could hold power often substituted for the more substantive debates over the nature of those powers. Insufficient attention to that question meant that presidents could use the office as clay they could mould as they wanted. Washington’s self-imposed term limit may have restrained the ambitions of some presidents, but even many of them found eight years enough time to perform their mischief.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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