Presidential power evolves because our country evolves just as our language, culture, science and technology make progress. The office evolved significantly between 1787 and 1809 as men arrived in office with a particular view of presidential power, only to have this view shift upon taking office. The Constitutional Convention alone saw the presidency change from a vaguely defined office as it was in the Virginia Plan, to specific and powerful as in the Hamilton Plan, which proposed an executive chosen by the electors that would serve for life with the ability to veto all laws passed by the legislature.1 Washington believed himself to be, and acted as, the chief administrative officer of the entire government of the United States.2 John Adams wrote “the other branches are imbecile”, and “the executive power is granted, not the executive power hereinafter enumerated and explained.”3 This view may explain why Adams made some of the decision that he did. Thomas Jefferson arrived in office as a Strict Constructionist, but greatly expanded presidential power through the replacement of federal staffers, carrying out undeclared wars, and committing the nation to the Louisiana Purchase amongst many other expansive uses of power.4 These men had specific views of the presidency that they sought to embody and each executed the responsibilities of the office in a different manner that usually changed over time.
The Constitutional Convention shaped the presidency between July 24th and July 17th of 1787. The Committee of Detail reviewed all of the decisions of the convention and drafted a plan of government that incorporated them. The committees main function was to transform general grants of power into specific ones. The president was granted the authority to recommend legislation of Congress, make executive appointments, receive ambassadors from other nations, issue pardons, “take care” that the laws be executed, and command the armed forces. The draft constitution that was created by the Committee of Detail was then reviewed by the delegates present, clause by clause. The oath of the president was expanded at this point to include the words, “and will to the best of my judgement and power preserve, protect, and defend the Constitution of the United States.”5
The Committee on Postponed Matters made several recommendation regarding the office of the president between August 31 and September 8, 1787. Proposed was a presidential term of four years as opposed to seven, with no restriction on the president’s eligibility for reelection. The president was to be chosen by an electoral college, not by Congress. The president was also granted the authority to make treaties and to appoint ambassadors, public ministers, consuls, Supreme Court justices, federal judges, and all other officers whose appointments were not otherwise provided for. Senate confirmation was required for all of these appointments. On September 8, 1787 the convention approved the final proposals of the Committee on Postponed Matters.6 This solidified the definition of presidential power as specifically outlined in the Constitution.
During the ratification conventions, Federalists defended the presidency. Jonathon Jackson argued that the President should have more powers and should be independent of the Senate. “The Supreme Executive,” as he called the President, should have absolute veto over all legislative acts. There was also worry that the president’s lack of a term limit would lead the executive open to bribery. Hamilton replied as “Publius” in The Federalist Papers and argued that “energy in the executive is a leading character in the definition of good government.” Hamilton further observed that the duration in office leads to stability and that the desire of an incumbent for reelection will mean greater and not less accountability. Alexander Contee Hanson scorned the notion that the office would become an elective monarchy. He stated, “Every citizen in the union will be a censor on his conduct. Not even his person is particularly protected; and the means of oppression are little in his power.” The Federalists felt that the powers of the president were perfectly legitimate, and represented previous forms of executive authority.7
George Washington shaped presidential power in domestic and foreign policy. He established executive privilege in his insistence that department heads make a clear account of their departments and deliver this account to the president. Washington also exercised the president’s veto power when he vetoed an apportionment bill, and a bill that would cut the cavalry from the military. When the Whiskey Rebellion erupted in 1794, George Washington showed that the president had the authority and power to squash domestic rebellion, and thus solidified executive power. He further shaped presidential power in his 1793 Declaration of Neutrality in the European War between Britain and France.8 By putting the reach of presidential power on display during the early years of the office, Washington effectively set the stage for future presidents to interpret and assert executive power.
Like Washington, John Adams expanded the powers of the presidency. His Alien and Sedition Acts and Quasi-War were previously unheard-of exercises of executive power. In carrying out and enforcing these actions, Adams set the executive on a path toward broad powers and abilities. The Alien Act gave the president the authority to deport anyone he considered a threat to the nation while the Sedition Act made the publication of defamatory articles about the government an illegal act.9 This sort of power was not outlined in the Constitution, but Adams felt that he was within his powers as President. The fact that the acts were passed by Congress and enforced by the courts meant that the president was free to interpret the Constitution as he saw fit. Likewise, the Quasi-War set a precedent giving the president the power to react as he saw fit in matters of national security, including a military response without a declaration of war from Congress.
The onset of party politics affected the presidential elections in 1796 and 1800. 1796 saw Thomas Jefferson and James Madison running a campaign against John Adams. This was the first election that was run along party lines, a practice that George Washington warned would tear the nation apart.10 The election was very close, and for the first time the country had a president and vice-president that lead different parties. The procedure in place at the time gave the individual with the most electoral votes the seat of President, and the individual receiving the second highest number of votes was to become the Vice-President. This system stayed in place until after the 1800 election, which was also mired in controversy as Thomas Jefferson and his running mate Aaron Burr received the same number of electoral votes for president. The task fell on the House of Representatives to select the president, but the lame-duck session saw advantages to a Burr presidency because he was viewed as of weaker character than Jefferson. It took thirty-six ballots to finally elect Jefferson to the presidency. Jefferson’s triumph in the 1800 election marked the beginning of a critical realignment in American politics, with the Democratic-Republicans becoming the nation’s leading political party.11 As a result of the elections of 1796 and 1800, Congress passed the Twelfth Amendment in 1803. This required that a separate ballot be used for the president and vice-president, in the hopes that no such deadlocks would occur in the future.
Thomas Jefferson made his thoughts on the separation of powers very clear, especially in regards to the judiciary. In passing the Judiciary Act of 1802, Jefferson repealed the Judiciary Act of 1801 and asserted executive control over the judicial branch. Soon after, when the Supreme Court established judicial review and the judicial branch’s place within the checks and balances system in the Marbury v. Madison case, the Court took back power from the executive branch. This was the first time the Court had ruled a law unconstitutional, and Jefferson’s opinion of the decision was shown in his letter to William Charles Jarvis on September 28, 1820 in which he wrote that the ruling was “placing us under the despotism of an oligarchy.”12
I believe that Jefferson’s increase in presidential power was warranted because circumstances arose that called for an approach to the Constitution that was not Strict Constructionist. The Embargo Act and the Tripolitan War were specific examples of the steps that needed to be taken in order to preserve the Union. In his inaugural address, Jefferson comes across as realistic when he says, “I shall often go wrong through defect of judgment. When right, I shall often be thought wrong by those whose positions will not command a view of the whole ground. I ask your indulgence for my own errors, which will never be intentional, and your support against the errors of others, who may condemn what they would not if seen in all its parts.”13 Based off this statement, Jefferson is prepared for whatever situations may plague him as president, and ready for the inevitable dissent that comes along with the office.
When Jefferson said, “A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation” to John B. Colvin on September 20, 181014 he was not supporting Theodore Roosevelt’s Stewardship Theory. This theory states that presidents can do anything that is not explicitly forbidden in the Constitution or Constitutional laws passed by Congress. Jefferson does not feel that the president may do anything not explicitly written in the Constitution, but that the executive must do what is necessary to preserve the nation. I view these as distinctly different viewpoints. By no means is Jefferson looking to grab power where it is available, and surely the Stewardship Theory does not suggest that he do so, but even still, Jefferson views the office of the executive with more restraint.
The year 1872 saw the first woman run for president. Her name was Victoria Woodhull, and she was a candidate for the Equal Rights Party from Ohio. Woodhull was a free love advocate and a suffrage activist. Belva Lockwood ran for president in 1884 and 1888 as a candidate for the National Equal Rights Party. As her party affiliation suggests, she was an equal rights advocate who sought uniform marriage and divorce laws. She received more than 4,000 votes when she ran for office.15 In explaining to the founders that the presidency should not be prohibited because of gender and race, I would cite the founding documents of the United States and the manner with which they have evolved over the years. The language of equality, such as “all men are created equal,” have come to take a more encompassing meaning as time has passed. No longer are there stipulations for voting, but everyone is allowed to have their vote heard. The same should and does apply to running for the office of the president. Over the years, our nation has become more accepting as we have widened the scope of who exactly is protected under the Constitution. As this view of protection has widened, so have the opportunities that are present for minorities and women.
Just as language, culture, science, and technology evolve, so does presidential power. It has been shown that the power of the executive began to be shaped from the very beginning of the presidency, as it continues to be shaped now. With the passage of time, our nation is faced with more difficult struggles that have not been met by prior administrations and in the face of these struggles it is the role of the president to react appropriately. By refusing to act outside of the Constitution, the president leaves our nation at risk, as a slow response is just as useful as no response in an age when information and decisions can be transferred instantly. As the political and global landscape changes, so must the president’s willingness to make difficult decisions. Likewise the president should always be free to interpret the Constitution independently, drawing his own conclusions and taking whatever steps the executive feels are necessary in order to remedy whatever problem may arise. It is the role of the legislature and judiciary to rein in the president when he oversteps his bounds, and the role of the people to vote those of questionable character out of office. The evolution of presidential power from 1787 to 1809 laid the foundation for the continued evolution of the presidency. Had the men elected to the office not made the decisions they did, it stands to reason that the presidency may have remained stagnant and our nation might not be intact as we currently know it to be. This assumption is easy when we observe the actions of Thomas Jefferson in waging the Tripolitan War, or Adams in waging the Quasi-War. It has long been the role of the president to protect this nation in times of crisis. Without a powerful head of state, there is no one else to make the decisions that will lead to our protection or lead to our demise.
1Sidney Milkis and Michael Nelson. The American Presidency. 15, 26.
2Calabresi, Steven and Christopher Yoo, The Unitary Executive, 40.
3 John Adams diary 46, 6 August 1787 – 10 September 1796, 2 July – 21 August 1804 [electronic edition]. Adams Family Papers: An Electronic Archive. Massachusetts Historical Society. http://www.masshist.org/digitaladams/
4Dinah Mayo-Bobee, “Jefferson & Presidential Power” (lecture, University of Massachusetts Amherst, Amherst, MA), February 25, 2010.
5Milkis and Nelson, 17-19.
6Milkis and Nelson, 20.
7 Michael P. Riccards, Presidential Studies Quarterly, Vol. 7, No. 1 (Winter, 1977), pp. 37-46
8 Dinah Mayo-Bobee, “Formation of Presidential Power (Washington’s First Term)” (lecture, University of Massachusetts Amherst, Amherst, MA), February 9, 2010.
9 Dinah Mayo-Bobee, “Adam’s Era of Divisions” (lecture, University of Massachusetts Amherst, Amherst, MA), February 23, 2010.
10Dinah Mayo-Bobee, “Adam’s Era of Divisions” (lecture, University of Massachusetts Amherst, Amherst, MA), February 23, 2010.
11Milkis and Nelson, 98-100.
12Dinah Mayo-Bobee, “Jefferson & Presidential Power” (lecture, University of Massachusetts Amherst, Amherst, MA), February 25, 2010.
13The Avalon Project : Jefferson’s First Inaugural Address – http://avalon.law.yale.edu/19th_century/jefinau1.asp
14Article 2, Section 3: Thomas Jefferson to John B. Colvin http://press.pubs.uchicago.edu/founders/documents/a2_3s8.html
15Dinah Mayo-Bobee, “Washington’s Dilemma’s” (lecture, University of Massachusetts Amherst, Amherst, MA), February 11, 2010.
A Curiosity Complex 