Article 2, Section 1, Clause 1
[Volume 3, Page 531]
Joseph Story, Commentaries on the Constitution 3:§§ 1407--10, 1413, 1429--36, 1444--461833
§ 1407. Under the confederation there was no national executive. The whole powers of the national government were vested in a congress, consisting of a single body; and that body was authorized to appoint a committee of the states, composed of one delegate from every state, to sit in the recess, and to delegate to them such of their own powers, not requiring the consent of nine states, as nine states should consent to. This want of a national executive was deemed a fatal defect in the confederation.
§ 1408. In the convention, there does not seem to have been any objection to the establishment of a national executive. But upon the question, whether it should consist of a single person, the affirmative was carried by a vote of seven states against three. The term of service was at first fixed at seven years, by a vote of five states against four, one being divided. The term was afterwards altered to four years, upon the report of a committee, and adopted by the vote of ten states against one.
§ 1409. In considering this clause, three practical questions are naturally suggested: First, whether there should be a distinct executive department; secondly, whether it should be composed of more than one person; and, thirdly, what should be the duration of office.
§ 1410. Upon the first question, little need be said. All America have at length concurred in the propriety of establishing a distinct executive department. The principle is embraced in every state constitution; and it seems now to be assumed among us, as a fundamental maxim of government, that the legislative, executive, and judicial departments ought to be separate, and the powers of one ought not to be exercised by either of the others. The same maxim is found recognised in express terms in many of our state constitutions. It is hardly necessary to repeat, that where all these powers are united in the same hands, there is a real despotism, to the extent of their coercive exercise. Where, on the other hand, they exist together, and yet depend for their exercise upon the mere authority of recommendation, (as they did under the confederation,) they become at once imbecile and arbitrary, subservient to popular clamour, and incapable of steady action. The harshness of the measures in relation to paper money, and the timidity and vacillation in relation to military affairs, are examples not easily to be forgotten.
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§ 1413. The most distinguished statesmen have uniformly maintained the doctrine, that there ought to be a single executive, and a numerous legislature. They have considered energy, as the most necessary qualification of the power, and this as best attained by reposing the power in a single hand. At the same time, they have considered with equal propriety, that a numerous legislature was best adapted to the duties of legislation, and best calculated to conciliate the confidence of the people, and to secure their privileges and interests. Montesquieu has said, that "the executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, is better administered by one, than by many. On the other hand, whatever depends on the legislative power is oftentimes better regulated by many, than by a single person. But if there were no monarch, and the executive power should be committed to a certain number of persons, selected from the legislative body, there would be an end to liberty; by reason, that the two powers would be united, as the same persons would sometimes possess, and would always be able to possess, a share in both." De Lolme, in addition to other advantages, considers the unity of the executive as important in a free government, because it is thus more easily restrained. "In those states," says he, "where the execution of the laws is entrusted to several different hands, and to each with different titles and prerogatives, such division, and such changeableness of measures, which must be the consequence of it, constantly hide the true cause of the evils of the state. Sometimes military tribunes, and at others consuls bear an absolute sway. Sometimes patricians usurp every thing; and at other times those, who are called nobles. Sometimes the people are oppressed by decemvirs; and at others by dictators. Tyranny in such states does not always beat down the fences, that are set around it; but it leaps over them. When men think it confined to one place, it starts up again in another. It mocks the efforts of the people, not because it is invincible, but because it is unknown. But the indivisibility of the public power in England has constantly kept the views and efforts of the people directed to one and the same object." He adds, in another place, "we must observe a difference between the legislative and executive powers. [Volume 3, Page 532] The latter may be confined, and even is the more easily so, when undivided. The legislature on the contrary, in order to its being restrained, should absolutely be divided."
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§ 1429. What should be the proper duration of office is matter of more doubt and speculation. On the one hand, it may be said, that the shorter the period of office, the more security there will be against any dangerous abuse of power. The longer the period, the less will responsibility be felt, and the more personal ambition will be indulged. On the other hand, the considerations above stated prove, that a very short period is, practically speaking, equivalent to a surrender of the executive power, as a check in government, or subjects it to an intolerable vacillation and imbecility. In the convention itself much diversity of opinion existed on this subject. It was at one time proposed, that the executive should be chosen during good behaviour. But this proposition received little favour, and seems to have been abandoned without much effort.
§ 1430. Another proposition was (as has been seen) to choose the executive for seven years, which at first passed by a bare majority; but being coupled with a clause, "to be chosen by the national legislature," it was approved by the vote of eight states against two. Another clause, "to be ineligible a second time," was added by the vote of eight states against one, one being divided. In this form the clause stood in the first draft of the constitution, though some intermediate efforts were made to vary it. But it was ultimately altered upon the report of a committee so, as to change the mode of election, the term of office, and the re-eligibility, to their present form, by the vote of ten states against one.
§ 1431. It is most probable, that these three propositions had a mutual influence upon the final vote. Those, who wished a choice to be made by the people, rather than by the national legislature, would naturally incline to a shorter period of office, than seven years. Those, who were in favour of seven years, might be willing to consent to the clause against re-eligibility, when they would resist it, if the period of office were reduced to four years. And those, who favoured the latter, might more readily yield the prohibitory clause, than increase the duration of office. All this, however, is but conjecture; and the most, that can be gathered from the final result, is, that opinions, strongly maintained at the beginning of the discussion, were yielded up in a spirit of compromise, or abandoned upon the weight of argument.
§ 1432. It is observable, that the period actually fixed is intermediate between the term of office of the senate, and that of the house of representatives. In the course of one presidential term, the house is, or may be twice recomposed; and two-thirds of the senate changed, or re-elected. So far, as executive influence can be presumed to operate upon either branch of the legislature unfavourable to the rights of the people, the latter possess, in their elective franchise, ample means of redress. On the other hand, so far, as uniformity and stability in the administration of executive duties are desirable, they are in some measure secured by the more permanent tenure of office of the senate, which will check too hasty a departure from the old system, by a change of the executive, or representative branch of the government.
§ 1433. Whether the period of four years will answer all the purposes, for which the executive department is established, so as to give it at once energy and safety, and to preserve a due balance in the administration of the government, is a problem, which can be solved only by experience. That it will contribute far more, than a shorter period, towards these objects, and thus have a material influence upon the spirit and character of the government, may be safely affirmed. Between the commencement and termination of the period of office, there will be a considerable interval, at once to justify some independence of opinion and action, and some reasonable belief, that the propriety of the measures adopted during the administration may be seen, and felt by the community at large. The executive need not be intimidated in his course by the dread of an immediate loss of public confidence, without the power of regaining it before a new election; and he may, with some confidence, look forward to that esteem and respect of his fellow-citizens, which public services usually obtain, when they are faithfully and firmly pursued with an honest devotion to the public good. If he should be re-elected, he will still more extensively possess the means of carrying into effect a wise and beneficent system of policy, foreign as well as domestic. And if he should be compelled to retire, he cannot but have the consciousness, that measures, long enough pursued to be found useful, will be persevered in; or, if abandoned, the contrast will reflect new honour upon the past administration of the government, and perhaps reinstate him in office. At all events, the period is not long enough to justify any alarms for the public safety. The danger is not, that such a limited executive will become an absolute dictator; but, that he may be overwhelmed by the combined operations of popular influence and legislative power. It may be reasonably doubted, from the limited duration of this office, whether, in point of independence and firmness, he will not be found unequal to the task, which the constitution assigns him; and if such a doubt may be indulged, that alone will be decisive against any just jealousy of his encroachments. Even in England, where an hereditary monarch with vast prerogatives and patronage exists, it has been found, that the house of commons, from their immediate sympathy with the people, and their possession of the purse-strings of the nation, have been able effectually to check all his usurpations, and to diminish his influence. Nay, from small beginnings they have risen to be the great power in the state, counterpoising not only the authority of the crown, but the rank and wealth of the nobility; and gaining so solid an accession of influence, that they rather lead, than follow, the great measures of the administration.
§ 1434. In comparing the duration of office of the president with that of the state executives, additional reasons will present themselves in favour of the former. At the time of the adoption of the constitution, the executive was chosen annually in some of the states; in others, biennially; and in others, triennially. In some of the states, which have [Volume 3, Page 533] been subsequently admitted into the Union, the executive is chosen annually; in others, biennially; in others, triennially; and in others quadriennially. So that there is a great diversity of opinion exhibited on the subject, not only in the early, but in the later state constitutions in the Union. Now, it may be affirmed, that if, considering the nature of executive duties in the state governments, a period of office of two, or three, or even four years, has not been found either dangerous or inconvenient, there are very strong reasons, why the duration of office of the president of the United States should be at least equal to the longest of these periods. The nature of the duties to be performed by the president, both at home and abroad, are so various and complicated, as not only to require great talents, and great wisdom to perform them in any manner suitable to their importance and difficulty; but also long experience in office to acquire, what may be deemed the habits of administration, and a steadiness, as well as comprehensiveness, of view of all the bearings of measures. The executive duties in the states are few, and confined to a narrow range. Those of the president embrace all the ordinary and extraordinary arrangements of peace and war, of diplomacy and negotiation, of finance, of naval and military operations, and of the execution of the laws through almost infinite ramifications of details, and in places at vast distances from each other. He is compelled constantly to take into view the whole circuit of the Union; and to master many of the local interests and other circumstances, which may require new adaptations of measures to meet the public exigences. Considerable time must necessarily elapse before the requisite knowledge for the proper discharge of all the function of his office can be obtained; and, after it is obtained, time must be allowed to enable him to act upon that knowledge so, as to give vigour and healthinesss to the operations of the government. A short term of office would scarcely suffice, either for suitable knowledge, or suitable action. And to say the least, four years employed in the executive functions of the Union would not enable any man to become more familiar with them, than half that period with those of a single state. In short, the same general considerations, which require and justify a prolongation of the period of service of the members of the national legislature beyond that of the members of the state legislatures, apply with full force to the executive department. There have, nevertheless, at different periods of the government, been found able and ingenious minds, who have contended for an annual election of the president, or some shorter period, than four years.
§ 1435. Hitherto our experience has demonstrated, that the period has not been found practically so long, as to create danger to the people, or so short, as to take away a reasonable independence and energy from the executive. Still it cannot be disguised, that sufficient time has scarcely yet elapsed to enable us to pronounce a decisive opinion upon the subject; since the executive has generally acted with a majority of the nation; and in critical times has been sustained by the force of that majority in strong measures, and in times of more tranquillity, by the general moderation of the policy of his administration.
§ 1436. Another question, connected with the duration of office of the president, was much agitated in the convention, and has often since been a topic of serious discussion; and that is, whether he should be re-eligible to office. In support of the opinion, that the president ought to be ineligible after one period of office, it was urged, that the return of public officers into the mass of the common people, where they would feel the tone, which they had given to the administration of the laws, was the best security the public could have for their good behaviour. It would operate as a check upon the restlessness of ambition, and at the same time promote the independence of the executive. It would prevent him from a cringing subserviency to procure a re-election; or to a resort to corrupt intrigues for the maintenance of his power. And it was even added by some, whose imaginations were continually haunted by terrors of all sorts from the existence of any powers in the national government, that the re-eligibility of the executive would furnish an inducement to foreign governments to interfere in our elections, and would thus inflict upon us all the evils, which had desolated, and betrayed Poland.
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§ 1444. The remaining part of the clause respects the Vice-President. If such an officer was to be created, it is plain, that the duration of his office should be co-extensive with that of the president. Indeed, as we shall immediately see, the scheme of the government necessarily embraced it; for when it was decided, that two persons were to be voted for, as president, it was decided, that he, who had the greatest number of votes of the electors, after the person chosen as president, should be vice-president. The principal question, therefore, was, whether such an officer ought to be created. It has been already stated, that the original scheme of the government did not provide for such an officer. By that scheme, the president was to be chosen by the national legislature. When afterwards an election by electors, chosen directly or indirectly by the people, was proposed by a select committee, the choice of a vice-president constituted a part of the proposition; and it was finally adopted by the vote of ten states against one.
§ 1445. The appointment of a vice-president was objected to, as unnecessary and dangerous. As president of the senate, he would be entrusted with a power to control the proceedings of that body; and as he must come from some one of the states, that state would have a double vote in the body. Besides, it was said, that if the president should die, or be removed, the vice-president might, by his influence, prevent the election of a president. But, at all events, he was a superfluous officer, having few duties to perform, and those might properly devolve upon some other established officer of the government.
§ 1446. The reasons in favour of the appointment were, in part, founded upon the same ground as the objections. It was seen, that a presiding officer must be chosen for the senate, where all the states were equally represented, and where an extreme jealousy might naturally be presumed to exist of the preponderating influence of any one state. If a member of the senate were appointed, either the state would be deprived of one vote, or would enjoy a double vote in case of an equality of votes, or there would be a tie, and no decision. Each of these alternatives was equally undesirable, and might lay the foundation of great practical inconveniences. An officer, therefore, chosen by the whole Union, would be a more suitable person to preside, and give a casting vote, since he would be more free, than any member of the senate, from local attachments, and local interests; and being the representative of the Union, would naturally be induced to consult the interests of all the states. Having only a casting vote, his influence could only operate exactly, when most beneficial; that is, to procure a decision. A still more important consideration is the necessity of providing some suitable person to perform the executive functions, when the president is unable to perform them, or is removed from office. Every reason, which recommends the mode of election of the president, prescribed by the constitution, with a view either to dignity, independence, or personal qualifications for office, applies with equal force to the appointment of his substitute. He is to perform the same duties, and to possess the same rights; and it seems, if not indispensable, at least peculiarly proper, that the choice of the person, who should succeed to the executive functions, should belong to the people at large, rather than to a select body chosen for another purpose. If (as was suggested) the president of the senate, chosen by that body, might have been designated, as the constitutional substitute; it is by no means certain, that he would either possess so high qualifications, or enjoy so much public confidence, or feel so much responsibility for his conduct, as a vice-president selected directly by and from the people. The president of the senate would generally be selected from other motives, and with reference to other qualifications, than what ordinarily belonged to the executive department. His political opinions, might be in marked contrast with those of a majority of the nation; and while he might possess a just influence in the senate, as a presiding officer, he might be deemed wholly unfit for the various duties of the chief executive magistrate. In addition to these considerations, there was no novelty in the appointment of such an officer for similar purposes in some of the state governments; and it therefore came recommended by experience, as a safe and useful arrangement, to guard the people against the inconveniences of an interregnum in the government, or a devolution of power upon an officer, who was not their choice, and might not possess their confidence.
Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.
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