Article 2: The President

We believe that the Founders ventured into terra nova more deeply in Article II than in any other part of the Constitution.

As we have written before, the Framers had considerable experience with legislatures, which had been a feature of government for centuries, and particularly in the governments of the original colonies.  The supremacy of the legislature had historical precedents and was already firmly entrenched in American political thinking. Likewise, they were heirs of the English common law and judiciary, and their chief innovation with regards to the judiciary was to make it an independent branch, rather than an extension of the executive (as under the British crown) or the legislature (as under most of the early state governments.) By contrast, the Framers found all the historical models for the executive unsatisfactory. Their distaste for monarchy was obvious and nearly universal. The stadtholder (steward) of the Dutch Republic had become a hereditary office, which they eschewed. The Swiss Confederation lacked an executive entirely, and the historical examples of elective monarchies were characterized by pervasive public corruption. Yet James Wilson argued that only a unitary executive would have the necessary “energy, dispatch, and responsibility” to remedy many of the ills of government under the Articles of Confederation. It was thus in the executive that the Founders were venturing furthest into unknown territory.

Let us first consider what the constitutional function of the President is. This is laid out succinctly in the very first clause of Article I:

The executive Power shall be vested in a President of the United States of America.

his oath of office, which is laid out in the Constitution itself (Article II, Section 1, Clause 9):

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

The President is responsible for executing the laws and policies set forth by Congress. Above all else, he is charged to do so in a manner that preserves the constitutional order. The remainder of Article II sets out the powers granted to the President to enable him to carry out his duties.

The title president was a carryover from the Continental Congress of 1774, which gave it to the officer elected to preside over sessions of Congress. Its etymology was Latin praesident, meaning literally  prae- “before” + sedere “to sit”, meaning, one who sits before a meeting to ensure that its proceedings take place according to the relevant rules of order. Nowadays we would call such an officer a chair, originally a nongendered contraction of chairman. Such an officer is normally a creature of the organization over whose meetings he presides.

The Framers had concluded by 1787 that such an officer was unsuited to hold the responsibility for executing the laws. He was too much at the mercy of the legislature. They sought to construct a new kind of executive office, not quite like anything that had gone before, but with its closest historical precedent perhaps in the consuls of the Roman Republic. The consuls were always two in number and were the chief magistrates of the Republic. They jointly held imperium, the power to command, over Rome and all its provinces, and when both were actually present in Rome, they alternated monthly in actually holding the fasces, the symbols of office. They were elected annually by the Centuriate Assembly, in which the entire body of citizens were organized into groups of one hundred by class (centuries) and each century cast a single vote determined by a majority of the century’s members.

The founders seriously considered establishing a triumvirate, a slightly different Roman institution, which were assigned special and specific duties. The triumvirs were special commissions of three chosen in different manners depending on their specific duties. Presumably the triumvirs would make all decisions based on a majority of two. However, the Framers (we think wisely) rejected this plan as too unwieldy, establishing instead the principle of the unitary executive, who had control of the entire executive branch. This avoided dilution of responsibility, though at the cost of concentrating considerable power into one person.

Let us digress momentarily, and make a wish list of attributes we would like to see in a President of the United States. For grammatical simplicity, we will speak of him as a man, but it is understood that we should and will someday have a woman as President:

• He should be a person of exception ability, energy, and initiative.
• He should be knowledgeable in the law, economics, diplomacy, military affairs, budgeting, statistics, and the basic sciences.
• He should have great depth and breadth of experience in leading and organizing the efforts of other capable persons in large and critical endeavors.
• He should be an excellent judge of character.
• He should himself be a person of character, with no taste nor tolerance for scandal nor any serious personal vices.
• His ambitions should be limited chiefly to being remembered by posterity as a faithful guardian of the constitutional order.
• He should be popular with the voting public, but no demagogue.
• He should have the basic humility that allows a man to listen carefully when told that he is wrong.
• He should have the kind of disposition that allows him to regard himself as the servant of the people and of Congress.
• He should be comfortable in the spotlight, but no seeker of publicity.

Of course, we would not expect to find such a paragon even if we diligently and objectively scrutinized the entire population. But, knowing that we will give equal offense to partisans of all stripes: We have not even come close for decades now.

The Framers chose to elect Presidents to terms of four years. This means a President can outlast a House of Representatives,but not a Senate. He is theoretically chosen by electors, who meet in their individual states (presumably, by original intent, to confer and deliberate together) and then send their votes to Congress. There is reason to believe the Framers expected the electors to be split a majority of the time, so that most presidential elections would be decided by the House of Representatives based on three nominees (the three persons receiving the most electoral votes). That is not, of course, how it has actually worked out. The states have, by and large, bound their electors under penalty of law to vote for whoever the majority of their citizens vote for president. It is an all but direct election, mostly aggregated by state and skewed somewhat to favor small, rural states. This has favored the rise of popular but incompetent candidates; in a word, demagogues.

The office itself has mutated beyond anything envisioned by the majority of the Framers. Congress has ceded much of its legislative power to the President, and the courts have permitted it. The President has become important as the elector of what are arguably our real rulers on the most contentious issues — the Supreme Court. Presidents have been free in exercising their command of the military (we acknowledge sometimes with credible reasons) and in setting their own foreign policy. We have an imperial President who is more like a god-king than a chief magistrate.

Our textual analysis of Article II will revisit many of these points.