In dealing with “The Independence of the Executive,” I shall refer first of all to the conditions in which the Presidency of the United States had its origin, and shall afterward relate an incident within my own experience involving the preservation and vindication of an independent function of this high office.
When our original thirteen States, actuated by “a decent respect for the opinions of mankind,” presented to the world the causes which impelled them to separate from the mother country and to cast off all allegiance to the Crown of England, they gave prominence to the declaration that “the history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny 4 over these States.” This was followed by an indictment containing not less than eighteen counts or accusations, all leveled at the King and the King alone. These were closed or clenched by this asseveration: “A Prince whose character is thus marked by every act which may define a tyrant is unfit to be the ruler of a free people.” In this arraignment the English Parliament was barely mentioned, and then only as “others,” with whom the King had conspired by “giving his assent to their act of pretended legislation,” and thus giving operative force to some of the outrages which had been put upon the colonies.
It is thus apparent that in the indictment presented by the thirteen colonies they charged the King, who in this connection may properly be considered as the Chief Executive of Great Britain, with the crimes and offenses which were their justification for the following solemn and impressive decree:
We, therefore, the Representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the World for the rectitude of our intentions, do, in the name and by the authority of the good People of these Colonies, solemnly publish and declare that these United Colonies are, and of right ought to be, free and independent 5 States; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved; and that as free and independent States they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.
To this irrevocable predicament had the thirteen States or colonies been brought by their resistance to the oppressive exercise of executive power.
In these circumstances it should not surprise us to find that when, on the footing of the Declaration of Independence, the first scheme of government was adopted for the revolted States, it contained no provision for an executive officer to whom should be intrusted administrative power and duty. Those who had suffered and rebelled on account of the tyranny of an English King were evidently chary of subjecting themselves to the chance of a repetition of their woes through an abuse of the power that might necessarily devolve upon an American President. 6
Thus, under the Articles of Confederation, “The United States of America,” without an executive head as we understand the term, came to the light; and in its charter of existence it was declared that “the articles of this Confederation shall be inviolably observed by every State, and the union shall be perpetual.”
Let us not harbor too low an opinion of the Confederation. Under its guidance and direction the war of the Revolution was fought to a successful result, and the people of the States which were parties to it became in fact free and independent. But the Articles of Confederation lacked the power to enforce the decree they contained of inviolable observance by every State; and the union, which under their sanction was to be permanent and lasting, early developed symptoms of inevitable decay.
It thus happened that within ten years after the date of the Articles of Confederation their deficiencies had become so manifest that representatives of the people were again assembled in convention to consider the situation and to devise a plan of government that would form “a more perfect union” in place of the crumbling structure which had so lately been proclaimed as perpetual.
The pressing necessity for such action cannot 7 be more forcibly portrayed than was done by Mr. Madison when, in a letter written a short time before the convention, he declared:
Our situation is becoming every day more and more critical. No money comes into the Federal treasury; no respect is paid to the Federal authority; and people of reflection unanimously agree that the existing Confederacy is tottering to its foundation. Many individuals of weight, particularly in the Eastern district, are suspected of leaning towards monarchy. Other individuals predict a partition of the States into two or more confederacies.
It was at this time universally conceded that if success was to follow the experiment of popular government among the new States, the creation of an Executive branch invested with power and responsibility would be an absolutely essential factor. Madison, in referring to the prospective work of the convention, said:
A national executive will also be necessary. I have scarcely ventured to form my own opinion yet, either of the manner in which it ought to be constituted, or of the authorities with which it ought to be clothed.
We know that every plan of government proposed or presented to the convention embodied in some form as a prominent feature 8 the establishment of an effective Executive; and I think it can be safely said that no subject was submitted which proved more perplexing and troublesome. We ought not to consider this as unnatural. Many members of the convention, while obliged to confess that the fears and prejudices that refused executive power to the Confederacy had led to the most unfortunate results, were still confronted with a remnant of those fears and prejudices, and were not yet altogether free from the suspicion that the specter of monarchy might be concealed behind every suggestion of executive force. Others less timid were nevertheless tremendously embarrassed by a lack of definite and clear conviction as to the manner of creating the new office and fixing its limitations. Still another difficulty, which seems to have been all-pervading and chronic in the convention, and which obstinately fastened itself to the discussion of the subject, was the jealousy and suspicion existing between the large and small States. I am afraid, also, that an unwillingness to trust too much to the people had its influence in preventing an easy solution of the executive problem. The first proposal made in the convention that the President should be elected by the people was accompanied by an apologetic 9 statement by the member making the suggestion that he was almost unwilling to declare the mode of selection he preferred, “being apprehensive that it might appear chimerical.” Another favored the idea of popular election, but thought it “impracticable”; another was not clear that the people ought to act directly even in the choice of electors, being, as alleged, “too little informed of personal characters in large districts, and liable to deception”; and again, it was declared that “it would be as unnatural to refer the choice of a proper character for Chief Magistrate to the people as it would to refer a trial of colors to a blind man.”
A plan was first adopted by the convention which provided for the selection of the President by the Congress, or, as it was then called, by the National Legislature. Various other plans were proposed, but only to be summarily rejected in favor of that which the convention had apparently irrevocably decided upon. There were, however, among the members, some who, notwithstanding the action taken, lost no opportunity to advocate, with energy and sound reasons, the substitution of a mode of electing the President more in keeping with the character of the office and the genius of a popular government. This fortunate persistence 10 resulted in the reopening of the subject and its reference, very late in the sessions of the convention, to a committee who reported in favor of a procedure for the choice of the Executive substantially identical with that now in force; and this was adopted by the convention almost unanimously.
This imperfect review of the incidents that led up to the establishment of the office of President, and its rescue from dangers which surrounded its beginning, if not otherwise useful, ought certainly to suggest congratulatory and grateful reflections. The proposition that the selection of a President should rest entirely with the Congress, which came so near adoption, must, I think, appear to us as something absolutely startling; and we may well be surprised that it was ever favorably considered by the convention.
In the scheme of our national Government the Presidency is pre?minently the people’s office. Of course, all offices created by the Constitution, and all governmental agencies existing under its sanction, must be recognized, in a sense, as the offices and agencies of the people—considered either as an aggregation constituting the national body politic, or some of its divisions. When, however, I now speak of the 11 Presidency as being pre?minently the people’s office, I mean that it is especially the office related to the people as individuals, in no general, local, or other combination, but standing on the firm footing of manhood and American citizenship. The Congress may enact laws; but they are inert and vain without executive impulse. The Federal courts adjudicate upon the rights of the citizen when their aid is invoked. But under the constitutional mandate that the President “shall take care that the laws be faithfully executed,” every citizen, in the day or in the night, at home or abroad, is constantly within the protection and restraint of the Executive power—none so lowly as to be beneath its scrupulous care, and none so great and powerful as to be beyond its restraining force.
In view of this constant touch and the relationship thus existing between the citizen and the Executive, it would seem that these considerations alone supplied sufficient reason why his selection should rest upon the direct and independent expression of the people’s choice. This reason is reinforced by the fact that inasmuch as Senators are elected by the State legislatures, Representatives in Congress by the votes of districts or States, and judges are appointed by the President, it is only in the selection 12 of the President that the body of the American people can by any possibility act together and directly in the equipment of their national Government. Without at least this much of participation in that equipment, we could hardly expect that a ruinous discontent and revolt could be long suppressed among a people who had been promised a popular and representative government.
I do not mean to be understood as conceding that the selection of a President through electors chosen by the people of the several States, according to our present plan, perfectly meets the case as I have stated it. On the contrary, it has always seemed to me that this plan is weakened by an unfortunate infirmity. Though the people in each State are permitted to vote directly for electors, who shall give voice to the popular preference of the State in the choice of President, the voters throughout the nation may be so distributed, and the majorities given for electors in the different States may be such, that a minority of all the voters in the land can determine, and in some cases actually have determined, who the President should be. I believe a way should be devised to prevent such a result.
It seems almost ungracious, however, to find 13 fault with our present method of electing a President when we recall the alternative from which we escaped, through the final action of the convention which framed the Constitution.
It is nevertheless a curious fact that the plan at first adopted, vesting in Congress the presidential election, was utterly inconsistent with the opinion of those most prominent in the convention, as well as of all thoughtful and patriotic Americans who watched for a happy result from its deliberations, that the corner-stone of the new Government should be a distinct division of powers and functions among the Legislative, Executive, and Judicial branches, with the independence of each amply secured. Whatever may have been the real reasons for giving the choice of the President to Congress, I am sure those which were announced in the convention do not satisfy us in this day and generation that such an arrangement would have secured either the separateness or independence of the Executive department. I am glad to believe this to be so palpable as to make it unnecessary for me to suggest other objections, which might subject me to the suspicion of questioning the wisdom or invariably safe motives of Congress in this relation. It is much more agreeable to acknowledge gratefully that a 14 danger was avoided, and a method finally adopted for the selection of the Executive head of the Government which was undoubtedly the best within the reach of the convention.
The Constitution formed by this convention has been justly extolled by informed and liberty-loving men throughout the world. The statesman who, above all his contemporaries of the past century, was best able to pass judgment on its merits formulated an unchallenged verdict when he declared that “the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man.”
We dwell with becoming pride upon the intellectual greatness of the men who composed the convention which created this Constitution. They were indeed great; but the happy result of their labor would not have been saved to us and to humanity if to intellectual greatness there had not been added patriotism, patience, and, last but by no means least, forbearing tact. To these traits are we especially indebted for the creation of an Executive department, limited against every possible danger of usurpation or tyranny, but, at the same time, strong and independent within its limitations.
The Constitution declares: “The executive 15 power shall be vested in a President of the United States of America,” and this is followed by a recital of the specific and distinctly declared duties with which he is charged, and the powers with which he is invested. The members of the convention were not willing, however, that the executive power which they had vested in the President should be cramped and embarrassed by any implication that a specific statement of certain granted powers and duties excluded all other executive functions; nor were they apparently willing that the claim of such exclusion should have countenance in the strict meaning which might be given to the words “executive power.” Therefore we find that the Constitution supplements a recital of the specific powers and duties of the President with this impressive and conclusive additional requirement: “He shall take care that the laws be faithfully executed.” This I conceive to be equivalent to a grant of all the power necessary to the performance of his duty in the faithful execution of the laws.
The form of Constitution first proposed to the convention provided that the President elect, before entering upon the duties of his office, should take an oath, simply declaring: “I will faithfully execute the office of President of the 16 United States.” To this brief and very general obligation there were added by the convention the following words: “and will to the best of my judgment and power preserve, protect, and defend the Constitution of the United States.” Finally, the “Committee on Style,” appointed by the convention, apparently to arrange the order of the provisions agreed upon, and to suggest the language in which they would be best expressed, reported in favor of an oath in these terms: “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”; and this form was adopted by the convention without discussion, and continues to this day as the form of obligation which binds the conscience of every incumbent of our Chief Magistracy.
It is therefore apparent that as the Constitution, in addition to its specification of especial duties and powers devolving upon the President, provides that “he shall take care that the laws be faithfully executed,” and as this was evidently intended as a general devolution of power and imposition of obligation in respect to any condition that might arise relating to the execution of the laws, so it is likewise apparent 17 that the convention was not content to rest the sworn obligation of the President solely upon his covenant to “faithfully execute the office of President of the United States,” but added thereto the mandate that he should preserve, protect, and defend the Constitution, to the best of his judgment and power, or, as it was afterward expressed, to the best of his ability. Thus is our President solemnly required not only to exercise every power attached to his office, to the end that the laws may be faithfully executed, and not only to render obedience to the demands of the fundamental law and executive duty, but to exert all his official strength and authority for the preservation, protection, and defense of the Constitution.
I have thus far presented considerations which while they have to do with my topic are only preliminary to its more especial and distinct discussion. In furtherance of this discussion it now becomes necessary to quote from the Constitution the following clause found among its specification of presidential duty and authority:
And he shall nominate, and by and with the advice of the Senate shall appoint ambassadors, other public ministers and consuls, judges of the Supreme 18 Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law.
This clause was the subject of a prolonged and thorough debate in Congress which occurred in the year 1789 and during the first session of that body assembled under the new Constitution.