I
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 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
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.
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 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 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 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 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
preëminently 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 Presidency as being preëminently 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 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 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
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 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 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 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 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.