Mr. President (15 page)

Although all five members of the Committee of Detail—Wilson, Rutledge, Randolph, Gorham, and Ellsworth—had previously expressed support for a strong executive, the office they outlined was tightly reined in. By contrast, they gave to Congress a very imposing array of new powers, many of which had been the province of the Crown when Americans had lived under the British constitution. In addition to the Senate’s authority to negotiate treaties and appoint ambassadors and judges, Congress could collect taxes, regulate commerce, coin money, borrow money, establish courts, negotiate controversies between states, make war, raise armies, build and equip fleets, call forth the militia, suppress insurrections, and “make all laws that shall be necessary and proper” to accomplish these and other tasks.

The new office of the president remained but a stepchild within this government in the making. The retreat from executive authority, so pronounced in the Revolutionary years, had slowed but not reversed. This did not satisfy Gouverneur Morris. He would not quit until the convention gave the president of the United States full and equal standing.

It rained in Philadelphia on Monday, August 6, the day delegates reconvened after their brief break. John Rutledge, as chairman of the Committee of Detail, read aloud its report. Then the session quickly adjourned, each man returning to his home or lodging with a printed copy to ponder. Confidentiality was a paramount concern, but the convention had trusted John Dunlap, who had published the first copies of the Declaration of Independence eleven years earlier, to print a very limited edition.
²

The brief document that went into committee on July 26 had tripled in length. It looked more like a constitution than an outline, a promising outcome. Due to the draft’s expansion, however, there was so much more to discuss, and because it appeared definitive, the stakes were higher yet. The next morning, August 7, delegates started to make their way methodically through the draft’s twenty-three articles. They adopted Article I, “The style of the Government shall be, ‘The United
States of America,’ ” and Article II, “The Government shall consist of supreme legislative, executive, and judicial power,” with neither discussion nor dissent. Those were the easy parts; the rest would take time. Over the next week, at the height of summer and through a muggy Philadelphia heat wave, the pace of debate intensified. There were more motions than ever before, more votes, more changes to specific clauses, phrases, and individual words.

Gouverneur Morris had much to say on many counts. In the four days following the committee report, he offered a dozen motions to alter the committee’s version; in the same time span, no other delegate presented more than four. He also used the occasion to bring up matters that had already been decided. On August 7, with George Read, he pushed once again for an absolute executive veto, but only Delaware, Read’s home state, supported this. Morris then tried to limit the national franchise to freeholders, but again, only the delegation from Delaware voted his way.

The following day, in an impassioned speech, Morris insisted that counting three-fifths of the enslaved population when apportioning representation was an absolutely terrible idea. From Madison’s notes: “He [Morris] never would concur in upholding domestic slavery. It was a nefarious institution—It was the curse of heaven on the States where it prevailed…. He would sooner submit himself to a tax for paying for all the Negroes in the U. States than saddle posterity with such a Constitution.” This time only New Jersey agreed. During the summer’s proceedings, no other member of the convention came out so forcibly against slavery.

On August 15, Gouverneur Morris repeated yet again his argument for an absolute veto. The resounding defeat of this idea eight days earlier, by a vote of nine states to one, fazed him not the least. Back on July 19, he had convinced the convention, at least momentarily, to reverse its decision on legislative appointment of the executive. Now he was trying to replicate that performance by promoting another twice-defeated idea. His central argument—“Encroachment of the popular branch of the Government ought to be guarded against”—was not new and won no additional converts, but recent developments were beginning to raise a new fear. Was the
upper
branch of the legislature also taking on too many powers? The Committee of Detail had granted the Senate treaty-making authority. Then, on August 8, upon Morris’s urging,
the clause prohibiting the Senate from initiating money bills had been withdrawn. This caused Hugh Williamson to comment bitterly, “We have now got a House of Lords which is to originate money-bills.” Who, then, could check both the lower house
and
the upper house simultaneously? The president, if he received the power to “negative” any bill.

Delegates had been through this discussion before and arrived at a compromise—an executive veto that could be cast aside by two-thirds of each branch of Congress—but that would not check a runaway legislature, Morris thought. This time, he tackled the veto issue from a slightly different angle. Knowing he didn’t have the votes, he suggested there might be “some more effectual check than requiring ⅔ only to overrule the negative of the executive.” Following Morris’s lead, Williamson proposed a new compromise: a three-fourths override instead of two-thirds. This higher hurdle would make the veto more powerful, but not absolute. Five states that had opposed Morris’s absolute veto the week before agreed now to make an override more difficult, and the motion passed six states to four, with one divided.

The vote on the three-fourths override followed no discernible pattern. Large states and small, southern states and northern, came down on both sides of the issue. With no special interests at stake, delegates were seriously considering the delicate balance of power in the distinct branches of government, and the executive, outdone in the Committee of Detail draft by the legislative, was on a slight upswing. The convention strengthened the president’s position not by granting him new powers per se but by increasing his ability to check Congress. The Committee of Detail’s draft had included a similar change: the president could check the judiciary by issuing pardons. While the president himself exercised few special powers, delegates were creating for him a meta-role of referee.

Two days later, on August 17, the jockeying for authority among the branches resumed. On the table was Congress’s power “to make war,” as stipulated in the Committee of Detail’s draft. Charles Pinckney thought “the House of Representatives would be too numerous for such deliberations.” It met “but once a year,” and “its proceedings were too slow.” So who should be empowered to make war? “The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions,” Pinckney said. Since
the Senate, through its authority to make treaties, already possessed the “power of peace,” it should have the “power of war” as well.

Pierce Butler, Pinckney’s colleague from South Carolina, countered that “the objections against the legislature lie in great degree against the Senate.” The president, on the other hand, would always be on the job. He could work quickly. He “will have all the requisite qualities, and will not make war but when the Nation will support it.” Butler was likely recalling the problems he faced as adjutant general for South Carolina in 1779, when his state struggled to mobilize against an imminent British invasion. Surely, a single leader at that point would have performed more efficiently than any deliberative body.

Butler’s proposal for vesting the president with the power to “make war” drew immediate and heated responses. Elbridge Gerry was shocked and dismayed. From Madison’s notes: “Mr.
GERRY
never expected to hear in a republic a motion to empower the Executive alone to declare war.” At the outset of the convention, Gerry admitted he had been “too republican heretofore,” but Butler’s retreat from republican values was going too far even for him. Only the people, through their representatives, could ever possess the power of war.

For Oliver Ellsworth, allowing one man to lead the nation into war made war too easy: “There is a material difference between the cases of making war and making peace. It should be more easy to get out of war, than into it. War also is a simple and overt declaration, peace attended with intricate & secret negociations.” George Mason followed up on this theme: “Mr.
MASON
was against giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace.”

No delegate supported Butler. Gouverneur Morris, whom we might expect to have at least commented on such an increase in presidential powers, remained uncharacteristically silent on this provocative suggestion. Like Alexander Hamilton, Butler had established an outer limit to acceptable discourse. Indeed, Hamilton himself, in the plan he offered two months earlier, had granted the executive only “the direction of war when authorized or begun.” Despite his own disclaimers on republicanism, Hamilton had ceded that only Congress could take the monumental and irreversible step of initiating a war.

Still, Butler did pose one valid question. How could the nation defend itself against an invasion while Congress was not in session?

Madison and Gerry offered a solution. Congress would be granted exclusive authority to “declare” war, not “make” war, thus “leaving to the Executive the power to repel sudden attacks.” Rufus King explained the differences in word connotations. To “make” war could be construed as to “conduct” war, and that was the province of the president, the commander in chief of the armed forces. To “declare” war, on the other hand, was to set the nation on a course of action that included the expenditure of blood and treasure, and nobody but the people’s direct representatives should be authorized to do that. Only one state, New Hampshire, opposed the change from “make” to “declare.” This decision, precise but not insignificant, confirmed the overarching sense of the convention. Although the president would be granted powers sufficient to make government function more efficiently, only Congress could set lasting policy.

The following day, a Saturday, delegates considered the possibility of an executive council, something akin to the Privy Council under the British system. Charles Pinckney observed that Gouverneur Morris “was not then on the floor,” and Morris was known to have decided views on the subject. We do not know why Morris was absent on August 18, but we do know that his peers readily agreed to let the issue ride until he returned. At no other time during the summer of 1787 did the convention suspend discussion because of the absence of a single member.

Morris returned to work on Monday, August 20, and presented a written plan for a council “to assist the President in conducting the public affairs.” The chief justice of the Supreme Court would be its president, and its members would include secretaries for domestic affairs, commerce and finance, foreign affairs, war, marine, and state. Other than the chief justice, these council members would hold their offices at the pleasure of the president, who could submit any matter for their consideration but would in no way be bound by their advice. The president, wrote Morris, “shall in all cases exercise his own judgment, and either conform to such opinions or not as he may think proper.”

Morris’s council, absent the chief justice, closely resembled the modern cabinet, but it differed markedly from the council envisioned by other delegates. For those who remained suspicious of a single executive, the purpose of an executive council was to diffuse power and prevent autocratic rule, and that could happen only if council members were independent of the president. Morris’s council, by contrast, was
predicated on the assumption that the president was boss in all matters. His idea was to centralize power, not disperse it. The showdown between these contradictory notions of an executive council did not take place at this time. Instead, the matter was sent to a new Committee of Eleven, one representative from each state delegation.
³

On August 23, with a three-pronged offensive, Morris continued to attack the authority of the legislative branch. First, he argued against the appointment of ambassadors and Supreme Court judges by the Senate. According to Madison’s notes, he “considered the body as too numerous for the purpose [and] as subject to cabal.” Morris did not say who
should
have the power of appointment, but it certainly wouldn’t be the House, more numerous yet. There could be only one other choice, the president, but Morris did not say that explicitly, nor did he offer a motion to transfer authority, for such a direct assault would have met with defeat by an assembly still nervous about the political liability of a too-powerful single executive. So, after planting the seeds of doubt, Morris allowed the matter to be “waived.”

Immediately, before any other proposition should come to the floor, Morris offered two motions of a seemingly technical nature. In the committee’s draft, Congress was empowered “to call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions.” Two phrases here—“execute” and “enforce treaties”—ran counter to his preference for a strong and independent president. These words should not appear within a delineation of legislative powers, he reasoned; the president, not Congress, was to “execute” and “enforce.” Morris prevailed easily in this tighter game, his motions passing with neither argument nor dissent.

After a feint and a pass on the power of appointments, and then distancing Congress from executing laws and enforcing treaties, Morris tackled a matter of great import: the treaty-making authority of the Senate, which would give it the lead in setting foreign policy. Again, though, his attack was indirect. Morris “did not know that he should agree” to empowering the Senate with treaty-making authority, but he let it stand “for the present” and agreed to revert the matter to committee. While he did not have sufficient support for a dramatic change of power, he did conjure a way to include the president in the process. He moved that “no treaty should be binding on the U.S. which is not ratified
by law,” and that meant the president would have to sign on, unless overridden by three-quarters of both the House and the Senate. This seemingly modest alteration appeared winnable, but it was not. Only Pennsylvania, home to both Morris and Wilson, favored the measure.