The historian Jack N. Rakove has written, “The creation of the presidency was [the Framers’] most creative act.” That may be true, but it wasn’t their best work. The Framers were designing something the modern world had never seen—a republican chief executive who would owe his power to the people rather than to heredity or brute force.
The wonder is not that they got so much wrong, but that they got anything right at all.
According to James Madison’s Notes of Debates in the Federal Convention of 1787, the executive received surprisingly little attention at the Constitutional Convention in Philadelphia. Debate over the creation and workings of the new Congress was long and lively; the presidency, by contrast, was fashioned relatively quickly, after considerably less discussion.
One important reason for the delegates’ reticence was that George Washington, the most admired man in the world at that time, was the convention’s president.
Every delegate knew that Washington would, if he chose, be the first president of the new federal government—and that the new government itself would likely fail without Washington at the helm. To express too much fear of executive authority might have seemed disrespectful to the man for whom the office was being tailored.
Washington’s force of personality terrified almost all of his contemporaries, and although he said little as presiding officer, he was not always quiet. Once, when an unknown delegate left a copy of some proposed provisions lying around, Washington scolded the delegates like a headmaster reproving careless prep-schoolers, and then left the document on a table, saying, “Let him who owns it take it.” No one did.
Even when Washington remained silent, his presence shaped the debate. When, on June 1, James Wilson suggested that the executive power be lodged in a single person, no one spoke up in response. The silence went on until Benjamin Franklin finally suggested a debate; the debate itself proceeded awkwardly for a little while, and was then put off for another day.
Many of the conversations about presidential authority were similarly awkward, and tended to be indirect. Later interpreters have found the original debates on the presidency, in the words of former Supreme Court Justice Robert H. Jackson, “almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”
In the end, the Framers were artfully vague about the extent and limits of the president’s powers. Article I, Section 8 of the Constitution, which empowers Congress, runs 429 words; Article II, Section 2, the presidential equivalent, is about half as long. The powers assigned to the president alone are few: he can require Cabinet members to give him their opinions in writing; he can convene a special session of Congress “on extraordinary occasions,” and may set a date for adjournment if the two houses cannot agree on one; he receives ambassadors and is commander in chief of the armed forces; he has a veto on legislation (which Congress can override); and he has the power to pardon.
The president also shares two powers with the Senate—to make treaties, and to appoint federal judges and other “officers of the United States,” including Cabinet members. And, finally, the president has two specific duties—to give regular reports on the state of the union, and to “take care that the laws be faithfully executed.”
All in all, the text of Article II, while somewhat ambiguous—a flaw that would be quickly exploited—provided little warning that the office of president would become uniquely powerful.
Even at the convention, Madison mused that it “would rarely if ever happen that the executive constituted as ours is proposed to be would have firmness enough to resist the legislature.” In fact, when citizens considered the draft Constitution during the ratification debates in 1787 and 1788, many of their concerns centered on the possibility that the Senate would make the president its cat’s-paw. Few people foresaw the modern presidency, largely because the office as we know it today bears so little relation to that prescribed by the Constitution.
The modern presidency is primarily………..