By ConSource Staff
After the Connecticut Compromise was agreed upon, the Convention shifted focus from the legislature to the executive and judicial branches. On July 17, the Convention discussed the structure and election of the executive branch of government. The delegates agreed that the national executive should consist of one person, without vote or further discussion.
The debate then turned to whether the executive would be elected directly by the people, or would be chosen by the legislature. Mr. Morris argued that election by the legislature gave the national legislature too much power, and the president ought to be elected by the people at large. Mr. Sherman disagreed, maintaining that the “sense of the nation would be better expressed by the Legislature, than by the people at large.” Mr. Pinckney argued that the legislature would choose the best executive, because they would want to see that the laws they passed would be properly executed. The Convention voted down the proposal to have the executive elected by the people rather than the legislatures, with only the Pennsylvania delegation supporting the motion.
Mr. Martin then moved that the executive be chosen by “Electors appointed by the several Legislatures of the individual states.” This was voted down, 8-2, but would resurface in later debates. The following motion, for the executive “to be chosen by the National Legislature,” passed unanimously. Lastly, the Convention debated the length of the term of the presidency, and whether the president would be eligible for re-election. Madison argued that it was,
essential to the preservation of liberty that the Legislative, Executive, and Judiciary powers be separate…The Executive could not be independent of the Legislature if dependent on the pleasure of that branch for a re-appointment…a dependence of the Executive on the Legislature, would render [the Legislature] the Executor as well as the maker of laws, & then according to the observation of Montesquieu, tyrannical laws may be made.
For this reason, Madison did not wish the executive to be eligible for a second term, where he would be subject to re-appointment by the legislature. These issues, could not be agreed upon, and were postponed for further discussion.
On July 18, the delegations unanimously agreed to allow for an executive veto, which could be overridden by a two-thirds majority vote in the legislature, without a vote or further debate. The Convention also voted to postpone discussion of the eligibility of the executive to serve multiple terms.
On July 19, Mr. Randolph made the compelling point that if the president were subject to re-election by the legislature, he would have no check on the legislature, and would not use the veto power out of fear that the legislature would vote him out of office at the end of his term. Mr. Wilson argued that if the president were to be eligible for multiple terms, he cannot be appointed by the Legislature. Wilson “perceived with pleasure” the sense that indirect election by the people was gaining ground, an idea that he had been espousing throughout the Convention.[i] Mr. Ellsworth moved that the Executive should be appointed by electors, which passed 6-3-1, and that the electors should be chosen by the State legislatures, which also passed 8-2.
The debate then returned to whether the executive would be eligible for a second term. Mr. Martin and Mr. Williamson argued that the executive should not be allowed to serve more than one term because the electors would be liable to undue influence. The Convention subsequently voted 8-2, to allow the executive to be eligible for multiple terms. This was likely due in large part to the independence from the legislature created by the indirect election of the executive.
On July 20, the debate turned to whether the executive should “be removable on impeachment and conviction for malpractice or neglect of duty.” Mr. Pinckney and Mr. Morris moved to strike the impeachment provision from the resolution, arguing that the executive should not be subject to impeachment while in office. Mr. Wilson contended that the impeachment provision was a necessity to ensure the good behavior of the executive. Dr. Franklin agreed, saying he favored the impeachment provision because he saw it as the best way to prevent the recourse of assassination attempts against an executive who has committed serious misconduct. Mr. Randolph believed the provision was essential because the executive would have great opportunities to abuse his power, and there must be some possibility for punishment in the event he does so. The Convention voted to include the provision that the executive shall be removable by impeachment, by a vote of 8-2, with only Massachusetts and South Carolina against.
Despite these days of negotiation and compromise, the Convention backtracked and, on July 24, moved to reconsider the previous vote to have the executive chosen by electors. Mr. Williamson proposed, “going back to the original ground; to elect the Executive for 7 years and render him ineligible a 2nd term.” He believed that ineligibility for a second term was the best way to prevent an executive from attempting to become a King. On the question for reinstating the election of the executive by national legislature, the Convention voted to approve it 7-4.
Some delegates who preferred that the executive be limited to one term proposed a longer term. Mr. King even suggested that a term as long as 20 years would be agreeable. Recognizing the varied opinions and unlikelihood of persuasion in the whole Convention, the delegates decided to appoint a Detail Committee consisting of five members to draft a revised version of the current resolutions. The Detail Committee was made up of Mr. Rutledge, Mr. Randolph, Mr. Gorham, Mr. Ellsworth, and Mr. Wilson. Each member of the committee was a lawyer and was familiar with drafting legal documents, and utilized this experience in preparing a draft of the Constitution.[ii]
On July 26, the Convention continued the discussion on the election of the executive, and approved a motion for a seven-year term with no re-election, by a vote of 7-3-1. The entire resolution on the executive, as amended, read,
that a National Executive be instituted – to consist of a single person - to be chosen by the National Legislature – for the term of seven years – to be ineligible a 2nd time – with power to carry into execution the national laws – to appoint to offices in cases not otherwise provided for – to be removable on impeachment & conviction of malpractice or neglect of duty – to receive a fixed compensation for the devotion of his time to the public service, to be paid out of the National Treasury.
The Convention passed this resolution in the affirmative, by a vote of 6-3-1. The Convention then unanimously voted to adjourn until Monday, August 6, so that the Detail Committee might have time to prepare a report and draft of the Constitution. With the varied opinions over term length and eligibility for re-election, it would be over a month before the Convention agreed on the four-year renewable term of our Presidency.
[i] William Ewald, James Wilson and the Drafting of the Constitution, 10:5 U. Pa. J. Const. L. 901, 949 (2008), available at https://www.law.upenn.edu/cf/faculty/wewald/workingpapers/10UPaJConstL901(2008).pdf.
[ii] John R. Vile, The Critical Role of Committees at the U.S. Constitutional Convention of 1787, 48 Am. J. Legal Hist. 147, 163-4 (2006).