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Contemporaneous Counter-Arguments to the Unitary Executive

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After Independence

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The Pennsylvania Constitution of 1776 provides for a Supreme Executive Council.

Resistance to the unitary executive proposed in Federalist No. 70 began well before the emergence of the Anti-Federalist Papers. After the Declaration of Independence in 1776, eleven of the thirteen states established constitutions to replace their charter governments.[1] In a reaction to colonial rule, most of these constitutions were primarily concerned with a declaration of rights and weakening executive power.[2] With the exception of New York, all of these states formed executive councils appointed by their respective legislatures.[3]

Virginia's Constitution of 1776 provided for an executive and an eight-member privy council elected by ballot in the bicameral legislature.[4] It mandated that the privy council be involved in nearly all executive decisions:

Let a Privy Council, or Council of State, consisting of eight members, be chosen by joint ballot of both Houses of Assembly, promiscuously from their members, or the people at large, to assist in the administration of government. Let the Governour be President of this Council…[5]

Pennsylvania’s 1776 Constitution, which lasted until 1790, provided for a Supreme Executive Council consisting of twelve members chosen by popular ballot.[6] The council and the unicameral legislature would elect a president from the members of the council, but the president would hold little authority over the council even in regards to military power.[7] Regarded today as one of the most democratic constitutions, it was largely followed recommendations from political philosopher Thomas Paine for a simple government.[8]

Constitutional Convention

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During the Constitutional Convention in 1787, several delegates opposed the unitary executive first recommended by James Wilson.[9][10][11] Both Charles Pinckney of South Carolina and Gouverneur Morris had suggested advisory councils that would serve as a support rather than a check on the executive.[12] But upon an invitation to dissent from Benjamin Franklin, who served as President of Pennsylvania's executive council, Roger Sherman of Connecticut stated his preference for the executive to be appointed by and directly accountable to the legislature, regardless of whether it was to be unitary or plural.[13][14] Before the vote to approve the unitary executive, Sherman also commented that advisory councils in the majority of the states and even in Great Britain served to make the executive acceptable to the people.[15]

Edmund Randolph, who had presented the Virginia Plan, was the most outspoken opponent of the unitary executive, arguing that it would be unpopular with the people and could easily become monarchical. [16][17]. He warned against using the British government as a model for the Constitution, noting that energy, dispatch, and responsibility could be found in three men drawn from three different regions of the country just as well as in one.[18][19]. The single executive was nonetheless approved by a vote of 7 to 3.[20]

Later in the Convention, Hugh Williamson of North Carolina stated his preference for Randolph's suggestion that executive power to be shared between three men representing three regions into which the states would be divided.[21] He argued that this triumvirate would be the best way to assure that neither the Northern nor the Southern states’ interests be sacrificed at the expense of the others’.[22]

The Anti-Federalist Papers and Rejection of the Constitution

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George Mason, considered one of the Founding Fathers, recommended a privy council for the executive branch.

While most of the Anti-Federalists’ arguments did not concern the presidency, some Anti-Federalist publications did directly contest Hamilton’s position in Federalist 70 for unity in the executive branch.[23][24] In response to the exclusion of an executive council in the Constitution, Mason published his “Objections to the Constitution” on November 22, 1787 in the Virginia Journal.[25] In this manuscript, originally written on the back of an early draft of the Constitution, Mason warned that the lack of a council would make for an unadvised president, who would act within the interests of friends, rather than the people at large:

“The President of the United States has no Constitutional Council, a thing unknown in any safe and regular government. He will therefore be unsupported by proper information and advice, and will generally be directed by minions and favorites...”[26]

Richard Henry Lee, another prominent Anti-Federalist, exchanged letters with Mason, in which he too expressed concern about the unitary executive, supporting the constitutional addition of a privy council.[27][28] In Anti-Federalist No. 74, titled “The President as a Military King,” Philadelphiensis (likely, Benjamin Workman) wrote primarily against the president’s military powers, but added that the lack of a constitutional executive council would add to the danger of a powerful presidency:

“And to complete his uncontrolled sway, [the President] is neither restrained nor assisted by a privy council, which is a novelty in government. I challenge the politicians of the whole continent to find in any period of history a monarch more absolute. . . .”[29]

On December 18, 1787, after the Convention of Pennsylvania, which ultimately ratified the Constitution, the minority published its reasons for dissent to its constituents.[30] In this address, written most likely by Samuel Bryan and signed by twenty-one members of the minority, the lack of an executive council is enumerated as one of fourteen reasons for dissent:

12. That the legislative, executive, and judicial powers be kept separate; and to this end that a constitutional council be appointed, to advise and assist the president, who shall be responsible for the advice they give, hereby the senators would be relieved from almost constant attendance; and also that the judges be made completely independent.[31]

Though he was in England at the time of the Anti-Federalist Papers, Thomas Paine, whose pamphlet Common Sense served as motivation for independence from British rule during the American Revolution, also opposed the unitary executive.[32] While this position was already evidenced from his role as Clerk to the Pennsylvania Assembly during the writing of Pennsylvania’s 1776 Constitution,[33] he clearly stated it in a letter to George Washington in 1796.[34] In this letter, Paine recommended a plural executive on the grounds that a unitary executive would necessarily become head of a party and that a republic should not debase itself by obeying an individual.[35]

References

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  1. ^ Blunt, Barrie E. "Executive Constraints in State Constitutions under the Articles of Confederation." Public Administration Quarterly 13.4 (1990): 451-69. Print.
  2. ^ Williams, Roger F. "Evolving State Legislature and Executive Power in the Founding Decade." Annals of the American Academy of Political and Social Science 498 (1988): 43-53. Print.
  3. ^ Blunt, Barrie E. "Executive Constraints in State Constitutions under the Articles of Confederation." Public Administration Quarterly 13.4 (1990): 451-69. Print.
  4. ^ Blunt, Barrie E. "Executive Constraints in State Constitutions under the Articles of Confederation." Public Administration Quarterly 13.4 (1990): 451-69. Print.
  5. ^ Blunt, Barrie E. "Executive Constraints in State Constitutions under the Articles of Confederation." Public Administration Quarterly 13.4 (1990): 451-69. Print.
  6. ^ Blunt, Barrie E. "Executive Constraints in State Constitutions under the Articles of Confederation." Public Administration Quarterly 13.4 (1990): 451-69. Print.
  7. ^ Blunt, Barrie E. "Executive Constraints in State Constitutions under the Articles of Confederation." Public Administration Quarterly 13.4 (1990): 451-69. Print.
  8. ^ Williams, Roger F. "Evolving State Legislature and Executive Power in the Founding Decade." Annals of the American Academy of Political and Social Science 498 (1988): 43-53. Print.
  9. ^ Hoxie, R. Gordon. "The Presidency in the Constitutional Convention." Presidential Studies Quarterly 15.1 (1985): 25-32. Print.
  10. ^ Beeman, Richard R. Plain, Honest Men: The Making of the American Constitution. New York: Random, 2009. Print.
  11. ^ Padover, Saul Kussiel. To Secure These Blessings; the Great Debates of the Constitutional Convention of 1787. New York: Kraus Reprint, 1970. Print. p. 327-331
  12. ^ Hoxie, R. Gordon. "The Presidency in the Constitutional Convention." Presidential Studies Quarterly 15.1 (1985): 25-32. Print.
  13. ^ Beeman, Richard R. Plain, Honest Men: The Making of the American Constitution. New York: Random, 2009. Print.
  14. ^ Padover, Saul Kussiel. To Secure These Blessings; the Great Debates of the Constitutional Convention of 1787. New York: Kraus Reprint, 1970. Print. p. 327-331
  15. ^ Padover, Saul Kussiel. To Secure These Blessings; the Great Debates of the Constitutional Convention of 1787. New York: Kraus Reprint, 1970. Print. p. 327-331
  16. ^ Beeman, Richard R. Plain, Honest Men: The Making of the American Constitution. New York: Random, 2009. Print.
  17. ^ Padover, Saul Kussiel. To Secure These Blessings; the Great Debates of the Constitutional Convention of 1787. New York: Kraus Reprint, 1970. Print. p. 327-331
  18. ^ Beeman, Richard R. Plain, Honest Men: The Making of the American Constitution. New York: Random, 2009. Print.
  19. ^ Padover, Saul Kussiel. To Secure These Blessings; the Great Debates of the Constitutional Convention of 1787. New York: Kraus Reprint, 1970. Print. p. 327-331
  20. ^ Padover, Saul Kussiel. To Secure These Blessings; the Great Debates of the Constitutional Convention of 1787. New York: Kraus Reprint, 1970. Print. p. 327-331
  21. ^ Beeman, Richard R. Plain, Honest Men: The Making of the American Constitution. New York: Random, 2009. Print.
  22. ^ Beeman, Richard R. Plain, Honest Men: The Making of the American Constitution. New York: Random, 2009. Print.
  23. ^ Wrably, Raymond B., Jr. "Anti-Federalism and the Presidency." Presidential Studies Quarterly 21.3 (1990): 459-70. Print.
  24. ^ Richards, Michael P. "The Presidency and the Ratification Controversy." Presidential Studies Quarterly 7.1 (1977): 37-46
  25. ^ Mason, George. "Objections to the Constitution of Government formed by the Convention." The Essential Antifederalist. By W. B. Allen, Gordon Lloyd, and Margie Lloyd. Lanham: UP of America, 1985. 12. Print.
  26. ^ Mason, George. "Objections to the Constitution of Government formed by the Convention." The Essential Antifederalist. By W. B. Allen, Gordon Lloyd, and Margie Lloyd. Lanham: UP of America, 1985. 12. Print.
  27. ^ Lee, Richard Henry. The Essential Antifederalist. By W. B. Allen, Gordon Lloyd, and Margie Lloyd. Lanham: UP of America, 1985. 12. Print.
  28. ^ Wrably, Raymond B., Jr. "Anti-Federalism and the Presidency." Presidential Studies Quarterly 21.3 (1990): 459-70. Print.
  29. ^ Philadelphiensis. "The President as Military King." The Complete Federalist and Anti-Federalist Papers. By Alexander Hamilton, John Jay, and James Madison. New York: Classic Books America, 2009. 704. Print.
  30. ^ "The Address and Reasons for Dissent of the Minority of the Convention of Pennsylvania." The Essential Antifederalist. By W. B. Allen, Gordon Lloyd, and Margie Lloyd. Lanham: UP of America, 1985. 12. Print.
  31. ^ "The Address and Reasons for Dissent of the Minority of the Convention of Pennsylvania." The Essential Antifederalist. By W. B. Allen, Gordon Lloyd, and Margie Lloyd. Lanham: UP of America, 1985. 12. Print.
  32. ^ Merriam, C. E., Jr. "Thomas Paine's Political Theories." Political Science Quarterly 14.3 (1899): 389-403. Print.
  33. ^ Tietjen, Gregory. Introduction. Common Sense. By Thomas Paine. N.p.: Fall River, 2013. vii-xxxi. Print.
  34. ^ Merriam, C. E., Jr. "Thomas Paine's Political Theories." Political Science Quarterly 14.3 (1899): 389-403. Print.
  35. ^ Merriam, C. E., Jr. "Thomas Paine's Political Theories." Political Science Quarterly 14.3 (1899): 389-403. Print.
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