April 14, 2011 – Article II, Section 1, Clause 1 of the United States Constitution – Guest Essayist: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies
Article II, Section 1, Clause 1
1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
Under Article II Section 1, Clause 1 of the Constitution, the “executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected….” By establishing the then-radical concept of an elected Chief Executive with a fixed term, the Founding Fathers made a bold statement to the world that the newly-formed United States of America was rejecting outright any notion that it would tolerate a new American monarchy (and, with it, presumably an accompanying peerage of Lords made up of selected landed gentry).
Without question, time has proved that the concept of an elected chief executive with a fixed term has served the American people well. Yet, when this idea was first proposed, the citizens of a post-Revolutionary War America were skeptical. As a result, Alexander Hamilton was forced in Federalist No. 69 to sell the Founder’s vision to a wary public.
Hamilton began his essay by reiterating the point that one simply could not compare the position of President to the King of England, for if one did, “there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.” Indeed, explained Hamilton, while the President is “re-eligible [only] as often as the people of the United States shall think him worthy of their confidence,” the King of England was a “hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever.” (Emphasis in original.) As Hamilton so elegantly summarized the issue: “The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.”
But Hamilton did not stop there.
For example, Hamilton explained that while a President could be impeached, “there is no constitutional tribunal to which [the King] he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.”
Similarly, Hamilton pointed out that while a President can veto a piece of legislation, the Congress can nonetheless override this veto by two-thirds votes in both houses. In contrast, the King of England had “an absolute negative upon the acts of the two houses of Parliament.”
Moreover, while a President may “nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution”, Hamilton argued that there were no such constraints on the King. (Emphasis in original.) To the contrary, Hamilton forcefully argued that the King of England was
“emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king….”
And what about issues of foreign policy? Again, in Hamilton’s view, the powers of President and King stood in stark contrast.
Under the Constitution, while the President is the “commander in chief”, only Congress may formally declare war. On the other hand, Hamilton pointed out that the power of the British King went beyond commander-in chief and extended to “the declaring of war and to the raising and regulating of fleets and armies….” (Emphasis in original.)
Moreover, while the President has the power to make treaties only with the advice and consent of the Senate, Hamilton demonstrated that the King was “the sole and absolute representative of the nation in all foreign transactions” and could “of his own accord make treaties of peace, commerce, alliance, and of every other description.”
So, viewing Hamilton’s arguments with the benefit of over two hundred years of history, what can we learn about Article II Section 1, Clause 1 of the Constitution? In my view, the lesson is simple and obvious: no matter how much we may disagree with the policies of a particular President, there are (fortunately) significant Constitutional checks and balances to curtail potential abuses of his authority. Indeed, to paraphrase Hamilton, so long as the power of the government remains “in the hands of the elective and periodical servants of the people”, the United States is no danger of being characterized as “an aristocracy, a monarchy, and a despotism.”
Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC. He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia. The views expressed in this article do not represent the views of the Phoenix Center, its Adjunct Follows, or any if its individual Editorial Advisory Board Members.