This September, Colonial Williamsburg will allow complimentary access to their Gift to a Nation electronic field trip series “The Will of the People.” Gearing up for the presidential election this November, “The Will of the People” examines the election of 1800.  The election of 1800 was a bitter campaign between John Adams and Thomas Jefferson for the role of president.  Students can learn more about the election from Jefferson and how negative campaigning and partisan politics played a role in the contest.  The electronic field trip series will help students learn more about Founding Principles and citizenship through videos, interactive games, lesson plans, and downloadable resources.

We would love to hear how the Colonial Williamsburg electronic field trip series goes in your classroom.  Let us know by leaving your comments below. 

If you are looking for additional resources on electing a president see the Bill of Rights Institute’s video called Election: Presidents and the Constitution.  You can also find lesson plans, activities, and other resources on the election of 1800 and other contested elections in our books Presidents and the Constitution, Volume I and II.

It has become evident to the delegates that they cannot make the decisions about the executive independent of a conversation that discusses the executive’s election, term, powers, and removal in a holistic way. Thus the Brearly Committee is tasked with such a conversation. The result – Article II of the Constitution. Read on for some of the key points that were discussed. Can you spot the things that have changed since the original conversation and can you think of instances when some of the checks & balances set up in this Article have been applied?

How shall the executive be elected and for how long?

Alexander Hamilton was worried the executive would be “a Monster elected for seven years, and ineligible afterwards; having great powers, in appointments to office, & continually tempted by this constitutional disqualification to abuse them in order to subvert the Government.” Thus he saw none better than to let the highest number of ballots, whether a majority or not, appoint the President. Thus it was agreed that “In every case after the choice of the President, the person having the greatest number of votes shall be vice-president: but if there should remain two or more who have equal votes, the Senate shall choose from them the vice-president.”

James Wilson reminds the delegates they did not want an aristocracy so they did not want the Senate to elect the president. Concurrently, Edmund Randolph stated “We have in some revolutions of this plan made a bold stroke for monarchy. We are now doing the same for an aristocracy.” Thus it was decided that “Each state shall appoint in such a manner as its Legislature shall direct, a number of electors equal to the whole number of Senators and members of the House of Representatives, to which the State may be entitled in the Legislature.”

Later it was agreed that the “Senate shall choose the Vice-President in the event of a tie for the Vice-Presidency.”

What shall be the powers of the Executive Office?

Much of the discussion regarding the powers of the executive office was related to separation of powers between the Legislative Branch and the Executive Branch. It had been proposed the Vice President act as the President of the Senate. George Mason stated that he believed that if the vice president was President of the Senate than the powers were not really divided.

On nominations – Rufus King was worried that “the people [would] be alarmed at an unnecessary creation of new Corps which must increase the [expense] as well as influence of the Government.”

Both men were overruled. The committee agreed that allowing the Vice President to serve as President of the Senate was a check on the Legislative Branch. And requiring a 2/3 consenting vote from the Legislative Branch would check the Executive Branch on treaties and nominations.

What is the process for removal from office?

The delegates were in agreement that they need to create a process for removal of the executive if they were to commit “high crimes [and misdemeanors against] the State”. Barring a resignation, they agreed there should be a trial. They were not however in agreement of who should proceed over the trial. James Madison believed that a trial by the Senate would make the executive “improperly dependant” on them in day to day business. He preferred that the Supreme Court hold the trial.

Gouverneur Morris disagreed because he thought that the Supreme Court was too few in number and might be subject to corruption and others added that they had already given the executive the power to appoint the judges.

After discussion, it was decided that the House of Representatives would be responsible to request impeachment and that the Senate would hold the trial.

For more resources on how to teach about Article II and the Executive Branch – check out our website: http://www.articleii.org/

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

The Convention adjourned from July 26^th to August 6^th to allow the Committee of Detail – composed of John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania – to prepare a rough draft of a constitution, based on the series of resolutions the delegates had debated, amended, and debated again. When the Convention re-convened, the Committee of Detail presented its report, made up of twenty-three articles. The Convention spent the remainder of August reviewing and further revising these articles.

We the People of…

Delegates quickly agreed to accept the Committee of Detail’s preamble and Articles I and II, affirming the new government would be called the Unites States of America and consist of Legislative, Executive, and Judicial branches. This agreement masked the critical issue that the Convention had debated throughout – was this to be a union of states or of people? The Committee of Detail’s constitution began, “We the people of the States (emphasis added) of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.” The Convention would not end with that language in the preamble.

Representation: Who, What, and How Many?

Discussion of the Committee of Detail report continued to include the structure and powers of the legislative branch. Some of the key questions included: Who can elect representatives? How many representatives will there be? What will be their qualifications?

Delegates debated whether to allow non-land owners to the right to vote for House members, or reserve the franchise to property owners. Gouverneur Morris wanted to restrict voting to those with property, considering them more educated and better able to choose wise leaders. “The ignorant and dependant,” Morris stated, “can be… little trusted with the public interest.” Colonel Mason countered arguments of this kind, saying all citizens should have equal voting rights and privileges.  Doctor Franklin sided with Colonel Mason believing that restricting the right to vote to land owners would cause contention among the people. In the end Morris’s proposal to restrict the franchise to property owners was defeated soundly (7-1-1).

Just as the Convention rejected a plan to restrict voting to property owners, they also rejected a proposal to restrict elective office to property owners. South Carolina’s Charles Pinckney moved that “the President of the U.S., the Judges, and members of the Legislature should be required to swear that they were respectively possessed of a cleared unencumbered Estate” – in an amount to be agreed upon by members of the Convention. This proposal went nowhere. Benjamin Franklin expressed his “dislike of every thing that tended to debase the spirit of the common people,” and observed  that “some of the greatest rogues he was ever acquainted with, were the richest rogues.” Madison reports that Pinckney’s motion “was rejected by so general a no, that the States were not called.”

The Convention did have a sentiment in favor of strong citizenship requirements for legislators. The Committee of Detail’s report required members of the House be U.S. citizens for three years prior to election, and members of the Senate for four years. Some, including George Mason and Morris, agreed that a lengthy citizenship requirement would protect the legislature from foreign intrigue. Others, including Madison and Franklin, pointed to the number of foreign friends who had helped the states during the war for independence. Delegates sided with Mason and Morris, agreeing to requirements that members of the House be citizens for seven years and members of the Senate for nine years prior to election.

On the question of how many representatives would make up the national legislature, Article IV of the Committee of Detail Report stated that the House of Representatives would initially consist of sixty-five members, and that in the future, members of the House would be added “at the rate of one for every forty thousand.” Madison, expecting the Union to grow rapidly, thought that rate would quickly lead the House to grow too large. Others thought that time would make this issue irrelevant. Mr. Nathaniel Gorham from Massachusetts asked, “Can it be supposed that this vast country including the Western territory will 150 years hence remain one nation? Mr. Oliver Ellsworth observed that “If the government should continue so long, alterations may be made in the Constitution” through the amendment process. Delegates agreed to add the language “not exceeding” to the one representative for 40,000 citizen ratio, making that a ceiling and not a floor. Controversy over this provision would re-emerge before the end of the Convention, however.

The Specter of Slavery

Likewise, controversy would emerge about slavery. Consideration of the apportionment of representatives raised the question of whether slaves would be included within that ratio. Morris rose on August 8 and gave a withering criticism of the institution. Moving to specify that this ratio would include only “free” inhabitants, Morris called slavery “a nefarious institution,” and “the curse of heaven”. Comparing free with slave states, Morris noted, on the one hand, “a rich and noble cultivation [which] marks the prosperity and happiness of the people,” and on the other “the misery and poverty which overspread the barren wastes of Virginia, Maryland, and the other states having slaves.” Morris’s motion was defeated 10-1, but the issue of how slavery would be addressed by the new union was by no means resolved.

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

Philadelphia –

As the convention pressed into the late days of July, debate turned to the revised Virginia Plan’s resolutions on the Executive Branch.

The ninth resolution proposed 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…”. All delegations present agreed that the Executive ought to be composed of a single individual, but other issues raised deep differences between delegates. These differences were chiefly on key principles of republicanism and separation of powers.

Regarding the means of election, Gouverneur Morris of Pennsylvania vigorously opposed election by the national Legislature. Though one of the most aristocratic delegates by background and temperament, Morris feared that election by the Legislature would violate the principle of separation of powers, making the Executive a mere “creature” of that branch. He thought the judgment of the people as a whole would be far more likely to result in the election of a “man of distinguished character,” or of “continental reputation”.

But outside of his fellow Pennsylvanian James Wilson, Morris found little support for direct popular election for the Executive. Charles Pinckney of South Carolina voiced his opinion that it is better to have a few “active and designing men” make this choice. George Mason of Virginia likened Morris’ proposal to asking a blind man to name the colors before him.  The convention shot down Morris’ proposal and affirmed the original—though this solution would only be temporary.

Debate on issues of the term of and eligibility for office was also inconclusive. Momentarily postponing discussion of term length, delegates rejected a proposal to make the Executive ineligible for re-election. On the whole, delegates viewed re-election as an incentive that would drive the Executive to perform his proper duties. But the idea of imposing term limits on the Executive was dropped in favor of a proposal by Virginia’s James McClurg to strike the 7 years term and insert “during good behavior.”

Because the Executive was to be elected by the national Legislature, and because the proposal for making the Executive ineligible for re-election had been rejected, McClurg  – joined by Morris – thought that the only way to ensure a proper separation of powers was to allow the Executive to remain in office, effectively, for life. Madison concurred, drawing an analogy between the Judicial and Executive branches, both of which he believed required complete separation from the power of the Legislature to avoid being absorbed by it.

Others did not accept this logic. Roger Sherman thought the measure redundant. Re-election logically entails that the Executive is behaving properly—especially since the national legislative, the few “active and designing men,” are overseeing the selection process. Mason also bristled at the proposal of an Executive that would serve during good behavior, denouncing that such a policy would lead to the re-establishment of a hereditary monarchy in the new Republic within the lifetime of his children or grandchildren, if not his own. Surely no state, he lectured, “had so far revolted from Republican principles as to have the least bias” toward that proposal.

With the specter of monarchy having been raised, and with Mason having clearly challenged the commitment to republican principles of some of the convention’s leading members – including Madison and Morris – the delegations agreed unanimously to re-open discussion about the Executive. Luther Martin had moved to reconsider the eligibility requirement, in hopes of limiting the Executive to just one term of office. Gouverneur Morris took this opportunity, however, to rebut to Mason and make a case for extensive Executive power. “It has been a maxim in Political Science,” he explained, challenging Mason’s republican ideal, “that Republican Government is not adapted to a large extent of Country”. He reasoned that in a republican government – where the people are represented by the Legislative Branch – the Executive Branch is necessarily weak, and made a case that the Executive Branch “should be the guardian of the people, even of the lower classes, against Legislative tyranny.”

Morris continued to advocate that the Executive keep office during good behavior, but barring that proposed that the Executive be elected directly by the people. Madison (perhaps slightly chastened by Mason) concurred in recommending the Executive be selected by “the people at large,” downplaying his earlier suggestion that the Executive hold office during good behavior. Elbridge Gerry, who continued to display a knack for compromise, stated that both election by the national Legislature and by the people had disadvantages. He proposed a third way – a committee of electors chosen by state Executives. Oliver Ellsworth accepted the idea of electors, but suggested that state Legislatures select them. This compromise was easily approved, as was eligibility for re-election and – for a short time, at least – a six-year term.