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.

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.

We work to prepare curriculum resources that tie constitutional principles to current events in ways that show young people why their rights matter, why the Constitution matters, and why our constitutional principles continue to be important.

This week’s expanded eLesson provides current events resources along with critical thinking questions to guide discussion of the death of Osama bin Laden in the context of American history and traditions, the Constitution, and the rule of law.

The lesson provides links to news stories and constitutional resources, along with critical thinking questions, to help students answer the question:

“The Constitution divides war-making power between the executive and legislative branches, ensuring that war would not be the result of a King’s personal pride or quest for power. If you were the President of the United States during the time of the September 11 attacks, how would you have sought to balance citizens’ natural desire for arbitrary power with respect for the rule of law?”

The resource will be sent to our eLesson subscribers, and is available here for free download. We hope you will be able to review it and decide how you can use it with your students. If you do, please tell us in the comments how it went. What is the most important lesson for students to take away from this historical event? Download the lesson: Constitutional Principles and the Death of Osama bin Laden.