Creation of the Presidency, Seventeen Seventy-Five to Seventeen Eighty-Nine : A Study in Constitutional History

by Charles C. Thach Jr.

Fresh from a battle against monarchy, the American Founders were wary of a strong executive, but they were equally conscious that unchecked legislative power risked all the excesses of democracy. Creating an effective executive who did not dominate the legislative body posed a significant challenge. In The Creation of the Presidency, 1775–1789, Charles Thach’s lucid analysis reveals how these conflicting concerns shaped the writing of the Constitution and the early clarification of executive powers.

Thach sets the stage by analyzing the political tendencies during the war and under the Articles of Confederation, showing that experience with rash state legislatures and an ineffectual national Congress contributed to the desire for a strong executive. He presents clearly the scattered deliberations on the executive during the Philadelphia Convention and gives due attention to the important decisions on presidential power made by the First Congress.

Originally published in 1923, this book has influenced decades of scholars. In 2003 Raymond Tatalovich and Thomas Engeman referred to it as “the definitive statement of original intent” with respect to the establishment of the presidency. Herbert Storing, in his introduction to the 1969 edition, described it as “so useful and so sound as to be indispensable.” Now available in this Liberty Fund edition, Thach’s pioneering study can again benefit readers interested in the formation of the U.S. Constitution and the creation of the presidency. This volume addresses the practical issue of liberty and constitutional namely, how to design an executive power that will be strong enough to keep order yet remain compatible with individual liberty.

Charles C. Thach, Jr., (1894–1966) was educated at Johns Hopkins University and received his Ph.D. in 1922. Specializing in political theory, he taught at the University of Minnesota and Johns Hopkins. He later became a Professor of Government at New York University, where he taught for over thirty years.

Genres: Government

Paperback

First published January 1, 1923

About the author

Charles C. Thach, Jr. (1894–1966) was educated at Johns Hopkins University and received his Ph.D. in 1922. Specializing in political theory, he taught at the University of Minnesota and Johns Hopkins. He later became a Professor of Government at New York University, where he taught for over thirty years.

He is the son of Charles Coleman Thatch, a professor of English and former President of Alabama Polytechnic Institute, now known as Auburn University, from 1902 to 1920.

Reviews

[Frank Stein · Rating 4 out of 5]

This book from 1923 is one of the first comprehensive studies of the creation of the American presidency. Although it shows its age, it provides a succinct and informative look at the reasons for and the shaping of what has become the most powerful office on Earth, for better or for worse.

Thach takes issue with those who think the presidency was supposed to be no more than a vestigial office, created reluctantly due to lingering mistrust of the British King. In fact, Thach shows that from 1776 to 1787, Americans underwent a sea-change in their feelings on executive power. Early state constitutions such as Pennsylvania and South Carolina made any executive power "subject to the law," which meant the legislature could invade the governors' powers at any time. The legislatures usually had power and duty to decide and appoint all officers in the government, often including the governor himself, which meant the governors were inevitably dependent on and subservient to the all-powerful legislature. Meanwhile, the Continental Congress flailed at creating temporary executive committees like the Marine Committee, which engaged in purchasing or disbursement for one particular mission, say a few ships, and then were often re-engaged to try another specific administrative program. Eventually, there was a backlash. In 1777 New York state, under the direction of John Jay, created a strong executive elected by the people, who became Governor George Clinton for the next 18 years, with a Council on Revision to veto laws and a Council of Appointment to fill offices. The Continental Congress from 1781 began creating permanent committees like the Finance Committee, headed by single, non-congress members like Roger Morris, which they hoped would add administrative expertise.

When the Constitutional Convention convened in May 1787, almost all the members were ready for a stronger executive. Many in fact thought that the failure of "administration" was one of the signature faults of their republican governments so far, especially over a large territory (as Montesquieu had argued) and aimed to correct it. James Madison, who Thach shows was surprisingly unconcerned with executive issues, came into the convention with a plan that would form the basis of debate: a multiple person presidency, elected by the legislature, with a set term (soon seven years) with no re-election. All these factors tended to limit the executive, but Madison also included council of revision to veto federal and even state laws, gave the executive the power to appoint officers (except judges), the duty to propose legislation, and sole executive power immune from Congress. James Wilson of Pennsylvania, however, became the foremost advocate of a strong single executive, and he early on got the convention to vote for a single executive. Yet Wilson lost the opening salvo of his long campaign for direct election of both the legislature and the executive by the people "in order to make them independent as possible of each other, as well as of the States."

The recurring theme in Wilson's and other executive advocates' speeches was the need to create "responsibility" in one person, to be judged directly by the people. As Gouvernor Morris said, "the magistrate is not the King, but the prime-minister; the people are the King." These advocates tried to convince the convention to create a responsible prime ministry like in England, and they largely succeeded, even if they lost the specific battle to have the executive appoint congressmen to the Cabinet and exert direct patronage over the legislature as in England.

Much of the debate on the Presidency, however, was too fraught for the main convention. The debate was thus postponed again and again and decided largely in committee. The famous Committee of Style, which was supposed to merely write up the previous votes, actually had a large amount of discretion, and they, especially James Wilson and John Rutledge, used it to shape the presidency (which name they finally gave it), by expanding his appointment and other powers.
In the later committee of postponed matters, Gouvernor Morris drafted a new electoral college to elect the President, gave the presidency a four year renewal term, allowed the Senate advice and consent on appointments (as a concession to the other side), and wrote Article II to ensure that "executive power" was given to the President in one sentence undiluted by any specific functions, such as the legislative and judicial branches had in their articles.

The strong stature of the President was affirmed in the first Congress, where 18 convention members participated, who helped to ensure the President kept the power to remove his officers at will, without advice from the Senate. As Thach shows, the Presidency that came from this process was supposed to be both a responsible executive administrator and a leader of Congress in proposing reforms. The Convention certainly created an office with much power and responsibility, which have only grown in the intervening years.

[KC · Rating 4 out of 5]

This is a 'serious' history studying the origin of the Presidency, through the eyes of the Constitutional Convention. It has always fascinated me that while they gave weeks and weeks attention to the legislative branches, the courts, and the interactions between the three branches of the proposed government, when it came time to discuss the powers of the presidency the Founders essentially punted. They put it off to the end of the summer, they were hot, tired, and ready to go home, and everyone knew that Washington was going to be the president anyway.

The Convention delegated a committee with coming up with Article II (outlining the powers of the presidency) and approved their recommendations without much debate. James Madison was much more interested in workings of the three phases of his proposed government, leaving Gouverneur Morris and James Wilson to flesh out the presidency.

I liked reading Madison's notes on the Convention in conjunction with E Pluribus Unum while on the boat for the everyday workings of the convention.