The modern presidency, in fact, bears only a passing resemblance to what the Founding Fathers intended it to be. Far from being the government’s all-powerful central authority, there was debate at the constitutional convention as to whether there should be only one executive at all.
I spoke with historian Ray Raphael, who wrote the book “Mr. President: How and Why the Founders Created a Chief Executive” to get a sense of how Trump’s vision of the position differs from what was intended when the government was created in 1787.
(The interview has been edited and condensed.)
THE POST: Set the scene. What is happening at the moment at which the constitutional convention starts discussing what a chief executive might look like.
RAPHAEL: Well, the first thing they had to discuss was if there would be one chief executive or more than one chief executive. And that was not an easy decision; it was by no means a foregone conclusion. People were very suspicious of anything that would resemble monarchical rule.
Benjamin Franklin, for instance, felt very strongly that it should be a plural executive, perhaps three people.
They decided on one executive, but then the next issue was, if there was one executive, he has to have an executive council, to kind of spread out the power. Several luminaries were in favor of an executive council: Franklin and James Madison and George Mason, the guy who really pushed the Bill of Rights. But the executive council kind of got lost in the shuffle for most of the convention.
They didn’t worry about it too much because, for most of the convention, many of the powers that we associate with the president were given to the Senate. The president didn’t have that much power for most of the convention.
They’d been meeting for over three months, and until two weeks before the end the key powers of treaty-making and appointive powers — appointing ambassadors and Supreme Court justices — these would all be done by the Senate. So the president, two weeks until the end, the president was elected by Congress, a creature of Congress, and he did not have power over foreign policy to make other major appointments. That’s the way it stood — and we would have had a very different government.
Then a few people, who really wanted a stronger, more independent president, spearheaded by Gouverneur Morris, sent that idea to committee. In committee, that’s when they decided that the president shouldn’t be elected by Congress but should be elected by this very complex elector scheme that we are still saddled with today — and which they didn’t have a very firm handle on.
When they made the president independent of Congress, to be selected by electors instead of Congress, they also switched his key powers of treaty-making and appointive powers from the Senate to the president. They didn’t want to switch them totally, so that’s why they gave the Senate the “advice and consent.” So that’s where that curious phrase came in — less than two weeks from the end.
When this comes up from committee to the floor with these extra powers, the people who favored an executive council really flipped out. Mason and Madison and Franklin all said — you know, this is James Madison, the father of the Constitution, and Benjamin Franklin, the wise man! — they said, no way! Putting such powers in the president alone would be very dangerous. So they renewed their push for an executive council.
THE POST: So what would that look like?
There were two proposals.
Madison, Franklin and Mason wanted an independent executive council. They never got to the point of how many people would be on it or how it would be chosen, but the key thing is they wanted it independent.
Gouverneur Morris, who’d pushed for an independent presidency, wanted an executive council that would be very much like our Cabinet who would be appointed by the president, but including the chief justice of the United States.
Mason, Franklin and Madison wanted to limit the powers of the presidency because it was too dangerous — and the only argument made against it was that it was so late in the game and they were tired and they didn’t want to create a brand-new body of government!
Rufus King from Massachusetts said they didn’t want “an unnecessary creation of a new core which must increase the expense as well as the influence of government.” They wanted to create this government on the cheap, so they didn’t want an extra body of government. Also, they were too tired to create it.
Even though these amazing men like Mason, Franklin and Madison wanted an executive council, the rest of the guys said, it’s going to be too expensive and we want to get home anyway. Let’s just settle with the president needing the advice and consent of the Senate. So that was a kind of weak compromise.
Madison was very upset. Remember, this is James Madison, the father of our Constitution! He was very upset that the president alone had the power to make treaties. This is an amazing thing that people should know: He said that a president might gain so much power from conducting war that the Senate should be able to negotiate a peace treaty behind the president’s back and without his consent.
“The president would necessarily derive so much power and importance from a state of war that he might be tempted, if authorized, to impede a treaty of peace.” So he said that’s why the Senate needed to have independent power to conduct a treaty of peace.
Isn’t that amazing?
THE POST: Yeah.
He said that wars can be good for a president’s power. He wanted an alternate route to conduct the peace so that the president alone wouldn’t have that control.
So there’s a lot of resistance to a full executive power. And you can understand why! They’d just been through the Revolutionary War and they didn’t want to recreate a monarch. Though some, like Alexander Hamilton, who wanted to get as close to a monarch as he possibly could — that wasn’t a very popular opinion. When he offered that idea, he got zero support. Not a single person among the Framers came to his defense for that idea.
They settled on this kind of compromise, which wound up giving more power to the president than the Founders wanted — but they were really too tired to start over.
On Sept. 4, when they heard this new proposal, they just pretty much said, OK. We’ll go with that.
THE POST: What is your sense in terms of where on the spectrum between Madison to Hamilton the presidency as embodied these days would fall?
It’s definitely evolved to the Hamilton end, and that’s kind of the great irony. Hamilton had zero supporters but, historically, little by little, presidential powers increased.
Another figure that gets involved in this is George Washington. If people did not all know that Washington was going to be the first president, they would have been more hesitant yet to give these sorts of executive powers. But they figured that Washington would set the standard and this electoral college will always ensure that this wise person — not a popular demagogue but some person elected by wise leaders — will be president. So they allowed a few more powers to him.
Then Washington, when he got into office, actually assumed some powers that were very controversial which Hamilton supported, but Madison and Jefferson vehemently opposed.
Then Jefferson gets into office — and this was the guy who wanted a limited executive — and he assumed near dictatorial powers. The guy who opposed executive authority. By the time the fifth Embargo Act is passed, he gives the president the power to pretty much execute the whole thing. He can be policeman and judge; he himself can send people to jail. It’s a curious progression.
The push of history has been toward more executive power. If you just took the Founders at the convention, and how they envisioned the presidency, compared to the presidency today, they would be absolutely aghast. They had no idea that they were going to create a single individual with this sort of powers.
If you’re talking original intent of the Framers, they saw a much more limited role than we have today.
THE POST: Given that, to what extent do you think the Senate is able to uphold its constitutional duty?
“Advise and consent” was just this kind of handy term that was never worked out precisely. But, again, you have to remember that until two weeks before the end of the convention, the Senate itself had the powers of treaty-making and appointing ambassadors — that is to say, foreign policy — and the other appointive powers. The Senate had that.
When it was transferred to the president, that’s when they said, well, the president alone can’t have it. The only way the people will ever accept it — looking over their shoulders at the people who have to ratify it — is if there’s some check on it.
Madison, Franklin and Mason said, well, the obvious check is an executive council. But they were too worn out to form another body, so they said, we will just roll this into senatorial powers. But by no means did they expect that the Senate would not exercise those powers!
Now note that the word “advice” is in there. Not just consent: Advice. So theoretically, the Senate is supposed to be an executive council, and the president is supposed to seek its advice in making appointments such as Supreme Court justice and in treaty-making. It was supposed to be an integral part of the process, not some rubber-stamp at the end.
THE POST: What was the point of the electoral college?
Through the convention, there were two ways of electing the president presented: Congress, or the people. Through most of the convention, Congress elected him. They were very scared of popular elections because of demagogues, basically.
At the very end, they get this kind of compromise of electors. The key component of electors, the whole reason this would work, was that electors were supposed to be removed from the people and have absolutely independent judgment and discretion. The very idea was that they would not be pledged to any candidate. They would get together, selected by their wisdom and experience, and they would select the president out of their own discretion. The whole idea of pledged electors is 180 degrees opposite from the intent of the electoral college.
The spirit of the law was totally destroyed, and we are saddled with the skeleton letter of the law, which has nothing to do with what they intended.