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

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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.

8 replies
  1. yguy
    yguy says:

    Can someone explain to me how, given the plain language of this clause and several others in the Constitution, a woman can be considered eligible to be President?

    Reply
    • Barb Zakszewski
      Barb Zakszewski says:

      We seem to have a President now, that sees himself much more a King, maybe even a dictator than a President.. Maybe he should read Article II and have someone explain it to him. Presidents who surround themselves with czars who are not properly vetted through the advise and consent of the Senate are in effect, violating the Constitution, aren’t they?

      Reply
    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      yguy always makes good questions. The question of women holding the office of President, and really any office of trust under the United States, has to be considered upon precedent, practice, and the “received sense” of the Common Law. The Constitution, being a Common Law basis of a legal document, is to be interpreted according to that kind of law to determine the intents of laws.

      The concept of “received sense” has more to do with the effect of the law, and not who it is operated on regardless of gender terms. So any law written to, say, “make a felony of any man shedding of blood in the streets” does not become some construed as to excuse women from the law while also not to be egregiously interpreted to impede life saving measures, say, by a good-samaritan surgeon who cuts out a bullet or a rattle snake bite to draw out venom thereby literally shedding blood in the streets.

      In the letters among the founders a similar question came up whether or not a non-Christian can hold office because the Common Law was so complimented by what was called the Ecclesiastical Law that touched on civil moral code. The answer was that if, say a Muslim, was agreeable to our laws and attained citizenship in good standing, and if the electorate so voted for such a person, however unlikely they may do so being that most Christians would vote for the character of an elector, then a Muslim or other non-Christian may very well be elected to office. The election of women to any office is much the same: possible, just unlikely. Why? Because women usually ran the house of her husband while he was gone to war or profit. The running of the house extended beyond just the raising of children; but the education of the same, and the management of the estate including any enterprising affects of running a farm, mill, press, or loom. In addition, by Common Law power of attorney, she often acted in the capacity of her husband even after his death to that of voting in elections under his name. Being that women were so often affected by the rearing of children, guiding the house, and being industrious, it was viewed women would be categorically overburdened with matters of the state and so not effective. But they were effective in making their husbands effective statesmen.

      An absudity that women cannot hold office would have been guarded by the founders. For they had not forgotten how Virginia was named after the “Virgin Queen” Elizabeth of England, whom, when confronted with a Catholic conspiracy to have her assassinated, refused the councel to suspend Habeas Corpus and jail suspected Catholics enmass. She refused to charge people with crimes for when a crime was not committed all because of their religious conscience. So it was that Queen Elizabeth esteemed conscience higher than the state; and such a principal became a central American tenat of polital thought: the freedom of conscience. Electing a woman was only unlikely; but nevertheless possible.

      Reply
  2. Ron Meier
    Ron Meier says:

    I’m still wondering why there is no outrage, even among conservatives in Congress, over the czars? Anyone know why? It seems to be a VERY IMPORTANT long term issue. If this is not nipped in the bud today, at some point in the future, under some President years or decades hence, it might become a major problem.

    Reply
    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      I think the “outrage” factor is that there is too much of a centrist and statist culture that moves to nationalize everything under the purview of Congress, so the czar appointments are like an elephant in the room due to all the egregious disregard to so many other provisions of the Constitution. There are some alternate media circuits that are crying about it; but mainstream media is so centrist and statist bent that it does not provoke much thought. It is just taken for granted as being a necessary priviledge of power of the President because, after all, the Constitution is a “living, breathing document” subject to the avarice and caprice of fallable men and that old document is so 18th century…so the attitude goes.

      Reply
  3. yguy
    yguy says:

    So any law written to, say, “make a felony of any man shedding of blood in the streets” does not become some construed as to excuse women from the law

    We are not talking about a criminal provision meant to protect the general public from no one in particular. We are talking about an office of public trust, which was deemed to be properly executed only by a person with a specific set of minimal qualifications.

    In the letters among the founders a similar question came up whether or not a non-Christian can hold office ….

    The religious test clause makes such questions moot, and obviously there is no similar provision regarding gender.

    An absudity that women cannot hold office would have been guarded by the founders.

    Assuming you mean the founders thought it absurd to exclude women from the Presidency, how is it that they did not find it similarly absurd that women were denied suffrage?

    Reply
    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      >We are not talking about a criminal provision meant to protect the general public from no one in particular. We are talking about an office of public trust, which was deemed to be properly executed only by a person with a specific set of minimal qualifications.

      Ah, but it is still a Common Law document. That legal basis acts as the collective precedent of criminal and civil matters of law and acted as legal primer or legal dictionary of sorts. It was a must study for any American lawyer.

      >The religious test clause makes such questions moot, and obviously there is no similar provision regarding gender.

      The religious test clause only affects doctrinal and liturgical matters; not the civil moral code of the Common Law and the Bible. The religious test clause only thwarts the use of denominational dogmas, especially that of questions of divinity and revelation. Knowledge of the Bible is not prohibited by such a clause as the Bible itself is not the Common Law definition of a religious dogma or religions institution; especially since there is nothing in the Constitution requiring the electorate to know the character of the candidate. In the colonial times there was no preponderance of “Who cares what the man in private does as long as he does his job.” At a time when many states continued to run a state run church until cerca 1840, many looked at the kind of life a candidate leads in family and community as an indicator of integrity practiced while in office as a public servant. Contemporary views that have arrived in recent times has taken the religious test clause to be something broader than just any establishement of a church religion dogma to bring in the entire domain of anything religious in nature touching even the morals of right and wrong. That was not the intent. In this, many candidates are often challenged in debate these days on just what are their moral views between right and wrong. Some may construe this as being a “religious test” while some may not; but one thing is certain, if a moral can be changed by the whim of a majority, then it is not a moral because morals do not require consensual validation of a majority. Somebody has moved the “Maginot Line” of what is the meaning of “religious test” to the point of oblivion by confounding what is the moral virtues of the Bible relagated to moral relativism. At what point does religion then cease where morals pick up?

      >Assuming you mean the founders thought it absurd to exclude women from the Presidency, how is it that they did not find it similarly absurd that women were denied suffrage?

      Ah, but women did have the right of suffrage; but it was not uniform across all the states. The Constitution did not touch suffrage because it established a federal institution where states persisted their pursuits of plenary powers. By the Civil War, women’s suffrage on average had worsened. When the amendment was passed; many of the 3/4ths the states already allowed it state-wide.

      Reply
      • yguy
        yguy says:

        Ah, but it is still a Common Law document. …

        Allow me to quote Hamilton from Federalist #83: “The rules of legal interpretation are rules of common sense [].” Though ideally the latter finds expression in any legal system, it is independent of any legal system; and it tells me that comparing a criminal statute of the era to the presidential eligibility requirements is specious at best.

        The religious test clause only affects doctrinal and liturgical matters; …

        I have no idea how any of this is supposed to relate to the point of contention.

        Ah, but women did have the right of suffrage; but it was not uniform across all the states.

        It’s my understanding that only in NJ did women have suffrage as of ratification, and that was repealed in 1807; so unless you have better information, you are grossly inflating that status of women’s suffrage in that era.

        The Constitution did not touch suffrage because it established a federal institution where states persisted their pursuits of plenary powers.

        Federal jurisdiction over suffrage is no more inimical to federalism than any other restriction on the states, so the principle of federalism is not at issue here. The point is that the delegates to the constitutional convention presumably had the political pulse of the states they represented, and there was not the faintest wisp of any concern over women’s suffrage evidenced at that convention, as far as I know.

        Reply

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