Constitution Class Handout
Instructor: Douglas V. Gibbs
www.politicalpistachio.com
www.douglasvgibbs.com
www.constitutionassociation.com
Lesson 5: Establishing the
Executive Branch
Article
II, Section 1, Executive Power Established
Article
II establishes the Executive Branch. The Founding Fathers were anxious regarding
the creation of the office of the executive because they feared that a leader
with too much power had the potential of being tyrannical. Many of the founders even argued that there
should not be one executive, but many, so that they may serve as checks against
each other. Their concerns were well
placed, if one considers that their frame of reference was the authoritarian
king of the British Empire.
Despite
their fears, they knew that the authorities of the president under the Articles
of Confederation were too few, leaving the office of the president much too
weak to adequately serve the union. The
founders were looking for a strong leader that also recognized the limitations
on the authorities of the federal government as granted by the States through
the articles of the Constitution. The
best model for the presidency was a simple choice. Article II was written, some believe, with
George Washington in mind.
Article
II, Section 1, Clause 1 states that the powers of the executive are
“vested.” This word, as we learned when
we went over Article I, Section 1, carries a meaning similar to that of the
word “granted.” Vested means “legally
transferred.” The President’s
authorities are powers given to him through a legal transfer of
authorities. The powers vested to the
Executive Branch were granted by the States.
The
founders understood that whenever there is a “leader,” there is a struggle for
power. America has been no
different. The office of the president
has increased its powers over the years, mostly through unconstitutional
means. The Founding Fathers sought to
limit the powers to the executive. Among
those limitations of powers is also a term-limit. The executive is limited to a term of four
years, as is the Vice President.
Election
The
election of the President and Vice President is not accomplished by direct
election. Appointed electors vote for
the President and Vice President. The
electors were originally appointed by the States during the early elections of
American History. The formula for
determining the number of electors is determined by taking the number of
Representatives and Senators the State is entitled in Congress, and combining
those two numbers. This method of
indirect election is also known as The Electoral College, which
was designed in this manner specifically to protect the United States against
the excesses of democracy.
After
the 2000 election, where the winner of the popular vote was denied the
presidency because he did not win the fight for electors, questions regarding
the Electoral College arose. It was only
the fourth time in history such an event occurred. To find precedents resembling the 2000
election one has to go back to the 19th century, to the elections of 1888,
1876, and 1824. Those were the only
elections in American history prior to the election in 2000 where a winner in
the popular vote was denied the presidency through the Electoral College
system.
Recently,
there has been a number of officials promising to introduce legislation to
abolish the Electoral College, claiming that it no longer serves a good purpose
in modern politics. The reasoning of
these folks that oppose the Electoral College suggests that the United States
should simply allow the popular vote of the American people be followed every
four years when we elect our president.
A
number of Americans have voiced their agreement with this opinion, arguing that
the individual running for President receiving the most votes should win. An indirect election such as the Electoral
College, argue these folks, is simply unfair and undemocratic. In other words, they believe the American
political system should operate as a direct democracy.
The
Founding Fathers purposely did not make this country a democracy. The United States is a Republic,
equipped with checks and balances at all levels of government, including the
voting process. Democracies were proven,
according to the founders, to be failures.
John
Adams was quoted to say, “Democracy never lasts long. It soon wastes,
exhausts, and murders itself. There is never a democracy that did not commit
suicide.”
Thomas
Jefferson said, “The democracy will cease to exist when you take away from
those who are willing to work and give to those who would not.”
The
founders are not the only historical figures to recognize that a democracy
opposes liberty.
Karl
Marx once said, “Democracy is the road to socialism.”
Karl
Marx, the father of communism, understood that the implementation of a
democracy is a necessary step in the process of destroying our Constitutional
Republic. Once the people are fooled to believe that they can receive gifts
from the treasury rather than achieve for their livelihood, they will
continually vote in the people who ensure the entitlements continue to flow.
Eventually, this mindset becomes the majority. This group then changes over
time from an involved and informed electorate to a populace that lacks the
understanding of the principles of liberty and can easily be manipulated into
believing that sacrificing individual liberty in exchange for social justice
and security is a price that we must be willing to pay. A group that is dependent upon the government
in such a manner, then, is prime to vote into power a tyranny. Eliminating the Electoral College would make
it easier for these members of our society to vote into office those that
promise more entitlements.
Once
the majority of the voters in a Democracy become the recipients of benefits
from the Federal Government, the government achieves unchecked power, and may
then violate the property rights of the productive members of society in order
to provide benefits to the non-productive members of society. This is best
characterized in the "tax the rich," or “redistribution of wealth,”
scheme we are now seeing emerge as the rally cry by the current
administration. The founders called this
method a “scheme of leveling.”
The
founders were aware of this danger, which is why they established our system of
government, and the electoral college, in the manner they did. A true democracy becomes “mob rule,” and the
principles of liberty become a target for elimination.
“A
democracy is nothing more than mob rule, where fifty-one percent of the people
may take away the rights of the other forty-nine.” -- Thomas Jefferson
In
order to preserve our Constitutional Republic it was imperative for the vote of
the people to be indirect, except when it came to voting for their
representatives in the House of Representatives. The Founding Fathers divided power as much as
possible, including the power of the vote.
Originally,
the State Legislatures appointed the electors that cast their votes in the
Presidential Election. That changed in 1824 when all but six states decided the
electors should to vote in line with the popular vote.
U.S.
Senators were initially appointed by the State Legislatures, which ensured the
voice of the States was present in the federal government. That changed in 1913
with the 17th Amendment, which transferred the vote for the U.S. Senators to
the popular vote. The 17th Amendment
took away from the States their representation in the federal government.
The
Founding Fathers divided the voting power as they did partially because if the
power to vote for president, the House, and the Senate all fell to the people,
and if the people were fooled by some political ideology that wished to destroy
the republic by fundamentally changing the American System, a tyranny could be
easily voted into control of all parts of the government without any checks
present whatsoever. When the majority of voters are uninformed in such a
manner, and are given the full voting power, tyranny is inevitable.
Winston
Churchill understood the dangers of trusting an uninformed electorate with the
capacity to govern. He was quoted as saying, “The best argument against
democracy is a five minute conversation with the average voter.”
The
elimination of the Electoral College would take away the voice of the smaller
states, give the election of the President to the seven largest metropolitan
centers in the United States, and lead America even closer to becoming a
democracy.
Democracy
is a transitional governmental system that ultimately leads to tyranny. This
was true in the days of the French Revolution no less than it is true today.
While
democracy lasts it becomes more bloody than either aristocracy or
monarchy…Democracy never lasts long. It soon wastes, exhausts, and murders
itself. There is never a democracy that did not commit suicide. -- John Adams
Democracy
is two wolves and a sheep voting on what to have for dinner” -- James Bovard
Our
country is not a democracy. Our nation was founded as a constitutionally
limited republic. The indirect election
of the President through the Electoral College reflects that truth, and the
Electoral College is one of the last vestiges of the system of checks and
balances as they apply to the voters.
Article
II, Section 1, Clause 4 indicates that the Congress may determine the time and
day the electors are chosen, and give their votes. The day they vote for President and Vice
President, according to this clause, will be the same day nationally. The rules for the popular election, if you
will remember from Article I, are to be established by the State legislatures.
Eligibility
Article
II, Section 1, Clause 5 states that the eligibility for President includes the
requirement that the individual be a natural born Citizen.
Notice
that the Constitution says a natural born citizen, “or” a citizen of the United
States at the time of the adoption of the Constitution. This was to ensure that anyone alive at the
time of the adoption of the Constitution who was a citizen was eligible, and
anyone born after the adoption of the Constitution had to be a natural born
citizen to be eligible. The word “or”
gives us a clue that there is a difference between “natural born citizen,” and
“citizen.”
Some
people will use the Fourteenth Amendment as an argument regarding the
definition of natural born citizen. The
Fourteenth Amendment says, “All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.”
The
Fourteenth Amendment, in this clause, as it states, only addresses
“citizenship” - not the concept of being a natural born citizen. Therefore, it does not apply when discussing
the concept of natural born citizenship.
The clause was written as it was to protect the citizenship of the
children of the emancipated slaves. The
word “jurisdiction” was placed in that clause to mean “full allegiance.” There was a fear during that time, as there
had been during the founding of this nation, of divided allegiance, or divided
loyalties.
Natural
Born Citizen is not defined in the Constitution primarily because it was common
knowledge. People understood what the
term “Natural Born Citizen” meant.
Today
we have a number of terms that are understood without needing to be
defined. One of those terms is “fast
food.” Without needing a definition
provided, most people know what “fast food” is.
That does not mean the term will be readily understood by some historian
of the future. He may ask himself, when
he comes across that term in our literature, “Why is it their food was fast? Did it run quickly away from them?” To understand what “fast food” meant to us,
he may have to refer to a number of writings before he finally comes across the
definition.
One
of the sources the Founding Fathers used when it came to establishing the
definition of “Natural Born Citizen” was Vatell’s “Law of Nations.”
Vatell’s
Law of Nations is mentioned once in the Constitution in Article I, Section 8,
Clause 10, and it is capitalized - which suggests the mention of the Law of
Nations to be a proper noun, thus supporting the argument that it is a direct
reference to Vatell’s writings.
Recently,
it was discovered that George Washington failed to return a couple library
books to the New York City Public Library.
One of those books was Vatell’s Law of Nations. Washington checked the book out in 1789,
shortly after the Constitutional Convention, probably because of the heavy
influence the definitions in Vatell’s Law of Nations played on the writing of
the U.S. Constitution.
Benjamin
Franklin owned three copies of the Law of Nations - two for the convention, and
one for his personal use. He received
those copies from the editor, Dumas, in 1775.
Vatell’s
Law of Nations Section 212 indicates that to be a Natural Born Citizen both
parents must be citizens at the time of the birth of the child. As with the Fourteenth Amendment, there was a
fear of divided allegiance.
Vetell’s
Law of Nations required also that the child be born on American Soil, but if
you read further down the section addresses other possibilities. The
Immigration and Naturalization Act of 1790 confirmed the definition not
requiring the child to be born on American soil, but still requiring that both
parents be American citizens at the time of the child’s birth. The section in the Naturalization Act of 1790
I am referring to specifically reads: “And the children of citizens of the
United States that may be born beyond sea, or out of the limits of the United
States, shall be considered as natural born citizens: Provided, That the right
of citizenship shall not descend to persons whose fathers have never been resident
in the United States.”
Note
that the fifth word, citizens, is in the plural, which means it requires
both parents to be citizens at the time of the birth of the child in order for
the child to be a “Natural Born Citizen.”
Article
II also establishes that in order to be eligible for the presidency the
candidate must be at least the age of 35.
This requirement, reasoned the founders, would ensure that the
immaturities of youth had passed away.
Along with a relatively mature age, the Constitution indicates that the
president must also have been a resident of the United States for the last
fourteen years. This, once again, was a
guard against divided loyalties.
The
Vice President must also meet all eligibility requirements. In the 18th century the Vice President was
the second place winner in the election, and therefore had to be eligible
because he was originally running for President. Now, the Vice President is elected as a part
of the presidential ticket. However, to
ensure it was clear that the Vice President also had to be eligible for the
presidency, especially since he was next in line for the presidency should the
Office of President be vacated, the 12th Amendment ends with a sentence that
demands the Vice President is eligible for the presidency.
In
Case of Death
Article
II, Section 1, Clause 6 was changed by the Twelfth Amendment. This clause established the rules in case of
the death of the President while in office.
The clause gave the Office of the President to the Vice President in the
case of death. The ambiguity of the
clause, however, created confusion. In
the case of President Benjamin Harrison who died after only 30 days in office,
it created a constitutional crisis. The
officials of that time did not know what to do.
When old Tippecanoe died, he was succeeded by his Vice-President John
Tyler, but since no President had died in office before, no one was quite sure
how Presidential succession worked. The Constitution stipulated that the
Vice-President should become the new President, but it was not clear if the
Vice-President should be considered a "real" President, or if he only
“acted” as President. The Tyler administration made it clear that
Vice-Presidents who became President after the death of the elected President
should be treated as legitimate Presidents.
The
Twelfth Amendment later addressed the problem with more specified rules. Later, succession was resolved once and for
all with the ratification of the 25th Amendment in 1967.
Compensation
Article
II, Section 1, Clause 7 allows for the President to be compensated for his
service as President of the United States.
This salary is not to be increased or diminished while the President
serves. The President, according to this
clause, is also not allowed to receive any other governmental salary from the
federal government during his term as President. In George Washington’s First Inaugural
Address, he announced that he would accept no salary as President.
Oath
or Affirmation
In
the final Clause of Article II, Section 1, the Oath or Affirmation for the
Office of President was established.
The
reason for the clause indicating Oath “or” Affirmation was because an Oath is
to God, and an Affirmation is not. The
founders understood that not all Americans believe in God, therefore an option
needed to be available for non-believers.
Affirmation was also included as an option because there were some
Christians that believed swearing to God to be a sin. Offering the opportunity
to “affirm” gave these Christians an opportunity to take the affirmation of
office without compromising their religious beliefs.
Note
that the President is expected, according to the text of the oath or
affirmation, to preserve, protect, and defend the Constitution of the United
States.
You
will also note that placing one’s hand on a Bible is not in this Article. The placement of a hand on a Bible while
reciting the Oath or Affirmation was something that George Washington chose to
do, and it has been a tradition ever since.
Terms:
Democracy: A form of government in which all citizens have an
equal say in the decisions that affect their lives. Such a system includes
equal participation in the proposal, development and passage of legislation
into law.
Electoral
College: A body of electors chosen by
the voters in each state to elect the President and Vice President of the U.S.
Executive
Branch: The branch of government responsible for
executing, or carrying out, the laws. An
executive in government can be a president, or a governor.
Leveling: Moving money from one group of people to another by
raising and lower taxes accordingly in an effort to achieve economic equity in
society.
Republic: Form of
government that uses the rule of law through a government system led by
representatives and officials voted in by a democratic process. The United
States enjoys a Constitutional Republic.
Questions
for Discussion:
1. Why didn’t the Founding Fathers make the
President a king?
2. How does the Electoral College ensure
fairness for the minority States?
3. What is the difference between a democracy
and a republic?
4. Why did the Founding Fathers divide the
voting power?
5. How is “citizen,” and “natural born citizen,”
different?
6. Why were the Founding Fathers concerned about
divided loyalty?
7. How does the eligibility requirements ensure
that the President, especially as Commander in Chief, holds full allegiance for
the United States?
8. How was the way the Vice President was chosen
in the 18th century different from how the Vice President is chosen today?
Resources:
Alexander Hamilton, The Law
of Nations and the U.S. Constitution, http://east_west_dialogue.tripod.com/vattel/id4.html
Associated Press, “Hillary
Clinton Calls for End to Electoral College,” CBS News (2009) http://www.cbsnews.com/stories/2000/11/10/politics/main248645.shtml
George Washington, The First
Inaugural Address of George Washington, The Avalon Project - Yale University
(1789/2008) http://avalon.law.yale.edu/18th_century/wash1.asp
Joseph
Andrews, A Guide for Learning and Teaching The Declaration of Independence and
The U.S. Constitution - Learning from the Original Texts Using Classical
Learning Methods of the Founders; San Marcos: The Center for Teaching the
Constitution (2010).
Madison’s
Notes Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Marjorie Kehe, “How George
Washington racked up a $300,000 fine for overdue library books,” Christian
Science Monitor, http://www.csmonitor.com/Books/chapter-and-verse/2010/0419/How-George-Washington-racked-up-a-300-000-fine-for-overdue-library-books
Mountain Publius Goat, “Law
of Nations, 1758 law book defines Natural Born Citizen,” Kerchner (2008) http://www.kerchner.com/protectourliberty/goatsledge/20081212%20Law%20of%20Nations.pdf
Naturalization Act of 1790,
Harvard University: http://pds.lib.harvard.edu/pds/viewtext/5596748?n=1&imagesize=1200&jp2Res=.25&printThumbnails=no
Ron Paul, “Hands Off The
Electoral College,” Lew Rockwell (2004) http://www.lewrockwell.com/paul/paul226.html
Ron Paul, “The Electoral College
vs. Mob Rule,” Lew Rockwell (2004) http://www.lewrockwell.com/paul/paul214.html
Sean Rooney, “The Death of
President William Henry Harrison,” Associated Content (2008) http://www.associatedcontent.com/article/518591/the_death_of_president_william_henry.html?cat=37
Vatell’s Law of Nations: http://www.constitution.org/vattel/vattel_01.htm
Copyright Douglas V. Gibbs 2015
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