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March 2017 Policy Study, Number 17-5

   

A Commentary on the American Constitution

   

Part 11

   

 

Article II of the Constitution is devoted to the executive branch of our national government.  It is much less extensive than the Article devoted to the legislative branch because the powers and duties envisioned for and granted to the President by our Founders were to be few and limited.  Yes, there were those that argued for a strong and energetic chief executive.  But others argued in favor of an executive committee, comprised of at least three members.  Regardless of their stance on the argument, all were acutely aware of the siren song of power and the peculiar effect it could produce in men, even good men.  So, in the end, they were notably reluctant to deposit any great concentration of power at the sole discretion of a merely mortal individual.  In their considered opinion, to deposit such power among even a great many individuals (Congress), much less one individual, was no better than a necessary evil to be endured.  Even a meager study of history would prove their reticence to be well-founded.  And if history isn’t your forte, a short perusal of current events from around the globe will serve equally well to make the point.

 

Their dilemma consisted of two parts.  First, what powers must necessarily be granted to the executive branch?  That is, which powers would allow the executive branch to make decisions in an orderly method and in a timely fashion, and allow it to act with authority and alacrity when necessary?  For these purposes, an executive branch comprised of several individuals would not serve well at all; but to vest these powers in a single individual summarily increased the potential of the executive branch to usurp and abuse those powers.  Second, would they be able to grant these powers in such a structure as to engender an effective executive branch and still prohibit the evils of usurpation and abuse of power?  They had already determined that one method to achieve their desired ends was the doctrine of separation of powers, that being the attempt to balance the powers of the three branches of national government among themselves and also balance the respective powers held by the central government vis-à-vis those of the several states.  (This is the essence of Federalism.)  Their attempt to restrain the harmful potential of the executive branch and still allow for an effective executive came down to this:  it was necessary, in their opinion, to have but one chief executive officer; but his powers and duties were to be few and limited to specifically designated areas.  Is it just me, or does it also appear to you that the office of chief executive has slipped its restraints?

 

Section 1 of Article II is composed of eight paragraphs and has to do with the mechanics of the office.  The first paragraph constitutes the offices of President and Vice President, vests the power of the office in the President, and establishes a concurrent four-year term of office for each.  Paragraphs two, three, and four deal with the electoral process as regards the office of President.  Paragraph five sets down the qualifications for office, which are constitutionally few.  Paragraph six prescribes our Founders’ method for the peaceful transfer of power.  As a point of interest to the reader, you may be curious to know that these particular paragraphs are some of, if not the most, amended portions of the Constitution.  Four of our current twenty-seven amendments concern these few paragraphs.  This is just shy of fifteen percent.  For those interested in following this transition of the electoral process, you will find it in the Twelfth, Twentieth, Twenty-Second, and Twenty-Fifth Amendments.  It would seem that we have had as many qualms about this office in our times as our Founders had in theirs.  And this, too, is with solid reason.

 

The seventh paragraph concerns the compensation for the office.  It shall be set and remain unchanged for the duration of the term.  And to assist in the prevention of the buying of the affections of the President, he is precluded from accepting any other emolument (profit arising from office) from either the United States or any of the several states.  To me, the views expressed by our Founders always seem to be of interest for one reason or another.  The particular interest to be shared shall be withheld until you read what this Founder had to say on the subject of executive compensation:

 

The third ingredient towards constituting the vigor of the executive authority is an adequate provision for its support.  It is evident that without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory.  The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious (submissive) to their will as they might think proper to make him.  They might, in most cases, either reduce him by famine, or tempt him by largesses (sic), to surrender at discretion his judgment to their inclinations.  These expressions, taken in all the latitude of the terms, would no doubt convey more than is intended.  There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man’s support is a power over his will.  If it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the executive by the terrors or allurements of the pecuniary arrangements of the legislative body. (Emphasis added).  (Federalist Papers, No. 73).

 

Mr. Hamilton had a very keen understanding of human behavior, in this case of both the people who would be in control and he who would be controlled.  He was right on the money when he penned these words, and he is exactly right to this very day.  To have granted this power to the legislative branch over the executive branch would have abridged the separation of powers from the start and would have put the President at the mercy of the legislature.  If this is true of a position as powerful as that of the President, how can this not be true of you and me?  If we all agree, as I suspect we do, that it would have been improper and exceedingly unwise to place the President’s will at the mercy of the legislative body, how did it come to pass that “we the people” allowed our wills to become subject to that same legislative body?  In this matter, our behavior is no different from that of the President.  If you were not aware before, it should be dawning on you by now that when a legislative body has the seldom-questioned power to demand from your support (the fruit of your labor) whatever they deem proper, as they currently do with the beast we call “income tax,” they have a power over your will.  And they “could(can) render him(you)as obsequious(submissive)to their will as they might think proper to make him(you).”  Government “by the people” has just been turned on its ear.  Where once we were masters of government, now government has become our master.

 

The eighth, and final, paragraph of the first section prescribes the oath of office.  It is of enough import that it will be laid out in full:

 

Before he enter on the execution of his office, he shall take the following oath or affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.”

 

An oath is a solemn appeal to God or to some revered person or thing to witness one’s determination to speak the truth or to keep a promise.  An affirmation is a solemn declaration made, under penalty of perjury, by persons who conscientiously decline taking an oath.  Such “affirmation” is, at law, the equivalent of taking an oath.  Although it has other meanings, for the purpose of the present discussion, the words “to swear” denote the action of declaring a solemn vow, with an appeal to God or to someone or something held sacred, for confirmation and to bear witness to your actions.  These are the accepted modern understandings of these words.  With the knowledge that our Founders relied on the “law of Nature and of Nature’s God” as the basis for the establishment this nation, it is at least presumable that they did fully intend to call upon the Deity; and the words, “to someone or something held sacred,” were not a part of their original intent.

 

The point to be made here is not that our Founders were men of faith; but rather, because they were men of faith, the gravity and sober seriousness with which they viewed this act.  There are those who may dispute the former statement; but if theirs be the correct understanding, then the oath of office is a sham — a bit of pomp and circumstance conjured up to assuage the fears of the wary.  It is impossible for me to believe that our Founders could be anywhere near so shallow and duplicitous.  It is my belief that with this oath they were, indeed, calling upon the Deity to witness their actions as they executed the office of President, which included the obligation “to preserve, protect, and defend the Constitution.”  It would appear that it would enjoin him to observe and respect the instrument as it was written and not subject it to his personal whims.  That would include all ratified amendments to the instrument.  To abridge any of these is to shatter the oath.  This applies, as well, to the legislative branch, and, perhaps even more importantly, to the judicial branch.  Many instances come to mind.  There has been a terrible war waged on the Bill of Rights, especially the First (free exercise of religion), Second (right to keep and bear arms), Ninth (rights retained by the people), and Tenth (rights retained by the several states) Amendments.  These will be dealt with in due course.  For now, it is enough to say that it is the President who takes the constitutionally prescribed oath to “preserve, protect and defend” the instrument.  To fail in his assigned duty may perhaps be forgivable; to abdicate the duty or, worse, to actively weaken the instrument is not.

 

   

 

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