The Origin of the Executive

by Natalie Bolton and Gordon Lloyd

Introduction:

To assist teachers in teaching the founding of the U.S. government, Professor Gordon Lloyd has created a website in collaboration with the Ashbrook Center at Ashland University on the American Founding. In an effort to assist students in understanding how the executive and judicial branches of government were established, two lesson plans have been created that combine content from websites created by Gordon Lloyd that tell the story of the founding. Students will review several primary source documents including Articles and Amendments of the U.S. Constitution and Federalist and Antifederalist papers to understand and explain the origins of the executive and judicial branches of the United States. The following lesson will explore the origin of the Executive using primary sources from Madison’s Notes on the Convention, Article II of the United States Constitution, Amendment XXII, Old Whig V, Cato IV, Federalist 70 and Federalist 71. This lesson has been written as a Historical Scene Investigation (HSI). The HSI instructional model consists of the following four steps:

  • Becoming a Detective
  • Investigating the Evidence
  • Searching for Clues
  • Cracking the Case

In the “Becoming a Detective” stage, students are introduced to the historical scene under investigation. Here background information and context are provided for the students. Students are then presented with an Engaging Question to guide their inquiry. Finally, students are presented with a task to help them answer the question – or crack the case.

From this point, students move on to the “Investigating the Evidence” section. Students are provided links to appropriate digital primary sources to help them crack the case. These documents might include text files, images, audio, or video clips.

In the “Searching for Clues” stage, students are provided with a set of questions for their Detective’s Log, guiding their analysis of the evidence. This can be very structured, or more open-ended, depending on the instructional goals. Often, these questions will be provided in the form of a printable handout from which students work.

Finally, in the “Cracking the Case” section, students present their answer, along with a rationale rooted in the evidence, to the initial question. Additionally, students are encouraged to enter new questions that have arisen during the process for future investigation.

For every case, there is a section for the teacher. This section will list particular objectives for the activity and will also provide additional contextual information and resources as well as instructional strategies that the teacher might find useful.

The model is intentionally standardized so that teachers can easily browse the activities without getting bogged down in unusual terminology. Ultimately, the hope is that teachers do what they do best-that is, download an activity and either use it “as is” or cut, rearrange or extend an activity for use within their particular classroom. (Description of HSI Model taken with permission from: http://web.wm.edu/hsi/model.html)

Guiding Question:

How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty?

Learning Objective:

After completing this lesson, students should be able to:

  1. Analyze Federalist and Antifederalist papers and explain the arguments and compromises that were made to balance the need for energy and the need for liberty with the establishment of the Executive branch as described in Article II of the U.S. Constitution.

Background Information for the Teacher:

The years were 1787 and 1788. Along with the debate over the Constitution that was taking place in the state legislatures, an “out-of-doors” debate raged in newspapers and pamphlets throughout America’s thirteen states following the Constitutional Convention over the Constitution that had been proposed.

Origin of The Federalist

The eighty-five essays appeared in one or more of the following four New York newspapers: 1) The New York Journal, edited by Thomas Greenleaf, 2) Independent Journal, edited by John McLean, 3) New York Advertiser, edited by Samuel and John Loudon, and 4) Daily Advertiser, edited by Francis Childs. Initially, they were intended to be a twenty essay response to the Antifederalist attacks on the Constitution that were flooding the New York newspapers right after the Constitution had been signed in Philadelphia on September 17, 1787. The Cato letters started to appear on September 27, George Mason’s objections were in circulation and the Brutus essays were launched on October 18. The number of essays in The Federalist was extended in response to the relentless, and effective, Antifederalist criticism of the proposed Constitution.

McLean bundled the first 36 essays together—they appeared in the newspapers between October 27, 1787 and January 8, 1788—and published them as Volume 1 on March 22, 1788. Essays 37 through 77 of The Federalist appeared between January 11, and April 2, 1788. On May 28, McLean took Federalist 37-77 as well as the yet to be published Federalist 78-85 and issued them all as Volume 2 of The Federalist. Between June 14 and August 16, these eight remaining essays—Federalist 78-85—appeared in the Independent Journal and New York Packet.

The Status of The Federalist

One of the persistent questions concerning the status of The Federalist is this: is it a propaganda tract written to secure ratification of the Constitution and thus of no enduring relevance or is it the authoritative expositor of the meaning of the Constitution having a privileged position in constitutional interpretation? It is tempting to adopt the former position because 1) the essays originated in the rough and tumble of the ratification struggle. It is also tempting to 2) see The Federalist as incoherent; didn’t Hamilton and Madison disagree with each other within five years of co-authoring the essays? Surely the seeds of their disagreement are sown in the very essays! 3) The essays sometimes appeared at a rate of about three per week and, according to Madison, there were occasions when the last part of an essay was being written as the first part was being typed.

1) One should not confuse self-serving propaganda with advocating a political position in a persuasive manner. After all, rhetorical skills are a vital part of the democratic electoral process and something a free people have to handle. These are op-ed pieces of the highest quality addressing the most pressing issues of the day. 2) Moreover, because Hamilton and Madison parted ways doesn’t mean that they weren’t in fundamental agreement in 1787-1788 about the need for a more energetic form of government. And just because they were written with certain haste doesn’t mean that they were unreflective and not well written. Federalist 10, the most famous of all the essays, is actually the final draft of an essay that originated in Madison’s Vices in 1787, matured at the Constitutional Convention in June 1787, and was refined in a letter to Jefferson in October 1787. All of Jay’s essays focus on foreign policy, the heart of the Madisonian essays are Federalist 37-51 on the great difficulty of founding, and Hamilton tends to focus on the institutional features of federalism and the separation of powers.

I suggest, furthermore, that the moment these essays were available in book form, they acquired a status that went beyond the more narrowly conceived objective of trying to influence the ratification of the Constitution. The Federalist now acquired a “timeless” and higher purpose, a sort of icon status equal to the very Constitution that it was defending and interpreting. And we can see this switch in tone in Federalist 37 when Madison invites his readers to contemplate the great difficulty of founding. Federalist 38, echoing Federalist 1, points to the uniqueness of the America Founding: never before had a nation been founded by the reflection and choice of multiple founders who sat down and deliberated over creating the best form of government consistent with the genius of the American people. Thomas Jefferson referred to the Constitution as the work of “demigods,” and The Federalist “the best commentary on the principles of government, which ever was written.” There is a coherent teaching on the constitutional aspects of a new republicanism and a new federalism in The Federalist that makes the essays attractive to readers of every generation.

Authorship of The Federalist

A second question about The Federalist is how many essays did each person write? James Madison—at the time a resident of New York since he was a Virginia delegate to the Confederation Congress that met in New York—John Jay, and Alexander Hamilton—both of New York—wrote these essays under the pseudonym, “Publius.” So one answer to the question is that how many essays each person wrote doesn’t matter since everyone signed off under the same pseudonym, “Publius.” But given the iconic status of The Federalist, there has been an enduring curiosity about the authorship of the essays. Although it is virtually agreed that Jay wrote only five essays, there have been several disputes over the decades concerning the distribution of the essays between Hamilton and Madison. Suffice it to note, that Madison’s last contribution was Federalist 63, leaving Hamilton as the exclusive author of the nineteen Executive and Judiciary essays. Madison left New York in order to comply with the residence law in Virginia concerning eligibility for the Virginia ratifying convention. There is also widespread agreement that Madison wrote the first thirteen essays on the great difficulty of founding. There is still dispute over the authorship of Federalist 50-58, but these have persuasively been resolved in favor of Madison.

Outline of The Federalist

A third question concerns how to “outline” the essays into its component parts. We get some natural help from the authors themselves. Federalist 1 outlines the six topics to be discussed in the essays without providing an exact table of contents. The authors didn’t know in October 1787 how many essays would be devoted to each topic. Nevertheless, if one sticks with the “formal division of the subject” outlined in the first essay, it is possible to work out the actual division of essays into the six topic areas or “points” after the fact so to speak.

Martin Diamond was one of the earliest scholars to break The Federalist into its component parts. He identified Union as the subject matter of the first thirty-six Federalist essays and Republicanism as the subject matter of last forty-nine essays. There is certain neatness to this breakdown, and accuracy to the Union essays. The first three topics outlined in Federalist 1 are 1) the utility of the union, 2) the insufficiency of the present confederation under the Articles of Confederation, and 3) the need for a government at least as energetic as the one proposed. The opening paragraph of Federalist 15 summarizes the previous fourteen essays and says: “in pursuance of the plan which I have laid down for the pursuance of the subject, the point next in order to be examined is the ‘insufficiency of the present confederation.'” So we can say with confidence that Federalist 1-14 is devoted to the utility of the union. Similarly, Federalist 23 opens with the following observation: “the necessity of a Constitution, at least equally energetic as the one proposed… is the point at the examination of which we are now arrived.” Thus Federalist 15-22 covered the second point dealing with union or federalism. Finally, Federalist 37 makes it clear that coverage of the third point has come to an end and new beginning has arrived. And since McLean bundled the first thirty-six essays into Volume 1, we have confidence in declaring a conclusion to the coverage of the first three points all having to do with union and federalism.

The difficulty with the Diamond project is that it becomes messy with respect to topics 4, 5, and 6 listed in Federalist 1: 4) the Constitution conforms to the true principles of republicanism, 5) the analogy of the Constitution to state governments, and 6) the added benefits from adopting the Constitution. Let’s work our way backward. In Federalist 85, we learn that “according to the formal division of the subject of these papers announced in my first number, there would appear still to remain for discussion two points,” namely, the fifth and sixth points. That leaves, “republicanism,” the fourth point, as the topic for Federalist 37-84, or virtually the entire Part II of The Federalist.

I propose that we substitute the word Constitutionalism for Republicanism as the subject matter for essays 37-51, reserving the appellation Republicanism for essays 52-84. This substitution is similar to the “Merits of the Constitution” designation offered by Charles Kesler in his new introduction to the Rossiter edition; the advantage of this Constitutional approach is that it helps explain why issues other than Republicanism strictly speaking are covered in Federalist 37-46. Kesler carries the Constitutional designation through to the end; I suggest we return to Republicanism with Federalist 52.

Taken from Introduction to The Federalist.

The Four Options of Antifederalism

It is helpful to consider four options when reflecting on the importance of the Antifederalists. They are 1) incoherent and irrelevant, 2) coherent and irrelevant, 3) incoherent and relevant, and 4) coherent and relevant. And which option we choose is in large part linked to a) how we define the Antifederalist project, b) how we interpret The Federalist and c) whether or not we are willing to retrieve the Antifederalists on their own terms or whether we see them as valuable in a quarrel over the American regime.

One way to define the Antifederalists is that they are those who opposed ratification of the unamended Constitution in 1787-1788. This definition might well make them lower case antifederalists or anti-federalists. The point is that they are both incoherent and irrelevant. A broader definition, one that reaches back to Montesquieu or to Aristotle introduces the possibility that they may be either coherent but irrelevant (Cecelia Kenyon) or incoherent but relevant (Herbert Storing). The upper case and hyphenated Anti-Federalist nomenclature is the preferred appellation for this approach. There is one last choice – the Antifederalists are coherent and relevant – and this suggests that we call them Antifederalists, upper case and non-hyphenated.

This fourth approach argues that their coherence and relevance is located in their basically American and new world character. They are neither Kenyon’s “men of little faith” nor Storing’s “incomplete reasoners,” and thus “junior founders.” Their thought is grounded in the American struggle for independence, draws strength from the colonial tradition, the natural rights tradition, and new state constitutions that emerged between 1776 and 1780. Their thought is moreover informed by the Articles of Confederation of the 1780s, matured by the debates over the creation and adoption of the Constitution, culminates with the adoption of the Bill of Rights and then bids farewell to its creative phase with the introduction of the Virginia and Kentucky Resolutions. I encourage the reader to consider this broader, and basically American and new world, definition of the Antifederalist project.

The Antifederalist Reputation

This reputation of the Antifederalists as irrelevant, even proto-Calhoun, disunionists was shaped, in part, by Alexander Hamilton’s observation in Federalist 1: “we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great an extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.” The response by the Antifederalist, “Centinel,” to Hamilton has been largely ignored: this claim of disunion, he said, is “from the deranged brain of Publius, a New York writer, who has devoted much time, and wasted more paper in combating chimeras of his own creation.”

James Madison’s commentary in Federalist 38 was no doubt also influential in portraying the Antifederalists as incoherent. Madison asks: “Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves.” But Madison does not “let them speak for themselves.” When the Antifederalists are permitted to speak for themselves, as Antifederalist Melancton Smith demonstrates, a remarkably coherent alternative emerges. “An Old Whig” makes the same point: “about the same time, in very different parts of the continent, the very same objections have been made, and the very same alterations proposed by different writers, who I verily believe, know nothing at all of each other.” This appeared six weeks prior to Federalist 38. When the Antifederalists are permitted to speak for themselves, a coherent and relevant account emerges.

The Federalist argues for checks and balances, especially against the legislature; the Antifederalists support term limits and rotation in office for all elected and appointed officials. But this is why Kenyon calls them irrelevant; they held to a scheme of representation that was outmoded even for 1787. By contrast, The Federalist argues that the representative needs a longer duration in office than provided by traditional republicanism in order to exercise the responsibilities of the office and resist the narrow and misguided demands of an overbearing and unjust majority. Because the Antifederalists were dubious that one could be both democratic and national, they urged less independence for the elected representatives. They claimed that practical experience demonstrated that short terms in office, reinforced by term limits, would be an indispensable additional security to the objective of the election system to secure that the representatives were responsible to the people. For the Antifederalists, a responsible representative – the essential characteristic of republicanism – was constitutionally obliged to be responsive to the sovereign people. Ultimately, the “accountability” of the representative was secured by “rotation in office,” the vital principle of representative democracy. This is the concept of the citizen-politician who serves the public briefly and then returns to the private sphere.

In Federalist 23, Hamilton describes the Antifederalist position as “absurd” because they admit the legitimacy of the ends and then are squeamish, even, cowardly, about the means: “For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensable to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative.” The Antifederalists, according to Hamilton, are mushy thinkers; they fuss over means rather than focusing on ends. Storing totally agrees: they should have focused on the ends of union and the (limited) role of the states in the accomplishment of those ends. The Antifederalists, according to Hamilton and Storing, wanted union but argued against giving the union the means to secure the ends. They were absurd and thus they were incoherent. But there is more. According to Storing, the Antifederalists also avoided the hard and “ugly truth” of Federalist 51: the people can’t govern themselves voluntarily. This truth, says Storing, is something that the Federalists faced squarely.

Coherent and Relevant

Perhaps that the Antifederalists have a coherent understanding of federalism and republicanism – grounded in “democratic federalism” and “constitutional republicanism” – and that this coherent understanding is worth keeping alive in the twenty-first century because it addresses what ails the contemporary American federal republic. Antifederalist thought is the built-in American antidote for the ills of the American federal republic. In particular, the three other alternative explanations either read history backwards or import European or ancient categories to explain an American experience.

The Antifederalists are not primarily interested in the “good government” project of The Federalist or the “best regime” project of the ancients, or the “exit rights” project of the secessionists or many of the other projects invented by the various historical schools; instead, I suggest they are interested in the creation and preservation of free government. They remind us that free government means limited government, and thus the political project should be focused on limiting rather than empowering politicians. Antifederalist statesmanship involves an attachment to means, rather than an administration of ends. There is nothing absurd or incoherent about being fussy over the use and misuse of means because means are actually powers and the abuse of powers sets us down the slippery slope to old world tyranny.

The Antifederalists speak to those who have become increasingly disillusioned by the collapse of decentralized state and local government, the greater intervention by the federal government in economic matters, the blurring of the separation of powers, and the replacement of voluntary associations by government programs. The Antifederalists warn: beware the dangers of “democratic nationalism,” and “delegated constitutionalism.” These are warnings from within the very American System itself. They warn us that there is something morally corrosive about the exercise of political power and thus they remind us about the need for the rule of law. And they warn about the dangers of the Federalist temptation with empire abroad. The Antifederalists are not isolationists, men of little faith, or junior partners; they are “Antitemptationalists” with a message of liberty and responsibility that resonates across the centuries.

“On the most important points,” then, the Antifederalists were not only in agreement but their position was coherent and is currently relevant. They believed that republican liberty was best preserved in small units where the people had an active and continuous part to play in government. Although they thought that the Articles best secured this concept of republicanism, they were willing to bestow more authority on the federal government as long as this didn’t undermine the principles of federalism and republicanism. They argued that the Constitution placed republicanism in danger because it undermined the pillars of small territorial size, frequent elections, short terms in office, and accountability to the people, and, at the same time, encouraged the representatives to become independent from the people and the state governments. They warned that unless restrictions were placed on the powers of Congress, the Executive, and the Judiciary, the potentiality for the abuse of power would become a reality. These warnings culminated in their insistence on a Bill of Rights which, in conjunction with small territory, representative dependency, and strict construction, they conceived as the ultimate “auxiliary precaution.”

The expression of discontent over the last fifty years about American politics has an ominous ring, revealing the widespread Antifederal mood in the electorate. Among the dramatic changes in recent American politics are the alarming alienation of the citizenry from the electoral system, the increased presence of the centralized Administrative State, and the dangerous consequences of an activist judiciary that openly thwarts the deliberate sense of the majority. These are all Antifederalist concerns about the tyranny of politicians. The term limits movement of the late twentieth century demonstrates that the Antifederalist message – keep your representatives on a short leash, otherwise you will lose your freedom – still resonates with the American people, because Antifederalism is very much part of the American political experience.

When we hear the claim that our representatives operate independently of the people, and that the Congress fails to represent the broad cross-section of interests in America, we are hearing an echo of the Antifederalist critique of representation. When we hear that the federal government has spawned a vast and irresponsive administrative bureaucracy that interferes too much with the life of American citizens, we are reminded of the warnings of the Antifederalists concerning consolidated government. They warn that, in effect, executive orders, executive privileges, and executive agreements will create the “Imperial Presidency.” And they warn that an activist judiciary will undermine the deliberate sense of the majority. The criticism that Americans have abandoned a concern for their religious heritage and neglected the importance of local customs, habits, and morals, recalls the Antifederalist dependence upon self-restraint and self-reliance. When we hear a concern for the passing of decentralization – old time federalism  we are hearing the Antifederalist lament.

The Antifederalist project calls for a rejuvenation of interest in Antifederalist “democratic federalism” and “constitutional republicanism.” Since American politics is often a debate over the possibilities and limitations of the separation of powers, an independent judiciary, federalism, and representative government, it is vital that the potency of Antifederalist political analysis be restored. If the electorate has “lost faith” in the responsibility of the representatives in every branch of government, then the very concept of representation undergirding the country is in crisis. What is the solution? If no one cares either about the question, or the solution, then America is perhaps doomed to go the way of previous great regimes, and the experiment in “republican government” is exactly what opponents through the centuries have predicted it would be: a complete failure thus proving that the human race is incapable of being governed other than by force and fraud.

Antifederalist political science advocated concentration of the power of the people and eliminating temptations for the concentration of power in officeholders. The heart of their method was to propose a scheme of representation that safeguarded interests and avoid the clashes of factions. This called for certain homogeneity of interests, as opposed to the Madisonian encouragement of diverse interests. The latter approach they rejected as unnecessary and dangerous. They placed their faith instead in the virtue of “middling” Americans – a virtue that was not informed by ancient Sparta or even ancient Rome but by the modern doctrine of personal self-reliance – coupled with holding their representatives “in the greatest responsibility to their constituents.”

The Antifederalists viewed the Constitution as creating mutually independent sovereign agents. They argued that such independent rulers would “erect an interest separate from the ruled,” which will tempt them to lose both their federal and their republican mores. The Antifederalists concluded that unless executive power was yet more limited, representation more broadened, presidents and senators made more responsible to the people and the state governments protected – unless the arrangement was significantly modified – the proposed regime would necessarily destroy political liberty by destroying the sovereignty of the people, the litmus test of republicanism. As an expression of this “constitutional republicanism,” they insisted on a Bill of Rights as a declaration of popular sovereignty.

In conclusion, the Antifederalists warned about the tendency of the American system toward the consolidation of political power in a) the nation to the detriment of the various states, and b) one branch of the federal government at the expense of the separation of powers. They warned about c) the corrupting influence that political power has on even decent people, whom decent people elected into office, and d) that the rule of law has a privileged position in republican government. They also anticipated the idea that e) all politics is – or should be – local and thus particular attachments rather than abstract ideas matter in the preservation of a liberal political order. Taken from Introduction to the Antifederalists.

Preparing to Teach this Lesson:

Prior to teaching this lesson the teacher should cover content related to the Articles of Confederation and its weaknesses. The teacher should familiarize her/himself with Madison’s Notes on the Constitutional Convention of 1787 on the following days outlined below. Gordon Lloyd has presented the content of the Constitutional Convention of 1787 as a Four Act Drama. Students and teacher should also be familiar with the Federalist and Antifederalist Debates.

Three activities are outlined below and should be implemented in order.

Activity 1:Becoming a Detective

Students are introduced to the historical scene under investigation. Here background information and context are provided for the students on Establishing the Electoral College and the Presidency. Students are then presented with an engaging question to guide their inquiry. The engaging question for the lesson is, “How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty? Finally, students are presented with a task to help them answer the question – or crack the case.

Activity 2:Investigating the Evidence

Students are provided links to appropriate digital primary sources using the American Founding website to help them crack the case.

Activity 3:Searching for Clues

Students are provided with a set of questions for their Detective’s Log, guiding their analysis of the evidence. Students are provided a printable handout, Detective Log, to work from.

Analyzing Primary Sources:

If your students lack experience in dealing with primary sources, you might use one or more preliminary exercises to help them develop these skills. The Learning Page at the American Memory Project of the Library of Congress includes a set of such activities. Another useful resource is the Digital Classroom of the National Archives, which features a set of Document Analysis Worksheets. Finally, History Matters offers pages on “Making Sense of Maps” and “Making Sense of Oral History” which give helpful advice to teachers in getting their students to use such sources effectively.

Suggested Activities:

Introduction to Case:

In this case, students explore a series of artifacts using the American Founding website. The artifacts serve as evidence taken from Major Themes at the Constitutional Convention, Federalist and Antifederalist Debates, and Document Library. As students explore the artifacts/evidence, they will work through a “detective’s log” to help them analyze and chart findings from the sources. In the end, students are asked to write an essay answering the following question: How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty? Additionally, students will be asked to indicate whether they were satisfied with the evidence and to list any additional questions that have been left unanswered through the investigation.

Activity 1: Becoming a Detective

Time required for activity: In class activity 45 minutes.

Students are introduced to the historical scene under investigation. Here background information and context are provided for the students on the Establishing the Electoral College and the Presidency. As students read background information, they will complete the concept ladder resource, developing a question for each rung of the concept ladder based on their prior knowledge of American history and reading of the Establishing the Electoral College and the Presidency introduction. Students’ questions should represent what they expect to be answered in their investigation of the Executive. Students are then presented with an engaging question to guide their inquiry. The engaging question for the lesson is, “How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty?” Finally, students are presented with the task to help them answer the question – or crack the case. Teachers should share the Detective Log handout at this time.

Activity 2 and 3: Investigating the Evidence and Searching for Clues

Time required for activity: In class activity, two 60 minute class periods.

Students are provided links to appropriate digital primary sources using the American Founding website to help them crack the case. For this HSI, students will read the content from the Federalist and Antifederalist Debates and the Document Library to assist them.

A REAP graphic organizer is provided to assist students who may need additional support as they read and analyze the digital primary sources. This graphic organizer asks students to:

R – Read the text. Write down the title of the text, whether it is a Federalist document or an Antifederalist document (if applicable) and what the evidence is about.

E – Encode the text by putting the main ideas in your own words. Include the timeline of the evidence.

A – Annotate the text by writing a statement that summarizes the important points explaining the significance of the evidence in relation to promoting a republic and balancing the need for energy in the Executive with the need for liberty.

P – Ponder the text by thinking about what you learned.

Ask yourself “How does establishing the Executive promote a republic and balance the need for energy in the Executive with the need for liberty?” Connect this text to your own prior knowledge or to other documents you have read.

Students are provided with a set of questions for their Detective’s Log (see Detective Log handout), guiding their analysis of the evidence. Students are provided a printable handout to work from.

Note: The teacher may decide to group students to investigate the evidence or have students work independently.

Assessment: Cracking the Case

Time required for assessment: Two 60 minute class periods.

Students will be completing a document-based question. The assessment consists of two parts. For the first part, students will answer 2-4 questions that accompany each of the four documents of evidence. In the second part of the assessment, students will construct an essay response to the document-based question.

Directions: Based on your analysis of the four documents of evidence, answer the following questions based on the accompanying artifacts (1- 4). Some of these artifacts have been edited for the purposes of these exercises. This question is designed to test your ability to work with historic artifacts. As you analyze the artifacts, take into account both the sources of the document and the author’s point of view. Be sure to review the scoring criteria prior to answering questions.

Note: Some text has been highlighted to assist students in answering document questions.

Scoring Criteria:

Credit will be fully rewarded if the response:

  • thoroughly addresses all aspects of the task by accurately interpreting the documents plus incorporates outside information related to the documents.
  • discusses all aspects of the task and supports with accurate facts, examples and details.
  • weighs the importance, reliability and validity of the evidence.
  • analyzes conflicting perspectives presented in the documents and weaves the documents into the body of the essay.
  • includes a strong introduction and conclusion.

Credit will be reduced if the response:

  • does not recognize the reliability, validity, or perspectives of the documents.
  • reiterates the content of the documents with little or no use of outside information.
  • discusses the documents in a descriptive rather than analytic manner.
  • shows little recognition of the tasks, lacked an introduction or conclusion.

Historic Context

The ratification of the United States Constitution, which followed the Constitutional Convention of 1787, had a great impact on sustaining democracy in the United States. One of the great debates during ratification was the role, structure and powers of the Executive.

Question: How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty?

After reading the documents, complete part A.

Part A: Short answer –

Answer the questions accompanying each set of documents using evidence from the text(s).

Document 1

Excerpt from Article II, United States Constitution

Section 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:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector…

No Persons except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

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.”

Section 2 – The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3 – He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 4 – The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Amendment XXII

Ratified February 27, 1951

Section 1 – No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2 – This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

Document Questions:

  1. What are the eligibility requirements for being President of the United States?
  2. Have eligibility requirements for being President of the United States been altered by Amendment XXII?
  3. Compare the exclusive powers the President and those that the President must share with the Senate.
  4. What are the criteria for removing the President from office?

Document 2

Excerpt from Old Whig V

November 1, 1787

Philadelphia Independent Gazetteer

If we pass over the consideration of this subject so essential to the preservation of our liberties, and turn our eyes to the form of the government which the Convention have proposed to us, I apprehend that changing the prospect will not wholly alleviate our fears.—A few words on this head, will close the present letter. In the first place the office of President of the United States appears to me to be clothed with such powers as are dangerous. To be the fountain of all honors in the United States, commander in chief of the army, navy and militia, with the power of making treaties and of granting pardons, and to be vested with an authority to put a negative upon all laws, unless two thirds of both houses shall persist in enacting it, and put their names down upon calling the yeas and nays for that purpose, is in reality to be a KING as much a King as the King of Great Britain, and a King too of the worst kind;—an elective King.—If such powers as these are to be trusted in the hands of any man, they ought for the sake of preserving the peace of the community at once to be made hereditary.—Much as I abhor kingly government, yet I venture to pronounce where kings are admitted to rule they should most certainly be vested with hereditary power. The election of a King whether it be in America or Poland, will be a scene of horror and confusion; and I am perfectly serious when I declare that, as a friend to my country, I shall despair of any happiness in the United States until this office is either reduced to a lower pitch of power or made perpetual and hereditary.—When I say that our future President will be as much a king as the king of Great-Britain, I only ask of my readers to look into the constitution of that country, and then tell me what important prerogative the King of Great-Britain is entitled to, which does not also belong to the President during his continuance in office.—The King of Great-Britain it is true can create nobility which our President cannot; but our President will have the power of making all the great men, which comes to the same thing.—All the difference is that we shall be embroiled in contention about the choice of the man, whilst they are at peace under the security of an hereditary succession.—To be tumbled headlong from the pinnacle of greatness and be reduced to a shadow of departed royalty is a shock almost too great for human nature to endure. It will cost a man many struggles to resign such eminent powers, and ere long, we shall find, someone who will be very unwilling to part with them.—I would therefore advise my country-men seriously to ask themselves this question;—Whether they are prepared TO RECEIVE A KING? If they are to say at once, and make the kingly office hereditary; to frame a constitution that should set bounds to his power, and, as far as possible secure the liberty of the subject. If we are not prepared to receive a king, let us call another convention to revise the proposed constitution, and form it anew on the principles of a confederacy of free republics; but by no means, under pretence of a republic, to lay the foundation for a military government, which is the worst of all tyrannies.

Excerpt from Cato IV

November 8, 1787

New York Journal

To the CITIZENS of the STATE of NEW-YORK.

The executive power as described in the 2d article, consists of a president and vice-president, who are to hold their offices during the term of four years; the same article has marked the manner and time of their election, and established the qualifications of the president; it also provides against the removal, death, or inability of the president and vice-president—regulates the salary of the president, delineates his duties and powers; and lastly, declares the causes for which the president and vice-president shall be removed from office.

It is remarked by Montesquieu, in treating of republics, that in all magistracies, the greatness of the power must be compensated by the brevity of the duration; and that a longer time than a year, would be dangerous. It is therefore obvious to the least intelligent mind, to account why, great power in the hands of a magistrate, and that power connected, with a considerable duration, may be dangerous to the liberties of a republic—the deposit of vast trusts in the hands of a single magistrate, enables him in their exercise, to create a numerous train of dependants—this tempts his ambition, which in a republican magistrate is also remarked, to be pernicious and the duration of his office for any considerable time favors his views, gives him the means and time to perfect and execute his designs—he therefore fancies that he may be great and glorious by oppressing his fellow citizens, and raising himself to permanent grandeur on the ruins of his country—And here it may be necessary to compare the vast and important powers of the president, together with his continuance in office with the foregoing doctrine—his eminent magisterial situation will attach many adherents to him, and he will be surrounded by expectants and courtiers—his power of nomination and influence on all appointments—the strong posts in each state comprised within his superintendence, and garrisoned by troops under his direction—his control over the army, militia, and navy—the unrestrained power of granting pardons for treason, which may be used to screen from punishment, those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt—his duration in office for four years: these, and various other principles evidently prove the truth of the position—that if the president is possessed of ambition, he has power and time sufficient to ruin his country.

The establishment of a vice president is as unnecessary as it is dangerous. This officer, for want of other employment, is made president of the senate, thereby blending the executive and legislative powers, besides always giving to someone state, from which he is to come, an unjust pre-eminence.

It is a maxim in republics, that the representative of the people should be of their immediate choice; but by the manner in which the president is chosen he arrives to this office at the fourth or fifth hand, nor does the highest votes, in the way he is elected, determine the choice—for it is only necessary that he should be taken from the highest of five, who may have a plurality of votes.

Every American Whig, not long since, bore his emphatic testimony against a monarchical government, though limited, because of the dangerous inequality that it created among citizens as relative to their rights and property; and wherein does this president, invested with his powers and prerogatives, essentially differ from the king of Great-Britain (save as to name, the creation of nobility and some immaterial incidents, the off-spring of absurdity and locality) the direct prerogatives of the president, as springing from his political character, are among the following:—It is necessary, in order to distinguish him from the rest of the community, and enable him to keep, and maintain his court, that the compensation for his services; or in other words, his revenue should be such as to enable him to appear with the splendor of a prince; he has the power of receiving ambassadors from, and a great influence on their appointments to foreign courts; as also to make treaties, leagues, and alliances with foreign states, assisted by the senate, which when made, become the supreme law of the land: he is a constituent part of the legislative power; for every bill which shall pass the house of representatives and senate, is to be presented to him for approbation; if he approves of it, he is to sign it, if he disapproves, he is to return it with objections, which in many cases will amount to a complete negative; and in this view he will have a great share in the power of making peace, coining money, &c. and all the various objects of legislation, expressed or implied in this Constitution: for though it may be asserted that the king of Great-Britain has the express power of making peace or war, yet he never thinks it prudent so to do without the advice of his parliament from whom he is to derive his support, and therefore these powers, in both president and king, are substantially the same: he is the generalissimo of the nation, and of course, has the command & control of the army, navy and militia; he is the general conservator of the peace of the union—he may pardon all offences, except in cases of impeachment, and the principal fountain of all offices & employments. Will not the exercise of these powers therefore tend either to the establishment of a vile and arbitrary aristocracy, or monarchy? The safety of the people in a republic depends on the share or proportion they have in the government; but experience ought to teach you, that when a man is at the head of an elective government invested with great powers, and interested in his re-election, in what circle appointments will be made; by which means an imperfect aristocracy bordering on monarchy may be established.

Document Questions:

  1. What are the merits of the Antifederalists’ argument that Article II of the Constitution establishes a “foetus of monarchy?”
  2. Do they think that “good government” demands a vigorous Executive?
  3. Why do they think that a “plural executive” would be safer for republican government than a “unitary executive?”

Document 3

Excerpt from Federalist 70

Publius (Alexander Hamilton)

March 15, 1788

There is an idea, which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman history knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.

There can be no need, however, to multiply arguments or examples on this head. A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.

Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic executive; it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention?

The ingredients which constitute energy in the executive are unity; duration; an adequate provision for its support; and competent powers.

The ingredients which constitute safety in the republican sense are a due dependence on the people, secondly a due responsibility.

Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justness of their views have declared in favor of a single executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand; while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.

That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.

This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority, or by vesting it ostensibly in one man, subject in whole or in part to the control and co-operation of others, in the capacity of counselors to him.

Summary of Federalist 70 – by Gordon Lloyd

This is the fourth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” The essay opens with the Antifederalist concern “that a vigorous executive is inconsistent with the genius of republican government.” Hamilton’s response is that “energy in the executive is a leading character in the definition of good government.” He explores two questions. A) What are the “ingredients which constitute energy in the executive?” B) How far can these ingredients be combined with other ingredients which constitute safety in the republican sense? A) There are four ingredients of energy: I Unity, II Duration, III Adequate Provision for Support, and IV Competent Powers. B) There are two ingredients of republican safety: I “A due dependence on the people,” and II “A due responsibility.”

A) Unity is “conducive to energy.” “The dictates of reason and good sense,” demonstrate that unity in the executive better secures the goals of “decision, activity, secrecy, and dispatch.” A “plurality in the executive” also destroys “responsibility.

Document Questions:

  1. What are the four “ingredients which constitute energy in the Executive?”
  2. What are the two “ingredients” that permit an energetic Executive to be consistent “with the genius of republican government?

Document 4

Excerpt from Federalist 71

Publius (Alexander Hamilton)

March 18, 1788

The Duration In Office Of The Executive

DURATION in office has been mentioned as the second requisite to the energy of the executive authority. This has relation to two objects: to the personal firmness of the executive magistrate in the employment of his constitutional powers, and to the stability of the system of administration which may have been adopted under his auspices. With regard to the first, it must be evident that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. It is a general principle of human nature that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one than for the sake of the other. This remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. The inference from it is that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he must lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. If the case should only be that he might lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. In either case, feebleness and irresolution must be the characteristics of the station.

There are some who would be inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly intend the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset as they continually are by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.

But however inclined we might be to insist upon an unbounded complaisance in the executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. In either supposition, it is certainly desirable that the executive should be in a situation to dare to act his own opinion with vigor and decision.

It cannot be affirmed that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. Between the commencement and termination of such a period there would always be a considerable interval in which the prospect of annihilation would be sufficiently remote not to have an improper effect upon the conduct of a man endowed with a tolerable portion of fortitude; and in which he might reasonably promise himself that there would be time enough before it arrived to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and goodwill of his constituents. He might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. As on the one hand, a duration of four years will contribute to the firmness of the executive in a sufficient degree to render it a very valuable ingredient in the composition, so, on the other, it is not enough to justify any alarm for the public liberty. If a British House of Commons, from the most feeble beginnings, from the mere power of assenting or disagreeing to the imposition of a new tax, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation attempted by them, what would be to be feared from an elective magistrate of four years’ duration with the confined authorities of a President of the United States? What, but that he might be unequal to the task which the Constitution assigns him? I shall only add that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments.

Summary of Federalist 71 – by Gordon Lloyd

This is the fifth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” It covers A) II Duration as it pertains to “the personal firmness of the executive.

1. “It is a general principle of human nature that a man will be interested in what he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it.” The duration provision helps the President to be “interested” in resisting the “ill-humors” of society and a “predominant faction in the legislative body.”

2. “The servile pliancy of the executive to a prevailing current in the community or in the legislature” is NOT “its best recommendation.” The President must resist a “complaisance to every sudden breeze of passion” that might emerge in the society contrary to the true interests of the people, and, instead be “the guardians of those interests to withstand the temporary delusions in order to give them time and opportunity for more cool and sedate reflection.” It is the duty of the executive to secure the “republican principle”: “the deliberate sense of the community should govern.”

3. “The executive should be in a situation to dare to act “with vigor and decision.”

4. “The fundamental principles of good government” requires a fortification of the executive against the “almost irresistible” tendency in “governments purely republican” for the “legislative authority to absorb every other.”

5-7. “It may be asked whether a duration of four years” is sufficient. It may not “completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government.”

Document Questions:

  1. What is “the republican principle” that it is “the duty” of the President to secure?
  2. How does “duration of four years” in office enable the President to fulfill this duty?
  3. Which branch of the government provides the greatest challenge to Presidential independence-the Legislative or the Judiciary– and why?

Part B: Essay response

Write an essay that discusses: How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty?

Essay response should be well organized with an introductory paragraph that states your position on the question. Develop your position in the next paragraphs and write a conclusion. In your essay, include specific historical details and refer to the specific documents you analyzed in Part A. You may include additional information from your knowledge of American History.

Extending the Lesson:

Extension 1: Based on the role, powers and structure of the Executive Branch of government today, research the following: How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty today?

Related EDSITEment Lesson Plans:

Selected Websites:

Standards Alignment:

  1. NCSS-10 Civic ideals and practices. Citizenship in a democratic republic.
  2. NCSS-5 Individuals, groups, and institutions.
  3. NCSS-6 Power, authority, and governance.

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