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The Article II Executive Power and the Rule of Law (Part III)

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24.07.2019

This post discusses the Whig executive and the available records of the Constitution's drafting history. Those records show that the delegates were familiar with the limited understanding of executive power. They also support the conclusion that the delegates wanted to give the President that limited form of the power, and drafted accordingly.

On May 29, 1787, Edmund Randolph presented to the Federal Convention several resolutions on behalf of the Virginia delegation. Two are critical to understanding the Constitution's executive power. One proposed to confer on a new "National Legislature" the "legislative rights" then given to Congress by the Articles of Confederation. The other gave a new "National Executive" a "general authority to execute the national laws" and also "the executive rights vested in Congress by the Confederation."

On June 2, the Convention turned to the national executive. According to Madison's notes, the younger Pinckney of South Carolina stated his support for a vigorous executive, but feared that the powers in the resolution would include peace and war, which would create an elective monarchy. John Rutledge of South Carolina opposed giving the executive the powers of peace and war. Roger Sherman of Connecticut said that the executive should be chosen by the legislature, because "he considered the executive magistracy as nothing more than an institution for carrying the will of the legislature into effect."

James Wilson of Pennsylvania then propounded a Whig-type limited conception of executive power. He "did not consider the prerogatives of the British monarch as a proper guide in defining the executive powers. Some of these prerogatives were of a legislative nature. Among others that of war & peace etc. The only powers he conceived strictly executive were........

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