The Declaration and the Power of the Executive

The American Revolution stands as a symbol against tyranny. It rejected the British monarch as sovereign while the Declaration of Independence established the new nation’s foundation instead on individuals’ natural rights and government by consent. But many mistake independence for a rejection of executive power. Properly understood, the American Revolution sparked a series of experiments to integrate the executive into a republican form of government, but it did not fundamentally change the nature of executive power itself, as presidents from Washington to Trump have learned.

The Declaration of Independence sets out the revolutionaries’ rejection of monarchy. It proclaims that the King had inflicted “a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.” It proceeds to list twenty-seven particulars, beginning with “He has refused his Assent to Laws, the most wholesome and necessary for the public good” and ending with “He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.”

The charges remain general, without naming specific events or even colonies, which — as historian Pauline Maier has observed — followed in the tradition of the English Declaration of Rights.

Drafted by Thomas Jefferson and edited by a committee composed of John Adams, Roger Sherman, Robert Livingston, and Benjamin Franklin, the Declaration did not equate an executive itself with tyranny. Instead, it argued that King George III had abused his position to impose tyranny in the colonies. It does not challenge the Crown’s veto power over legislation, for example, but the way in which the King had used it. Indeed, as the Declaration recognized, American leaders had petitioned the monarch “in the most humble terms” to block the imposition of trade restrictions, taxes, and military deployments that were ordered by Parliament. Only after King George had rejected their pleas did the colonists charge at the end of the Declaration’s bill of particulars that “A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

A more nuanced history of the Revolution, however, does not prevent critics today from claiming that the Declaration symbolizes a rejection of traditional views of executive power. “Their experience under the British crown led the Founding Fathers to favor less centralization of authority than they perceived in the British monarchy,” Arthur Schlesinger Jr. wrote in The Imperial Presidency. “As victims of what they considered a tyrannical royal prerogative, they were determined to fashion for themselves a Presidency that would be strong but still limited.” Louis Fisher, a scholar at the Congressional Research Service, argues that the revolutionaries held “a distrust of executive power” that only the tumult of the 1780s would temper. These scholars remind us that Edmund Randolph warned the Constitutional Convention in Philadelphia that creating a single executive would be the “foetus of monarchy.”

We should not mistake, however, the colonists’ frontal attack on tyranny for a rejection of the idea of executive power. There are two reasons why. First, the Revolution may have re-founded the relationship between the citizen and the government into one based on natural rights and rule by consent. But the Revolution also addressed a dispute over British imperial governance. The crisis that led to the Declaration of Independence arose over the balance of power between Parliament and the colonies. For a century, the colonies had benefitted from a policy of benign neglect that allowed elected popular assemblies to wield significant governing authority. But after the Seven Years’ War required a larger military establishment in North America, Parliament sought to transfer the costs of it to the colonies that enjoyed its protections. The colonists broke from the mother country because they wanted the right to participate in the decisions that governed their fates. London, however, saw no need to give the colonies actual representation when their interests received virtual representation in Parliament (not a difficult claim to make when some members of Parliament represented “rotten” boroughs with few voters), because MPs were supposed to make decisions with the entire empire’s interests in mind, rather than just those of their district’s voters. The revolutionary slogan of “No Taxation without Representation” only stood in for the larger complaint of imperial lawmaking without representation.

Americans today would recognize the problem as one of federalism: how much power should the central government exercise, and how much should reside with local authorities. British leaders could not yet conceive of the decentralized structure that would successfully govern their empire in the following century. In challenging Parliament’s claim to unilateral control over the empire, the colonies advanced the theory that they occupied the same position as England, Wales, and Ireland, in which they became part of the United Kingdom only through their direct ties to the Crown. When Parliament refused to acknowledge their demands for self-governance, the colonists petitioned King George III for relief. When the Crown rejected their pleas, the revolutionaries announced their independence — hence the Declaration’s bill of particulars against the King, through whom they believed their ties to the mother country ran, rather than against Parliament.

Understanding the Revolution as a dispute over federalism explains why the Declaration of Independence itself is not a rejection of executive power. It is instead a rejection of the British eighteenth century approach to imperial governance. We can see this in the Articles of Confederation, which replaced the British imperial constitution. The Continental Congress did not play the role of a legislative body as we understand it today. Rather, the Congress had judicial, legislative, and executive functions more typical of a treaty organization than a sovereign government. The structure of Article 9 of the Articles of Confederation, which enumerated Congress’s powers, supports this. It begins by giving Congress traditional executive powers, such as the powers to decide on war and peace and appoint government officials. It then gives Congress judicial powers, declaring that it shall act as an appellate court of last resort for interstate disputes. Only after listing the executive and judicial powers does Article 9 proceed to those legislative powers most analogous to the Constitution’s Article I, Section 8. Thus, the latter portion of Article 9 gives Congress the authority to coin money, fix weights and measures, establish post offices, appoint officers, and make rules to regulate the military. Article 9 vested executive, legislative, and judicial powers in Congress because Congress was all three branches of government wrapped up in one.

Congress under the Articles acted as an executive and administrative body first, and as a legislature second. Congress did not have the powers of a legislature, such as the authority to manage trade, levy taxes, or directly regulate individuals. These powers remained with the individual states, which retained “every Power, Jurisdiction and right” not expressly delegated under the Articles. Instead of acting as a legislature, Congress replaced the King as the imperial executive authority in the colonies. As one historian has concluded, “the executive and administrative responsibilities that had been exercised by or under the aegis of the king’s authority were confided to the successor to his authority, the Congress.” The legislative powers held by Parliament remained in the hands of the state assemblies. “[T]he legislative powers of Parliament tended to devolve upon the states, while the executive powers of the crown passed to Congress, which we should probably conceptualize as more of a plural executive than a legislature,” observe historians Eugene Sheridan and John Murrin. It was Congress’s defects in exercising legislative powers — taxing, legislating, regulating — that led to the demands for a new Constitution. But Version 1.0 of our national governing document did not implement our independence by rejecting executive power.

Fighting for government by consent similarly did not lead to a rejection of executive power in the states. Antipathy toward the Crown of course found a powerful expression in the first constitutions the newly independent states drafted. But these efforts at reform sought to restructure the executive branch of government, rather than to change the nature of executive power itself.

States began by eliminating the independence of the governor’s office. In all but one state, for example, the legislators elected the governor, which made the governor directly accountable to the assembly rather than to the People. States also limited the governor’s term and eligibility. Most either provided for the governor’s annual election, restricted the number of terms he could serve, or both. As the Maryland Constitution declared, “a long continuance, in the first executive departments of power or trust, is dangerous to liberty; a rotation, therefore, in these departments, is one of the best securities of permanent freedom.”

States also disrupted the executive branch’s structural unity. In modern constitutional law parlance, executives to this point had been “unitary” — a single figure formally exercised the constitutional authorities of the branch, dictated the policy that bound it, and held the power to command and, if necessary, remove all subordinate executive officials. Pennsylvania undertook the most radical changes by replacing the single governor with a twelve-man executive council elected by, and responsible to, the people. Other states altered their executive branches by creating legislature-appointed councils of state for the purpose of advising the governor before he pursued a course of action. In the view of historian Gordon Wood, the councils often made the governors “little more than chairmen of their executive boards.”

These structural modifications, however, did not bear long-term significance because the framers reversed many of them when they created the presidency. Despite the fragmentation of the executive as a unitary institution, the states still left many substantive powers in the executive branch. We can see this in Thomas Jefferson’s failed effort to permanently restrict the nature of executive power in Virginia. In his draft of the Virginia Constitution, Jefferson made his intent clear by renaming the governor the “Administrator.” Jefferson enumerated the powers that the executive could not exercise: the administrator could not dismiss the legislature, regulate the money supply, set weights and measures, establish courts or other public facilities, control exports, create offices, or issue pardons. These were all powers that traditionally belonged to the King. When it came to war powers, Jefferson’s draft stated that the administrator could not declare war or peace, issue letters of marque or reprisal, raise or introduce armed forces, or build armed vessels, forts, or strongholds. Although the draft still left to the administrator any remaining “powers formerly held by [the] king,” there would seem to be little left.

Most states, however, rejected Jefferson’s approach. Their constitutions did not enumerate the transfer of vast swaths of executive power to the assemblies. In drafting their new constitutions, states generally rejected Jefferson in favor of John Adams, who, for once, had his day over his friend and future rival. In his Thoughts on Government, which became the blueprint for many of the state constitutions, Adams suggested that the states should adopt bicameral legislatures and create a governor “who, after being stripped of most of those badges of domination called prerogatives, should have a free and independent exercise of his judgment, and be made also an integral part of the legislature.” Adams advised the states to reproduce the forms and powers of the English constitution, after adjusting the branches of government to be more responsive to popular sovereignty. Thus, Adams’s plan called for a governor, a commons, and a mediating senate, without enumerating each body’s powers. Virginia itself rejected Jefferson’s draft and instead adopted a provision authorizing the governor, with the advice of a council of a state, to “exercise the Executive powers of Government.” Although requiring conciliar approval placed a structural check on the governor’s power, it was not a substantive limitation on the executive branch’s powers. The privy council itself was part of the executive branch.

After the initial wave of state constitution-making, other states established a strong, unitary executive branch that granted the governor broad authority and structural independence. These examples demonstrated that an independent and unitary executive could exercise a wide degree of freedom in matters of war and peace. The New York constitution, for example, received widespread praise among the framers for its powerful executive. Enacted in the spring of 1777, the New York constitution learned from the mistakes of other states and also responded to the demands of the British occupation of a large portion of the state. Rejecting the structural handcuffs other states had placed on the executive, New York vested “the supreme executive power and authority of this State” in a single, popularly elected governor. New York did not create a privy council to look over his shoulder, nor did any limitation exist on the number of terms a governor could serve. New York’s Constitution did not enumerate powers transferred from the executive to the legislature. Vigorous executive government returned when the executive’s regular substantive powers were restored to a structurally independent and unitary governor. These lessons did not go unnoticed by those who would write and ratify the Constitution a decade later.

The American Revolution founded the relationship between the citizen and the state on the natural right of government by consent. The Revolutionaries rejected tyranny, not just because it broke this social contract, but because it represented a failure of British imperial governance. Critics of the American presidency have mistaken the Revolution’s character as a revolt against executive power. Once we understand the Revolution’s roots as a dispute over decentralized government, we can better appreciate the Constitution’s foundations for an energetic executive.

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