Article Two of the U.S. Constitution: Presidency Explained

This article delves into the intricacies of Article Two of the U.S. Constitution, focusing on the executive branch and the presidency. It highlights several "invisible numbers" and specific clauses that reveal profound aspects of American governance and its divergence from European models.

The Four-Year Term: An Unprecedented Innovation

The four-year term for the presidency, established at the founding, was revolutionary. At the time, no state governor served a four-year term; only New York had a three-year term. Today, however, 48 out of 50 state governors serve four-year terms, demonstrating how state governorships have been modeled after the American presidency.

Zero Property Qualifications: A Path for the "Lowborn"

A significant "invisible number" is the zero property qualifications required to be president. Unlike most governorships at the time of the Constitution's adoption, which mandated property ownership, the presidency was open to individuals from humble backgrounds. This stands in stark contrast to the British system, where the head of state is a monarch born to the throne. Examples of "lowborn" presidents include Andrew Jackson, Ulysses S. Grant, Harry Truman, Ronald Reagan, Gerald Ford, Bill Clinton, and Barack Obama. While some may have acquired modest fortunes before their presidencies, many, like Clinton and Obama, did not. This openness to individuals from diverse economic backgrounds is a remarkable feature of the American presidency.

Zero Religious Qualifications: A Secular Office

Another crucial "zero" is the absence of religious qualifications for the presidency. While almost every state governorship at the time, except Virginia, had a religious test, the Constitution explicitly avoids such requirements for the president. This is notable given that the Constitution was largely crafted by white, mainstream Protestants.

Consider the last presidential election mentioned: - Mitt Romney: A white Protestant, but of a denomination (Mormonism) that did not exist at the founding. - Paul Ryan and Joe Biden: Both Catholics. - Barack Obama: The only mainstream Protestant, but non-white, with a Muslim father from Africa.

This demonstrates the dramatic and egalitarian possibilities stemming from the lack of religious qualifications in the Constitution.

The Three-Fifths Clause: A Boost for Slaveholding States

The three-fifths clause, though not immediately obvious in Article Two, significantly impacted the presidency. It was embedded not only in the apportionment of the House of Representatives but also in the structure of the Electoral College. This clause gave Southern slaveholding states a considerable advantage in presidential elections by allowing them to count three-fifths of their enslaved population for electoral votes. This was not about granting voting rights to enslaved people but about increasing the political clout of slave states in the House and the Electoral College.

The Singular Presidency: One Person, Always in Session

The number "one" signifies that there is only one president at any given time. This makes the presidency a highly personal, singular, and often lonely office, which is always "in session" 24/7, 365 days a year.

The Vice Presidency and Continuity of Power

While the vice presidency exists, it's important to remember that under the original Article Two, presidents and vice presidents did not run as a team. The vice president was simply the person who came in second in the presidential election. The concept of a presidential ticket emerged later with the rise of political parties and was formalized by the 12th Amendment.

The very existence of the vice presidency underscores the continuous nature of executive power. Unlike Congress or the courts, which can go out of session, the presidency must always be occupied because executive power is continuous and seamless. If a president dies or resigns, the vice president immediately steps in, ensuring no break in executive authority. This contrasts with the House of Representatives, where a vacancy requires a new election, or the Senate, where a governor can appoint a replacement, but not instantaneously. This continuity of executive power was even reflected at the state level, where governors were continuously in office while state legislatures might not be.

Presidential Succession Beyond the Vice President

The Constitution, recognizing the critical need for a continuous presidency, also provides for a line of succession if both the president and vice president are incapacitated. Congress is empowered to establish this line by law. Currently, the Speaker of the House is next in line after the vice president, followed by the President pro tempore of the Senate, as per a 1940s statute.

However, there's historical debate about whether legislative leaders should be in the line of succession. James Madison argued in the 1790s that "officers" in the constitutional sense referred to cabinet officers, not members of the legislature. This is supported by the "incompatibility clause" in Article One, which states that senators and representatives cannot simultaneously hold executive office. For example, when a senator is appointed to a cabinet position, they must resign from the Senate. Madison contended that it makes little sense for a sitting lawmaker to become president, as they would have to resign from the legislature and would not have been handpicked by the original president. He argued that cabinet officers, chosen by the president, would be more appropriate successors, ensuring continuity of the original administration's mandate. This argument becomes even more potent in a party-political system, where a president from one party should not be succeeded by a legislative leader from an opposing party.

The Presidential Oath of Office: A Personal and Constitutional Commitment

Article Two meticulously specifies the presidential oath of office, signaling its profound importance to the framers. The oath emphasizes the singular and personal nature of the office: "I do solemnly swear 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."

Key aspects of the oath: - Personal Commitment: The use of "I do solemnly swear" highlights the individual responsibility of the president, contrasting with the "We the People" opening of the Constitution. - No Religious Test: The oath does not include any religious requirements. While many presidents have chosen to add "So help me God," these words are not constitutionally mandated. This differs significantly from state constitutions of the time and the British coronation oath, which required the monarch to swear as "defender of the faith" and be administered by an Anglican bishop, often using a Protestant Bible. The American presidential oath is secular; a president can even "affirm" rather than "swear" if they have religious objections to oaths. - Defender of the Constitution, Not Statutes: Crucially, the oath requires the president to "preserve, protect and defend the Constitution," not necessarily every statute passed by Congress. This is a fundamental difference from the British system, where monarchs pledged to enforce all parliamentary laws, as Parliament was considered sovereign. In the American system, the Constitution is supreme, deriving its authority from the people. Therefore, a president is obligated to defend the Constitution even if it means challenging a statute they believe to be unconstitutional.

The Presidential Veto as a Constitutional Defense

One primary way a president can defend the Constitution against unconstitutional statutes is through the veto power. Even if both the House and Senate pass a bill, the president can veto it if they believe it violates the Constitution. Early presidents frequently used their veto power on constitutional grounds. In the period before the Civil War, roughly half of the first 50 presidential vetoes were based on constitutional objections, with presidents explicitly stating their belief that a bill was unconstitutional. This contrasts sharply with the Supreme Court's role during the same period; before 1850, the Supreme Court had only invalidated one statute through judicial review (Marbury v. Madison in 1803). This demonstrates that in early American constitutional experience, presidents were significant defenders of the Constitution, arguably even more so than the courts.

The next session will further explore other presidential powers, including their intersection with the veto, and will delve into the presidency of Andrew Jackson, particularly his use of the veto power and his relationship with the Supreme Court.