See all modernizations at my Federalist Project page.
[March 11, 1788]
To the People of New York.
We now turn to the structure of the executive branch under the proposed Constitution.
Few parts of the new government presented greater challenges in their design than this one. And perhaps no part has been attacked with less fairness or critiqued with less understanding.
Opponents of the Constitution have gone out of their way to mislead the public. Counting on people’s natural aversion to monarchy, they’ve tried to provoke every possible suspicion and fear about the President of the United States—portraying him not as a potential monarch but as monarchy’s full-grown heir. To support this false resemblance, they haven’t hesitated to draw from the world of pure fiction. Powers that are seldom greater—and in some cases even less—than those of New York’s governor have been exaggerated into something more sweeping than the royal prerogatives.¹ He has been described as greater in splendor and dignity than the King of Great Britain himself. He has been depicted with a crown glittering on his head, royal robes trailing behind him. He has been placed on a throne, surrounded by flatterers and mistresses, granting audiences to foreign ambassadors with the haughty pomp of majesty. The scene has been further embellished with images of Eastern tyranny and decadence—we are made to tremble at the sight of bloodthirsty bodyguards and blush at hints of a future seraglio.²
When opponents resort to such over-the-top distortions—or better put, outright transformations—it becomes necessary to examine the office carefully. Only by seeing it clearly can we understand its true nature and expose the insidious effort to spread false likenesses.
It would be hard for any serious person to look at these claims and respond with either composure or respect. The claims made against the presidency go far beyond the usual, if still indefensible, excesses of political partisanship. Even the most tolerant observer, inclined to excuse some exaggeration in political debate, must feel a deep sense of outrage at the deception being attempted here. To compare the President to the King of Great Britain is not just an exaggeration—it is a calculated attempt to deceive. And the brazen means used to push that comparison only heighten the offense.
One example—typical of the overall dishonesty—illustrates just how brazen these misrepresentations have become. One critic has claimed that the President possesses a power that the Constitution explicitly assigns to state governments: the ability to fill temporary vacancies in the Senate.
This reckless claim comes from a writer who, whatever his other merits, has enjoyed considerable praise from his party.* And yet, on the basis of this completely false assertion, he has constructed an equally baseless set of conclusions. Let him now face the facts and see if he can justify or soften the disgraceful falsehood he has spread.
The Constitution’s second article, second section, contains the relevant provisions. The President is empowered “to nominate, and by and with the advice and consent of the Senate to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not otherwise provided for in the Constitution, and which shall be established by law.” Immediately following this clause is another: “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.”
It is from this last provision that the claim arises that the President can appoint Senators to vacant seats. But even a brief look at the wording and structure of these clauses shows that this argument has no merit whatsoever.
The first of these two clauses clearly provides only a method for appointing those officers “whose appointments are not otherwise provided for in the Constitution, and which shall be established by law.” So it cannot apply to Senators, whose appointments are otherwise provided for in the Constitution, and who are established by the Constitution itself—without requiring any further establishment by law. That point is so plain it’s unlikely anyone would seriously contest it.
The second clause, which allows the President to fill certain vacancies, also cannot be read to include Senate seats. Here’s why:
1. This clause follows the previous one and is plainly meant as a supplement to it. It provides a fallback method of appointment when the normal one—joint action by the President and Senate—is unavailable because the Senate is not in session. Since vacancies may arise during those recesses that need urgent filling, the Constitution lets the President act alone to make temporary appointments “during the recess of the Senate, by granting commissions which should expire at the end of their next session.”
2. Since this provision is tied to the previous clause, it must apply only to the “officers” listed there—which, as we have seen, does not include Senators.
3. The structure and timing of the clause further prove the point. It speaks of recesses of the Senate and appointments that last until the end of the next Senate session. If this clause had been intended to apply to Senators, it would have mentioned state legislatures, which are the bodies responsible for permanently appointing Senators. It would also have allowed the temporary appointment to last until those state legislatures reconvened—not until the next session of the national Senate, which plays no role in selecting its own members. The logic is simple: the terms of a temporary appointment should be shaped by the body responsible for making the permanent one. And this clause reflects only the situation of the national Senate—not of the state legislatures—so the “vacancies” it refers to can only be understood as vacancies in offices where the Senate shares the power of appointment with the President. That excludes Senate seats, where the Senate itself has no role in the appointment process.
4. Most decisively, the Constitution elsewhere provides explicit guidance on filling Senate vacancies. Article I, Section 3 states that the Senate “shall be composed of two Senators from each State, chosen by the Legislature thereof for six years.” And if a vacancy occurs “during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.”
This last provision makes the argument against the President’s supposed appointment power unanswerable. The Constitution explicitly gives state governments—not the President—the power to fill Senate vacancies. There is no ambiguity here. The claim that the President possesses this authority is not just implausible; it is a deliberate falsehood, aimed at deceiving the public.
I have chosen this particular example because it exposes the dishonest tactics being used to manipulate public opinion against the Constitution. And in a case as flagrant as this, I do not hesitate to use stronger language than usual. I leave it to any honest opponent of the proposed government to judge whether there are words too harsh to describe an attempt so shameless and so corrupt.
— Publius
* See Cato No. 5.
¹ Royal prerogatives were the traditional powers exercised by the British monarch without needing Parliament’s approval—such as appointing officials, declaring war, or issuing pardons.
² A seraglio was the part of a palace reserved for a sultan’s harem in some Middle Eastern monarchies; it evoked the image of exotic, despotic luxury.
See all modernizations at my Federalist Project page.
teddy ray 