Federalist No.71

The Duration In Office Of The Executive

Tuesday, March 18, 1788

Alexander Hamilton


Article II, Section 1, Clause 1 of the Constitution:

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 …

71.1

This paper is a discussion about the above clause in the Constitution which grants the President of the United States a four-year term. The paper does not discuss re-election, which is the subject of the next paper.

71.2

Hamilton’s argument is based upon one of the ingredients which constitute the energy of the executive – Hamilton outlined four ingredients in Federalist 70: unity (discussed in Federalist 70), duration, support and competent powers. In this paper, Hamilton addresses the issue of the duration of the President’s term.

71.3

By energy Hamilton means the will and motivation needed for a president to invest himself in his role. Hamilton identifies two means by which a president’s energy may be dissipated. First, is the length of term. While critics of the Constitution may express concern at the length of time allotted for the President’s term, this must be balanced against the discouraging situation of a term of office being too short:

It is a general principle of human nature, that a man will be interested in whatever he possesses, in proportion to the 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…
71.4

The second problem is if tenure is subject to capricious will, namely 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.
71.5

To this second concern, Hamilton argues that the principles of republicanism are based upon the will of the people; that the people are sovereign. Yet the job of government cannot be held accountable to every passing whim – to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests – which would be too impractical. Not only that, but Hamilton asserts that it is the duty of the appointed government to resist the will of the people when they are taken with temporary delusions and their will is at odds with their interests. In other words, a leader has to have the power and the motivation to lead, even when leadership is unpopular. The issue of duration of term applies to this problem, since a short term in office would make a President feel less personally responsible for resisting populist backlashes.

71.6

Hamilton identifies the legislature as a potential encroachment on the independence and energy of the executive as well. Late in the paper he cites the example of the encroachments made by the British House of Commons on the executive – the Crown – over many centuries from the mere power of assenting or disagreeing to the imposition of a new tax, referring to strictures placed on King John when he signed the Magna Carta in 1215, to the temporary dissolution of the Crown after the Civil War, to the rise of the House of Commons as a coequal branch of the legislative. If this can happen to the Crown in Britain, he argues, what might happen in America to the role of President over time?

71.7

The answer is that the legislative branch poses dangers that need to be balanced by the power of the President. Hamilton reminds us that the three branches of government are meant to be independent, each with oversight on the others, yet he argues that the legislative branch tends to act in ways that suggest its impatience with other branches of government, and with an expectation that its will should prevail.

71.8

As to the legislature’s power over the President, it is potentially exacerbated in giving the President too short a term, which would lessen his interest and desire to oppose the legislative bodies. A second means by which the legislature might erode Presidential powers is if the House of Representatives, in particular, used its numbers and its representative power to work against a President’s re-election bid if he opposed them. This could happen, anyway – Republicans have made this argument regarding the Democrats’ impeachment hearings against President Trump, saying that they are an attempt to overthrow the result of the 2016 election – but a longer term would at least give the President greater motivation and means to resist the House against any sinister project of that body.

71.9

The four-year term is designed to give the President enough time to feel that he can act independently, at least for a part of his term without a concern for the next election, thereby achieving the energy and leadership required from the role. Hamilton admits that the four-year term does not guarantee this objective, but it is a compromise drawn from republican principles, which cannot tolerate an executive with no limit on their tenure, namely a king.

5 December 2019