The Origins of the Presidential System
14.3.1 The Constitutional Convention Endorses the Principle
of a Strong National Government
The Convention began its sessions on May 29, 1787. George Washington was unanimously elected its president,[730] and the delegates immediately got down to work.
The first issue discussed was the powers to be assigned the new national government. There was soon agreement that the central government should have the authority to levy taxes, regulate commerce between the states, and handle the country’s foreign policy. The states, then, lost the right to print their own currency, to sign international treaties, and to establish import or export tariffs. It was also agreed that the new central power would be empowered to maintain an army and a navy.[731]14.3.2 The Placement of Limits on Federal Power:
The Strict Application of the Division of Powers and the Establishment of a “Presidential” System
Though the majority clearly wished to bolster the power of the Congress, there were still widespread fears that doing so would mean a substantial reduction in the sovereignty of the states. Thus, defining and restricting the powers which would be assigned to the federal government became an essential issue for many delegates. Firstly, it was agreed that a district division of powers ought to be established. Inspired by the ideas of Montesquieu, Virginia representative James Madison proposed the creation of three independent branches: Legislative, Executive and Judicial.[732]
14.3.3 A “Great Compromise” for the Legislative Branch (Congress)
For the forming of the legislature Madison and the delegates from Virginia proposed that representation be proportional to each state’s population. This proposal was dubbed the “Virginia Plan”.[733] This approach, however, meant that the smallest states would be completed dominated by the largest ones.
To prevent this, the delegates from New Jersey proposed that each state have the same number of Congressional representatives, regardless of population (Bowen 2010, 104-108). In the end a compromise was reached (the Great Compromise), a solution worthy of Solomon: a bicameral legislature consisting of a House of Representatives to which each state would send delegates based on population, in such a way that the larger states would have more representatives; and a Senate in which all the states would have two senators (Wirls 2003). Both chambers would comprise the U.S. Congress.14.3.4 A President Heading the Executive Branch
The other novel innovation was the creation of a powerful Executive: the president of the United States,[734] who was assigned considerable power as a way of preventing a tyrannical concentration of power in the Legislative branch (Epstein 2008, 194). While the president’s term was limited to 4 years, he could be reelected.[735] Here again there arose the need to mollify those who wished the president to be elected by the people and also respond to those who were concerned with each individual state having an impact on the election, even those with smaller populations (Gregg 1997, 34). The result was a sui generis system: instead of a single presidential election there would be 13 simultaneous ones. The people of each state would choose electors (equal in number to the sum of their representatives in the House and Senate) who would actually vote for the president. They were not free to vote for whomever they wished, however, as all of a state’s electors were required to vote for the candidate who had obtained the greatest number of votes in their state (Deskins et al. 2010, 2-3).
This system became even more complex after the formation of political parties, as these came up with a process of “primaries”, elections through which they nominated their candidate for the presidential election.
The first political party in the history of the young nation was the Federalist Party of the United States, founded by Alexander Hamilton (1755-1804), who presided over it until his death (Murray 2007, 235).14.3.5 The Separation of Powers as the Essence of the Presidential System
Both the Congress (Legislative branch), composed of the House of Representatives and the Senate, and the president (Executive branch) were chosen by the people and enjoyed the legitimacy granted them by the ballot box. As such, they were beholden to the people’s will, and had to cooperate to make decisions that reflected it. Curiously, this system in which both the Legislative and Executive branches played key roles and checked each other according to James Madison’s conception of the Republican government (Ferejohn 2005, 126-155), came to be called a “presidential system” because it stood in contrast and as an alternative to the Parliamentary system in England, in which the Executive, the “prime minister”, was determined by the party in control of the legislature. Another important difference between the two nations and systems was that in England the prime minister governed, while the state was represented by the king (the crown). In the American system the president of the United States was simultaneously the head of the state and the president of the government.
14.3.6 The Judicial Power as a Constitutional Referee: The Revolutionary Principle of “Judicial Review” as a Safeguard Against the Tyranny of the Majority
In addition to the Legislature (Congress) and the Executive (president) the Founding Fathers created a third power: the Judiciary, represented by a Federal Supreme Court made up of nine judges, nominated by the president and confirmed by the Congress. This judicial institution would ultimately turn out to be absolutely vital, as its main function became that of interpreting the federal Constitution—a role which proved pivotal given that the Constitution of 1787 contained only seven articles.[736] As a product of consensus, the Constitution was a minimalist document.
Thus, whole areas of the institutional framework of the new federal system were yet to be defined,[737] such as the dual system of state and federal courts of justice (Abraham 1998, 151).The Supreme Court’s function as the supreme interpreter of the federal Constitution took root only over time. In fact, it was asserted 14 years later through the famous ruling of Justice John Marshall, at that time the Chief Justice of the Supreme Court, as part of the decision handed down in the Marbury vs. Madison case (February 24, 1803). This historic verdict proved decisive in the construction of the federal regime, as for the first time the Supreme Court established the principle that the judiciary could determine whether laws were Constitutional (the principle of judicial review). The system of the “separation of powers” turned the Judicial branch into the “referee” determining the constitutionality of the government’s actions.[738]
14.4