The delegates to the Constitutional Convention of 1787 discussed presidential succession and inability briefly during recorded debates. The two major blueprints for the national government offered at the Convention—the Virginia Plan and the New Jersey Plan—did not address either issue.1 However, New York delegate Alexander Hamilton’s plan for the national government addressed vacancies in its highest executive office. The Hamiltonian Plan, which did not receive serious consideration at the Convention, would have established a strong and centralized government headed by a national “governor” who would have served for life unless impeached and removed from office.2 Upon the national governor’s death, resignation, or removal from office, his authorities would have been “exercised by the President of the Senate till a Successor be appointed.” 3

Despite a lack of recorded debate on executive succession in the Convention’s early months, on August 6, 1787, the Committee of Detail, which produced the Constitution’s first draft, reported an initial version of the Presidential Succession Clause. The draft Clause provided that

The Succession Clause’s first draft thus designated the President of the Senate as the President’s “provisional successor” 5 but did not specify whether a new President would be chosen before the next scheduled presidential election, explain how a new President would be chosen, or define presidential “disability.”

On August 27, a few weeks after the Committee of Detail reported its draft, the Federal Convention delegates briefly debated the issues of presidential vacancy and inability. Delegate Gouverneur Morris of Pennsylvania objected to designating the “President of the Senate” as the President’s provisional successor, suggesting the Supreme Court’s Chief Justice should assume that responsibility.6 In a similar vein, Delegate James Madison of Virginia argued that the President of the Senate’s exercise of presidential power might undermine the Constitution’s checks and balances by allowing Congress to enact legislation without the serious threat of a presidential veto.7 However, Madison suggested that a “Council to the President” should discharge the President’s powers and duties during a vacancy.8

art. II, § 2, cl. 1. President George Washington established the historical precedent of creating a Cabinet composed of the Attorney General and executive department heads.

Cabinet Members

, George Washington’s Mount Vernon, https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/cabinet-members/. Delegate Hugh Williamson of North Carolina contended that the Constitution should authorize Congress to enact laws specifying who would succeed to the presidency.9

Finally, Delegate John Dickinson of Delaware, referring to the Succession Clause’s “vague” designation of presidential “disability” as a circumstance that could result in the transfer of the President’s powers to another individual, asked, “What is the extent of the term ‘disability’ and who is to be the judge of it?” 10 None of the delegates offered a recorded response. Thereafter, the delegates unanimously agreed to postpone the Clause’s consideration.11

Footnotes

1

1 The Records of the Federal Convention of 1787, 20–23 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (Madison’s notes, May 29, 1787) (Virginia Plan); id. at 242–45 (Madison’s notes, June 15, 1787) (New Jersey Plan).

2

Id. at 292 (Madison’s notes, June 18, 1787).

3

Id. Delegate Charles Pinckney of South Carolina submitted his own plan of government to the Federal Convention in May 1787. No comprehensive record of the original Pinckney Plan exists. An 1818 document purporting to reflect Pinckney’s plan, which included provisions on presidential succession, appears to be a forgery. For more on this controversy, see 3 Farrand’s Records, supra note 1, at 601–04.

4

2 Farrand’s Records, supra note 1, at 186 (Madison’s notes, Aug. 6, 1787).

5

See id. at 427 (Madison’s notes, Aug. 27, 1787).

6

Id.

7

Id.

8

Id. As ratified in 1788, the Constitution did not formally establish a Council to the President but merely authorized the President to “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” U.S. Const. art. II, § 2, cl. 1. President George Washington established the historical precedent of creating a Cabinet composed of the Attorney General and executive department heads.

Cabinet Members

, George Washington’s Mount Vernon, https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/cabinet-members/.

9

2 Farrand’s Records, supra note 1, at 427 (Madison’s notes, Aug. 27, 1787).

10

Id.

11

Id.