Came across this book some time back,seems like a good time to go through it
By Gene Healy
Introduction
On the morning of January 28, 2007, Mike Huckabee went on
NBC’s Meet the Press to announce that he was running for president
of the United States. It was a bold move for an undistinguished
former governor of Arkansas, best known for losing 110 pounds in
office and writing about it in a book called Quit Digging Your Grave
with a Knife and Fork. Bolder still was Huckabee’s rationale for seeking
the nation’s highest office. He had decided to run, he told host Tim
Russert, because ‘‘America needs positive, optimistic leadership to
kind of turn this country around, to see a revival of our national soul.’’1
Russert didn’t make the most of his opportunity for follow-up
questions, but the candidate’s remark might have suggested several.
First, was the ‘‘national soul’’ really in such a desperate state that
its last, best hope was . . . Mike Huckabee? Second, and more importantly, what sort of office did Huckabee imagine he was running
for? Is reviving the national soul in the job description? And if
reviving the national soul is part of the president’s job, what isn’t?
The Bipartisan Romance with
the Imperial Presidency
Huckabee wasn’t the only candidate to wax messianic about the
president’s role. His fellow contestants in campaign 2008 also seemed
to think they were applying for the job of national savior. Senator
John McCain invoked Teddy Roosevelt as a role model, noting that
TR ‘‘liberally interpreted the constitutional authority of the office,’’
and ‘‘nourished the soul of a great nation.’’2 Senator Barack Obama
ran on ‘‘the audacity of hope,’’ a phrase connoting the eternal promise
of redemption through presidential politics (is ‘‘audacity’’ the right
word for that kind of hope?). For her part, Hillary Clinton seemed
to see the president as the lone figure who could restore a sense of
purpose to American life: as she put it in May 2007, ‘‘When I ask
people, ‘What do you think the goals of America are today?’ people
don’t have any idea. We don’t know what we’re trying to achieve. And I think that in a life or in a country you’ve got to have some
goals.’’3
The man they hoped to succeed, George W. Bush, has made clear
on any number of occasions just how broadly he views the president’s job. After a tornado ripped through central Kansas in May
2007, the president visited the hardest-hit town and told the assembled residents, ‘‘I bring the prayers and concerns of the people of
this country to this town of Greensburg, Kansas.’’ He had arrived,
he said, on a mission to ‘‘lift people’s spirits as best as I possibly
can and to hopefully touch somebody’s soul by representing our
country, and to let people know that while there was a dark day in
the past, there’s brighter days ahead.’’4
The president as described by George W. Bush was no mere constitutional officer charged with faithful execution of the laws—he was
a soul-toucher, a hope-bringer—a luminary who carried with him
the prayers and concerns of the American people—not to mention
plenty of federal aid.
Nearly six years earlier, September 11 had inspired similar rhetorical excess, but with far greater consequence. The week after the
attacks, President Bush invoked America’s ‘‘responsibility to history’’
and declared that we would ‘‘answer these attacks and rid the world
of evil.’’5 A mission that vast would seem to require equally vast
powers. And the Bush administration has made some of the broadest
assertions of executive power in American history: among them, the
power to launch wars at will, to tap phones and read e-mail without
a warrant, and to seize American citizens on American soil and hold
them for the duration of the War on Terror—in other words, perhaps
forever—without ever having to answer to a judge.
Those assertions have justifiably given rise to fears of a new Imperial Presidency. Yet, many of the same people who condemn the
growing concentration of power in the executive branch also
embrace a virtually limitless notion of presidential responsibility.
Today, politics is as bitterly partisan as it’s been in three decades,
and the Bush presidency is at the center of the fight. But amid all
the bitterness, it’s easy to miss the fact that, at bottom, both Left and
Right agree on the boundless nature of presidential responsibility.
Neither Left nor Right sees the president as the Framers saw him:
a constitutionally constrained chief executive with an important, but
limited job: to defend the country when attacked, check Congress when it violates the Constitution, enforce the law—and little else.
Today, for conservatives as well as liberals, it is the president’s job
to protect us from harm, to ‘‘grow the economy,’’ to spread democracy and American ideals abroad, and even to heal spiritual
malaise—whether it takes the form of a ‘‘sleeping sickness of the
soul,’’ as Hillary Clinton would have it, or an ‘‘if it feels good, do
it’’ ethic, as diagnosed by George W. Bush.6
Few Americans find anything amiss in the notion that it is the
president’s duty to solve all large national problems and to unite
us all in the service of a higher calling. The vision of the president
as national guardian and redeemer is so ubiquitous that it goes
unnoticed.
Is that vision of the presidency appropriate for a self-governing
republic? Is it compatible with limited, constitutional government?
The book you’re holding argues that it is not. Americans’ unconfined
conception of presidential responsibility is the source of much of
our political woe and some of the gravest threats to our liberties. If
the public expects the president to deal with all national problems,
physical or spiritual, then the president will seek—or seize—the
power necessary to handle that responsibility. We’re right to fear
the growth of presidential power. But the Imperial Presidency is the
price of making the office the focus of our national hopes and dreams.
Cursing the King, Pining for Camelot
It may seem strange to charge that American political culture—
so often derided for its cynicism—suffers from romanticization of
the presidency. There’s no doubt that we’re less starry-eyed about
our presidents than we were half a century ago, when three-quarters
of Americans trusted the federal government to do what was right
most of the time and over 60 percent told pollsters that the president
should take the lead in deciding what the country needs.7 Post Watergate America is more likely to distrust any given president,
and respect for the office has declined. But at the same time, the
inflated expectations people have for the office—what they want
from a president—remain as high as ever.
A year before September 11, National Public Radio, the Kaiser
Family Foundation, and Harvard’s Kennedy School of Government
released an extensive survey of American attitudes toward government, summing up the results pithily: ‘‘Americans distrust government, but want it to do more.’’ Though nearly half the respondents saw the federal government as a threat to their personal rights and
freedoms, the survey also showed that Americans ‘‘would like to
see the government do more in a wide range of areas.’’8
So too with the presidency. Today, we’re far more open than our
grandparents were to the idea that the president may be a crook or
a clown; yet, we still expect the ‘‘commander in chief’’ to heal the
sick, save us from hurricanes, and provide balm for our itchy souls.
If F. Scott Fitzgerald was right that the mark of a first-rate mind is
the ability to hold two contradictory ideas at the same time, then,
intellectually, the American electorate is second to none. We don’t
trust the president. But we demand that he fulfill our every need.
That tension suffuses the American view of the presidency from
low culture to high. And in their rhetoric, presidents stoke the public’s inflated expectations, promising moral leadership and government action that can heal the country and the world. Americans
don’t quite believe it, but can’t bring themselves to give up the
dream. From popular culture to the academy to the voting booth,
we curse the king, all the while pining for Camelot.
Is the president a tyrant or a saint? A crook or a Lincolnesque
redeemer? All the above, if popular culture is any indication of
American sentiment—and what better indicator could there be?
Americans’ conflicted views of the presidency play themselves out
on small screens and large: the pop culture president is at turns
malevolent, pathetic, and ridiculous . . . or righteous, heroic, and
noble. He molests Girl Scouts and gins up a phony war to distract
the public, as in 1997’s Wag the Dog. Or he’s a two-fisted action hero,
ready to personally vanquish any foreign threat—as with Harrison
Ford’s President James Marshall, who duked it out with Russian
terrorists that same year in Air Force One.
Martin Sheen’s President Jed Bartlet never got quite as physical,
but few movies or TV shows from the 1950s or 1960s ever embodied
the heroic view of the presidency as completely as did NBC’s hit
series The West Wing. Bartlet was unbearably decent and admirable,
a Catholic theologian-cum-Nobel laureate in economics—just a
slight cut above the sort of person we usually get for the job. Even
his scandals were noble: in Season 3, Bartlet suffers a congressional
censure vote for concealing his valiant struggles with multiple sclerosis—a far cry from the thong-snapping hijinks of the Clinton years.
Meanwhile, much of the same audience that adored The West Wing
laughs along nightly as Comedy Central’s The Daily Show skewers President Bush’s arrogance, incompetence, and difficulties with the
English language. Martin Sheen is their president, but Jon Stewart
is their comedian—and no one seems to notice any tension between
the two views.
Like other Americans, historians prefer a cinematic presidency—
not for them the stolid, boring competence of a Calvin Coolidge.
Instead, presidential scholars insist that America’s great presidents
are the nation builders and the war leaders—men who overturned
the settled constitutional order during periods of crisis. That’s
nowhere clearer than in the periodic polls of scholars ranking the
presidents, a practice introduced by Arthur Schlesinger Sr. in 1948
and repeated by his son, the author of 1973’s The Imperial Presidency.
That book was a powerful critique of executive aggrandizement and
the decline of Congress, which makes it all the more ironic that
Schlesinger Jr.’s polls, like his father’s, heavily favored imperial
presidents.
Summing up the results of his 1962 survey, Schlesinger Sr. noted
that ‘‘Mediocre Presidents believed in negative government, in self-subordination to the legislative power.’’9 And scholars continue to
see it that way. Thus, in Schlesinger Jr.’s 1996 survey, 5 of the top
10 presidents were war leaders: among them James K. Polk, Harry
Truman, and Woodrow Wilson. Polk’s major achievement was starting a war of conquest. Truman launched our first major undeclared
war and had to be rebuked by the Supreme Court for claiming that
his powers as commander in chief allowed him to seize American
companies. After running for reelection as a peace candidate, Wilson
took the country into the pointless carnage of World War I and
carried out perhaps the harshest crackdown on civil liberties in
American history. Wilson’s successor Warren G. Harding pardoned
the peaceful protestors Wilson had imprisoned and ushered in the
boom times of the Roaring Twenties. Yet, Harding comes in dead
last in the Schlesinger poll.10
Correcting for partisanship doesn’t change the scholarly bias
toward imperial presidents. In October 2000, the Federalist Society
and the Wall Street Journal conducted a presidential scholar survey
balanced among experts on the Left and the Right. Ronald Reagan
shot up 17 places, but otherwise the results were virtually identical
to the Schlesinger survey.11 Whether they’re conservative or liberal,
America’s professors prefer presidents who dream big and attempt great things—even when they leave wreckage in their wake. The
worst fate for any president, it seems, is to become one of history’s
timeservers, men like Hayes, Arthur, Harding, or Coolidge, who
offered no New Deals, proclaimed no New Frontiers—men whose
ambition was so contemptibly flaccid that they could content themselves simply with presiding over peace and prosperity. To be truly
great, the modern chief executive needs to aim higher. Today’s president can no longer merely preside.
All the President’s Jobs
And it’s been that way for quite some time. In 1956 prominent
political scientist Clinton Rossiter published The American Presidency;
in the book, Rossiter announced his ‘‘feeling of veneration, if not
exactly reverence, for the authority and dignity of the presidency.’’
The president had, Rossiter noted approvingly, come to be viewed
by the public as ‘‘a combination of scoutmaster, Delphic oracle, hero
of the silver screen, and father of the multitudes.’’12
Rossiter outlined 10 roles that the public expected the modern
president to fulfill. At least five of those roles are nowhere to be
found in the Constitution, and they reflect a breathtaking amount
of responsibility and power. Among the roles Rossiter describes are
● ‘‘World Leader’’: The president is responsible not just for the
‘‘common Defense of the United States,’’ as the Constitution
phrases it, but for the survival and flourishing of freedom
worldwide.
● ‘‘Protector of the Peace’’: He is charged as well with responding
to any highly visible crisis, from labor unrest to bad weather.
Faced with ‘‘floods in New England or a tornado in Missouri
or a railroad strike in Chicago or a panic in Wall Street,’’ Rossiter
noted, ‘‘the people turn almost instinctively to the White House
and its occupant for aid and comfort.’’
● ‘‘Chief Legislator’’: Where the Framers’ chief executive had recognized that Congress takes the lead on domestic policy, by the
1950s, the president had become the motive force in American
government, responsible for setting the nation’s policy agenda
and pushing his legislative program to completion.
● ‘‘Manager of Prosperity’’: Well before President Bill Clinton took
office promising to ‘‘focus like a laser beam on the economy,’’
Professor Rossiter recognized that the modern president had become responsible for the economic well being of the country,
a figure expected to ‘‘watch like a mother hen over all the eggs
in all of our baskets.’’
● ‘‘Voice of the People’’: the modern president had also become, in
Rossiter’s words, ‘‘the moral spokesman of us all,’’ responsible
for divining and implementing the general will. He is nothing
less than ‘‘the American people’s one authentic trumpet,’’ a
leader with ‘‘no higher duty than to give a clear and certain
sound.’’13
Taken all in all, Rossiter gives us a remarkable vision of the president. He’s our guardian angel, our shield against harm. He’s America’s shrink and social worker and our national talk-show host. He’s
a guide for the perplexed, a friend to the downtrodden—and he’s
also the Supreme Warlord of the Earth.
Rossiter wrote on the cusp of the New Frontier, before two presidencies had been broken on the rack of Vietnam, before the revelations of Watergate reawakened Americans to the dangers of the
executive unbound. Thus, his exuberance about the promise of presidential power may strike the modern reader as naive and anachronistic. But the presidency remains much as he described it. None of
Rossiter’s roles has been transferred to any other government actor
or returned to the people themselves. The 21st-century president
remains our World Leader, the Protector of the Peace, our Chief
Legislator, our Manager of Prosperity, and the Voice of the People—
even if we’re more likely than ever before to worry about the powers
we’ve ceded to him.
Our Plebiscitary Presidency
During his 1912 reelection campaign, our 27th president, William
Howard Taft, looked on with numb dread as that grandiose vision
of the presidency began to emerge in the form of his former friend
and mentor Theodore Roosevelt. Seeking to secure a third term by
denying Taft a second, TR’s campaign struck an apocalyptic note:
in his address to the delegates at the Progressive Party convention
that year, Roosevelt barked, ‘‘You who strive in a spirit of brotherhood for the betterment of our Nation, to you who gird yourselves
for this great new fight in the never-ending warfare for the good of
humankind, I say in closing . . . We stand at Armageddon, and we battle
for the Lord!’’14 [See,forever they have been delusional about themselves and their job,nothing has changed,and over the last 40 years,each one grows in delusion.You think people would have started to note something when they put a second rate actor in the job.DC]
Recoiling from Roosevelt’s fanaticism, Taft offered a more realistic
account of the presidency’s potential. On the campaign trail, and
later, in his book Our Chief Magistrate and His Powers, Taft insisted
that the president was not responsible for solving every major problem in American life and should not have the power to attempt it.
In one speech during the 1912 campaign, Taft protested that the
president ‘‘cannot create good times . . . cannot make the rain to
fall, the sun to shine, or the crops to grow.’’15 At the height of the
Progressive Era, however, American voters weren’t in the mood to
reward executive humility; the election went to Woodrow Wilson,
a pivotal figure in the growth of the Imperial Presidency.
Few presidents since Taft have tried to lower public expectations
for the office. Far more typical is the tone struck by Bill Clinton in
his first inaugural address, in which he intimated that the ritual of
presidential anointment could bring hope and life to the world: ‘‘This
ceremony is held in the depth of winter. But, by the words we speak
and the faces we show the world, we force the spring.’’16
Political scientists who have tracked the content of the inaugural
and State of the Union addresses over time have found that presidential rhetoric has become much less humble and much more activist
in tone.17 Rossiter’s roles abound in modern presidential speeches,
which increasingly describe an alternate reality in which the ‘‘man
in charge’’ is capable of putting right virtually every problem in
modern American life. In his State of the Union addresses, George
W. Bush has promised, among other things, to rescue America’s
children from gangs, fight steroids in sports, ‘‘move [America]
beyond a petroleum-based economy,’’ and ‘‘lead freedom’s advance’’
around the world.18
There’s good reason modern presidents talk the way they do:
their rhetoric reflects what the office has become. The constitutional
presidency, as the Framers conceived it, was designed to stand
against the popular will as often as not, with the president wielding
the veto power to restrain Congress when it transgressed its constitutional bounds. In contrast, the modern president considers himself
the tribune of the people, promising transformative action and
demanding the power to carry it out. The result is what political
scientist Theodore J. Lowi has termed ‘‘the plebiscitary presidency’’:
‘‘an office of tremendous personal power drawn from the people
. . . and based on the new democratic theory that the presidency with all powers is the necessary condition for governing a large
democratic nation.’’19
If we’re unhappy with the presidency we’ve got, Lowi suggests,
we have ourselves to blame. The office as we know it is largely the
creature of public demands. And like the transformed presidential
role it reflects, the exultant rhetoric of the modern presidency is
as much curse as blessing. It raises expectations for the office—
expectations that were extraordinarily high to begin with. A man
who trumpets his ability to protect Americans from economic dislocation, to shield them from physical harm and moral decay, and to
lead them to national glory—such a man is bound to disappoint.
Yet, having promised much, he’ll seek the power to deliver on his
promises.
Congressional Abdication and
Overextension Abroad
Of course, no one cause can fully account for the enormous expansion of presidential power throughout the 20th century. The interplay between outsized public expectations for the office and presidential attempts to meet those expectations is central to the story of
the presidency’s growth, but other factors are at work as well.
A key factor is congressional abdication, the near-total failure of
Congress to defend its constitutional prerogatives against aggrandizing executives. James Madison thought we could count on the constitutional architecture to harness man’s lust for power, channeling it
in a manner that would make the separation of powers largely self executing. Ambition would counteract ambition, with the members
of each branch fighting any diminution of their authority.
Unfortunately, the experience of the 20th century suggests that
the ambitions of individual legislators do not provide them with
sufficient incentive to resist executive encroachments on congressional power. The Madisonian scheme has been frustrated by legislators’ eagerness to delegate legislative authority to the executive and
to leave to the president the final decision over war and peace.
Another cause of executive power growth is American expansion
abroad. By creating a vast empire of overseas bases and stationing
American troops across the globe, Congress has virtually ensured
that the president would acquire enormous unilateral powers over
foreign policy. But it’s hard to see how public demands are responsible for America’s imperial posture and the resulting expansion of presidential power. Public opinion polls reveal very little support
among Americans for Wilsonian foreign policy adventures or for
the notion that America should play the role of global policeman.20
Public demands may not be directly responsible for the institutional failures of Congress or for America’s dangerous overcommitment abroad, but Americans’ conviction that on all matters of policy
the buck stops with the president makes it far easier for Congress
to delegate authority and dodge responsibility. And the modern
president’s role as the guarantor of international peace greatly
increases the odds of war and the centralization of executive power
that war brings.
War Is the Health of the Presidency
‘‘It is of the nature of war to increase the executive at the expense
of the legislative authority,’’ the Federalist tells us.21 And modern
commanders in chief tend to reflexively invoke the war metaphor
when the public demands that they take action to solve the emergency of the month, real or imagined.
‘‘War is the health of the state,’’ Randolph Bourne’s famous aphorism has it, but Bourne could just as easily have written that ‘‘war
is the health of the presidency.’’ Throughout American history, virtually every major advance in executive power has come during a war
or a warlike crisis. Convince the public that we are at war, and
constitutional barriers to action fall, as power flows to the commander in chief.
Little wonder, then, that, confronted with impossible expectations,
the modern president tends to recast social and economic problems
in military terms: war on crime, war on drugs, war on poverty.
Martial rhetoric often ushers in domestic militarism, as presidents
push to employ standing armies at home, to fight drug trafficking,
terrorism, or natural disasters. And when the president raises the
battle cry, he can usually count on substantial numbers of American
opinion leaders to cheer him on.
Like intellectuals the world over, many American pundits and
scholars, right and left, view bourgeois contentment with disdain.
Normal people appear to like ‘‘normalcy,’’ Warren Harding’s term
for peace and prosperity, just fine. But all too many professional
thinkers look out upon 300 million people living their lives by their own design and see something impermissibly hollow in the spectacle. From William James’s search for a ‘‘Moral Equivalent of War’’
that could unite Americans behind a common cause to the modern
nostalgia for the ‘‘Greatest Generation,’’ large swaths of our intelligentsia believe that war is the force that can give American life
meaning.22 [They are not intelligentsia, they are brain dead zombies parasitizing off the public,let them send their own to die in their corporate wars.DC]
Our chief executives capitalize on that belief, declaring metaphorical wars on all manner of social harms or real wars on foreign
adversaries. Again and again throughout American history, presidents have used the power of the bully pulpit—and their power to
command the army—to redefine their role, transforming themselves
from humble chief magistrates to domineering commanders in chief.
In the chapters to come, we’ll explore that transformation. To
show that the problems of the Imperial Presidency began long before
George W. Bush’s inauguration, we’ll have to cover a fair amount
of history. We’ll begin, in Chapter 1, by looking at the Framers’
vision for the presidency. The Constitution’s architects knew human
nature too well to concentrate enormous power and responsibility
in any one man’s hands. Instead, they carefully limited executive
power, especially the power to take the country into war. And
despite the best efforts of several aggrandizing chief executives, at
the end of the 19th century, the presidency still greatly resembled
the office the Framers had envisioned 100 years before.
In Chapter 2, we’ll look at the early-20th-century reformers who
sought to overturn that vision. The Progressives saw constitutional
limits as a brake on progress and wanted the president set free
to perform great works. By the third decade of the century, the
Progressives had succeeded in transforming the office, in large part
due to their keen appreciation of how war and crisis could be
exploited to centralize power.
Chapters 3 and 4 trace the rise and fall of the Heroic Presidency,
from the height of its power and public esteem in the early cold
war to its decline after Vietnam and Watergate, when Americans
reclaimed their heritage of skepticism toward power. Oddly, though,
just as most Americans were concluding that the presidency needed
to be constrained, conservatives decided that it needed to be
unleashed. The post–World War II Right, led by William F. Buckley’s
National Review, had previously appreciated the dangers of concentrated power better than any other political movement of its time. But by the mid-1970s, motivated in part by the ‘‘emerging Republican
majority’’ in the Electoral College, the Right had largely abandoned
its distaste for presidential activism and had begun to look upon
executive power as a key weapon in the battle against creeping
liberalism. Sadly, that pattern is all too common in political battles
over the scope of presidential power. The tendency to support
enhanced executive power when one’s friends hold the executive
branch—a syndrome aptly dubbed ‘‘Situational Constitutionalism’’—is a recurring theme of this book.23
Chapters 5 through 7 treat the post-9/11 period. The Al Qaeda
threat led to the Heroic Presidency’s triumphant return and the
ascendancy of a constitutional theory that places enormous
unchecked power in the hero’s hands. Even as trust in the federal
government, and in President Bush, has plummeted, the Bush
administration skillfully employed the war metaphor to accumulate
new powers. But given the nature of the War on Terror, these were
potentially permanent powers in a permanent war—available to all
future presidents, virtuous or otherwise. That ought to trouble all
Americans, regardless of their political leanings.
Given the staggering powers and responsibilities that go with the
21st-century presidency, it’s more important than ever before that
the person who holds the office is worthy of trust. Chapter 8, ‘‘Why
the Worst Get on Top . . . and Get Worse,’’ will provide little comfort
on that score. Our current system for selecting the president favors
men and women with extraordinary stamina and a burning desire
to rule. And the surreal environment of modern White House life
can hardly help but magnify the character flaws of anyone who
wins the office.
In the final chapter, we’ll ask what, if anything, can be done to
restore the presidency to its proper constitutional role. Though we’ll
examine various proposals to curb presidential prerogative, in the
end, there is no simple legislative ‘‘fix’’ to the problems of the presidency. Unless and until we change what we ask of the office—no
longer demanding what we should not want and cannot have—
we’ll get what, in a sense, we deserve.
***
George W. Bush returned to the ranch in January 2009, to the
relief of an ever-increasing majority of Americans. But replacing him will not solve the problem of presidential power. The pressure for
centralization will remain, enhanced by the atmosphere of
permanent emergency accompanying the War on Terror. And future
presidents will respond to that pressure by enhancing their power,
becoming loved and admired, then hated and feared, in the binge and-purge cycle that characterizes the American public’s dysfunctional relationship with the presidency.
In an October 2000 ‘‘exit interview’’ with the New Yorker, Bill
Clinton allowed that his tenure may have served to ‘‘demystify the
job’’ of the presidency, and that, as far as he was concerned, that
wasn’t ‘‘such a bad thing.’’24 ‘‘Demystifying the job’’ was a wonderful
euphemism for alternately amusing and dismaying Americans with
the image of a president with his trousers around his ankles. But a
genuine demystification of the presidency is sorely needed. A political culture often condemned for its cynicism isn’t nearly cynical
enough when it comes to the nation’s highest office. That office
cannot deliver what it promises; and in the promising it sets the
stage for further concentration of power.
Can that cycle be broken, and the presidency cut down to size?
Is a presidency consistent with a constitutional republic possible in
21st-century America? This book, which contains far more diagnosis
than prescription, may not answer those questions to the reader’s
satisfaction.
What can be said with confidence, however, is that a presidency
of limited powers and modest goals was what the Framers gave us
in 1787. It was the presidency we enjoyed for most of the first century
under the Constitution. And it is worth fighting to restore.[yep,because what is coming(if not already here) out of this is take your choice..tyrant..dictator..a blind person can see him or her coming.DC]
1.
Our Chief Magistrate
and His Powers
The best rulers are always those to whom great power is entrusted. . . . It is, therefore, manifestly a radical defect in
our federal system that it parcels out power and confuses
responsibility as it does. The main purpose of the Convention
of 1787 seems to have been to accomplish this grievous
mistake.
—Woodrow Wilson,
Congressional Government (1885)
On Friday, June 1, 1787, the Philadelphia Convention turned to
the seventh resolution of the Virginia Plan introduced three days
earlier, ‘‘that a national Executive be instituted, to be chosen by
the national Legislature.’’ With George Washington, the delegates’
unanimous choice for convention president, looking on, James Wilson of Pennsylvania made a bold suggestion. He moved ‘‘that the
Executive consist of a single person.’’ After South Carolina’s Charles
Pinckney seconded the motion, ‘‘a considerable pause’’ ensued.1
What sort of officer would this be? An elected monarch, as several
of the delegates feared?2 Or something far less imposing?
The title the delegates settled on for the chief executive was humble
enough. As commonly used in the 18th century, the term indicated
the presiding officer of a legislature, with an emphasis on the ‘‘presiding’’ function, ‘‘almost to the exclusion of any executive powers,’’ a
position ‘‘usually [held by] men whose talents and reputations
matched their office.’’3
Republican in Form and Substance
In fact, some found the very modesty of the title irritating. Even
‘‘fire companies and a cricket club’’ could have a ‘‘president,’’ Vice
President John Adams complained shortly after taking his place as
presiding officer of the new Senate.4 On April 23, 1789, three days
after arriving in New York—then the seat of the national government—Adams delivered an extensive speech to the Senate insisting that the president and vice president needed honorific titles to lend
an air of dignity and majesty to government. At Adams’s behest,
the Senate appointed a committee to confer with the House of Representatives on what titles would be appropriate.
The House wanted nothing to do with the idea. James Madison,
then serving as a representative from Virginia, scorned Adams’s
effort.5 ‘‘The more simple, the more republican we are in our manners,’’ Madison told his colleagues, ‘‘the more national dignity we
shall acquire.’’6 When the joint committee recommended against
‘‘annexing any style or title to those expressed in the Constitution,’’ the House unanimously adopted the committee’s report.
Yet, Adams wouldn’t take no for an answer. At his urging, the
Senate appointed a new Title Committee, which on May 9 proposed
that the president be addressed as ‘‘His Highness, the President of
the United States, and Protector of their Liberties.’’7 When the Senate
moved to postpone consideration of the report, Adams launched into
a ‘‘forty minute . . . harangue’’ on the ‘‘absolute necessity’’ of titles.
In this debate, Adams had a formidable opponent, Senator William
Maclay of Pennsylvania, a man possibly more Jeffersonian than
Jefferson, a partisan republican before factions had properly formed.
In Maclay’s private journal, which remains one of our best records
of the proceedings of the first Senate, he condemned the ‘‘base,’’
‘‘silly,’’ and ‘‘idolatrous’’ attempt to append quasi-monarchical titles
to the nation’s new constitutional officers.8
A first-generation American of Scots extraction, Maclay lived on
a farm in the rural Pennsylvania interior, near Harrisburg. He served
only two years in the Senate, and the members of what Maclay saw
as an emerging, aristocratic ‘‘court party’’ were no doubt glad to see
him go.
Maclay rarely missed a chance to needle his ideological opponents,
whom he saw as beggars after ‘‘the loaves and fishes of government’’—men who favored the ‘‘translation of the diadem and scepter
from London’’ to New York.9 He was up from his chair to object at
the merest hint of anti-republican language, such as a reference to
the president’s ‘‘most gracious speech’’ or a resolution that suggested
the president had ‘‘rescued’’ the United States from ‘‘anarchy and
confusion.’’ When a proposed resolution referred in passing to the
‘‘dignity and splendor’’ of the government, Maclay found even this
offensive, telling his fellow senators:
As to the seeking of sounding names and pompous expressions, I thought them exceptionable on that very account,
. . . that ‘‘splendor,’’ when applied to government, brought
into my mind, instead of the highest perfection, all the faulty
finery, brilliant scenes, and expensive trappings of royal government, and impressed my mind with an idea quite the
reverse of republican respectability, which I thought consisted in firm and prudent councils, frugality, and economy.10
The Maclay that emerges from the journal is a dyspeptic grouch,
the sort of personality that too few people properly appreciate.11
Yet, as doctrinaire and exacting as Maclay could be, he was also
funny and irreverent. He didn’t take himself overly seriously, and
thus found it impossible not to laugh at his self-important colleagues.
Adams caught the worst of it. After the vice president agonized
over a point of protocol, asking the senators for advice, ‘‘a solemn
silence ensued.’’ Maclay struggled to keep from cracking up: ‘‘God
forgive me, for it was involuntary, but the profane muscles of my
face were in tune for laughter in spite of my indisposition.’’12 Maclay
had to beg divine forgiveness again two weeks later, while confessing that, looking at Adams, he could not help thinking ‘‘of a monkey
just put into breeches.’’13
When it came to the debate on titles, though, Maclay was deadly
serious. Not only were such titles anti-republican, they were unconstitutional: ‘‘Let us read the Constitution,’’ he demanded, pointing
to Article I, Section 9, Clause 8: ‘‘No Title of Nobility shall be granted
by the United States.’’ ‘‘Appellations and terms given to nobility in
the Old World,’’ Maclay declared, were ‘‘contraband language in the
United States,’’ and could not be applied ‘‘to our citizens consistent
with the Constitution.’’14 Even the phrase ‘‘Protector of their Liberties’’ was objectionable: ‘‘The power of war is the organ of protection,’’
Maclay reminded the senators, ‘‘this is placed in Congress by the
Constitution. Any attempt to divest them of it and place it elsewhere,
even with George Washington, is treason against the United States,
or, at least, a violation of the Constitution.’’15
In response to Adams’s suggestion that citizens of other countries
wouldn’t respect our constitutional officers unless they arrived bearing fancy titles, Maclay responded with classic American indifference: ‘‘As to what the common people, soldiers, and sailors of foreign countries may think of us, I do not think it imports us much. Perhaps
the less they think, or have occasion to think of us, the better.’’16
Maclay won the point, and we’ve ever since referred to the president simply as ‘‘the president.’’ But Adams’s central role in the debate
earned him a title of his own: Proto-Jeffersonians in the House and
Senate began referring to the portly vice president as ‘‘His Rotundity.’’ The entire episode irritated Washington, who later wrote that
Adams had acted without his knowledge and contrary to his wishes.17 Throughout his presidency, when Washington referred to the
office he held, most often he called it the mere ‘‘chief magistrate.’’18
The titles debate was significant because it reaffirmed the constitutional settlement: the new president would not be an elected king.
The chief magistrate had an important job, but he was not responsible
for saving the ‘‘national soul’’: the president would have ‘‘no particle
of spiritual jurisdiction,’’ the Federalist tells us.19 Instead, as presidential scholar Jeffrey K. Tulis has put it, unlike ‘‘policies that attempt
to shape the souls of their citizenry and foster certain excellences or
moral qualities by penetrating deeply into the ‘private’ sphere, the
founders wanted their government to be limited to establishing and
securing such a sphere.’’20
A government thus limited had no need of a chief executive
invested with the powers and responsibilities described by Professor
Rossiter in 1956’s The American Presidency. As our early constitutional
history makes clear, the Founding Generation did not see the president as Rossiter’s Protector of the Peace, except perhaps in the narrow, constitutional sense that they expected him to respond to sudden attacks by hostile powers. Neither was he the Voice of the
People, the Manager of Prosperity, nor the Chief Legislator. His
main duty, as Article II, Section 3, explains, was faithful execution
of the laws.
It’s difficult for 21st-century Americans even to imagine a president with such a modest role. For as long as any of us have been
alive, the president has been the central figure in American political
life. But the Framers never thought of the president as America’s
‘‘national leader.’’ Indeed, for them, the very notion of ‘‘national
leadership’’ raised the possibility of authoritarian rule by a demagogue who would create an atmosphere of crisis in order to enhance
his power.21 To foreclose that possibility, the powers of the chief
magistrate would be carefully limited.
This chapter will explore the constitutional presidency as envisioned by the Framers. We’ll begin by examining the leading modern
challenge to the constitutional presidency, unitary executive theory,
which, at its most radical, envisions a president with the foreign
affairs powers of an elected king. We’ll see that, contrary to the
arguments of many unitary executive theorists, the Framers explicitly rejected royal prerogative as a model for the republican executive. They left it to Congress to decide whether and when the country
would go to war.
We’ll then turn to the president’s constitutional role on the home
front, where republican mores prevented him from bypassing Congress through direct appeals to the American people. The legal and
cultural restraints on presidential activism remained surprisingly
strong for over a century after ratification. Despite several notable
exceptions to the rule, in the 19th century, as Theodore Lowi put it,
‘‘chief executives were chief of very little and executive of even
less.’’22 And yet, though poor in ‘‘national leadership,’’ the United
States somehow became the richest and most productive nation in
the world by century’s end.
Unitarian Heresies
In the post-9/11 era, any discussion of the Framers’ vision of the
presidency—a constitutionally limited office that lacked the power
to launch wars or otherwise revolutionize the existing political
order—needs to address the very different theory of presidential
power embraced by the modern conservative movement and, more
importantly, by the men and women who controlled the executive
branch from 2001 to 2008. Therefore, to set the stage, we’ll need to
spend a few pages outlining that theory before we return to 1787
and the quite different vision of the presidency the Framers settled
upon at the Philadelphia Convention.
Devotees of the unitary executive theory—unitarians, for short—
have long argued for expansive presidential prerogatives in foreign
affairs. Even in peacetime, as the unitarians see it, the president
has—and should have—broad power to shape American life.
‘‘A Friendly Institution’’
Unitary executive theory takes as its starting point the Constitution’s so-called vesting clause, Article II, Section 1, which declares
that ‘‘the executive Power shall be vested in a President of the United States of America.’’23 The theory’s narrowest and most plausible
claim is that the vesting clause gives the president the authority to
dismiss subordinate officers within the executive branch. He can,
for example, fire cabinet officers without asking the Senate for
permission.24
Well before 9/11, however, many unitarians made more ambitious
claims about the president’s powers in foreign affairs. They
denounced the 1973 War Powers Resolution as an unconstitutional
attempt to limit the president’s ability to engage in hostilities abroad
and insisted that the Reagan administration had every right to
secretly raise money for the Contras, despite a statute that clearly
prohibited such activity.25
Though unitarians emphasize their doctrine’s Hamiltonian pedigree, it really emerged as a coherent body of thought during the
Reagan years, as attorneys in the administration’s Office of Legal
Counsel employed it to assert control over the federal bureaucracy
and resist post-Watergate constraints on presidential power. The
Right’s blossoming affection for the executive branch was a curious
development. From the beginning of the modern conservative movement, with the founding of William F. Buckley’s National Review in
1955, conservatives had been the leading critics of expansive theories
of presidential power, seeing them as schemes to empower activist
liberalism.26 But by the time of Reagan’s ascendancy, a different view
prevailed. As Steven Calabresi, one of the leading unitarians, and
a special assistant to Reagan’s attorney general Edwin Meese,
explained recently, ‘‘Conservatives who came of age in the ’70s and
’80s viewed the presidency as a friendly institution.’’27 A generation
of conservative lawyers associated with the Federalist Society, which
Calabresi helped found, has been raised unitarian, and many of
them have gone on to positions within the executive branch and
federal judiciary. [Calabresi still seeks his dictator,search him DC]
After 9/11, unitary executive theory took on new urgency and
expanded in new directions. Unitarians within and without the Bush
administration argued that the president had the power to start
preventive wars; to order torture, even where prohibited by treaty
and statute; to arrest terrorist suspects—even Americans captured
on American soil—and hold them without legal process; and to
engage in domestic surveillance outside the statutory framework
set up by Congress.
John Yoo and the 9/11 Constitution
The most prominent figure behind this radical version of ‘‘energy
in the executive’’ is John Yoo, the wunderkind law professor who
served as the legal craftsman for some of the administration’s most
controversial policies in the War on Terror.
Despite his soft voice and mild manners, Yoo doesn’t shy from
conflict. A right-wing legal academic at the University of California,
Berkeley’s Boalt Hall, Yoo is married to the daughter of liberal, antiwar broadcaster Peter Arnett, which must make the holiday season
interesting.
Yoo joined Boalt’s faculty in 1993, a year out of law school. Shortly
thereafter, he took a sabbatical to clerk for Justice Clarence Thomas.
Yoo’s co-clerks often teased him about his ability to ‘‘channel’’ the
Framers. One recalls ribbing: ‘‘John, break out the crystal ball and
tell us what the Framers thought,’’ with Yoo playing along: ‘‘Yes, I
consulted the Framers. You’re all wrong, and I’m right.’’28
What did Professor Yoo discover while ‘‘channeling’’ the Framers
throughout the 1990s? Something counterintuitive, to say the least:
the Framers’ model for the war powers of the chief executive turns
out to be none other than George III and his predecessors. The
Framers, Yoo argued, understood ‘‘the executive power’’ in light of
the British constitutional tradition, and in that tradition, taking the
country into war was a royal prerogative. Though Article I, Section
8, of the Constitution gives Congress the power ‘‘to declare War,’’ that
power, Yoo argued, was far narrower than most modern scholars
understood it to be, and it did not limit the president’s ability to
wage war at the time of his choosing.29
Given the boldness of Yoo’s thesis, and the impressive depth of
his scholarship, by the late 1990s, Yoo had become a Federalist
Society favorite. After George W. Bush took office in 2001, Professor
Yoo took another leave of absence from Berkeley to serve as deputy
assistant attorney general in the Justice Department’s Office of Legal
Counsel. Two months after he joined OLC, the twin towers came
down, and the 34-year-old Yoo was well placed to be of service to
the Bush team. He soon garnered influence well beyond what his
youth or position in the OLC hierarchy would ordinarily warrant.
In large part, that was because of Yoo’s inclination to tell the
administration that no treaty, no statute, and no coordinate branch
of government could stand in the president’s way when he acts in the name of American national security. That’s not to suggest that
Yoo was a pliable opportunist, willing to tailor his legal opinions
for the sake of bureaucratic advancement. What Yoo argued at OLC
was consistent with what he had published as a legal scholar and
with what he’s argued since leaving the government. As Georgetown
University’s David Cole has put it, Yoo ‘‘was the right person in the
right place at the right time. . . . Here was someone who had made
his career developing arguments for unchecked power, who could
cut-and-paste from his law review articles into memos that essentially told the president, ‘You can do what you want.’ ’’30
Since leaving OLC in 2003, the architect of the ‘‘9/11 Constitution’’
hasn’t backed down from the positions he took while working for
the government. In his books, op-eds, and journal articles defending
untrammeled executive authority, Yoo drifts easily from a discussion
of the constitutional text and structure to the policy reasons that we
might celebrate a system that places vast unchecked power in the
president’s hands. Because of the proliferation of weapons of mass
destruction, the ‘‘emergence of rogue nations,’’ and the rise of stateless terror networks, Yoo argues, ‘‘the optimal level of war for the
United States may no longer be zero, but may actually be dramatically higher than before.’’ Given these new threats, Yoo contends,
‘‘we should not, at the very least, adopt a warmaking process that
contains a built-in presumption against using force abroad.’’31
Presidents who break free from legal restraints may make us safer;
in the process, Yoo suggests, they may also achieve greatness. Yoo
is an enthusiastic advocate of the ‘‘Heroic Presidency’’ view reflected
in modern scholars’ presidential rankings. In a 2005 article reviewing
a book on presidential leadership, Yoo and his coauthor, former
OLC colleague Robert Delahunty, write, ‘‘A ‘great’ President may
be one who does not stay within carefully chalked lines of acknowledged presidential and congressional authority, but one who, to
surmount a crisis, revolutionizes the accepted understanding of
his powers.’’32 [Lawyer speak for declaring oneself a dictator, as in we will not be needing elections anymore DC]
Yoo’s theory of crisis constitutionalism could be characterized as
revolutionary, yet it’s probably better understood as counterrevolutionary. There’s little in it that reflects the Spirit of ’76. In his scholarship and his legal memorandums for the administration, Yoo states
explicitly that the Framers based the commander in chief’s powers
on the prerogatives of the British king. Citing the Anti-Federalist ‘‘Cato,’’ who charged that the proposed Constitution contemplated
royal powers for the president, Yoo writes in his 2005 book The
Powers of War and Peace that, ‘‘Cato correctly concluded that in the
realm of practical politics, the president’s authority under the Constitution did not differ in important measure from that of the king.’’33
No Man a King 32S
Is Professor Yoo right about that? Had men who had risked their
lives to throw off a king decided a decade later that kings were no
longer to be feared? James Wilson, the Framer with perhaps the best
claim to being the architect of the presidency, took a different view.
After the ‘‘considerable pause’’ that followed Wilson’s motion for a
single executive, the convention delegates launched into debate. In
that debate, Wilson made clear that he
did not consider the prerogatives of the British monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of Legislative nature. Among others that of war & peace &c. The only powers he conceived strictly Executive were those of executing the laws, and appointing officers, not appertaining to and appointed by the Legislature.
Wilson emphasized that ‘‘he was not governed by the British model, which was inapplicable to the situation of this Country.’’34 And it would have been surprising had he felt otherwise. Wilson’s signature can also be found at the bottom of the Declaration of Independence, underneath the extensive train of executive abuses that makes up the bulk of the declaration’s complaints.
Nor can support for Yoo’s notion be found in the Federalist Papers. Indeed, the very pseudonym adopted by the authors of the Federalist says something about how unwilling their audience would have been to accept the notion that a republic’s chief executive ought to be invested with monarchical powers. The 85 essays that make up the Federalist ran under the name ‘‘Publius,’’ for Publius Valerius Poplicola, one of the founders of the Roman Republic. After the Romans expelled the tyrant Tarquin, and Publius’s coconsul died, Publius became sole consul of Rome, and many citizens suspected him of coveting kingship. To reassure them, Publius enacted a law stipulating that anyone attempting to make himself a king could be summarily killed.35
did not consider the prerogatives of the British monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of Legislative nature. Among others that of war & peace &c. The only powers he conceived strictly Executive were those of executing the laws, and appointing officers, not appertaining to and appointed by the Legislature.
Wilson emphasized that ‘‘he was not governed by the British model, which was inapplicable to the situation of this Country.’’34 And it would have been surprising had he felt otherwise. Wilson’s signature can also be found at the bottom of the Declaration of Independence, underneath the extensive train of executive abuses that makes up the bulk of the declaration’s complaints.
Nor can support for Yoo’s notion be found in the Federalist Papers. Indeed, the very pseudonym adopted by the authors of the Federalist says something about how unwilling their audience would have been to accept the notion that a republic’s chief executive ought to be invested with monarchical powers. The 85 essays that make up the Federalist ran under the name ‘‘Publius,’’ for Publius Valerius Poplicola, one of the founders of the Roman Republic. After the Romans expelled the tyrant Tarquin, and Publius’s coconsul died, Publius became sole consul of Rome, and many citizens suspected him of coveting kingship. To reassure them, Publius enacted a law stipulating that anyone attempting to make himself a king could be summarily killed.35
Alexander Hamilton wrote the Federalist’s principal essays on presidential powers, and in them, he took great pains to refute those
Anti-Federalists who compared the chief magistrate with an elected
king. He no more resembles a king, Hamilton wrote indignantly in
Federalist No. 69, than he resembles ‘‘the man of the seven
mountains.’’36
Was Hamilton entirely sincere? Perhaps not. After all, at the convention, he was the most zealous advocate for a strong presidency, arguing on June 18, that what America needed was a ‘‘supreme Executive’’ who would serve ‘‘during good behavior,’’ in other words, possibly for life. And throughout the rest of his career, Hamilton steadily pushed to expand executive power. Yet, it’s worth noting that even at his most zealous, Hamilton stopped well short of what Professor Yoo argues.37 Even in the president-for-life speech, Hamilton made clear that his model chief executive would not have the power to initiate wars; he’d merely have ‘‘the direction of war when authorized or begun.’’38 During his bitter fights with Madison and Jefferson in the 1790s over presidential foreign affairs authority, Hamilton held firm to that view.39
And for the purposes of determining the Constitution’s allocation of powers, Hamilton’s sincerity—or lack thereof—hardly matters. In the ratification conventions, Americans approved the constitutional text, not the secret desires of Alexander Hamilton or any other Framer. On the last day of the convention, Hamilton conceded that ‘‘no man’s ideas were more remote from the plan than his were known to be.’’40 Still, the Constitution was an improvement over the Articles of Confederation in Hamilton’s view, and he wanted to help convince his countrymen to ratify it.
Thus, the assurances Hamilton gave in the Federalist were the sorts of assurances the document was sold on. They helped form the understanding on which the Constitution was ratified. And the political culture in which ratification took place was not one that looked fondly on kings.
A Constitution Founded on Distrust
That culture was steeped in the Radical Whig tradition born in the English Civil War and spread by colonial pamphleteers in the years leading up to the American Revolution. At the core of that tradition was the view of man as a fallen being—one who could not be trusted with unchecked authority over his fellows. As Bernard Bailyn writes in his classic study of Founding political thought, The Ideological Origins of the American Revolution, for the early Americans, ‘‘what turned power into a malignant force, was not its own nature so much as the nature of man—his susceptibility to corruption and his lust for self-aggrandizement. On this there was absolute agreement.’’41 That skeptical view of human nature pervades the Federalist. As one scholar has put it, ‘‘A considerable portion of the book might be said to be a development of Lord Acton’s aphorism: ‘Power corrupts and absolute power corrupts absolutely.’ ’’42
By 1789, according to Bailyn, the Framers had ‘‘scotched the fear of an effective national executive, showed its necessity and benignity in the American situation. But they continued to believe, as deeply as any of the militants of ’76, that power corrupts; . . . that any release of the constraints on the executive—any executive—was an invitation to disaster.’’43 Given man’s innate lust for power, though, how could such constraints be maintained? How could Americans prevent the ‘‘accumulation of all powers, legislative, executive, and judiciary, in the same hands,’’ a situation Madison pronounced ‘‘the very definition of tyranny’’?44 The answer was to design a constitution in keeping with David Hume’s maxim: ‘‘In constructing any system of government . . . every man ought to be supposed a knave: and have no other end in all his actions but private interest’’—a constitution that would channel ambition and self-interest against the unification of power.45 ‘‘The great security against a gradual concentration of the several powers in the same department,’’ Madison wrote, ‘‘consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition.’’46
The principal danger of encroachment, Madison supposed, would come from a powerful Congress drawing all power into its ‘‘impetuous vortex.’’ The American situation would be fundamentally different from one in which ‘‘a government where numerous and extensive prerogatives are placed in the hands of a hereditary monarch’’ and where the gravest threats to liberty could therefore be expected to come from the executive. In the American Constitution, ‘‘where the executive magistracy is carefully limited, both in the extent and the duration of its power,’’ legislative encroachment was more to be feared.47
Where in the Constitution can such powers be found? Calabresi, Yoo, and other adherents to unitary executive theory place great weight on the differences between the first clauses of Article I and Article II. Article I, outlining Congress’s powers, reads ‘‘all legislative Powers herein granted’’ (emphasis added); Article II, outlining the powers of the president, begins simply: ‘‘The executive Power shall be vested in a President of the United States of America.’’ As then judge, now Justice Samuel Alito put it in a November 2000 speech before the Federalist Society, that language indicates that the president has ‘‘not just some executive power, but the executive power— the whole thing.’’48
Well, perhaps. But there are a number of hurdles to jump before one can conclude that the president has plenary power over foreign affairs—and domestic affairs as well, to the extent that his actions can plausibly be characterized as serving the end of national security. First, one has to establish that the constitutional text indicates a general grant of power to the executive—that the president’s powers go beyond those specifically enumerated in Sections 2 and 3 of Article II. Second, if ‘‘the executive Power’’ is a general grant of power, one still has to unpack what that power contains. What is ‘‘the whole thing’’? Is it broad enough, as many unitarians suggest, to allow domestic surveillance and imprisonment without trial, so long as those activities are incident to the president’s wartime goals?
Is the vesting clause, namely, the first sentence of Article II, a general grant of ‘‘executive’’ power? If it is, then the enumeration of specific executive powers that follows in Article II, Sections 2 and 3, is largely redundant. If the president has the ‘‘whole thing,’’ whatever it is, surely it must be broad enough to include requiring ‘‘the Opinion, in writing,’’ of the heads of each executive department, or to allow him to ‘‘receive Ambassadors.’’
Further, if the vesting clause is a general grant of power—a font of significant ‘‘residual’’ authority not contained in the specifically enumerated Article II powers—it’s surprising that so little of the discussion at the Philadelphia Convention, in the Federalist, and at the ratification conventions appears to reflect that. It’s worth noting that, for all the emphasis unitarians put on the difference in wording between the introductory clauses of Article I (applicable to Congress) and Article II (applicable to the president), at the convention, few, if any, of the delegates noted the difference. The ‘‘herein granted’’ language was added to Article I by the Committee of Style, which had no official power to make substantive changes.49 At no point during the Constitutional Convention did any participant argue that the vesting clause constituted a general grant of power.50
Hamilton’s defense of the office in the Federalist centers on the powers listed in Article II, Sections 2 and 3, rather than addressing the clause that the unitarians claim would have been understood by 18th-century Americans to include broad powers over war and peace. Historian Jack Rakove notes that the proponents of the vesting clause thesis have failed to provide evidence that any participant in the extensive debates over the Constitution’s ratification understood the clause in that way:
If we know anything about the public discussions of 1787–1788, it was that when it came to identifying potential sources of tyranny and misrule in the Constitution’s numerous clauses, Anti-Federalists wrote with promiscuous abandon. Here is one case where the inability to produce a single source positively falsifies the claim being made.51
Finally, the vesting clause thesis—at least in its broadest incarnations—fits uneasily with the principle that our Constitution is one of enumerated, and thus limited, powers. Madison’s assurance in Federalist No. 45 that ‘‘the powers delegated by the proposed Constitution to the federal government are few and defined,’’ was also the key argument the Federalists presented against a Bill of Rights.52 Since no power had been granted that could threaten private rights, Hamilton asked, ‘‘why declare that things shall not be done which there is no power to do?’’53
‘‘The executive Power shall be vested in a President of the United States of America’’: enormous powers flow from that one unassuming sentence, according to Professor Yoo and other radical unitarians. It is a sentence, they say, that gives the wartime president authority to ignore nearly every provision of the Bill of Rights, from the Fifth Amendment’s due process clause to the Fourth Amendment’s guarantee against unreasonable searches and seizures.54 If 18th-century Americans understood that all this flowed from ‘‘the executive Power,’’ then it’s odd, to say the least, that no one thought to raise the issue during the ratification debates, and odder still that they went through the apparently useless exercise of demanding a Bill of Rights.
There’s good reason, then, to reject the versions of unitary executive theory that would make the president an elected king. Indeed, some prominent scholars reject even the narrower versions of the theory. As they see it, ‘‘vesting clause’’ is a misnomer: Article II, Section 1, merely identifies the officeholder who will exercise the powers outlined in the following two sections of Article II.55
That claim is hard to reconcile with the first sentence of Article II, which appears to grant a ‘‘power.’’ The question is, what sort of power? If one agrees with the unitarians that the president has the power to fire his secretary of defense, must one also conclude, with John Yoo, that the president can invade Syria without so much as a courtesy call to Congress? Of course not.56 The ‘‘executive Power,’’ as understood by the Founding Generation, was hardly the bottomless fount of royal prerogative radical unitarians envision. Instead, it consisted of the power to execute the laws, to administer the government, and ‘‘to protect the personnel, property, and instrumentalities’’ of that government.57 It carried with it no general power to invade private rights, absent prior legislative authority. And it did not give the president a Magic Scepter of Inherent Authority, placing him beyond the reach of the law.
Naturally, Professor Yoo has a different interpretation of the Framers’ handiwork. He stresses the Framers’ familiarity with the 18th century English jurist William Blackstone, who described the king as ‘‘the generalissimo, or the first in military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community: . . . [thus] in a monarchy the military power must be trusted in the hands of the prince.’’58
In the fourth Federalist, John Jay offers a less sympathetic take on monarchical control of military power: ‘‘absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.’’59 Nor did the Framers imagine that republican forms of government cured all the defects in human nature, making concentration of the war power in one man’s hands less to be feared. Madison warned in 1793 that war unleashes ‘‘the strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.’’ For that reason, he wrote, ‘‘in no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers: the trust and the temptation would be too great for any one man.’’60
War Powers at the Philadelphia Convention
The delegates to the Constitutional Convention were well aware of those temptations, and sought to minimize them by limiting the president’s war powers. At the start of the June 1 debates over the shape of the executive, Charles Pinckney of South Carolina supported ‘‘a vigorous executive,’’ but worried that ‘‘the Executive powers of the existing Congress might extend to peace & war , which would render the Executive a monarchy, of the worst kind, to wit an elective one.’’61 His colleague John Rutledge, also from South Carolina, agreed that the executive should not have the powers of war and peace, as, of course, did Madison, who noted that the executive powers ‘‘do not include the Rights of war & peace , but the powers should be confined and defined—if large we shall have the Evils of elective monarchies.’’62
On August 17, the convention turned to the Committee of Detail proposed language giving the legislature the power ‘‘to make war.’’ Charles Pinckney again opened the debate, noting that the House of Representatives was too large and unwieldy, and met too infrequently, to properly manage a war; he suggested that the power be lodged in the Senate alone. South Carolina’s Pierce Butler, alone among the delegates, argued for giving the president the powers of war and peace: ‘‘he was . . . for vesting the power in the president, who will have all the requisite qualities, and will not make war but when the nation will support it.’’ As Madison’s notes from the convention tell us, that idea was not warmly received. ‘‘Mr. [Elbridge] Gerry [of Massachusetts said he] never expected to hear in a republic a motion to empower the Executive alone to declare war.’’ For his part, George Mason of Virginia ‘‘was agst. giving the power of war to the Executive, because not to be trusted with it. . . . He was for clogging rather than facilitating war.’’
The text the delegates settled on reflects Pinckney’s objections to leaving the direction of war making in the hands of the legislature as a whole. But instead of vesting the full powers of war in the Senate, the Framers left the management of war, once authorized, to the executive. Madison and Gerry ‘‘moved to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks.’’ The motion passed.63
War Powers in the
Constitution’s Text and Structure
The document that emerged from the convention vests the bulk of war-related powers with Congress, among them, the powers ‘‘to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.’’64 The chief executive’s military powers appear slender by comparison: ‘‘The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.’’
Significantly, several of the enumerated powers allocated to Congress involve the decision to initiate military action. For example, with its power to ‘‘grant Letters of Marque and Reprisal,’’ Congress could authorize private citizens to harass and capture enemy ships. Since such actions might well lead to full-scale war, the Constitution vests the power to authorize them in Congress. Similarly, the power ‘‘to provide for calling forth the Militia’’ in cases of domestic unrest, leaves it to Congress to decide when domestic unrest has reached the point at which military action is required.
Was Hamilton entirely sincere? Perhaps not. After all, at the convention, he was the most zealous advocate for a strong presidency, arguing on June 18, that what America needed was a ‘‘supreme Executive’’ who would serve ‘‘during good behavior,’’ in other words, possibly for life. And throughout the rest of his career, Hamilton steadily pushed to expand executive power. Yet, it’s worth noting that even at his most zealous, Hamilton stopped well short of what Professor Yoo argues.37 Even in the president-for-life speech, Hamilton made clear that his model chief executive would not have the power to initiate wars; he’d merely have ‘‘the direction of war when authorized or begun.’’38 During his bitter fights with Madison and Jefferson in the 1790s over presidential foreign affairs authority, Hamilton held firm to that view.39
And for the purposes of determining the Constitution’s allocation of powers, Hamilton’s sincerity—or lack thereof—hardly matters. In the ratification conventions, Americans approved the constitutional text, not the secret desires of Alexander Hamilton or any other Framer. On the last day of the convention, Hamilton conceded that ‘‘no man’s ideas were more remote from the plan than his were known to be.’’40 Still, the Constitution was an improvement over the Articles of Confederation in Hamilton’s view, and he wanted to help convince his countrymen to ratify it.
Thus, the assurances Hamilton gave in the Federalist were the sorts of assurances the document was sold on. They helped form the understanding on which the Constitution was ratified. And the political culture in which ratification took place was not one that looked fondly on kings.
A Constitution Founded on Distrust
That culture was steeped in the Radical Whig tradition born in the English Civil War and spread by colonial pamphleteers in the years leading up to the American Revolution. At the core of that tradition was the view of man as a fallen being—one who could not be trusted with unchecked authority over his fellows. As Bernard Bailyn writes in his classic study of Founding political thought, The Ideological Origins of the American Revolution, for the early Americans, ‘‘what turned power into a malignant force, was not its own nature so much as the nature of man—his susceptibility to corruption and his lust for self-aggrandizement. On this there was absolute agreement.’’41 That skeptical view of human nature pervades the Federalist. As one scholar has put it, ‘‘A considerable portion of the book might be said to be a development of Lord Acton’s aphorism: ‘Power corrupts and absolute power corrupts absolutely.’ ’’42
By 1789, according to Bailyn, the Framers had ‘‘scotched the fear of an effective national executive, showed its necessity and benignity in the American situation. But they continued to believe, as deeply as any of the militants of ’76, that power corrupts; . . . that any release of the constraints on the executive—any executive—was an invitation to disaster.’’43 Given man’s innate lust for power, though, how could such constraints be maintained? How could Americans prevent the ‘‘accumulation of all powers, legislative, executive, and judiciary, in the same hands,’’ a situation Madison pronounced ‘‘the very definition of tyranny’’?44 The answer was to design a constitution in keeping with David Hume’s maxim: ‘‘In constructing any system of government . . . every man ought to be supposed a knave: and have no other end in all his actions but private interest’’—a constitution that would channel ambition and self-interest against the unification of power.45 ‘‘The great security against a gradual concentration of the several powers in the same department,’’ Madison wrote, ‘‘consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition.’’46
The principal danger of encroachment, Madison supposed, would come from a powerful Congress drawing all power into its ‘‘impetuous vortex.’’ The American situation would be fundamentally different from one in which ‘‘a government where numerous and extensive prerogatives are placed in the hands of a hereditary monarch’’ and where the gravest threats to liberty could therefore be expected to come from the executive. In the American Constitution, ‘‘where the executive magistracy is carefully limited, both in the extent and the duration of its power,’’ legislative encroachment was more to be feared.47
‘‘In America, the Law Is King’’
Today’s unitarians share Madison’s fear of legislative encroachment; but few seem to share his view that executive power under
the Constitution is ‘‘carefully limited’’ or his horror at the idea of
concentrating legislative, executive, and judicial authority in one
branch. Since 9/11, unitarians have argued that when it comes to
wiretapping or detaining terrorist suspects, the president can set the
rules, carry out the policy, and serve as the sole reviewer of his
own actions. Where in the Constitution can such powers be found? Calabresi, Yoo, and other adherents to unitary executive theory place great weight on the differences between the first clauses of Article I and Article II. Article I, outlining Congress’s powers, reads ‘‘all legislative Powers herein granted’’ (emphasis added); Article II, outlining the powers of the president, begins simply: ‘‘The executive Power shall be vested in a President of the United States of America.’’ As then judge, now Justice Samuel Alito put it in a November 2000 speech before the Federalist Society, that language indicates that the president has ‘‘not just some executive power, but the executive power— the whole thing.’’48
Well, perhaps. But there are a number of hurdles to jump before one can conclude that the president has plenary power over foreign affairs—and domestic affairs as well, to the extent that his actions can plausibly be characterized as serving the end of national security. First, one has to establish that the constitutional text indicates a general grant of power to the executive—that the president’s powers go beyond those specifically enumerated in Sections 2 and 3 of Article II. Second, if ‘‘the executive Power’’ is a general grant of power, one still has to unpack what that power contains. What is ‘‘the whole thing’’? Is it broad enough, as many unitarians suggest, to allow domestic surveillance and imprisonment without trial, so long as those activities are incident to the president’s wartime goals?
Is the vesting clause, namely, the first sentence of Article II, a general grant of ‘‘executive’’ power? If it is, then the enumeration of specific executive powers that follows in Article II, Sections 2 and 3, is largely redundant. If the president has the ‘‘whole thing,’’ whatever it is, surely it must be broad enough to include requiring ‘‘the Opinion, in writing,’’ of the heads of each executive department, or to allow him to ‘‘receive Ambassadors.’’
Further, if the vesting clause is a general grant of power—a font of significant ‘‘residual’’ authority not contained in the specifically enumerated Article II powers—it’s surprising that so little of the discussion at the Philadelphia Convention, in the Federalist, and at the ratification conventions appears to reflect that. It’s worth noting that, for all the emphasis unitarians put on the difference in wording between the introductory clauses of Article I (applicable to Congress) and Article II (applicable to the president), at the convention, few, if any, of the delegates noted the difference. The ‘‘herein granted’’ language was added to Article I by the Committee of Style, which had no official power to make substantive changes.49 At no point during the Constitutional Convention did any participant argue that the vesting clause constituted a general grant of power.50
Hamilton’s defense of the office in the Federalist centers on the powers listed in Article II, Sections 2 and 3, rather than addressing the clause that the unitarians claim would have been understood by 18th-century Americans to include broad powers over war and peace. Historian Jack Rakove notes that the proponents of the vesting clause thesis have failed to provide evidence that any participant in the extensive debates over the Constitution’s ratification understood the clause in that way:
If we know anything about the public discussions of 1787–1788, it was that when it came to identifying potential sources of tyranny and misrule in the Constitution’s numerous clauses, Anti-Federalists wrote with promiscuous abandon. Here is one case where the inability to produce a single source positively falsifies the claim being made.51
Finally, the vesting clause thesis—at least in its broadest incarnations—fits uneasily with the principle that our Constitution is one of enumerated, and thus limited, powers. Madison’s assurance in Federalist No. 45 that ‘‘the powers delegated by the proposed Constitution to the federal government are few and defined,’’ was also the key argument the Federalists presented against a Bill of Rights.52 Since no power had been granted that could threaten private rights, Hamilton asked, ‘‘why declare that things shall not be done which there is no power to do?’’53
‘‘The executive Power shall be vested in a President of the United States of America’’: enormous powers flow from that one unassuming sentence, according to Professor Yoo and other radical unitarians. It is a sentence, they say, that gives the wartime president authority to ignore nearly every provision of the Bill of Rights, from the Fifth Amendment’s due process clause to the Fourth Amendment’s guarantee against unreasonable searches and seizures.54 If 18th-century Americans understood that all this flowed from ‘‘the executive Power,’’ then it’s odd, to say the least, that no one thought to raise the issue during the ratification debates, and odder still that they went through the apparently useless exercise of demanding a Bill of Rights.
There’s good reason, then, to reject the versions of unitary executive theory that would make the president an elected king. Indeed, some prominent scholars reject even the narrower versions of the theory. As they see it, ‘‘vesting clause’’ is a misnomer: Article II, Section 1, merely identifies the officeholder who will exercise the powers outlined in the following two sections of Article II.55
That claim is hard to reconcile with the first sentence of Article II, which appears to grant a ‘‘power.’’ The question is, what sort of power? If one agrees with the unitarians that the president has the power to fire his secretary of defense, must one also conclude, with John Yoo, that the president can invade Syria without so much as a courtesy call to Congress? Of course not.56 The ‘‘executive Power,’’ as understood by the Founding Generation, was hardly the bottomless fount of royal prerogative radical unitarians envision. Instead, it consisted of the power to execute the laws, to administer the government, and ‘‘to protect the personnel, property, and instrumentalities’’ of that government.57 It carried with it no general power to invade private rights, absent prior legislative authority. And it did not give the president a Magic Scepter of Inherent Authority, placing him beyond the reach of the law.
Chaining the Dog of War
Acutely aware of man’s weakness and power’s temptations, the
Framers rejected the idea that war-making power should reside
entirely in the hands of the executive. Accordingly, the Constitution
they drafted separates the power to authorize war from the power
to direct it once initiated. Naturally, Professor Yoo has a different interpretation of the Framers’ handiwork. He stresses the Framers’ familiarity with the 18th century English jurist William Blackstone, who described the king as ‘‘the generalissimo, or the first in military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community: . . . [thus] in a monarchy the military power must be trusted in the hands of the prince.’’58
In the fourth Federalist, John Jay offers a less sympathetic take on monarchical control of military power: ‘‘absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.’’59 Nor did the Framers imagine that republican forms of government cured all the defects in human nature, making concentration of the war power in one man’s hands less to be feared. Madison warned in 1793 that war unleashes ‘‘the strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.’’ For that reason, he wrote, ‘‘in no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers: the trust and the temptation would be too great for any one man.’’60
War Powers at the Philadelphia Convention
The delegates to the Constitutional Convention were well aware of those temptations, and sought to minimize them by limiting the president’s war powers. At the start of the June 1 debates over the shape of the executive, Charles Pinckney of South Carolina supported ‘‘a vigorous executive,’’ but worried that ‘‘the Executive powers of the existing Congress might extend to peace & war , which would render the Executive a monarchy, of the worst kind, to wit an elective one.’’61 His colleague John Rutledge, also from South Carolina, agreed that the executive should not have the powers of war and peace, as, of course, did Madison, who noted that the executive powers ‘‘do not include the Rights of war & peace , but the powers should be confined and defined—if large we shall have the Evils of elective monarchies.’’62
On August 17, the convention turned to the Committee of Detail proposed language giving the legislature the power ‘‘to make war.’’ Charles Pinckney again opened the debate, noting that the House of Representatives was too large and unwieldy, and met too infrequently, to properly manage a war; he suggested that the power be lodged in the Senate alone. South Carolina’s Pierce Butler, alone among the delegates, argued for giving the president the powers of war and peace: ‘‘he was . . . for vesting the power in the president, who will have all the requisite qualities, and will not make war but when the nation will support it.’’ As Madison’s notes from the convention tell us, that idea was not warmly received. ‘‘Mr. [Elbridge] Gerry [of Massachusetts said he] never expected to hear in a republic a motion to empower the Executive alone to declare war.’’ For his part, George Mason of Virginia ‘‘was agst. giving the power of war to the Executive, because not to be trusted with it. . . . He was for clogging rather than facilitating war.’’
The text the delegates settled on reflects Pinckney’s objections to leaving the direction of war making in the hands of the legislature as a whole. But instead of vesting the full powers of war in the Senate, the Framers left the management of war, once authorized, to the executive. Madison and Gerry ‘‘moved to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks.’’ The motion passed.63
War Powers in the
Constitution’s Text and Structure
The document that emerged from the convention vests the bulk of war-related powers with Congress, among them, the powers ‘‘to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.’’64 The chief executive’s military powers appear slender by comparison: ‘‘The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.’’
Significantly, several of the enumerated powers allocated to Congress involve the decision to initiate military action. For example, with its power to ‘‘grant Letters of Marque and Reprisal,’’ Congress could authorize private citizens to harass and capture enemy ships. Since such actions might well lead to full-scale war, the Constitution vests the power to authorize them in Congress. Similarly, the power ‘‘to provide for calling forth the Militia’’ in cases of domestic unrest, leaves it to Congress to decide when domestic unrest has reached the point at which military action is required.
In contrast, the authority granted in the commander-in-chief
clause is managerial and defensive. Just as the president will command the militia to suppress rebellions, should it be ‘‘called into the
actual Service of the United States,’’ he can command the army and
the navy, should Congress pass the necessary appropriations, and
he can lead the army and navy into battle, should Congress choose
to declare war. As ‘‘first General’’ of the United States, in Hamilton’s
phrase, the president has an important role, but generals do not
have the power to decide whether and when we go to war.65
In Professor Yoo’s view, however, the president is the sole decider in matters of war and peace. He has, as Yoo puts it, the ‘‘right to start wars.’’66 Yoo arrives at that position by interpreting Congress’s power ‘‘to declare War’’ narrowly enough almost to read it out of existence. [That worked out real well for Homey the Clown in Libya and Syria,we are all so much safer,for his unilateral actions in both those cases DC]
As Yoo points out, the constitutional text does not say that Congress has the power to ‘‘ ‘make,’ ‘begin,’ ‘authorize,’ or ‘wage’ war.’’ It merely has the power to ‘‘declare war.’’67 According to Yoo, in the 18th century that language would have indicated the power to issue a formal proclamation of war, which, as Hamilton notes in the Federalist, was a practice that had ‘‘of late, fallen into disuse.’’68 Such proclamations served two main purposes. First, they put the enemy nation on notice that a state of war existed, and that the declaring nation intended to invoke the protections of international law for its combatants and their actions. Second, declarations ‘‘informed citizens of their new relationship with the enemy state, and informed them that they could take hostile actions against the enemy without fear of sanction.’’69 Though formal declarations served those functions, they were not a necessary prerequisite for war. As Yoo sees it, the president need not wait on Congress to act: he has ‘‘the executive power,’’ which, according to Blackstone and other sources familiar to the Framers, included the monarch’s power to undertake hostilities. In Yoo’s version of the original understanding, then, the president can embroil the country in a war, and Congress can, if it chooses, make war official.
Was the constitutional power ‘‘to declare war’’ so narrowly understood by 18th-century Americans? In a 2002 exchange with Yoo, Professor Michael D. Ramsey showed that it was not. Rather, the Founding Generation understood the phrase ‘‘declare war’’ to mean initiating war by a public act: ‘‘not just a formal proclamation, but also an act (typically a hostile attack) that marked the beginning of a state of war.’’70 As John Locke—a writer at least as familiar to the Framers as Blackstone—recognized in the Second Treatise, war can be declared ‘‘by Word or Action.’’71 That’s consistent with the way we use the phrase even today: ‘‘Japan declared war on the United States when it bombed Pearl Harbor.’’ Or, as George W. Bush put it in his ‘‘mission accomplished’’ speech aboard the USS Lincoln in May 2003: ‘‘After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States, and war is what they got.’’72 [Yeah war based on horse dung intelligence,that people sitting at the coffee table could see as such.DC]
That Congress, and not the president, has the constitutional power ‘‘to declare war’’ means that it is up to Congress to decide whether to take the nation into war, whether by making a formal proclamation or by authorizing the president to attack. As Ramsey argues, the narrower interpretation makes little sense; it ‘‘essentially ends up meaning that the President can initiate a state of war but cannot formally say anything about it.’’73 If that’s how the clause was understood, it’s odd that participants in the ratification debates spoke about it as if it conveyed a significant power.74
War Powers in the Early Republic
Yoo’s narrow reading of the constitutional text cannot be squared with the way prominent figures in the ratification debates described the constitutional allocation of war powers.75 James Wilson told the Pennsylvania ratifying convention that ‘‘this system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power in declaring war is vested in the legislature at large.’’76 Pierce Butler, like Wilson a delegate to the Philadelphia Convention, assured the South Carolina legislature that the proposed constitution prevented the president from starting wars: ‘‘Some gentlemen [i.e., Butler himself] were inclined to give this power to the President; but it was objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction.’’77 [Which is basically what the United States has been doing now on behalf of Israel in the Middle East since at least early 1991 with increasing regularity since 2001 DC]
That the president lacked such power was the understanding upon which the Constitution was ratified, and it was the understanding that prevailed throughout the first generation after the Founding. Indeed, our first president doubted he had the power to order preemptive strikes against hostile Indians, unless, as he wrote in 1793, Congress ‘‘shall have deliberated on the subject, and authorized such a measure.’’78
Today, one often hears the argument that the president needs broad war powers because the survival of the nation is at stake. But is our survival as a nation really more tenuous today than it was in the late 18th century, when the United States was a small frontier republic on the edge of a continent occupied by periodically hostile great powers and Indian marauders? In that dangerous environment, the Framers drafted, and the country ratified, a Constitution that sharply limited emergency powers and rejected the idea that the president was above the law.
And early presidents understood that. In his four-book series The Constitution in Congress, the University of Chicago’s David Currie exhaustively examined congressional and presidential interpretations of the Constitution in the young Republic. With regard to the Constitution’s allocation of war powers, Currie concluded that
despite the usual line-drawing and factual difficulties the express position of every President to address the subject during the first forty years of the present Constitution was entirely in line with that proclaimed by Congress in the celebrated War Powers Resolution in 1973: The President may introduce troops into hostilities only pursuant to a congressional declaration of war or other legislative authorization, or in response to an attack on the United States.79
It’s little wonder, then, that John Yoo’s book The Powers of War and Peace skips directly from the Founding period to the post–World War II era. What happened (or didn’t happen) in between doesn’t help his thesis.
Indeed, the term ‘‘leader,’’ which appears repeatedly in Madison, Hamilton, and Jay’s essays in defense of the Constitution, is nearly always used negatively, save for one positive reference to the leaders of the American Revolution.80 The Federalist is bookended by warnings about the perils of popular leadership: the first essay warns that ‘‘of those men who have overturned the liberties of republics, the greatest number have begun their career by paying obsequious court to the people, commencing demagogues and ending tyrants.’’ The last essay raises the specter of disunion and civil war, ending with the ‘‘military despotism of a victorious demagogue.’’81 For the Framers, the ability to ‘‘move the masses’’ wasn’t a desirable quality in a president—it was a threat.
Not the ‘‘ Voice of the People’’
By the mid-1950s, when Clinton Rossiter was writing The American Presidency, the president had become ‘‘a kind of magnificent lion who can roam widely and do great deeds so long as he does not try to break free from his broad reservation.’’82 He was, Rossiter wrote, the true ‘‘Voice of the People,’’ the supreme national leader charged with shaping the popular will. But in the early Republic, that notion of a ‘‘Plebiscitary Presidency’’ was anathema to Federalists and Anti-Federalists, Hamiltonians and Jeffersonians alike. As Yale’s Robert A. Dahl has put it,
The Framers did not wish an executive who would be a tribune of the people, a champion of popular majorities . . . who as a consequence of his popular election would claim a mandate for his policies; who in order to mobilize popular support for his policies would appeal directly to the people; who would shape the language, style, and delivery of his appeals so as best to create a public opinion favorable to his ambitions; and who whenever it seemed expedient would bypass the members of the deliberative body in order to mobilize public opinion and thereby induce a reluctant Congress to enact his policies.83
When it came to constraining demagogic appeals, during the first century of the Republic, the informal mores that governed presidential behavior were as important as formal, constitutional checks. In his influential study of presidential speechcraft, 1987’s The Rhetorical Presidency, Jeffrey K. Tulis notes that early American political culture proscribed popular appeals by the president: ‘‘very few [early presidential addresses] were domestic ‘policy speeches’ of the sort so common now, and attempts to move the nation by moral suasion in the absence of war were almost unknown.’’84
Early presidents often acknowledged the impropriety of popular appeals. Thus, in 1827, turning down an opportunity to make a speech at the opening of the Pennsylvania Canal, President John Quincy Adams declared ‘‘this mode of electioneering is . . . unsuitable to my personal character and the station in which I am placed.’’85 In the first decades under the Constitution, presidents spoke to the public only rarely. Presidents from Washington to Jackson averaged little over three speeches a year, with those mostly limited to ceremonial addresses, thin on policy.86 In his first year in office, President Clinton gave 600.87 [yeah no attempt at manipulation there DC]
The Deferential Executive
In part, that reticence reflected the public expectation that Congress would take the lead in domestic affairs. For Professor Rossiter, the modern president was inescapably America’s ‘‘Chief Legislator,’’ tasked with guiding Congress’s legislative agenda by suasion or force. But here again, the constitutional culture of the young Republic prescribed a much more modest role for the chief executive.
In early presidents’ annual messages—the speech we know today as the State of the Union—there was nothing that rang out like the 19th-century equivalent of ‘‘pass Social Security reform now!’’88 In his first annual message, in January 1790, Washington made sure to tread lightly: rather than proposing specific measures, he mostly confined himself to mentioning general areas deserving of Congress’s attention.89 After his third annual message, Washington wrote that ‘‘motives of delicacy’’ had deterred him ‘‘from introducing any to pick which relates to legislative matters, lest it should be suspected that he wished to influence the question before it.’’90 For instance, Washington firmly believed that the United States needed a national university and a federally funded system of canals. Yet, having made his preferences known, he would not proceed to browbeat Congress, or go ‘‘over their heads’’ by making direct appeals to the people. As he understood the Constitution, Congress steered the nation’s course when it came to policy. The president could attempt to draw Congress’s attention to areas that should be of legislative concern. But beyond that, if Congress chose not to act, it wasn’t the president’s place to insist. In a 1790 letter to a European friend, Washington explained that though he supported a federal project to research improved agricultural methods, he would not go further than making a recommendation:
I know not whether I can with propriety do any thing more at present than what I have already done. I have brought the subject in my speech, at the opening of the present Session of Congress, before the national Legislature. It rests with them to decide what measures ought afterwards to be adopted for promoting the success of the great objects, which I have recommended to their attention.91
Adams and Jefferson likewise tended in their annual messages to avoid specificity or anything that could be interpreted as a tone of command. More typical was Jefferson’s approach in his first annual message: ‘‘I am happy in this opportunity of committing the arduous affairs of our government to the collected wisdom of the Union. Nothing shall be wanting on my part to inform, as far as in my power, the legislative judgment, nor to carry that judgment into faithful execution.’’92
Unlike his two predecessors, Jefferson delivered that message in writing, rather than in person before Congress assembled. Public delivery of the annual message reminded Jefferson of the British king’s ‘‘Speech from the Throne,’’ ‘‘an English habit, tending to familiarize the public with monarchical ideas.’’93 The executive’s conduct should be republican in form as well as substance: accordingly, Jefferson had his annual messages copied and hand-delivered to the Capitol. For 112 years, Jefferson’s precedent held, until Woodrow Wilson, a man with a very different conception of the president’s role, delivered his first State of the Union in person.94
Of course, early presidents, like later ones, had strong legislative preferences, and tried to influence developments on Capitol Hill. Despite Washington’s reticent public posture, his treasury secretary Alexander Hamilton sent requests for appropriations to Congress, and worked doggedly to pass the administration’s financial proposals. Jefferson operated behind the scenes as a party leader, through trusted allies in Congress. On occasion, he drafted proposed legislation for an allied representative to introduce—and then asked the member to burn the original.95
The public expectation was, as Madison put it in Federalist 51, that ‘‘in a republican government, the legislative authority necessarily predominates.’’96 Though early presidents involved themselves in legislative affairs, republican ideology demanded that they publicly observe the forms. Indeed, it’s difficult to imagine a modern president agreeing with President James Monroe’s analysis of the relative importance of the three branches. In a message delivered to Congress on May 4, 1822, Monroe stated:
Of these [branches] the legislative . . . is by far the most important. The whole system of the National Government may be said to rest essentially on the power granted to this branch. They mark the limit within which, with few exceptions, all the branches must move in the discharge of their respective functions. 97
Monroe’s words ably describe the constitutional structure of the early Republic: Congress, not the executive branch, was to be the prime mover in setting national policy. As in war, so too on the home front: the chief magistrate’s role was mainly defensive. He could interpose himself between Congress and the people when Congress acted beyond its authority, but he was neither Tribune of the People nor Chief Legislator. His true role at home was at once more humble and more important: Constitutional Guardian. Modest but firm, dignified but not regal: this was the president as the Framers envisioned him.
A Note on ‘‘Framer Worship’’
At this point, after having invoked ‘‘the Framers’’ and ‘‘the Founders’’ so frequently and so favorably, a cautionary note may be in order. Recent decades have seen a revitalization of interest in the nation’s Founders. The bestseller lists are crowded with high-quality popular biographies of Washington, Hamilton, Adams, Jefferson, and their contemporaries. And that’s all to the good: we have much to learn from the men who fought the Revolution and forged the Constitution. One can appreciate what moved Jefferson, who was not a member of the Philadelphia Convention, to call the delegates ‘‘an assembly of demigods.’’ But hero-worship can cloud our vision even when we only revere the dead.
The Federalist itself warns against a ‘‘blind veneration for antiquity.’’98 And a clear-eyed look at the heroes of the young Republic reveals that, remarkable though they were, they were men nonetheless, subject to all the temptations to which flesh is heir. Like all men who seek and wield power, they could abuse it, and even the best among them violated their principles. To take just one example, as president, Jefferson flagrantly violated the Fourth Amendment and the republican proscription against military law enforcement by using Army regulars to enforce the embargo acts; ‘‘on a prolonged, widespread, and systematic basis, in some places lasting nearly a year, the armed forces harried and beleaguered the citizenry.’’99
When we ‘‘consult the Founders,’’ then, we ought not to revere them as gods or look to them as oracles. We can examine their writings to discern how the Constitution’s text should be interpreted, and to better understand the principles that undergird their constitutional handiwork. Chief among those principles was the belief that human nature was ill suited to the exercise of unchecked power. If even those who understood that the best could abuse power, then that in itself is a reminder of the importance of maintaining constitutional checks.
In 1838, three years before his inauguration as the ninth president of the United States, William Henry Harrison outlined what he took to be ‘‘the principles proper to be adopted by any executive sincerely desirous to restore the administration to its original simplicity and purity,’’ among them, ‘‘confining his service to a single term,’’ ‘‘disclaiming all right of control over the public treasure,’’ and that ‘‘he should never attempt to influence the elections, either by the people or the state legislatures.’’101 In an act of supreme deference, Harrison passed away a month into his term.
As a member of the Whig Party that had formed in opposition to the perceived abuses of ‘‘King Andrew’’ Jackson, Harrison’s view of the presidential role was somewhat narrower than the ‘‘median’’ 19th-century president. Still, nothing like the modern vision of presidential power and responsibility had yet taken hold. The two-term precedent set by Washington had evolved, by accident or design, into a one-term tradition. Between Jackson and Lincoln, no president was elected for more than a single term, and Van Buren was the only president during that period to be renominated.
Of course, even in the 19th century, there were hints of the Imperial Presidency to come—in Jackson’s claim to popular leadership, in Polk’s abuse of his authority as commander in chief, and in Lincoln’s dramatic expansion of presidential power throughout the cataclysm of the Civil War. Some scholars have employed such examples to argue that the concept of the modern presidency is a ‘‘myth,’’ that the so-called modern president—an officer claiming a democratic mandate and boldly exercising unilateral power in its name—has been with us almost from the start.102
There’s certainly something to that view. We should not lose sight of the fact that on a number of occasions, 19th-century presidents took independent action of enormous consequence. Jefferson carried out the Louisiana Purchase without being able to point to any constitutional power that would justify it; Madison seized West Florida in 1810, claiming it was part of the territory purchased from France.103 Other significant examples include the proclamation of the Monroe Doctrine, and Jackson’s vigorous response to the Nullification Crisis.
Yet, taken as a whole, the 19th-century presidency still appears a pale shadow of the plebiscitary office it would become in the 20th, when soaring appeals from the bully pulpit and bold executive action became the norm. Even the most aggressive 19th-century presidents are better understood as departures from the constitutional traditions that prevailed through most of that century.
Neither Jackson nor Polk revolutionized the office they held. And though Lincoln exercised wartime powers to rival any president in American history, whatever precedent he set had no immediate effect on the powers of the presidency. After Lincoln’s passage, the country entered into another long era of congressional dominance.
True, Andrew Jackson’s assertiveness as president prompted a good deal of apocalyptic rhetoric. Henry Clay warned in 1833 that Jackson’s rule threatened to bring about ‘‘a total change of the pure republican character of the Government, and . . . the concentration of all power in the hands of one man.’’104 The occasion was the fight over the Second Bank of the United States. When Jackson vetoed the bank’s reauthorization, he cited policy objections as well as constitutional ones, thus violating a shared understanding that the president had no business using the veto to enforce his legislative preferences. Yet, the Constitution contains no such limitation, and the Federalist suggests the veto was designed as a weapon not just against unconstitutional laws but also misguided ones, passed ‘‘through haste, inadvertence, or design.’’105
Jackson’s other offenses included removing executive officers without consulting Congress and advancing the theory that the president, as ‘‘direct representative of the people,’’ ‘‘elected by the people and responsible to them’’ enjoys a unique democratic mandate.106 The idea that the president had the power unilaterally to fire his subordinates was hardly revolutionary.107 On the other hand, Jackson’s claim that the president enjoyed a special mandate was significant, and potentially dangerous. It sat uneasily with the Framers’ distrust of popular leadership, and later presidents would invoke Jackson’s reasoning to expand the powers of the office.
However, Jackson’s behavior did not conform to the vision of the plebiscitary presidency that animated 20th-century Progressives. Though Jackson enjoyed public speaking, as president he didn’t do it often, constrained by the governing norms disfavoring popular appeals.108 It’s difficult to be a really effective demagogue while giving only a handful of speeches a year. And unlike modern presidents, when Jackson claimed to act as the people’s tribune, he often did so to decentralize power, not to concentrate it in the federal government and the executive branch.
Combative though Jackson was, even he deferred to Congress far more than modern presidents. Faced with the question of whether to recognize the Republic of Texas, which had just won its independence from Mexico, Jackson demurred. ‘‘Consistent with the spirit of the Constitution,’’ he advised Congress, the power of recognition ‘‘should be exercised, when probably leading to war, with a previous understanding with that body by whom war alone can be declared.’’109
James K. Polk was far less deferential when it came to taking actions that could lead to war. In 1846, when he sent troops into 40 Our Chief Magistrate and His Powers territory that both Mexico and the United States claimed, he revealed the possibilities for executive mischief inherent in the Constitution’s separation of army command from the legal authority to initiate war. When Mexican forces attacked an American detachment serving under General Zachary Taylor, Polk got the conflict he sought: Congress declared war.
Yet, Polk’s behavior was widely recognized at the time as an abuse of the commander-in-chief power. In 1848, the House censured Polk, declaring that the war had been ‘‘unnecessarily and unconstitutionally begun by the President of the United States.’’110 Writing to his law partner in Illinois, Abraham Lincoln noted the constitutional difficulty:
Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. . . . The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.111
Thirteen years later, as a war president, Lincoln would begin to exercise the sorts of powers he would once have considered ‘‘kingly oppressions.’’ With Congress out of session in April 1861, he responded to the Deep South’s secession by unilaterally ordering the blockade of Southern ports and suspending habeas corpus. The initial suspension of habeas rights rested on a claim of necessity: without it, the rail line to Washington through Baltimore might have been cut off, leaving the city with insufficient troops and vulnerable to attack. Yet, in September of 1862, to put down resistance to the draft, Lincoln extended the suspension of habeas corpus throughout the North, far from any theater of war. During the war, Lincoln imprisoned at least 14,000 civilians without due process, and his administration ordered the shutdown, temporary or permanent, of over 300 newspapers. At one point, Secretary of State William Seward was said to have boasted to the British ambassador, ‘‘I can touch a bell . . . and order the imprisonment of a citizen of New York, and no power on earth, except that of the President of the United States can release [him]. Can the Queen of England do as much?’’112
There’s no denying that during the Civil War Lincoln exercised powers equal to or greater than most modern presidents. And with the Emancipation Proclamation, he provided a powerful example of executive power being used for tremendous good. Supporters of expanded executive power and activist government would invoke Lincoln’s example repeatedly throughout the 20th century, in cases far less compelling. But Lincoln’s legacy had no immediately visible effect on the powers or prestige of the presidency.
War Powers after Lincoln
In that book, Rossiter noted approvingly that the 20th-century president’s powers as commander in chief went far beyond tactical command of congressionally authorized wars. Congress’s power ‘‘to declare War’’ notwithstanding, the modern president had acquired the power to unilaterally decide the question of war or peace. Here again, the 19th-century president cut a less imposing figure.
Lincoln’s invocation of unilateral executive war powers set no immediate precedent with regard to foreign affairs. Even as it ratified his authority to impose a naval blockade on the South—an act of war under international law—the Supreme Court limited its ruling to the unusual circumstances of secession; the president, Justice Robert Grier wrote, ‘‘has no power to initiate or declare a war’’ against a foreign nation.113
True enough, as the 19th century progressed, presidents repeatedly engaged in small-scale interventions without congressional authorization. Throughout the 20th century, those incidents were repeatedly invoked in service of a supposed presidential right to launch wars. But as constitutional scholar Edward S. Corwin noted during the Korean War, the vast majority of those episodes consisted of ‘‘fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border, and the like,’’ many of which were undertaken to protect American citizens, and virtually none of which presented any risk of full-scale war.114 By the end of the 19th century, the constitutional allocation of war powers for the most part remained where the Framers had left it. The question of war or peace remained a question for Congress. ‘
‘She Goes Not Abroad in
Search of Monsters to Destroy’’
In his Helvidius letters, Madison had warned that war was the ‘‘true nurse of executive aggrandizement.’’ It was
the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people.115
Early American foreign policy helped avoid those evils and preserve the constitutional balance of power by disclaiming any grand mission to promote liberty abroad through force of arms. The president was not yet the World Leader described by Rossiter, a man responsible not just for the common defense of the United States, but for the defense of freedom worldwide. Instead, America followed the ‘‘Great Rule’’ of conduct set out by George Washington in his Farewell Address, that ‘‘in extending our commercial relations’’ with other nations, we should ‘‘have with them as little political connection as possible.’’ The speech, on which Hamilton was the principal draftsman, contained passages, such as the warnings against ‘‘passionate attachments’’ for particular nations and ‘‘the insidious wiles of foreign influence,’’ that clearly referred to republican affection for France. But as diplomatic historian Walter McDougall has noted, Washington’s Farewell Address ‘‘laid down principles that virtually all the Founding Fathers endorsed.’’116 That the Great Rule was bipartisan could be seen in Jefferson’s first inaugural, proclaiming the advantages of ‘‘peace, commerce, and honest friendship with all nations, entangling alliances with none.’’117
When Hungarian patriot Louis Kossuth visited the United States in 1852, seeking support for Hungary’s independence from the Austro-Hungarian Empire, Senator Henry Clay told him that America’s true mission was to keep her ‘‘lamp burning brightly on this Western Shore, as a light to all nations, [rather] than to hazard its utter extinction, amid the ruins of fallen or falling republics in Europe.’’118 On the cusp of the 20th century, as America was gripped by war fever, former president Grover Cleveland still held fast to the old doctrine; to abandon the Great Rule in the name of spreading liberty would, he warned, be ‘‘to follow the lights of monarchical hazards.’’119
No Tribune of the People
The late 19th-century president was no more imposing at home than he was abroad. Despite Lincoln’s unmatched eloquence, the post–Civil War president did not become Rossiter’s Voice of the People. True, Lincoln’s successor, the hapless Andrew Johnson, fancied the role, proclaiming that ‘‘your president is now the Tribune of the people, and thank God I am.’’ That attitude helped get Johnson impeached in 1868. The main charges against Johnson centered on his removal of Secretary of War Edwin Stanton, a favorite of the Radical Republicans in Congress.120 However, the 10th article of impeachment focused exclusively on Johnson’s intemperate, populist rhetoric attacking Congress. It read, in part:
That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and the dignity and proprieties thereof, and of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches of the Government of the United States . . . did attempt to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States . . . and to excite the odium and resentment of all good people of the United States against Congress.121
What did Johnson say that moved Congress to seek the ultimate constitutional sanction? Among the passages quoted in the bill of impeachment was a speech in which the president had charged, ‘‘We have seen Congress gradually encroach, step by step, upon constitutional rights, and violate day after day, and month after month, fundamental principles of the government.’’ To be sure, some of Johnson’s statements would be considered improper even today: comparing himself to Christ, accusing Congress of fomenting domestic violence, and the like. But the bulk of what’s quoted in the 10th article isn’t much worse than ‘‘give ’em hell Harry’’ Truman’s stemwinders against the ‘‘do nothing’’ 80th Congress. More than anything, it was, Tulis notes, the purpose of Johnson’s speeches—‘‘to rouse public opinion in support of his policy initiatives’’—that was considered illegitimate.122
Johnson was an anomaly. For three decades after his impeachment, no president saw himself as the people’s tribune, and none engaged in an extended campaign to mobilize the public behind his favored policies.
Nor had the post–Civil War president become the Chief Legislator Rossiter described in 1956. With the exception of Johnson, the old forms of deference and respect survived the secession crisis. As George Hoar, a Massachusetts senator from 1877 to 1904, put it in his memoirs, Gilded Age senators and congressmen ‘‘would have received as a personal affront a private message from the White House expressing a desire that they should adopt any course in the discharge of their legislative duties that they did not approve. If they visited the White House, it was to give, not to receive advice.’’123 That balance of power was reflected in the daily newspapers throughout the 19th century. In their coverage of national affairs, the print media devoted more attention to Congress than the president.124
Why didn’t late 19th-century presidents use the ‘‘bully pulpit’’ to appeal to the public and expand presidential power? The most obvious explanation for early presidential reticence is a technological one. Modern presidents have radio, television, and other mass media at their disposal, and thus far more opportunities than 19th-century presidents to appeal to the masses. In The Rhetorical Presidency, Tulis considers that explanation and finds it incomplete. He notes that presidents could have made use of the radio and TV equivalents of their day: speeches printed in party newspapers—to make direct rhetorical appeals to ‘‘the People.’’ For the most part, they did not.125 What restrained them, Tulis suggests, was republican ideology and public mores that had been formed by it. The late 19th century saw some slippage in the old norms, but the arrival of the president as dynamic popular leader would have to await the new century.
And so, late 19th-century America prospered in an era of presidential anonymity. Few among us, without aid of a mnemonic device, could name everyone who held the office between Lincoln and McKinley. Yet, with a series of nobody presidents—Harrisons and Arthurs, broken up by an occasional Grant or Cleveland—America overtook Great Britain in wealth and influence.126
In the last years of the 19th century, the presidency stood much as the Founding Generation had envisioned it. It remained a modest, constitutionally constrained office that held out little hope for social transformation and great national crusades, a role that presented few opportunities for political heroism. And those who saw politics as the arena of heroes were not at all happy with that arrangement.
One such was Woodrow Wilson, who, like many of our modern presidents, seems to have harbored an intense political ambition from puberty onward. As a young man, he worked halfheartedly as a lawyer, then as an academic, yet the final object always in his sights was political power. Wilson was heavily influenced by Thomas Carlyle’s view of the great man in history. In his famous 1840 lecture ‘‘On Heroes,’’ laying out his ‘‘great man’’ theory of history, Carlyle proclaimed, rather breathlessly, that the Great Leader could set the very world ablaze (a good thing, as Carlyle saw it):
I liken common languid Times . . . with their languid doubting characters and embarrassed circumstances, impotently crumbling down into ever worse distress toward final ruin— all this I liken to dry dead fuel, waiting for the lightning out of Heaven that shall kindle it. The great man, with his free force direct out of God’s own hand, is the lightning. His word is the wise healing word which all can believe in. All blazes round him now, when he has once struck on it, into fire like his own.127
Wilson too wanted to light a fire in the minds of men. In his notes on Carlyle, jotted down in a commonplace book in 1876, the young scholar wrote:
The King the most important of Great Men; the summary of all the various figures of Heroism. To enthrone the Ablest Man, the true business of all Social procedure: the ideal of Constitutions. . . . The world’s sad predicament; that of having its Able-Man to seek, and not knowing in what manner to proceed about it . . .128
As an undergraduate at Princeton, Wilson entered into a sort of mutual self-improvement pact with Charles Talcott, a student he considered a great orator. They pledged, as Wilson put it, that they ‘‘would school all our powers and passions for the work of establishing the principles we held in common; that we would acquire knowledge that we might have power.’’129
In 1884, as a 28-year-old graduate student at Johns Hopkins University, Wilson finished writing Congressional Government, laying out what he saw as the defects in the Framers’ design. ‘‘We are the first Americans,’’ he wrote, ‘‘to hear our own countrymen ask whether the Constitution is still adapted to serve the purposes for which it was intended; the first to entertain any serious doubts about the superiority of our institutions as compared with the systems of Europe.’’130 Chief among the ills Wilson diagnosed was the separation of powers. He spoke ruefully of ‘‘the piecing of authority, the cutting of it up into small bits, which is contrived in our constitutional system.’’131 For Wilson, unity of power and action was essential to strong government; obstacles to that unity damned the United States to weak and vacillating policies, and kept it from becoming a truly great nation.
Wilson saw clearly what modern advocates of the Imperial Presidency do not: that the original Constitution would have to be overturned to open a path for the transformational exercise of power. And yet, at this stage, Wilson did not see the presidency as the vehicle for constitutional transformation. His greatest dream at this time was to be a senator from Virginia. It was perhaps a testament to the persistence of the original constitutional forms that even those with visions of political grandeur thought the legislature was where those visions must be realized. For an ambitious man, the Senate was still where the action was.
While Wilson was writing Congressional Government, another ambitious young man, Theodore Roosevelt, had begun his career in politics as a reform-minded New York state assemblyman. Through the last decades of the 19th century, he’d try his hand as a rancher and dilettante lawman, become a successful historian, serve as an activist police commissioner, and finally become William McKinley’s assistant secretary of the navy. Through it all, he remained a loud advocate for the ‘‘strenuous life’’ and the martial virtues. ‘‘In strict confidence . . . I should welcome almost any war, for I think this country needs one,’’ Roosevelt said in 1897.132 He did his best to push for war with Spain, and when it came, he resigned to organize the Rough Riders and lead the famous charge up San Juan Hill.
Professor Wilson didn’t feel any need to be that sort of hero, but the war with Spain awoke him to the possibilities of expanded presidential power. In the introduction to the August 1900 printing of Congressional Government, he wrote:
When foreign affairs play a prominent part in the politics and policy of a nation, its Executive must of necessity be its guide. . . . The President of the United States is now, as of course, at the front of affairs, as no president, except Lincoln, has been since the first quarter of the 19th century. . . . Upon his choice, his character, his experience hang some of the most weighty issues of the future. The government of dependencies must be largely in his hands. Interesting things may come out of the singular change.133
So they did, and in the years to come, both Wilson and TR would be a part of them, each playing a central role in transforming the presidency.
Next
‘‘Progress’’ and the Presidency58S
Notes
Introduction
1. ‘‘MTP transcript for Jan. 28, 2007,’’available at http://www.msnbc.msn.com/id/ 16785556/ (emphasis added).
2. John McCain, ‘‘Theodore Roosevelt,’’ in Presidential Leadership: Rating the Best and the Worst in the White House, ed. James Taranto and Leonard Leo (New York: Free Press, 2004, 2005) pp. 126, 128.
3. Ed Crane, ‘‘Is Hillary Clinton a Neocon?’’ Financial Times, July 11, 2007.
4. ‘‘President Bush Visits Greensburg, Kansas to Survey Tornado Damage, Offer Condolences,’’ May 9, 2007, http://www.whitehouse.gov/news/releases/2007/05/ 20070509-4.html.
5. Bill Broadway, ‘‘War Cry from the Pulpit,’’ Washington Post, September 22, 2001 (emphasis added).
6. Clinton quoted in Anna Quindlen, ‘‘Public and Private: America’s Sleeping Sickness,’’ New York Times, October 17, 1993; Bush: President’s State of the Union Address, January 29, 2002.
7. 1959 national poll cited in Roberta S. Sigel, ‘‘Image of the American Presidency— Part II of an Exploration into Popular Views of Presidential Power,’’ Midwest Journal of Political Science 10 (February 1966): 128.
8. ‘‘Americans Distrust Government, but Want It to Do More,’’ NPR Online, July 28, 2000, http://www.npr.org/programs/specials/poll/govt/summary.html; ‘‘Attitudes toward Government’’ NPR-Kaiser-Kennedy School Poll, http://www.npr.org/ programs/specials/poll/govt/gov.toplines.pdf.
9. Richard J. Ellis and Aaron B. Wildavsky, Dilemmas of Presidential Leadership: From Washington through Lincoln (New Brunswick, NJ: Transaction Publishers, 1989), p. 14.
10. Arthur M. Schlesinger Jr., ‘‘Rating the Presidents: Washington to Clinton,’’ Political Science Quarterly 112 (Summer 1997): 189.
11. James Lindgren, ‘‘The Federalist Society and the Wall Street Journal Present: Rating the Presidents of the United States, 1789–2000: A Survey of Scholars in History, Political Science, and Law,’’ November 16, 2000, http://www.fed-soc.org/docLib/ 20070308_pressurvey.PDF; ‘‘Our study, conducted in October 2000, found remarkably similar results to the last Schlesinger study. The correlation between the ranks in the two studies is a staggeringly high .94,’’ p. 5.
12. Clinton Rossiter, The American Presidency (Baltimore: Johns Hopkins University Press, 1956, 1987), pp. 2–3.
13. All quotes from ibid., chapter 1, ‘‘The Powers of the Presidency.’’
14. Theodore Roosevelt, ‘‘A Confession of Faith,’’ delivered August 6, 1912, to Progressive Party Convention in Chicago, Illinois.
15. Quoted in James Chace, 1912: Wilson, Roosevelt, Taft and Debs—The Election That Changed the Country (New York: Simon and Schuster, 2004), p. 221.
16. President Bill Clinton, first inaugural address, January 20, 1993.
17. See, for example, Elvin T. Lim, ‘‘Five Trends in Presidential Rhetoric: An Analysis of Rhetoric from George Washington to Bill Clinton,’’ Presidential Studies Quarterly 32 (June 2002): 328–66.
18. Steroids, State of the Union address, January 20, 2004; gangs, State of the Union address, February 2, 2005; ‘‘petroleum-based economy’’ and ‘‘freedom’s advance,’’ State of the Union address, January 31, 2006.
19. Theodore J. Lowi, The Personal President: Power Invested, Promise Unfulfilled (Ithaca, NY: Cornell University Press, 1985), p. 20.
20. See Daniel W. Drezner, ‘‘Mind the Gap,’’ The National Interest, no. 87 (January–February 2007).
21. Federalist No. 8, in George W. Carey and James McClellan, eds., The Federalist (Indianapolis, IN: Liberty Fund, 2001), p. 34.
22. Chris Hedges, War Is a Force That Gives Us Meaning (New York: Anchor Books, 2002).
23. Richard J. Piper, ‘‘Situational Constitutionalism and Presidential Power: The Rise and Fall of the Liberal Model of Presidential Government,’’ Presidential Studies Quarterly 24 (Summer 1994): 577–96.
24. ‘‘President Interviewed by Joe Klein, New Yorker,’’ October 10, 2000, http:// www.clintonfoundation.org/legacy/101000-president-interviewed-by-joe-kleinnew-yorker.htm.
Chapter 1
1. James McClellan and M. E. Bradford, eds., Elliot’s Debates, Vol. III: Debates in the Federal Convention of 1787 (Richmond: James River Press, 1989), pp. 45–46.
2. See, for example, Pinckney, June 1; Randolph, June 1; McClellan and Bradford, ibid., pp. 45–46.
3. Richard M. Pious, The American Presidency (New York: Basic Books, 1979), pp. 21–22.
4. The Journal of William Maclay, United States Senator from Pennsylvania, 1789–1791 (New York: Albert & Charles Boni, 1927), p. 23.
5. Sidney M. Milkis and Michael Nelson, The American Presidency: Origins and Development, 1776–1998, 3rd ed. (Washington: CQ Press, 1999), p. 70.
6. David McCullough, John Adams (New York: Touchstone, 2001), p. 407.
7. James H. Hutson, ‘‘John Adams’ Title Campaign,’’ New England Quarterly 41 (March 1968): 32–33.
8. Maclay, pp. 1, 24, and 36.
9. Ibid., p. 12.
10. Ibid., p. 21.
11. One of the first reviewers of the unexpurgated Maclay (a bowdlerized version had been released in the 1880s) condemns the senator for his ‘‘narrow and illiberal spirit’’ and tendency toward ‘‘splenetic indulgences.’’ W. P. Trent, ‘‘Review: Journal of William Maclay, United States Senator from Pennsylvania, 1789–1791, by Edgar S. Maclay,’’ Political Science Quarterly 6 (June 1891): 366.
12. Maclay, p. 3.
13. Ibid., p. 29.
14. Ibid., p. 27.
15. Ibid., p. 34.
16. Ibid., p. 27.
17. Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788–1800 (New York: Oxford University Press, 1993), p. 48. Though, as Gordon Wood has noted, at one time Washington had favored ‘‘His High Mightiness, the President of the United States and Protector of Their Liberties,’’ Gordon S. Wood, ‘‘The Man Who Would Not Be King,’’ New Republic, December 20, 2004, pp. 33–37.
18. Glenn A. Phelps, George Washington and American Constitutionalism (Lawrence: University Press of Kansas, 1994), p. 141.
19. Federalist No. 69, in The Federalist, ed. George W. Carey and James McClellan (Indianapolis, IN: Liberty Fund, 2001), p. 361.
20. Jeffrey K. Tulis, ‘‘The Two Constitutional Presidencies,’’ in The Presidency and the Political System, 5th ed., ed. Michael Nelson (Washington: CQ Press, 1998), p. 93.
21. Peter Augustine Lawler, ‘‘The Federalist’s Hostility to Leadership and the Crisis of the Contemporary Presidency,’’ Presidential Studies Quarterly 17 (Fall 1987): 718.
22. Theodore J. Lowi, The Personal President: Power Invested, Promise Unfulfilled (Ithaca, NY: Cornell University Press, 1985), p. 40.
23. Steven G. Calabresi and Kevin H. Rhodes, ‘‘The Structural Constitution: Unitary Executive, Plural Judiciary,’’ Harvard Law Review 105 (April 1992): 1165–66.
24. See, for example, Charles Thatch’s discussion of the so-called removal debate of 1789, which concerned the structure of the executive departments, and whether the president alone could decide to dismiss subordinate officers. Thatch argues that ‘‘the power of removal was derived from the general executive power of administrative control. The latter power has not been an extra-constitutional growth. It was the conscious creation of the men who made the Constitution.’’ Charles C. Thatch Jr., The Creation of the Presidency: 1775–1789, A Study in Constitutional History (Baltimore: Johns Hopkins University Press, 1923, 1969), pp. 158–59.
25. See, for example, Charlie Savage, ‘‘Hail to the Chief: Dick Cheney’s Mission to Expand—or ‘Restore’—the Powers of the Presidency,’’ Boston Globe, November 26, 2006.
26. See, for example, Willmoore Kendall, ‘‘The Two Majorities,’’ Midwest Journal of Political Science 4 (November 1960): 317–45 and the discussion on pages 118–24 of this book.
27. Jeffrey Rosen, ‘‘The Power of One,’’ New Republic, July 24, 2006.
28. Paul M. Barrett, ‘‘A Young Lawyer Helps Chart Shift in Foreign Policy,’’ Wall Street Journal, September 12, 2005.
29. See, for example, John C. Yoo, ‘‘The Continuation of Politics by Other Means: The Original Understanding of War Powers,’’ California Law Review 84 (March 1996): 167–305.
30. Peter Slevin, ‘‘Scholar Stands by Post-9/11 Writings on Torture, Domestic Eavesdropping,’’ Washington Post, December 26, 2005.
31. John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago: University of Chicago Press, 2005), p. x.
32. Yoo and Delahunty, ‘‘Book Review: Thinking about Presidents,’’ Cornell Law Review 90 (May 2005): 1176.
33. Yoo, Powers of War and Peace, pp. 112–13.
34. McClellan and Bradford, Elliot’s Debates, pp. 46–47.
35. Plutarch, ‘‘Poplicola,’’ in The Lives of the Noble Grecians and Romans, ed. Arthur Hugh Clough (New York: Random House, 1992), pp. 129–46.
36. Federalist No. 69, p. 355.
37. It’s worth noting in this context that Jefferson’s oft-repeated story about Hamilton telling him that Julius Caesar was ‘‘the greatest man that ever lived’’ may have been a politically motivated distortion. Hamilton condemned Caesar repeatedly in public and private. See Thomas P. Govan, ‘‘Alexander Hamilton and Julius Caesar: A Note on the Use of Historical Evidence,’’ William and Mary Quarterly 32 (July 1975): 475–80; and Richard Brookhiser, Alexander Hamilton, American (New York: Touchstone, 1999), pp. 191–92.
38. McClellan and Bradford, Elliot’s Debates, p. 136.
39. See Louis Fisher, Presidential War Power (Lawrence: University Press of Kansas, 1995), pp. 18, 20–21. In his debates with Madison over Washington’s 1793 Neutrality Proclamation, Hamilton argued that, in the absence of guidance from Congress, the executive had the power to reaffirm the existing state of peace, leaving it to Congress to change peace into war. That’s what passed for a rabidly pro-executive view in the early republic. But Hamilton was quite clear about which branch retains control over the war power: ‘‘It is the province and duty of the executive to preserve to the nation the blessings of peace. The legislature alone can interrupt them by placing the nation in a state of war,’’ he writes in the first Pacificus letter. In 1798, at the start of the Quasi-War with France over harassment of American shipping, Hamilton wrote that any naval actions beyond the merely defensive ‘‘must fall under the idea of reprisals & require the sanction of that Department which is to declare or make war.’’ See also, Richard Loss, ‘‘Alexander Hamilton and the Modern Presidency: Continuity or Discontinuity,’’ Presidential Studies Quarterly 12 (1982): 6–25.
40. McClellan and Bradford, Elliot’s Debates, p. 621.
41. Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Belknap Press, 1967, 1992), pp. 59–60.
42. Benjamin F. Wright, ‘‘The Federalist on the Nature of Political Man,’’ Ethics 59 (January 1949): 4. NB: the precise quote, from a letter written 100 years after the Philadelphia Convention, is ‘‘Power tends to corrupt and absolute power corrupts absolutely.’’ J. Rufus Fears, ed., Essays in Religion, Politics, and Morality: Selected Writings of Lord Acton, Vol. 3 (Indianapolis, IN: Liberty Classics, 1988), p. 519. See also James P. Scanlan, ‘‘The Federalist and Human Nature,’’ Review of Politics 21 (October 1959).
43. Bailyn, Ideological Origins, p. 379.
44. Federalist No. 47, p. 249.
45. Quoted in Michael J. Rosano, ‘‘Liberty, Nobility, Philanthropy, and Power in Alexander Hamilton’s Conception of Human Nature,’’ American Journal of Political Science 47 (January 2003): 68.
46. Federalist No. 51, p. 268.
47. Federalist No. 48, p. 257.
48. Jess Bravin, ‘‘Judge Alito’s View of the Presidency: Expansive Powers,’’ Wall Street Journal, January 5, 2006.
49. David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801 (Chicago: University of Chicago Press, 1997), p. 177: ‘‘The difference in phrasing . . . may well have been accidental.’’ On the other hand, Charles Thatch believes that New York’s Gouverneur Morris, who favored a powerful executive, made the change ‘‘with full realization of its possibilities.’’ That he managed to slip the change past the convention ‘‘admitted an interpretation of executive power which would give to the President a field of action much wider than that outlined by the enumerated powers.’’ Thatch, Creation of the Presidency, p. 139.
50. Curtis A. Bradley and Martin S. Flaherty, ‘‘Executive Power Essentialism and Foreign Affairs,’’ University of Michigan Law Review 102 (February 2004): 591: ‘‘There is not a single reference to the Vesting Clause Thesis in all of the records of the Federal Convention.’’
51. Jack N. Rakove, ‘‘Taking the Prerogative out of the Presidency: An Originalist Perspective,’’ Presidential Studies Quarterly 37 (March 2007): 98. To be sure, AntiFederalists suggested the president might come to resemble a king; Rakove’s point is that unitarians have not identified any who pointed to the vesting clause as the source of the danger.
52. Federalist No. 45, p. 241.
53. Federalist No. 84, p. 445. Bradley and Flaherty provide a powerful case against the vesting clause thesis in ‘‘Executive Power Essentialism and Foreign Affairs,’’ from which a number of the points are drawn.
54. See generally Gene Healy and Timothy Lynch, Power Surge: The Constitutional Record of George W. Bush, Cato Institute White Paper, May 1, 2006.
55. See, for example, Lawrence Lessig and Cass Sunstein, ‘‘The President and the Administration,’’ Columbia Law Review 94 (1994): 47–48.
56. As Cass Sunstein notes: The claim for the unitary executive is not a general claim about the President’s power to act on his own or to contradict the will of Congress. You can believe in a strongly unitary executive branch while also believing that the President cannot make war, or torture people, or engage in foreign surveillance without congressional authorization. Cass Sunstein, ‘‘What the ‘Unitary Executive’ Debate Is and Is Not About,’’ University of Chicago Law School Faculty Blog, August 6, 2007, http://uchicagolaw.typepad. com/faculty/2007/08/what-the-unitar.html. Indeed, not all unitarians believe that the president’s possession of ‘‘The executive Power’’ means that Congress is powerless to restrain him in wartime. For example, Michael Ramsey, one of John Yoo’s most powerful critics, believes that the vesting clause gives the president significant power in foreign affairs, but Ramsey denies that those powers allow the president to start wars or ignore statutes banning torture. Michael D. Ramsey, ‘‘Torturing Executive Power,’’ Georgetown Law Journal 93 (April 2005).
57. Henry P. Monaghan, ‘‘The Protective Power of the Presidency,’’ Columbia Law Review 93 (January 1993): 11.
58. ‘‘William Blackstone, Commentaries 1:254,’’ The Founders’ Constitution (online); Vol. 4, Art. 2, Sec. 2, Cl. 1, Doc. 2, http://press-pubs.uchicago.edu/founders/ documents/a2_2_1s2.html. For Yoo on Blackstone, see, for example, Powers of War and Peace, pp. 41–42.
59. Federalist No. 4, p. 13.
60. James Madison, ‘‘Helvidius No. IV,’’ in The Letters of Pacificus and Helvidius (1845) with the Letters of Americanus (New York: Scholars’ Facsimiles & Reprints, 1976), pp. 89–90.
61. McClellan and Bradford, Elliot’s Debates, pp. 45–46.
62. Quoted in Norman A. Graebner, ‘‘The President as Commander in Chief: A Study in Power,’’ Journal of Military History (January 1993): 112, ‘‘in remarks recorded by Rufus King of Massachusetts.’’
63. McClellan and Bradford, Elliot’s Debates, pp. 451–52.
64. Other important war-making powers include the power ‘‘to raise and support armies, but no Appropriation of Money to that Use shall be for a longer Term than two years’’ and the power ‘‘to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel invasions.’’
65. Federalist No. 69, p. 357.
66. John Yoo, ‘‘A President Can Pull the Trigger,’’ Los Angeles Times, December 20, 2005.
67. John Yoo, Powers of War and Peace, p. 145.
68. Federalist No. 25, p. 124.
69. John C. Yoo, ‘‘Continuation of Politics,’’ pp. 206–7 and Yoo, Powers of War and Peace, pp. 33–34.
70. Michael D. Ramsey, ‘‘Text and History in the War Powers Debate: A Reply to Professor Yoo,’’ University of Chicago Law Review 69 (Autumn 2002): 1685.
71. Quoted in Ramsey, ‘‘Textualism and War Powers,’’ University of Chicago Law Review 69 (Autumn 2002): 1545. That proposition is further supported by Emmerich de Vattel, ‘‘the international law writer best known to the Framers,’’ who explained that ‘‘when one nation takes up arms against another, she from that moment declares herself an enemy to all the individuals of the latter, and authorizes them to treat her as such.’’ See also Michael D. Ramsey, The Constitution’s Text in Foreign Affairs (Cambridge, MA: Harvard University Press, 2007).
72. ‘‘President Bush Announces Major Combat Operations in Iraq Have Ended,’’ White House press release, May 1, 2003, http://www.whitehouse.gov/news/ releases/2003/05/20030501-15.html.
73. Ramsey, ‘‘Textualism and War Powers.’’ Ramsey also points out that a formal proclamation was not necessary in the 18th century to invoke the laws of war, one of the two main purposes Yoo ascribes to the congressional power to declare war.
74. See, for example, Federalist No. 41: ‘‘Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils. Is the power of declaring war necessary? No man will answer this question in the negative.’’
75. As Ramsey notes, ‘‘In my own review of the ratification debates I have found no passage in which anyone asserted broad presidential war powers, and Professor Yoo has not pointed to any such passage.’’ Ramsey, ‘‘Text and History in the War Powers Debate,’’ p. 1712.
76. ‘‘James Wilson, Pennsylvania Ratifying Convention,’’ The Founders’ Constitution (online), Vol. 1, Chap. 7, Doc. 17, http://press-pubs.uchicago.edu/founders/ documents/v1ch7s17.html.
77. ‘‘Pierce Butler, South Carolina Legislature,’’ The Founders’ Constitution (online), Vol. 3, Art. 1, Sec. 8, Cl. 11, Doc. 5, http://press-pubs.uchicago.edu/founders/ documents/a1_8_11s5.html. Butler’s assurance should perhaps carry special weight, given that at the Philadelphia Convention it was Butler himself who argued for giving the president the power ‘‘to make war.’’
78. Louis Fisher, Presidential War Power, p. 18.
79. David P. Currie, ‘‘Rumors of Wars: Presidential and Congressional War Powers, 1809–1829,’’ University of Chicago Law Review 67 (Winter 2000): 40; David P. Currie, The Constitution in Congress: The Jeffersonians, 1801–1829 (Chicago: University of Chicago Press, 2001), p. 195 (‘‘Neither Madison nor his supporters in Congress even remotely suggested that the President had inherent authority to initiate hostilities without congressional approval’’). Abraham D. Sofaer, whose 1976 book War, Foreign Affairs and Constitutional Power remains the most comprehensive study of the constitutional history of American foreign policy, came to the same conclusion as Professor Currie: ‘‘At no point during the first forty years of activity under the Constitution, did a President or any other important participant claim that Presidents could exercise force independently of congressional control.’’ Abraham D. Sofaer, ‘‘War and Responsibility: A Symposium on Congress, the President, and the Authority to Initiate Hostilities,’’ University of Miami Law Review 50 (October 1995): 50–51. Sofaer places more weight on early presidents’ conduct than does Currie, noting that they repeatedly took independent action that could be expected to lead to military conflict. But the fact that early presidents felt compelled to publicly observe the forms of deference even while pushing the limits of their authority casts serious doubt on John Yoo’s claim that, in the original understanding, the president had the ‘‘right to start wars.’’
80. Jeffrey K. Tulis, ‘‘The Two Constitutional Presidencies,’’ p. 112.
81. Federalist No. 1, p. 3; Federalist No. 85, p. 457. The observation is Tulis’s, p. 95.
82. Robert Schmuhl, ‘‘Over to You, President Bush; The Consequences of Shaping the World’s Most Powerful Office,’’ Chicago Tribune, January 18, 2001.
83. Robert A. Dahl, ‘‘Myth of the Presidential Mandate,’’ Political Science Quarterly 105 (Autumn 1990): 369.
84. Jeffrey K. Tulis, The Rhetorical Presidency (Princeton, NJ: Princeton University Press, 1987), p. 6.
85. Lynn Hudson Parsons, John Quincy Adams(Lanham, MD: Rowman & Littlefield, 1999), p. 185.
86. Tulis, The Rhetorical Presidency, p. 66.
87. Jason W. A. Bertsch, ‘‘Chatterbox,’’ Public Interest (Summer 1996). Some scholars argue that Tulis draws the contrast between what he calls ‘‘the Old Way’’ and ‘‘the New Way’’ too sharply. Terri Bimes and Quinn Mulroy find that ‘‘a strong vibrant tradition of populist leadership existed among nineteenth century Democratic presidents.’’ ‘‘The Rise and Decline of Presidential Populism,’’ Studies in American Political Development 18 (Fall 2004): 137. Michael J. Korzi recognizes that ‘‘the nineteenthcentury president was constrained in being a popular leader, and, to be sure, he rarely made direct, popular appeals.’’ But Korzi argues that there is also ‘‘significant evidence that [19th-century presidential] candidates actually were expected to present their political opinions and pledges to the people, which, as we have seen, would have been anathema to the founders.’’ Michael J. Korzi, ‘‘The Seat of Popular Leadership: Parties, Elections, and the Nineteenth-Century Presidency,’’ Presidential Studies Quarterly 29 (June 1999): 351, 356.
88. ‘‘The message was generally known as ‘the President’s Annual Message to Congress’ until well into the 20th century. Although some historians suggest that the phrase ‘State of the Union’ emerged only after World War II, President Franklin Roosevelt’s 1934 message is identified in his papers as his ‘‘Annual Message to Congress on the State of the Union.’’ Thomas H. Neale, ‘‘The President’s State of the Union Message: Frequently Asked Questions,’’ CRS Report for Congress, Order Code RS20021, updated January 23, 2004.
89. George Washington, First Annual Address, January 8, 1790. See discussion in David P. Currie, Constitution in Congress: Federalist Period, pp. 29–30.
90. George Washington, ‘‘Communication of Sentiments to Benjamin Hawkins,’’ in The Writings of George Washington 1790–1794, Vol. 12, ed. Worthington Chauncey Ford (New York and London: G.P. Putnam’ Sons, 1891), p. 73. 319 NOTES TO PAGES 36–41
91. Quoted in Phelps, George Washington and American Constitutionalism, p. 141.
92. Thomas Jefferson, First Annual Message, December 8, 1801.
93. Tulis, The Rhetorical Presidency, p. 56.
94. In their deference to Congress, early presidents went well beyond anything required by the Constitution’s text. Far from hermetically sealing off legislative functions within the legislative branch, that document gives an important role to the president in the lawmaking process. In addition to the veto power, the Constitution stipulates that the president ‘‘shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.’’ The language of that clause (‘‘shall,’’ not ‘‘may’’), and its inclusion amid a list of duties of the president, suggest that the chief executive is not just entitled to, but constitutionally required to, make policy recommendations to Congress. Vasan Kesavan and J. Gregory Sidak, ‘‘The Legislator in-Chief,’’ William and Mary Law Review 44 (October 2002): 7–13.
95. Aaron Wildavsky, ‘‘ ‘Greatness’ Revisited: Evaluating the Performance of American Presidents in Terms of Cultural Dilemmas,’’ in The Beleaguered Presidency (New Brunswick, NJ: Transaction, 1991), p. 11.
96. Federalist No. 51, p. 269.
97. Quoted in James Burnham, Congress and the American Tradition (Chicago: Henry Regnery Company, 1959), p. 92.
98. Federalist No. 14, p. 67.
99. Leonard W. Levy, Jefferson and Civil Liberties: The Darker Side (Chicago: Ivan R. Dee, Inc., 1989), p. 119. Madison, Jefferson’s secretary of state and successor, played a key role in pushing the coercive and disastrous embargo policy. Garry Wills explains that Madison and Jefferson supported that policy because they thought it would keep the United States out of war, and the pair ‘‘had an ideological block about war of any kind.’’ Garry Wills, James Madison (New York: Times Books, 2002), p. 62.
100. James T. Patterson, ‘‘The Rise of Presidential Power Before World War II,’’ Law and Contemporary Problems 40 (Spring 1976): 39.
101. Quoted in Marcus Cunliffe, The Presidency, 3rd ed. (Boston: Houghton Mifflin Co., 1987), p. 132.
102. See David K. Nichols, The Myth of the Modern Presidency (University Park: Pennsylvania State University Press, 1994).
103. For a discussion of the Louisiana Purchase and Jefferson’s desire for a constitutional amendment that would ratify his actions, see David N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville: University of Virginia Press, 1994, 1997), pp. 244–51.
104. Quoted in Patterson, ‘‘Rise of Presidential Power,’’ p. 43.
105. Federalist No. 73, p. 381. See also Frank Easterbrook, ‘‘Presidential Review,’’ Case Western Reserve Law Review (1990): 907–8.
106. Nichols, Myth of the Modern Presidency, p. 27.
107. As Madison had put it during the removal debate, ‘‘The power of removal was an executive power, and as such belonged to the president, by the express words of the constitution: ‘the executive power shall be vested in a President of the United States of America.’ ’’ See Thatch, Creation of the Presidency, p. 151.
108. Tulis, The Rhetorical Presidency, p. 73.
109. Quoted in Fisher, Presidential War Power, p. 30.
110. Ibid., p. 34.
111. Lincoln, to William H. Herndon, February 15, 1848, in Lincoln: Selected Speeches and Writings, ed. Don E. Fehrenbacher (New York: Vintage Books, 1989), pp. 67–68.
112. Jeffrey Rogers Hummel, Emancipating Slaves, Enslaving Free Men: A History of the American Civil War (Chicago: Open Court Press, 1996), p. 256. In March 1863, Congress ratified Lincoln’s suspension of habeas corpus.
113. The Prize Cases, 67 U.S. 635, 668 (1862). The administration itself admitted as much at oral argument, when district attorney Richard Henry Dana Jr., arguing the case for the president, affirmed that the questions before the Court had nothing to do with ‘‘the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.’’ David Gray Adler, ‘‘The Law: The Clinton Theory of the War Power,’’ Presidential Studies Quarterly 30 (March 2000).
114. Quoted in Fisher, Presidential War Power, p. 88. See also Raoul Berger, Executive Privilege: A Constitutional Myth (Cambridge, MA: Harvard University Press, 1974), pp. 75–77. That is not, of course, to suggest that none of these incidents were significant. The Quasi-War with France (1798–1800) and Jefferson’s actions against the Barbary powers were important conflicts carried out without declarations of war. In the second chapter of his book Presidential War Power, ‘‘Precedents from 1789 to 1900,’’ constitutional scholar Louis Fisher argues that Congress authorized the use of force in both incidents, and he examines other, smaller 19th-century interventions that better fit Corwin’s description.
115. James Madison, Letters and Other Writings, Vol. 4, pp. 491–92.
116. Walter A. McDougall, Promised Land, Crusader State (Boston: Houghton Mifflin Co., 1997), p. 48.
117. Thomas Jefferson, First Inaugural Address, March 4, 1801.
118. Eric A. Nordlinger, Isolationism Reconfigured: American Foreign Policy for a New Century (Princeton, NJ: Princeton University Press, 1995), p. 186.
119. Ibid., p. 242.
120. Stanton’s removal violated the Tenure of Office Act, a measure of dubious constitutionality that Congress had passed to protect him.
121. U.S. Senate, Proceedings in the Trial of Andrew Johnson (Washington: 1869).
122. Tulis, The Rhetorical Presidency, p. 93.
123. Quoted in James T. Patterson, ‘‘Rise of Presidential Power,’’ p. 48.
124. Samuel Kernell and Gary C. Jacobson, ‘‘Congress and the Presidency as News in the Nineteenth Century,’’ Journal of Politics 49 (November 1987): 1016–35.
125. Tulis, The Rhetorical Presidency, pp. 15–17.
126. See figures cited in Jonathan Monten, ‘‘The Roots of the Bush Doctrine: Power, Nationalism, and Democracy Promotion in U.S. Strategy,’’ International Security (Spring 2005).
127. Thomas Carlyle, ‘‘The Leader as Hero,’’ in Political Leadership: A Source Book, ed. Barbara Kellerman (Pittsburgh: University of Pittsburgh Press, 1986), p. 7.
128. The Papers of Woodrow Wilson, Vol. 1, ed. Arthur S. Link (Princeton, NJ: Princeton University Press, 1966), p. 125.
129. Garry Wills, ‘‘The Presbyterian Nietzsche,’’ New York Review of Books, January 16, 1992.
130. Woodrow Wilson, Congressional Government, p. 27.
131. Woodrow Wilson, Congressional Government, p. 185.
132. Howard K. Beale, Theodore Roosevelt and the Rise of America to World Power, p. 50, 1967 ed.
133. Woodrow Wilson, Congressional Government, pp. 22–23.
In Professor Yoo’s view, however, the president is the sole decider in matters of war and peace. He has, as Yoo puts it, the ‘‘right to start wars.’’66 Yoo arrives at that position by interpreting Congress’s power ‘‘to declare War’’ narrowly enough almost to read it out of existence. [That worked out real well for Homey the Clown in Libya and Syria,we are all so much safer,for his unilateral actions in both those cases DC]
As Yoo points out, the constitutional text does not say that Congress has the power to ‘‘ ‘make,’ ‘begin,’ ‘authorize,’ or ‘wage’ war.’’ It merely has the power to ‘‘declare war.’’67 According to Yoo, in the 18th century that language would have indicated the power to issue a formal proclamation of war, which, as Hamilton notes in the Federalist, was a practice that had ‘‘of late, fallen into disuse.’’68 Such proclamations served two main purposes. First, they put the enemy nation on notice that a state of war existed, and that the declaring nation intended to invoke the protections of international law for its combatants and their actions. Second, declarations ‘‘informed citizens of their new relationship with the enemy state, and informed them that they could take hostile actions against the enemy without fear of sanction.’’69 Though formal declarations served those functions, they were not a necessary prerequisite for war. As Yoo sees it, the president need not wait on Congress to act: he has ‘‘the executive power,’’ which, according to Blackstone and other sources familiar to the Framers, included the monarch’s power to undertake hostilities. In Yoo’s version of the original understanding, then, the president can embroil the country in a war, and Congress can, if it chooses, make war official.
Was the constitutional power ‘‘to declare war’’ so narrowly understood by 18th-century Americans? In a 2002 exchange with Yoo, Professor Michael D. Ramsey showed that it was not. Rather, the Founding Generation understood the phrase ‘‘declare war’’ to mean initiating war by a public act: ‘‘not just a formal proclamation, but also an act (typically a hostile attack) that marked the beginning of a state of war.’’70 As John Locke—a writer at least as familiar to the Framers as Blackstone—recognized in the Second Treatise, war can be declared ‘‘by Word or Action.’’71 That’s consistent with the way we use the phrase even today: ‘‘Japan declared war on the United States when it bombed Pearl Harbor.’’ Or, as George W. Bush put it in his ‘‘mission accomplished’’ speech aboard the USS Lincoln in May 2003: ‘‘After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States, and war is what they got.’’72 [Yeah war based on horse dung intelligence,that people sitting at the coffee table could see as such.DC]
That Congress, and not the president, has the constitutional power ‘‘to declare war’’ means that it is up to Congress to decide whether to take the nation into war, whether by making a formal proclamation or by authorizing the president to attack. As Ramsey argues, the narrower interpretation makes little sense; it ‘‘essentially ends up meaning that the President can initiate a state of war but cannot formally say anything about it.’’73 If that’s how the clause was understood, it’s odd that participants in the ratification debates spoke about it as if it conveyed a significant power.74
War Powers in the Early Republic
Yoo’s narrow reading of the constitutional text cannot be squared with the way prominent figures in the ratification debates described the constitutional allocation of war powers.75 James Wilson told the Pennsylvania ratifying convention that ‘‘this system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power in declaring war is vested in the legislature at large.’’76 Pierce Butler, like Wilson a delegate to the Philadelphia Convention, assured the South Carolina legislature that the proposed constitution prevented the president from starting wars: ‘‘Some gentlemen [i.e., Butler himself] were inclined to give this power to the President; but it was objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction.’’77 [Which is basically what the United States has been doing now on behalf of Israel in the Middle East since at least early 1991 with increasing regularity since 2001 DC]
That the president lacked such power was the understanding upon which the Constitution was ratified, and it was the understanding that prevailed throughout the first generation after the Founding. Indeed, our first president doubted he had the power to order preemptive strikes against hostile Indians, unless, as he wrote in 1793, Congress ‘‘shall have deliberated on the subject, and authorized such a measure.’’78
Today, one often hears the argument that the president needs broad war powers because the survival of the nation is at stake. But is our survival as a nation really more tenuous today than it was in the late 18th century, when the United States was a small frontier republic on the edge of a continent occupied by periodically hostile great powers and Indian marauders? In that dangerous environment, the Framers drafted, and the country ratified, a Constitution that sharply limited emergency powers and rejected the idea that the president was above the law.
And early presidents understood that. In his four-book series The Constitution in Congress, the University of Chicago’s David Currie exhaustively examined congressional and presidential interpretations of the Constitution in the young Republic. With regard to the Constitution’s allocation of war powers, Currie concluded that
despite the usual line-drawing and factual difficulties the express position of every President to address the subject during the first forty years of the present Constitution was entirely in line with that proclaimed by Congress in the celebrated War Powers Resolution in 1973: The President may introduce troops into hostilities only pursuant to a congressional declaration of war or other legislative authorization, or in response to an attack on the United States.79
It’s little wonder, then, that John Yoo’s book The Powers of War and Peace skips directly from the Founding period to the post–World War II era. What happened (or didn’t happen) in between doesn’t help his thesis.
The Chief Magistrate on the Home Front
Thus, even in the realm of foreign affairs, where one might imagine
that his powers are at their apex, the Constitution limited the president’s freedom of action. On the home front, the president’s powers
were even more sharply limited. The Constitution gave him little
or no independent power to coerce citizens. The president’s veto
power allowed him to check legislative abuses, but he was not
expected to act as America’s leader in domestic affairs.Indeed, the term ‘‘leader,’’ which appears repeatedly in Madison, Hamilton, and Jay’s essays in defense of the Constitution, is nearly always used negatively, save for one positive reference to the leaders of the American Revolution.80 The Federalist is bookended by warnings about the perils of popular leadership: the first essay warns that ‘‘of those men who have overturned the liberties of republics, the greatest number have begun their career by paying obsequious court to the people, commencing demagogues and ending tyrants.’’ The last essay raises the specter of disunion and civil war, ending with the ‘‘military despotism of a victorious demagogue.’’81 For the Framers, the ability to ‘‘move the masses’’ wasn’t a desirable quality in a president—it was a threat.
Not the ‘‘ Voice of the People’’
By the mid-1950s, when Clinton Rossiter was writing The American Presidency, the president had become ‘‘a kind of magnificent lion who can roam widely and do great deeds so long as he does not try to break free from his broad reservation.’’82 He was, Rossiter wrote, the true ‘‘Voice of the People,’’ the supreme national leader charged with shaping the popular will. But in the early Republic, that notion of a ‘‘Plebiscitary Presidency’’ was anathema to Federalists and Anti-Federalists, Hamiltonians and Jeffersonians alike. As Yale’s Robert A. Dahl has put it,
The Framers did not wish an executive who would be a tribune of the people, a champion of popular majorities . . . who as a consequence of his popular election would claim a mandate for his policies; who in order to mobilize popular support for his policies would appeal directly to the people; who would shape the language, style, and delivery of his appeals so as best to create a public opinion favorable to his ambitions; and who whenever it seemed expedient would bypass the members of the deliberative body in order to mobilize public opinion and thereby induce a reluctant Congress to enact his policies.83
When it came to constraining demagogic appeals, during the first century of the Republic, the informal mores that governed presidential behavior were as important as formal, constitutional checks. In his influential study of presidential speechcraft, 1987’s The Rhetorical Presidency, Jeffrey K. Tulis notes that early American political culture proscribed popular appeals by the president: ‘‘very few [early presidential addresses] were domestic ‘policy speeches’ of the sort so common now, and attempts to move the nation by moral suasion in the absence of war were almost unknown.’’84
Early presidents often acknowledged the impropriety of popular appeals. Thus, in 1827, turning down an opportunity to make a speech at the opening of the Pennsylvania Canal, President John Quincy Adams declared ‘‘this mode of electioneering is . . . unsuitable to my personal character and the station in which I am placed.’’85 In the first decades under the Constitution, presidents spoke to the public only rarely. Presidents from Washington to Jackson averaged little over three speeches a year, with those mostly limited to ceremonial addresses, thin on policy.86 In his first year in office, President Clinton gave 600.87 [yeah no attempt at manipulation there DC]
The Deferential Executive
In part, that reticence reflected the public expectation that Congress would take the lead in domestic affairs. For Professor Rossiter, the modern president was inescapably America’s ‘‘Chief Legislator,’’ tasked with guiding Congress’s legislative agenda by suasion or force. But here again, the constitutional culture of the young Republic prescribed a much more modest role for the chief executive.
In early presidents’ annual messages—the speech we know today as the State of the Union—there was nothing that rang out like the 19th-century equivalent of ‘‘pass Social Security reform now!’’88 In his first annual message, in January 1790, Washington made sure to tread lightly: rather than proposing specific measures, he mostly confined himself to mentioning general areas deserving of Congress’s attention.89 After his third annual message, Washington wrote that ‘‘motives of delicacy’’ had deterred him ‘‘from introducing any to pick which relates to legislative matters, lest it should be suspected that he wished to influence the question before it.’’90 For instance, Washington firmly believed that the United States needed a national university and a federally funded system of canals. Yet, having made his preferences known, he would not proceed to browbeat Congress, or go ‘‘over their heads’’ by making direct appeals to the people. As he understood the Constitution, Congress steered the nation’s course when it came to policy. The president could attempt to draw Congress’s attention to areas that should be of legislative concern. But beyond that, if Congress chose not to act, it wasn’t the president’s place to insist. In a 1790 letter to a European friend, Washington explained that though he supported a federal project to research improved agricultural methods, he would not go further than making a recommendation:
I know not whether I can with propriety do any thing more at present than what I have already done. I have brought the subject in my speech, at the opening of the present Session of Congress, before the national Legislature. It rests with them to decide what measures ought afterwards to be adopted for promoting the success of the great objects, which I have recommended to their attention.91
Adams and Jefferson likewise tended in their annual messages to avoid specificity or anything that could be interpreted as a tone of command. More typical was Jefferson’s approach in his first annual message: ‘‘I am happy in this opportunity of committing the arduous affairs of our government to the collected wisdom of the Union. Nothing shall be wanting on my part to inform, as far as in my power, the legislative judgment, nor to carry that judgment into faithful execution.’’92
Unlike his two predecessors, Jefferson delivered that message in writing, rather than in person before Congress assembled. Public delivery of the annual message reminded Jefferson of the British king’s ‘‘Speech from the Throne,’’ ‘‘an English habit, tending to familiarize the public with monarchical ideas.’’93 The executive’s conduct should be republican in form as well as substance: accordingly, Jefferson had his annual messages copied and hand-delivered to the Capitol. For 112 years, Jefferson’s precedent held, until Woodrow Wilson, a man with a very different conception of the president’s role, delivered his first State of the Union in person.94
Of course, early presidents, like later ones, had strong legislative preferences, and tried to influence developments on Capitol Hill. Despite Washington’s reticent public posture, his treasury secretary Alexander Hamilton sent requests for appropriations to Congress, and worked doggedly to pass the administration’s financial proposals. Jefferson operated behind the scenes as a party leader, through trusted allies in Congress. On occasion, he drafted proposed legislation for an allied representative to introduce—and then asked the member to burn the original.95
The public expectation was, as Madison put it in Federalist 51, that ‘‘in a republican government, the legislative authority necessarily predominates.’’96 Though early presidents involved themselves in legislative affairs, republican ideology demanded that they publicly observe the forms. Indeed, it’s difficult to imagine a modern president agreeing with President James Monroe’s analysis of the relative importance of the three branches. In a message delivered to Congress on May 4, 1822, Monroe stated:
Of these [branches] the legislative . . . is by far the most important. The whole system of the National Government may be said to rest essentially on the power granted to this branch. They mark the limit within which, with few exceptions, all the branches must move in the discharge of their respective functions. 97
Monroe’s words ably describe the constitutional structure of the early Republic: Congress, not the executive branch, was to be the prime mover in setting national policy. As in war, so too on the home front: the chief magistrate’s role was mainly defensive. He could interpose himself between Congress and the people when Congress acted beyond its authority, but he was neither Tribune of the People nor Chief Legislator. His true role at home was at once more humble and more important: Constitutional Guardian. Modest but firm, dignified but not regal: this was the president as the Framers envisioned him.
A Note on ‘‘Framer Worship’’
At this point, after having invoked ‘‘the Framers’’ and ‘‘the Founders’’ so frequently and so favorably, a cautionary note may be in order. Recent decades have seen a revitalization of interest in the nation’s Founders. The bestseller lists are crowded with high-quality popular biographies of Washington, Hamilton, Adams, Jefferson, and their contemporaries. And that’s all to the good: we have much to learn from the men who fought the Revolution and forged the Constitution. One can appreciate what moved Jefferson, who was not a member of the Philadelphia Convention, to call the delegates ‘‘an assembly of demigods.’’ But hero-worship can cloud our vision even when we only revere the dead.
The Federalist itself warns against a ‘‘blind veneration for antiquity.’’98 And a clear-eyed look at the heroes of the young Republic reveals that, remarkable though they were, they were men nonetheless, subject to all the temptations to which flesh is heir. Like all men who seek and wield power, they could abuse it, and even the best among them violated their principles. To take just one example, as president, Jefferson flagrantly violated the Fourth Amendment and the republican proscription against military law enforcement by using Army regulars to enforce the embargo acts; ‘‘on a prolonged, widespread, and systematic basis, in some places lasting nearly a year, the armed forces harried and beleaguered the citizenry.’’99
When we ‘‘consult the Founders,’’ then, we ought not to revere them as gods or look to them as oracles. We can examine their writings to discern how the Constitution’s text should be interpreted, and to better understand the principles that undergird their constitutional handiwork. Chief among those principles was the belief that human nature was ill suited to the exercise of unchecked power. If even those who understood that the best could abuse power, then that in itself is a reminder of the importance of maintaining constitutional checks.
The ‘‘Myth’’ of the Modern Presidency?
Despite occasional departures from principle, the Framers’ vision
of the president as a limited, constitutional officer held firm for most
of the century that followed. At the Constitutional Convention, when
James Wilson moved to place the executive power in the hands of
a single officeholder, Virginia’s Edmund Randolph worried that the
delegates were creating ‘‘the foetus of monarchy.’’ If so, it took a
long time to be born. For most of the 19th century, as historian
James T. Patterson has noted, the presidency was ‘‘an insignificant
institution.’’100 In 1838, three years before his inauguration as the ninth president of the United States, William Henry Harrison outlined what he took to be ‘‘the principles proper to be adopted by any executive sincerely desirous to restore the administration to its original simplicity and purity,’’ among them, ‘‘confining his service to a single term,’’ ‘‘disclaiming all right of control over the public treasure,’’ and that ‘‘he should never attempt to influence the elections, either by the people or the state legislatures.’’101 In an act of supreme deference, Harrison passed away a month into his term.
As a member of the Whig Party that had formed in opposition to the perceived abuses of ‘‘King Andrew’’ Jackson, Harrison’s view of the presidential role was somewhat narrower than the ‘‘median’’ 19th-century president. Still, nothing like the modern vision of presidential power and responsibility had yet taken hold. The two-term precedent set by Washington had evolved, by accident or design, into a one-term tradition. Between Jackson and Lincoln, no president was elected for more than a single term, and Van Buren was the only president during that period to be renominated.
Of course, even in the 19th century, there were hints of the Imperial Presidency to come—in Jackson’s claim to popular leadership, in Polk’s abuse of his authority as commander in chief, and in Lincoln’s dramatic expansion of presidential power throughout the cataclysm of the Civil War. Some scholars have employed such examples to argue that the concept of the modern presidency is a ‘‘myth,’’ that the so-called modern president—an officer claiming a democratic mandate and boldly exercising unilateral power in its name—has been with us almost from the start.102
There’s certainly something to that view. We should not lose sight of the fact that on a number of occasions, 19th-century presidents took independent action of enormous consequence. Jefferson carried out the Louisiana Purchase without being able to point to any constitutional power that would justify it; Madison seized West Florida in 1810, claiming it was part of the territory purchased from France.103 Other significant examples include the proclamation of the Monroe Doctrine, and Jackson’s vigorous response to the Nullification Crisis.
Yet, taken as a whole, the 19th-century presidency still appears a pale shadow of the plebiscitary office it would become in the 20th, when soaring appeals from the bully pulpit and bold executive action became the norm. Even the most aggressive 19th-century presidents are better understood as departures from the constitutional traditions that prevailed through most of that century.
Neither Jackson nor Polk revolutionized the office they held. And though Lincoln exercised wartime powers to rival any president in American history, whatever precedent he set had no immediate effect on the powers of the presidency. After Lincoln’s passage, the country entered into another long era of congressional dominance.
True, Andrew Jackson’s assertiveness as president prompted a good deal of apocalyptic rhetoric. Henry Clay warned in 1833 that Jackson’s rule threatened to bring about ‘‘a total change of the pure republican character of the Government, and . . . the concentration of all power in the hands of one man.’’104 The occasion was the fight over the Second Bank of the United States. When Jackson vetoed the bank’s reauthorization, he cited policy objections as well as constitutional ones, thus violating a shared understanding that the president had no business using the veto to enforce his legislative preferences. Yet, the Constitution contains no such limitation, and the Federalist suggests the veto was designed as a weapon not just against unconstitutional laws but also misguided ones, passed ‘‘through haste, inadvertence, or design.’’105
Jackson’s other offenses included removing executive officers without consulting Congress and advancing the theory that the president, as ‘‘direct representative of the people,’’ ‘‘elected by the people and responsible to them’’ enjoys a unique democratic mandate.106 The idea that the president had the power unilaterally to fire his subordinates was hardly revolutionary.107 On the other hand, Jackson’s claim that the president enjoyed a special mandate was significant, and potentially dangerous. It sat uneasily with the Framers’ distrust of popular leadership, and later presidents would invoke Jackson’s reasoning to expand the powers of the office.
However, Jackson’s behavior did not conform to the vision of the plebiscitary presidency that animated 20th-century Progressives. Though Jackson enjoyed public speaking, as president he didn’t do it often, constrained by the governing norms disfavoring popular appeals.108 It’s difficult to be a really effective demagogue while giving only a handful of speeches a year. And unlike modern presidents, when Jackson claimed to act as the people’s tribune, he often did so to decentralize power, not to concentrate it in the federal government and the executive branch.
Combative though Jackson was, even he deferred to Congress far more than modern presidents. Faced with the question of whether to recognize the Republic of Texas, which had just won its independence from Mexico, Jackson demurred. ‘‘Consistent with the spirit of the Constitution,’’ he advised Congress, the power of recognition ‘‘should be exercised, when probably leading to war, with a previous understanding with that body by whom war alone can be declared.’’109
James K. Polk was far less deferential when it came to taking actions that could lead to war. In 1846, when he sent troops into 40 Our Chief Magistrate and His Powers territory that both Mexico and the United States claimed, he revealed the possibilities for executive mischief inherent in the Constitution’s separation of army command from the legal authority to initiate war. When Mexican forces attacked an American detachment serving under General Zachary Taylor, Polk got the conflict he sought: Congress declared war.
Yet, Polk’s behavior was widely recognized at the time as an abuse of the commander-in-chief power. In 1848, the House censured Polk, declaring that the war had been ‘‘unnecessarily and unconstitutionally begun by the President of the United States.’’110 Writing to his law partner in Illinois, Abraham Lincoln noted the constitutional difficulty:
Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. . . . The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.111
Thirteen years later, as a war president, Lincoln would begin to exercise the sorts of powers he would once have considered ‘‘kingly oppressions.’’ With Congress out of session in April 1861, he responded to the Deep South’s secession by unilaterally ordering the blockade of Southern ports and suspending habeas corpus. The initial suspension of habeas rights rested on a claim of necessity: without it, the rail line to Washington through Baltimore might have been cut off, leaving the city with insufficient troops and vulnerable to attack. Yet, in September of 1862, to put down resistance to the draft, Lincoln extended the suspension of habeas corpus throughout the North, far from any theater of war. During the war, Lincoln imprisoned at least 14,000 civilians without due process, and his administration ordered the shutdown, temporary or permanent, of over 300 newspapers. At one point, Secretary of State William Seward was said to have boasted to the British ambassador, ‘‘I can touch a bell . . . and order the imprisonment of a citizen of New York, and no power on earth, except that of the President of the United States can release [him]. Can the Queen of England do as much?’’112
There’s no denying that during the Civil War Lincoln exercised powers equal to or greater than most modern presidents. And with the Emancipation Proclamation, he provided a powerful example of executive power being used for tremendous good. Supporters of expanded executive power and activist government would invoke Lincoln’s example repeatedly throughout the 20th century, in cases far less compelling. But Lincoln’s legacy had no immediately visible effect on the powers or prestige of the presidency.
Minimum Leader
What’s remarkable is how resilient the old customs and limits
remained, even after the war. When the Civil War crisis had passed,
America returned to limited, congressionally led government.
Despite the impressive whiskers sported by several of the office’s
occupants, it was hard to discern Clinton Rossiter’s ‘‘magnificent
lion’’ in the series of wonderfully forgettable presidents who passed
through between Lincoln and McKinley. Looking back on the broad
sweep of the 19th century, it is clear that the chief executive had
nothing like the broad responsibilities and vast powers Rossiter
described in The American Presidency. War Powers after Lincoln
In that book, Rossiter noted approvingly that the 20th-century president’s powers as commander in chief went far beyond tactical command of congressionally authorized wars. Congress’s power ‘‘to declare War’’ notwithstanding, the modern president had acquired the power to unilaterally decide the question of war or peace. Here again, the 19th-century president cut a less imposing figure.
Lincoln’s invocation of unilateral executive war powers set no immediate precedent with regard to foreign affairs. Even as it ratified his authority to impose a naval blockade on the South—an act of war under international law—the Supreme Court limited its ruling to the unusual circumstances of secession; the president, Justice Robert Grier wrote, ‘‘has no power to initiate or declare a war’’ against a foreign nation.113
True enough, as the 19th century progressed, presidents repeatedly engaged in small-scale interventions without congressional authorization. Throughout the 20th century, those incidents were repeatedly invoked in service of a supposed presidential right to launch wars. But as constitutional scholar Edward S. Corwin noted during the Korean War, the vast majority of those episodes consisted of ‘‘fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border, and the like,’’ many of which were undertaken to protect American citizens, and virtually none of which presented any risk of full-scale war.114 By the end of the 19th century, the constitutional allocation of war powers for the most part remained where the Framers had left it. The question of war or peace remained a question for Congress. ‘
‘She Goes Not Abroad in
Search of Monsters to Destroy’’
In his Helvidius letters, Madison had warned that war was the ‘‘true nurse of executive aggrandizement.’’ It was
the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people.115
Early American foreign policy helped avoid those evils and preserve the constitutional balance of power by disclaiming any grand mission to promote liberty abroad through force of arms. The president was not yet the World Leader described by Rossiter, a man responsible not just for the common defense of the United States, but for the defense of freedom worldwide. Instead, America followed the ‘‘Great Rule’’ of conduct set out by George Washington in his Farewell Address, that ‘‘in extending our commercial relations’’ with other nations, we should ‘‘have with them as little political connection as possible.’’ The speech, on which Hamilton was the principal draftsman, contained passages, such as the warnings against ‘‘passionate attachments’’ for particular nations and ‘‘the insidious wiles of foreign influence,’’ that clearly referred to republican affection for France. But as diplomatic historian Walter McDougall has noted, Washington’s Farewell Address ‘‘laid down principles that virtually all the Founding Fathers endorsed.’’116 That the Great Rule was bipartisan could be seen in Jefferson’s first inaugural, proclaiming the advantages of ‘‘peace, commerce, and honest friendship with all nations, entangling alliances with none.’’117
When Hungarian patriot Louis Kossuth visited the United States in 1852, seeking support for Hungary’s independence from the Austro-Hungarian Empire, Senator Henry Clay told him that America’s true mission was to keep her ‘‘lamp burning brightly on this Western Shore, as a light to all nations, [rather] than to hazard its utter extinction, amid the ruins of fallen or falling republics in Europe.’’118 On the cusp of the 20th century, as America was gripped by war fever, former president Grover Cleveland still held fast to the old doctrine; to abandon the Great Rule in the name of spreading liberty would, he warned, be ‘‘to follow the lights of monarchical hazards.’’119
No Tribune of the People
The late 19th-century president was no more imposing at home than he was abroad. Despite Lincoln’s unmatched eloquence, the post–Civil War president did not become Rossiter’s Voice of the People. True, Lincoln’s successor, the hapless Andrew Johnson, fancied the role, proclaiming that ‘‘your president is now the Tribune of the people, and thank God I am.’’ That attitude helped get Johnson impeached in 1868. The main charges against Johnson centered on his removal of Secretary of War Edwin Stanton, a favorite of the Radical Republicans in Congress.120 However, the 10th article of impeachment focused exclusively on Johnson’s intemperate, populist rhetoric attacking Congress. It read, in part:
That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and the dignity and proprieties thereof, and of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches of the Government of the United States . . . did attempt to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States . . . and to excite the odium and resentment of all good people of the United States against Congress.121
What did Johnson say that moved Congress to seek the ultimate constitutional sanction? Among the passages quoted in the bill of impeachment was a speech in which the president had charged, ‘‘We have seen Congress gradually encroach, step by step, upon constitutional rights, and violate day after day, and month after month, fundamental principles of the government.’’ To be sure, some of Johnson’s statements would be considered improper even today: comparing himself to Christ, accusing Congress of fomenting domestic violence, and the like. But the bulk of what’s quoted in the 10th article isn’t much worse than ‘‘give ’em hell Harry’’ Truman’s stemwinders against the ‘‘do nothing’’ 80th Congress. More than anything, it was, Tulis notes, the purpose of Johnson’s speeches—‘‘to rouse public opinion in support of his policy initiatives’’—that was considered illegitimate.122
Johnson was an anomaly. For three decades after his impeachment, no president saw himself as the people’s tribune, and none engaged in an extended campaign to mobilize the public behind his favored policies.
Nor had the post–Civil War president become the Chief Legislator Rossiter described in 1956. With the exception of Johnson, the old forms of deference and respect survived the secession crisis. As George Hoar, a Massachusetts senator from 1877 to 1904, put it in his memoirs, Gilded Age senators and congressmen ‘‘would have received as a personal affront a private message from the White House expressing a desire that they should adopt any course in the discharge of their legislative duties that they did not approve. If they visited the White House, it was to give, not to receive advice.’’123 That balance of power was reflected in the daily newspapers throughout the 19th century. In their coverage of national affairs, the print media devoted more attention to Congress than the president.124
Why didn’t late 19th-century presidents use the ‘‘bully pulpit’’ to appeal to the public and expand presidential power? The most obvious explanation for early presidential reticence is a technological one. Modern presidents have radio, television, and other mass media at their disposal, and thus far more opportunities than 19th-century presidents to appeal to the masses. In The Rhetorical Presidency, Tulis considers that explanation and finds it incomplete. He notes that presidents could have made use of the radio and TV equivalents of their day: speeches printed in party newspapers—to make direct rhetorical appeals to ‘‘the People.’’ For the most part, they did not.125 What restrained them, Tulis suggests, was republican ideology and public mores that had been formed by it. The late 19th century saw some slippage in the old norms, but the arrival of the president as dynamic popular leader would have to await the new century.
And so, late 19th-century America prospered in an era of presidential anonymity. Few among us, without aid of a mnemonic device, could name everyone who held the office between Lincoln and McKinley. Yet, with a series of nobody presidents—Harrisons and Arthurs, broken up by an occasional Grant or Cleveland—America overtook Great Britain in wealth and influence.126
In the last years of the 19th century, the presidency stood much as the Founding Generation had envisioned it. It remained a modest, constitutionally constrained office that held out little hope for social transformation and great national crusades, a role that presented few opportunities for political heroism. And those who saw politics as the arena of heroes were not at all happy with that arrangement.
Designing Men
One such was Woodrow Wilson, who, like many of our modern presidents, seems to have harbored an intense political ambition from puberty onward. As a young man, he worked halfheartedly as a lawyer, then as an academic, yet the final object always in his sights was political power. Wilson was heavily influenced by Thomas Carlyle’s view of the great man in history. In his famous 1840 lecture ‘‘On Heroes,’’ laying out his ‘‘great man’’ theory of history, Carlyle proclaimed, rather breathlessly, that the Great Leader could set the very world ablaze (a good thing, as Carlyle saw it):
I liken common languid Times . . . with their languid doubting characters and embarrassed circumstances, impotently crumbling down into ever worse distress toward final ruin— all this I liken to dry dead fuel, waiting for the lightning out of Heaven that shall kindle it. The great man, with his free force direct out of God’s own hand, is the lightning. His word is the wise healing word which all can believe in. All blazes round him now, when he has once struck on it, into fire like his own.127
Wilson too wanted to light a fire in the minds of men. In his notes on Carlyle, jotted down in a commonplace book in 1876, the young scholar wrote:
The King the most important of Great Men; the summary of all the various figures of Heroism. To enthrone the Ablest Man, the true business of all Social procedure: the ideal of Constitutions. . . . The world’s sad predicament; that of having its Able-Man to seek, and not knowing in what manner to proceed about it . . .128
As an undergraduate at Princeton, Wilson entered into a sort of mutual self-improvement pact with Charles Talcott, a student he considered a great orator. They pledged, as Wilson put it, that they ‘‘would school all our powers and passions for the work of establishing the principles we held in common; that we would acquire knowledge that we might have power.’’129
In 1884, as a 28-year-old graduate student at Johns Hopkins University, Wilson finished writing Congressional Government, laying out what he saw as the defects in the Framers’ design. ‘‘We are the first Americans,’’ he wrote, ‘‘to hear our own countrymen ask whether the Constitution is still adapted to serve the purposes for which it was intended; the first to entertain any serious doubts about the superiority of our institutions as compared with the systems of Europe.’’130 Chief among the ills Wilson diagnosed was the separation of powers. He spoke ruefully of ‘‘the piecing of authority, the cutting of it up into small bits, which is contrived in our constitutional system.’’131 For Wilson, unity of power and action was essential to strong government; obstacles to that unity damned the United States to weak and vacillating policies, and kept it from becoming a truly great nation.
Wilson saw clearly what modern advocates of the Imperial Presidency do not: that the original Constitution would have to be overturned to open a path for the transformational exercise of power. And yet, at this stage, Wilson did not see the presidency as the vehicle for constitutional transformation. His greatest dream at this time was to be a senator from Virginia. It was perhaps a testament to the persistence of the original constitutional forms that even those with visions of political grandeur thought the legislature was where those visions must be realized. For an ambitious man, the Senate was still where the action was.
While Wilson was writing Congressional Government, another ambitious young man, Theodore Roosevelt, had begun his career in politics as a reform-minded New York state assemblyman. Through the last decades of the 19th century, he’d try his hand as a rancher and dilettante lawman, become a successful historian, serve as an activist police commissioner, and finally become William McKinley’s assistant secretary of the navy. Through it all, he remained a loud advocate for the ‘‘strenuous life’’ and the martial virtues. ‘‘In strict confidence . . . I should welcome almost any war, for I think this country needs one,’’ Roosevelt said in 1897.132 He did his best to push for war with Spain, and when it came, he resigned to organize the Rough Riders and lead the famous charge up San Juan Hill.
Professor Wilson didn’t feel any need to be that sort of hero, but the war with Spain awoke him to the possibilities of expanded presidential power. In the introduction to the August 1900 printing of Congressional Government, he wrote:
When foreign affairs play a prominent part in the politics and policy of a nation, its Executive must of necessity be its guide. . . . The President of the United States is now, as of course, at the front of affairs, as no president, except Lincoln, has been since the first quarter of the 19th century. . . . Upon his choice, his character, his experience hang some of the most weighty issues of the future. The government of dependencies must be largely in his hands. Interesting things may come out of the singular change.133
So they did, and in the years to come, both Wilson and TR would be a part of them, each playing a central role in transforming the presidency.
Next
‘‘Progress’’ and the Presidency58S
Notes
Introduction
1. ‘‘MTP transcript for Jan. 28, 2007,’’available at http://www.msnbc.msn.com/id/ 16785556/ (emphasis added).
2. John McCain, ‘‘Theodore Roosevelt,’’ in Presidential Leadership: Rating the Best and the Worst in the White House, ed. James Taranto and Leonard Leo (New York: Free Press, 2004, 2005) pp. 126, 128.
3. Ed Crane, ‘‘Is Hillary Clinton a Neocon?’’ Financial Times, July 11, 2007.
4. ‘‘President Bush Visits Greensburg, Kansas to Survey Tornado Damage, Offer Condolences,’’ May 9, 2007, http://www.whitehouse.gov/news/releases/2007/05/ 20070509-4.html.
5. Bill Broadway, ‘‘War Cry from the Pulpit,’’ Washington Post, September 22, 2001 (emphasis added).
6. Clinton quoted in Anna Quindlen, ‘‘Public and Private: America’s Sleeping Sickness,’’ New York Times, October 17, 1993; Bush: President’s State of the Union Address, January 29, 2002.
7. 1959 national poll cited in Roberta S. Sigel, ‘‘Image of the American Presidency— Part II of an Exploration into Popular Views of Presidential Power,’’ Midwest Journal of Political Science 10 (February 1966): 128.
8. ‘‘Americans Distrust Government, but Want It to Do More,’’ NPR Online, July 28, 2000, http://www.npr.org/programs/specials/poll/govt/summary.html; ‘‘Attitudes toward Government’’ NPR-Kaiser-Kennedy School Poll, http://www.npr.org/ programs/specials/poll/govt/gov.toplines.pdf.
9. Richard J. Ellis and Aaron B. Wildavsky, Dilemmas of Presidential Leadership: From Washington through Lincoln (New Brunswick, NJ: Transaction Publishers, 1989), p. 14.
10. Arthur M. Schlesinger Jr., ‘‘Rating the Presidents: Washington to Clinton,’’ Political Science Quarterly 112 (Summer 1997): 189.
11. James Lindgren, ‘‘The Federalist Society and the Wall Street Journal Present: Rating the Presidents of the United States, 1789–2000: A Survey of Scholars in History, Political Science, and Law,’’ November 16, 2000, http://www.fed-soc.org/docLib/ 20070308_pressurvey.PDF; ‘‘Our study, conducted in October 2000, found remarkably similar results to the last Schlesinger study. The correlation between the ranks in the two studies is a staggeringly high .94,’’ p. 5.
12. Clinton Rossiter, The American Presidency (Baltimore: Johns Hopkins University Press, 1956, 1987), pp. 2–3.
13. All quotes from ibid., chapter 1, ‘‘The Powers of the Presidency.’’
14. Theodore Roosevelt, ‘‘A Confession of Faith,’’ delivered August 6, 1912, to Progressive Party Convention in Chicago, Illinois.
15. Quoted in James Chace, 1912: Wilson, Roosevelt, Taft and Debs—The Election That Changed the Country (New York: Simon and Schuster, 2004), p. 221.
16. President Bill Clinton, first inaugural address, January 20, 1993.
17. See, for example, Elvin T. Lim, ‘‘Five Trends in Presidential Rhetoric: An Analysis of Rhetoric from George Washington to Bill Clinton,’’ Presidential Studies Quarterly 32 (June 2002): 328–66.
18. Steroids, State of the Union address, January 20, 2004; gangs, State of the Union address, February 2, 2005; ‘‘petroleum-based economy’’ and ‘‘freedom’s advance,’’ State of the Union address, January 31, 2006.
19. Theodore J. Lowi, The Personal President: Power Invested, Promise Unfulfilled (Ithaca, NY: Cornell University Press, 1985), p. 20.
20. See Daniel W. Drezner, ‘‘Mind the Gap,’’ The National Interest, no. 87 (January–February 2007).
21. Federalist No. 8, in George W. Carey and James McClellan, eds., The Federalist (Indianapolis, IN: Liberty Fund, 2001), p. 34.
22. Chris Hedges, War Is a Force That Gives Us Meaning (New York: Anchor Books, 2002).
23. Richard J. Piper, ‘‘Situational Constitutionalism and Presidential Power: The Rise and Fall of the Liberal Model of Presidential Government,’’ Presidential Studies Quarterly 24 (Summer 1994): 577–96.
24. ‘‘President Interviewed by Joe Klein, New Yorker,’’ October 10, 2000, http:// www.clintonfoundation.org/legacy/101000-president-interviewed-by-joe-kleinnew-yorker.htm.
Chapter 1
1. James McClellan and M. E. Bradford, eds., Elliot’s Debates, Vol. III: Debates in the Federal Convention of 1787 (Richmond: James River Press, 1989), pp. 45–46.
2. See, for example, Pinckney, June 1; Randolph, June 1; McClellan and Bradford, ibid., pp. 45–46.
3. Richard M. Pious, The American Presidency (New York: Basic Books, 1979), pp. 21–22.
4. The Journal of William Maclay, United States Senator from Pennsylvania, 1789–1791 (New York: Albert & Charles Boni, 1927), p. 23.
5. Sidney M. Milkis and Michael Nelson, The American Presidency: Origins and Development, 1776–1998, 3rd ed. (Washington: CQ Press, 1999), p. 70.
6. David McCullough, John Adams (New York: Touchstone, 2001), p. 407.
7. James H. Hutson, ‘‘John Adams’ Title Campaign,’’ New England Quarterly 41 (March 1968): 32–33.
8. Maclay, pp. 1, 24, and 36.
9. Ibid., p. 12.
10. Ibid., p. 21.
11. One of the first reviewers of the unexpurgated Maclay (a bowdlerized version had been released in the 1880s) condemns the senator for his ‘‘narrow and illiberal spirit’’ and tendency toward ‘‘splenetic indulgences.’’ W. P. Trent, ‘‘Review: Journal of William Maclay, United States Senator from Pennsylvania, 1789–1791, by Edgar S. Maclay,’’ Political Science Quarterly 6 (June 1891): 366.
12. Maclay, p. 3.
13. Ibid., p. 29.
14. Ibid., p. 27.
15. Ibid., p. 34.
16. Ibid., p. 27.
17. Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788–1800 (New York: Oxford University Press, 1993), p. 48. Though, as Gordon Wood has noted, at one time Washington had favored ‘‘His High Mightiness, the President of the United States and Protector of Their Liberties,’’ Gordon S. Wood, ‘‘The Man Who Would Not Be King,’’ New Republic, December 20, 2004, pp. 33–37.
18. Glenn A. Phelps, George Washington and American Constitutionalism (Lawrence: University Press of Kansas, 1994), p. 141.
19. Federalist No. 69, in The Federalist, ed. George W. Carey and James McClellan (Indianapolis, IN: Liberty Fund, 2001), p. 361.
20. Jeffrey K. Tulis, ‘‘The Two Constitutional Presidencies,’’ in The Presidency and the Political System, 5th ed., ed. Michael Nelson (Washington: CQ Press, 1998), p. 93.
21. Peter Augustine Lawler, ‘‘The Federalist’s Hostility to Leadership and the Crisis of the Contemporary Presidency,’’ Presidential Studies Quarterly 17 (Fall 1987): 718.
22. Theodore J. Lowi, The Personal President: Power Invested, Promise Unfulfilled (Ithaca, NY: Cornell University Press, 1985), p. 40.
23. Steven G. Calabresi and Kevin H. Rhodes, ‘‘The Structural Constitution: Unitary Executive, Plural Judiciary,’’ Harvard Law Review 105 (April 1992): 1165–66.
24. See, for example, Charles Thatch’s discussion of the so-called removal debate of 1789, which concerned the structure of the executive departments, and whether the president alone could decide to dismiss subordinate officers. Thatch argues that ‘‘the power of removal was derived from the general executive power of administrative control. The latter power has not been an extra-constitutional growth. It was the conscious creation of the men who made the Constitution.’’ Charles C. Thatch Jr., The Creation of the Presidency: 1775–1789, A Study in Constitutional History (Baltimore: Johns Hopkins University Press, 1923, 1969), pp. 158–59.
25. See, for example, Charlie Savage, ‘‘Hail to the Chief: Dick Cheney’s Mission to Expand—or ‘Restore’—the Powers of the Presidency,’’ Boston Globe, November 26, 2006.
26. See, for example, Willmoore Kendall, ‘‘The Two Majorities,’’ Midwest Journal of Political Science 4 (November 1960): 317–45 and the discussion on pages 118–24 of this book.
27. Jeffrey Rosen, ‘‘The Power of One,’’ New Republic, July 24, 2006.
28. Paul M. Barrett, ‘‘A Young Lawyer Helps Chart Shift in Foreign Policy,’’ Wall Street Journal, September 12, 2005.
29. See, for example, John C. Yoo, ‘‘The Continuation of Politics by Other Means: The Original Understanding of War Powers,’’ California Law Review 84 (March 1996): 167–305.
30. Peter Slevin, ‘‘Scholar Stands by Post-9/11 Writings on Torture, Domestic Eavesdropping,’’ Washington Post, December 26, 2005.
31. John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago: University of Chicago Press, 2005), p. x.
32. Yoo and Delahunty, ‘‘Book Review: Thinking about Presidents,’’ Cornell Law Review 90 (May 2005): 1176.
33. Yoo, Powers of War and Peace, pp. 112–13.
34. McClellan and Bradford, Elliot’s Debates, pp. 46–47.
35. Plutarch, ‘‘Poplicola,’’ in The Lives of the Noble Grecians and Romans, ed. Arthur Hugh Clough (New York: Random House, 1992), pp. 129–46.
36. Federalist No. 69, p. 355.
37. It’s worth noting in this context that Jefferson’s oft-repeated story about Hamilton telling him that Julius Caesar was ‘‘the greatest man that ever lived’’ may have been a politically motivated distortion. Hamilton condemned Caesar repeatedly in public and private. See Thomas P. Govan, ‘‘Alexander Hamilton and Julius Caesar: A Note on the Use of Historical Evidence,’’ William and Mary Quarterly 32 (July 1975): 475–80; and Richard Brookhiser, Alexander Hamilton, American (New York: Touchstone, 1999), pp. 191–92.
38. McClellan and Bradford, Elliot’s Debates, p. 136.
39. See Louis Fisher, Presidential War Power (Lawrence: University Press of Kansas, 1995), pp. 18, 20–21. In his debates with Madison over Washington’s 1793 Neutrality Proclamation, Hamilton argued that, in the absence of guidance from Congress, the executive had the power to reaffirm the existing state of peace, leaving it to Congress to change peace into war. That’s what passed for a rabidly pro-executive view in the early republic. But Hamilton was quite clear about which branch retains control over the war power: ‘‘It is the province and duty of the executive to preserve to the nation the blessings of peace. The legislature alone can interrupt them by placing the nation in a state of war,’’ he writes in the first Pacificus letter. In 1798, at the start of the Quasi-War with France over harassment of American shipping, Hamilton wrote that any naval actions beyond the merely defensive ‘‘must fall under the idea of reprisals & require the sanction of that Department which is to declare or make war.’’ See also, Richard Loss, ‘‘Alexander Hamilton and the Modern Presidency: Continuity or Discontinuity,’’ Presidential Studies Quarterly 12 (1982): 6–25.
40. McClellan and Bradford, Elliot’s Debates, p. 621.
41. Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Belknap Press, 1967, 1992), pp. 59–60.
42. Benjamin F. Wright, ‘‘The Federalist on the Nature of Political Man,’’ Ethics 59 (January 1949): 4. NB: the precise quote, from a letter written 100 years after the Philadelphia Convention, is ‘‘Power tends to corrupt and absolute power corrupts absolutely.’’ J. Rufus Fears, ed., Essays in Religion, Politics, and Morality: Selected Writings of Lord Acton, Vol. 3 (Indianapolis, IN: Liberty Classics, 1988), p. 519. See also James P. Scanlan, ‘‘The Federalist and Human Nature,’’ Review of Politics 21 (October 1959).
43. Bailyn, Ideological Origins, p. 379.
44. Federalist No. 47, p. 249.
45. Quoted in Michael J. Rosano, ‘‘Liberty, Nobility, Philanthropy, and Power in Alexander Hamilton’s Conception of Human Nature,’’ American Journal of Political Science 47 (January 2003): 68.
46. Federalist No. 51, p. 268.
47. Federalist No. 48, p. 257.
48. Jess Bravin, ‘‘Judge Alito’s View of the Presidency: Expansive Powers,’’ Wall Street Journal, January 5, 2006.
49. David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801 (Chicago: University of Chicago Press, 1997), p. 177: ‘‘The difference in phrasing . . . may well have been accidental.’’ On the other hand, Charles Thatch believes that New York’s Gouverneur Morris, who favored a powerful executive, made the change ‘‘with full realization of its possibilities.’’ That he managed to slip the change past the convention ‘‘admitted an interpretation of executive power which would give to the President a field of action much wider than that outlined by the enumerated powers.’’ Thatch, Creation of the Presidency, p. 139.
50. Curtis A. Bradley and Martin S. Flaherty, ‘‘Executive Power Essentialism and Foreign Affairs,’’ University of Michigan Law Review 102 (February 2004): 591: ‘‘There is not a single reference to the Vesting Clause Thesis in all of the records of the Federal Convention.’’
51. Jack N. Rakove, ‘‘Taking the Prerogative out of the Presidency: An Originalist Perspective,’’ Presidential Studies Quarterly 37 (March 2007): 98. To be sure, AntiFederalists suggested the president might come to resemble a king; Rakove’s point is that unitarians have not identified any who pointed to the vesting clause as the source of the danger.
52. Federalist No. 45, p. 241.
53. Federalist No. 84, p. 445. Bradley and Flaherty provide a powerful case against the vesting clause thesis in ‘‘Executive Power Essentialism and Foreign Affairs,’’ from which a number of the points are drawn.
54. See generally Gene Healy and Timothy Lynch, Power Surge: The Constitutional Record of George W. Bush, Cato Institute White Paper, May 1, 2006.
55. See, for example, Lawrence Lessig and Cass Sunstein, ‘‘The President and the Administration,’’ Columbia Law Review 94 (1994): 47–48.
56. As Cass Sunstein notes: The claim for the unitary executive is not a general claim about the President’s power to act on his own or to contradict the will of Congress. You can believe in a strongly unitary executive branch while also believing that the President cannot make war, or torture people, or engage in foreign surveillance without congressional authorization. Cass Sunstein, ‘‘What the ‘Unitary Executive’ Debate Is and Is Not About,’’ University of Chicago Law School Faculty Blog, August 6, 2007, http://uchicagolaw.typepad. com/faculty/2007/08/what-the-unitar.html. Indeed, not all unitarians believe that the president’s possession of ‘‘The executive Power’’ means that Congress is powerless to restrain him in wartime. For example, Michael Ramsey, one of John Yoo’s most powerful critics, believes that the vesting clause gives the president significant power in foreign affairs, but Ramsey denies that those powers allow the president to start wars or ignore statutes banning torture. Michael D. Ramsey, ‘‘Torturing Executive Power,’’ Georgetown Law Journal 93 (April 2005).
57. Henry P. Monaghan, ‘‘The Protective Power of the Presidency,’’ Columbia Law Review 93 (January 1993): 11.
58. ‘‘William Blackstone, Commentaries 1:254,’’ The Founders’ Constitution (online); Vol. 4, Art. 2, Sec. 2, Cl. 1, Doc. 2, http://press-pubs.uchicago.edu/founders/ documents/a2_2_1s2.html. For Yoo on Blackstone, see, for example, Powers of War and Peace, pp. 41–42.
59. Federalist No. 4, p. 13.
60. James Madison, ‘‘Helvidius No. IV,’’ in The Letters of Pacificus and Helvidius (1845) with the Letters of Americanus (New York: Scholars’ Facsimiles & Reprints, 1976), pp. 89–90.
61. McClellan and Bradford, Elliot’s Debates, pp. 45–46.
62. Quoted in Norman A. Graebner, ‘‘The President as Commander in Chief: A Study in Power,’’ Journal of Military History (January 1993): 112, ‘‘in remarks recorded by Rufus King of Massachusetts.’’
63. McClellan and Bradford, Elliot’s Debates, pp. 451–52.
64. Other important war-making powers include the power ‘‘to raise and support armies, but no Appropriation of Money to that Use shall be for a longer Term than two years’’ and the power ‘‘to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel invasions.’’
65. Federalist No. 69, p. 357.
66. John Yoo, ‘‘A President Can Pull the Trigger,’’ Los Angeles Times, December 20, 2005.
67. John Yoo, Powers of War and Peace, p. 145.
68. Federalist No. 25, p. 124.
69. John C. Yoo, ‘‘Continuation of Politics,’’ pp. 206–7 and Yoo, Powers of War and Peace, pp. 33–34.
70. Michael D. Ramsey, ‘‘Text and History in the War Powers Debate: A Reply to Professor Yoo,’’ University of Chicago Law Review 69 (Autumn 2002): 1685.
71. Quoted in Ramsey, ‘‘Textualism and War Powers,’’ University of Chicago Law Review 69 (Autumn 2002): 1545. That proposition is further supported by Emmerich de Vattel, ‘‘the international law writer best known to the Framers,’’ who explained that ‘‘when one nation takes up arms against another, she from that moment declares herself an enemy to all the individuals of the latter, and authorizes them to treat her as such.’’ See also Michael D. Ramsey, The Constitution’s Text in Foreign Affairs (Cambridge, MA: Harvard University Press, 2007).
72. ‘‘President Bush Announces Major Combat Operations in Iraq Have Ended,’’ White House press release, May 1, 2003, http://www.whitehouse.gov/news/ releases/2003/05/20030501-15.html.
73. Ramsey, ‘‘Textualism and War Powers.’’ Ramsey also points out that a formal proclamation was not necessary in the 18th century to invoke the laws of war, one of the two main purposes Yoo ascribes to the congressional power to declare war.
74. See, for example, Federalist No. 41: ‘‘Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils. Is the power of declaring war necessary? No man will answer this question in the negative.’’
75. As Ramsey notes, ‘‘In my own review of the ratification debates I have found no passage in which anyone asserted broad presidential war powers, and Professor Yoo has not pointed to any such passage.’’ Ramsey, ‘‘Text and History in the War Powers Debate,’’ p. 1712.
76. ‘‘James Wilson, Pennsylvania Ratifying Convention,’’ The Founders’ Constitution (online), Vol. 1, Chap. 7, Doc. 17, http://press-pubs.uchicago.edu/founders/ documents/v1ch7s17.html.
77. ‘‘Pierce Butler, South Carolina Legislature,’’ The Founders’ Constitution (online), Vol. 3, Art. 1, Sec. 8, Cl. 11, Doc. 5, http://press-pubs.uchicago.edu/founders/ documents/a1_8_11s5.html. Butler’s assurance should perhaps carry special weight, given that at the Philadelphia Convention it was Butler himself who argued for giving the president the power ‘‘to make war.’’
78. Louis Fisher, Presidential War Power, p. 18.
79. David P. Currie, ‘‘Rumors of Wars: Presidential and Congressional War Powers, 1809–1829,’’ University of Chicago Law Review 67 (Winter 2000): 40; David P. Currie, The Constitution in Congress: The Jeffersonians, 1801–1829 (Chicago: University of Chicago Press, 2001), p. 195 (‘‘Neither Madison nor his supporters in Congress even remotely suggested that the President had inherent authority to initiate hostilities without congressional approval’’). Abraham D. Sofaer, whose 1976 book War, Foreign Affairs and Constitutional Power remains the most comprehensive study of the constitutional history of American foreign policy, came to the same conclusion as Professor Currie: ‘‘At no point during the first forty years of activity under the Constitution, did a President or any other important participant claim that Presidents could exercise force independently of congressional control.’’ Abraham D. Sofaer, ‘‘War and Responsibility: A Symposium on Congress, the President, and the Authority to Initiate Hostilities,’’ University of Miami Law Review 50 (October 1995): 50–51. Sofaer places more weight on early presidents’ conduct than does Currie, noting that they repeatedly took independent action that could be expected to lead to military conflict. But the fact that early presidents felt compelled to publicly observe the forms of deference even while pushing the limits of their authority casts serious doubt on John Yoo’s claim that, in the original understanding, the president had the ‘‘right to start wars.’’
80. Jeffrey K. Tulis, ‘‘The Two Constitutional Presidencies,’’ p. 112.
81. Federalist No. 1, p. 3; Federalist No. 85, p. 457. The observation is Tulis’s, p. 95.
82. Robert Schmuhl, ‘‘Over to You, President Bush; The Consequences of Shaping the World’s Most Powerful Office,’’ Chicago Tribune, January 18, 2001.
83. Robert A. Dahl, ‘‘Myth of the Presidential Mandate,’’ Political Science Quarterly 105 (Autumn 1990): 369.
84. Jeffrey K. Tulis, The Rhetorical Presidency (Princeton, NJ: Princeton University Press, 1987), p. 6.
85. Lynn Hudson Parsons, John Quincy Adams(Lanham, MD: Rowman & Littlefield, 1999), p. 185.
86. Tulis, The Rhetorical Presidency, p. 66.
87. Jason W. A. Bertsch, ‘‘Chatterbox,’’ Public Interest (Summer 1996). Some scholars argue that Tulis draws the contrast between what he calls ‘‘the Old Way’’ and ‘‘the New Way’’ too sharply. Terri Bimes and Quinn Mulroy find that ‘‘a strong vibrant tradition of populist leadership existed among nineteenth century Democratic presidents.’’ ‘‘The Rise and Decline of Presidential Populism,’’ Studies in American Political Development 18 (Fall 2004): 137. Michael J. Korzi recognizes that ‘‘the nineteenthcentury president was constrained in being a popular leader, and, to be sure, he rarely made direct, popular appeals.’’ But Korzi argues that there is also ‘‘significant evidence that [19th-century presidential] candidates actually were expected to present their political opinions and pledges to the people, which, as we have seen, would have been anathema to the founders.’’ Michael J. Korzi, ‘‘The Seat of Popular Leadership: Parties, Elections, and the Nineteenth-Century Presidency,’’ Presidential Studies Quarterly 29 (June 1999): 351, 356.
88. ‘‘The message was generally known as ‘the President’s Annual Message to Congress’ until well into the 20th century. Although some historians suggest that the phrase ‘State of the Union’ emerged only after World War II, President Franklin Roosevelt’s 1934 message is identified in his papers as his ‘‘Annual Message to Congress on the State of the Union.’’ Thomas H. Neale, ‘‘The President’s State of the Union Message: Frequently Asked Questions,’’ CRS Report for Congress, Order Code RS20021, updated January 23, 2004.
89. George Washington, First Annual Address, January 8, 1790. See discussion in David P. Currie, Constitution in Congress: Federalist Period, pp. 29–30.
90. George Washington, ‘‘Communication of Sentiments to Benjamin Hawkins,’’ in The Writings of George Washington 1790–1794, Vol. 12, ed. Worthington Chauncey Ford (New York and London: G.P. Putnam’ Sons, 1891), p. 73. 319 NOTES TO PAGES 36–41
91. Quoted in Phelps, George Washington and American Constitutionalism, p. 141.
92. Thomas Jefferson, First Annual Message, December 8, 1801.
93. Tulis, The Rhetorical Presidency, p. 56.
94. In their deference to Congress, early presidents went well beyond anything required by the Constitution’s text. Far from hermetically sealing off legislative functions within the legislative branch, that document gives an important role to the president in the lawmaking process. In addition to the veto power, the Constitution stipulates that the president ‘‘shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.’’ The language of that clause (‘‘shall,’’ not ‘‘may’’), and its inclusion amid a list of duties of the president, suggest that the chief executive is not just entitled to, but constitutionally required to, make policy recommendations to Congress. Vasan Kesavan and J. Gregory Sidak, ‘‘The Legislator in-Chief,’’ William and Mary Law Review 44 (October 2002): 7–13.
95. Aaron Wildavsky, ‘‘ ‘Greatness’ Revisited: Evaluating the Performance of American Presidents in Terms of Cultural Dilemmas,’’ in The Beleaguered Presidency (New Brunswick, NJ: Transaction, 1991), p. 11.
96. Federalist No. 51, p. 269.
97. Quoted in James Burnham, Congress and the American Tradition (Chicago: Henry Regnery Company, 1959), p. 92.
98. Federalist No. 14, p. 67.
99. Leonard W. Levy, Jefferson and Civil Liberties: The Darker Side (Chicago: Ivan R. Dee, Inc., 1989), p. 119. Madison, Jefferson’s secretary of state and successor, played a key role in pushing the coercive and disastrous embargo policy. Garry Wills explains that Madison and Jefferson supported that policy because they thought it would keep the United States out of war, and the pair ‘‘had an ideological block about war of any kind.’’ Garry Wills, James Madison (New York: Times Books, 2002), p. 62.
100. James T. Patterson, ‘‘The Rise of Presidential Power Before World War II,’’ Law and Contemporary Problems 40 (Spring 1976): 39.
101. Quoted in Marcus Cunliffe, The Presidency, 3rd ed. (Boston: Houghton Mifflin Co., 1987), p. 132.
102. See David K. Nichols, The Myth of the Modern Presidency (University Park: Pennsylvania State University Press, 1994).
103. For a discussion of the Louisiana Purchase and Jefferson’s desire for a constitutional amendment that would ratify his actions, see David N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville: University of Virginia Press, 1994, 1997), pp. 244–51.
104. Quoted in Patterson, ‘‘Rise of Presidential Power,’’ p. 43.
105. Federalist No. 73, p. 381. See also Frank Easterbrook, ‘‘Presidential Review,’’ Case Western Reserve Law Review (1990): 907–8.
106. Nichols, Myth of the Modern Presidency, p. 27.
107. As Madison had put it during the removal debate, ‘‘The power of removal was an executive power, and as such belonged to the president, by the express words of the constitution: ‘the executive power shall be vested in a President of the United States of America.’ ’’ See Thatch, Creation of the Presidency, p. 151.
108. Tulis, The Rhetorical Presidency, p. 73.
109. Quoted in Fisher, Presidential War Power, p. 30.
110. Ibid., p. 34.
111. Lincoln, to William H. Herndon, February 15, 1848, in Lincoln: Selected Speeches and Writings, ed. Don E. Fehrenbacher (New York: Vintage Books, 1989), pp. 67–68.
112. Jeffrey Rogers Hummel, Emancipating Slaves, Enslaving Free Men: A History of the American Civil War (Chicago: Open Court Press, 1996), p. 256. In March 1863, Congress ratified Lincoln’s suspension of habeas corpus.
113. The Prize Cases, 67 U.S. 635, 668 (1862). The administration itself admitted as much at oral argument, when district attorney Richard Henry Dana Jr., arguing the case for the president, affirmed that the questions before the Court had nothing to do with ‘‘the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.’’ David Gray Adler, ‘‘The Law: The Clinton Theory of the War Power,’’ Presidential Studies Quarterly 30 (March 2000).
114. Quoted in Fisher, Presidential War Power, p. 88. See also Raoul Berger, Executive Privilege: A Constitutional Myth (Cambridge, MA: Harvard University Press, 1974), pp. 75–77. That is not, of course, to suggest that none of these incidents were significant. The Quasi-War with France (1798–1800) and Jefferson’s actions against the Barbary powers were important conflicts carried out without declarations of war. In the second chapter of his book Presidential War Power, ‘‘Precedents from 1789 to 1900,’’ constitutional scholar Louis Fisher argues that Congress authorized the use of force in both incidents, and he examines other, smaller 19th-century interventions that better fit Corwin’s description.
115. James Madison, Letters and Other Writings, Vol. 4, pp. 491–92.
116. Walter A. McDougall, Promised Land, Crusader State (Boston: Houghton Mifflin Co., 1997), p. 48.
117. Thomas Jefferson, First Inaugural Address, March 4, 1801.
118. Eric A. Nordlinger, Isolationism Reconfigured: American Foreign Policy for a New Century (Princeton, NJ: Princeton University Press, 1995), p. 186.
119. Ibid., p. 242.
120. Stanton’s removal violated the Tenure of Office Act, a measure of dubious constitutionality that Congress had passed to protect him.
121. U.S. Senate, Proceedings in the Trial of Andrew Johnson (Washington: 1869).
122. Tulis, The Rhetorical Presidency, p. 93.
123. Quoted in James T. Patterson, ‘‘Rise of Presidential Power,’’ p. 48.
124. Samuel Kernell and Gary C. Jacobson, ‘‘Congress and the Presidency as News in the Nineteenth Century,’’ Journal of Politics 49 (November 1987): 1016–35.
125. Tulis, The Rhetorical Presidency, pp. 15–17.
126. See figures cited in Jonathan Monten, ‘‘The Roots of the Bush Doctrine: Power, Nationalism, and Democracy Promotion in U.S. Strategy,’’ International Security (Spring 2005).
127. Thomas Carlyle, ‘‘The Leader as Hero,’’ in Political Leadership: A Source Book, ed. Barbara Kellerman (Pittsburgh: University of Pittsburgh Press, 1986), p. 7.
128. The Papers of Woodrow Wilson, Vol. 1, ed. Arthur S. Link (Princeton, NJ: Princeton University Press, 1966), p. 125.
129. Garry Wills, ‘‘The Presbyterian Nietzsche,’’ New York Review of Books, January 16, 1992.
130. Woodrow Wilson, Congressional Government, p. 27.
131. Woodrow Wilson, Congressional Government, p. 185.
132. Howard K. Beale, Theodore Roosevelt and the Rise of America to World Power, p. 50, 1967 ed.
133. Woodrow Wilson, Congressional Government, pp. 22–23.
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