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Untrodden Ground
How Presidents Interpret the Constitution
By Harold H. Bruff The University of Chicago Press
Copyright © 2015 The University of Chicago
All rights reserved.
ISBN: 978-0-226-21124-4
CHAPTER 1
Responsibility
The Constitution
[Vesting executive power in a single person would provide] energy, dispatch, and responsibility.—James Wilson at the Constitutional Convention
The Constitution that presidents swear to defend is known for its brevity and occasional obscurity. Article II, which creates and empowers the executive branch, exemplifies both characteristics. To interpret the document, presidents and their legal advisers consult standard sources of constitutional history: the records of the Constitutional Convention, the Federalist Papers, records of the ratification process, other statements by the framers, and general histories of the time. From this enterprise emerges some clarity but enough doubt to justify a wide range of potential development in the presidency.
Staking Out the Ground: Conceptions of an Executive
When the framers set out to create a chief executive, they could agree most readily on what they did not want. On one hand, having just fought a successful revolution against the kingly oppressions that they had decried in their Declaration of Independence, most of them were determined to avoid creating a new monarch (who would be all the more dangerous an ocean closer than the old one). The colonists, having felt deeply betrayed when King George III sent troops to suppress their liberties, had reacted viscerally against executive power. On the other hand, painful memories lingered from conducting the Revolutionary War under a cobbled-together government that lacked any formal chief executive. The postwar Articles of Confederation, resolutely eschewing kings and therefore having no executive branch, operated badly through committees of the states. Plainly, something between a king and a committee would be requisite, but that covers a lot of ground.
Fortunately, the framers had a common fund of knowledge about government to guide them. Their education had covered the histories of England and of the ancient republics. They were also conversant in political philosophy. Even more important was their shared experience in colonial government, revolutionary war making, and the new state governments. The document they drafted reflected all of these influences but was not simply a patchwork of old elements—it was an original creation that would set a new example for the world.
The separation of powers, the most distinctive contribution of the framers to the art of governance, had ancient roots. Both the Greeks and Romans had defined a republic as an "empire of laws not men." To secure the rule of law against the whim of rulers, they employed offsetting powers with some success. Yet the conventional lesson from ancient history was that republics were fragile and quite vulnerable to usurpation by whoever held the executive power.
A more modern example, one with a happier outcome, followed the English Civil War in the seventeenth century. England entered that turbulent century with a rudimentary division of functions among Parliament, the Crown, and the common law courts. This triad provided a rough model for later ideas of formal separation of powers.
Parliament possessed most of the power of the purse; the Crown held various ill-defined prerogatives; the common law judges claimed the power to articulate law that could bind even a monarch. As viewed from eighteenth-century America, seventeenth-century England had experienced monarchical absolutism, a military dictatorship during the Interregnum, more monarchical abuses after the Restoration, and a final Glorious Revolution that deposed another king and confirmed the ascendancy of Parliament.
Americans drew much of their political philosophy from a group of great synthesizers of the English revolutionary experience, among whom John Locke and Baron de Montesquieu took primary importance. Locke's Two Treatises of Government (1690) built a model of government on the Revolution settlement. He advocated some elements of a system of separation of powers. He thought that Parliament could limit the monarch's internal, "executive" functions but could not limit external, "federative" ones regarding foreign relations and war. He supported some judicial independence.
In an analysis that has been important ever since, Locke defined the nature and limits of executive power. His grasp of both human nature and the essential workings of government have commended his thoughts to the ages—and to American presidents. He began with the general proposition that those who make laws should not execute them as well, because the combined powers might be "too great a temptation to human frailty." Yes indeed. Nevertheless, he saw a need for executive lawmaking in some circumstances. He articulated what is now known as the "Lockean prerogative," the power "to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it." His rationale was that the legislature was too slow to meet all needs of execution, that it could not foresee everything, and that laws would do harm if executed too rigidly. These are all true, but what would control this dangerous power? Locke thought that the acquiescence of the people to an extraordinary executive action would legitimate it. He was less clear about ratification by the legislature, perhaps because legislatures were not yet viewed as indirect embodiments of the people's will.
Locke also made a prescient observation: that the prerogative would always be largest in the hands of the "wisest and best" princes, because the people would see the benefits of their actions and would not contest them. Ironically, these reigns would be the most dangerous to liberty, because wicked successors would cite these precedents to justify their own bad actions. Here Locke conceded the essential flaw in his scheme: at least initially, whether to invoke prerogative would lie in the hands of the prince, with all the attendant incentives to abuse power.
An alternative scheme for emergencies, one well known to the American founding generation, traced from the Roman Republic through to the work of Niccolò Machiavelli: "constitutional dictatorship." The essential idea is that because a republic designs its institutions for ordinary times, some provision must be made for military or economic emergencies that threaten the state. The structural solution is for the nation's lawmakers to delegate nearly absolute power to someone to meet the emergency, but only temporarily. In the most famous example, the Roman Republic conferred a temporary constitutional dictatorship on Cincinnatus, a farmer-statesman who put down his plow, took up arms to save the republic from invasion, and then immediately put down the arms and picked up the plow again.
Unfortunately, not all constitutional dictators relinquish power as readily as did Cincinnatus. Nevertheless, the operative constitutionaljudgment underlying such a scheme is that the risk is worth taking as a trade-off for an effective way to meet emergencies, and one that is within the rule of law. Machiavelli emphasized this element of constitutional regularity. By contrast, Locke located prerogative outside the bounds of ordinary constitutional authority, with the consequence that its legitimacy is constantly in question. The American framers would struggle with this problem and would ultimately finesse it, leaving future generations to struggle with it as well.
Montesquieu's celebrated The Spirit of the Laws (1748) became, along with Locke's Second Treatise, the political authority most widely cited by our founding generation. Montesquieu advocated a set of checks in a system of separated powers. He articulated the triad of legislative, executive, and judicial powers that is familiar today. He prescribed a bicameral legislature and a separate executive consisting of a single monarch possessing veto power over legislation and commanding the army. An independent judiciary would provide a vital bulwark against tyranny. Montesquieu's thinking provided important guidance at the Constitutional Convention.
In addition to their education, the framers relied on their intense practical education in politics. Most of them were veterans of the Revolutionary War. Many had served in the new state governments or in the rudimentary national government under the Articles of Confederation. In private life, they were farmers, merchants, or lawyers. All were men, and many were slave owners. As colonists sitting in the colonial assemblies, they had battled with the royal governors and had learned to favor restricting executive power. James Wilson noted that in the colonies both the executive and judicial powers were placed in foreign (British) hands, remote from the people in a way the assemblies were not.
Abandoning the British model for their own governments, Americans turned to separation of powers. The new state constitutions often contained ringing endorsements of separation of powers principles, but in practice they vested power almost entirely in the legislatures and especially in the lower houses. The resulting structures were prone to an unanticipated problem—majoritarian legislative abuse of the other branches and of the people.
Nothing in their experience or in traditional theories told Americans how to select an executive. It was obvious, though, that the mode of selection was crucial to the authority of the office. Except for New York, the state constitutions of 1776–78 subordinated the executive to the legislature. These weak governors were consistent with strict separation of powers theory but not with effective government, as war pressures demonstrated.
The Articles of Confederation, drafted during a war against a central government accused of abusing its tax and commerce powers, were fatally (and understandably) weak in those particulars. The Articles omitted any permanent executive, providing only for a committee of states to sit while Congress was in recess. No one could mistake this ramshackle construct for an effective and vigorous government. Eventually, patience ran out, and delegates convened in Philadelphia to repair the deficiencies of the existing system.
Constructing the Edifice: The Constitutional Convention and Ratification
Given this background, it would be difficult to claim that when the Constitutional Convention convened in 1787, any particular version of executive power was likely. At the outset James Madison's "Virginia plan" set the agenda. It did not provide for a strong executive branch. Instead, an executive of undetermined number would be elected by the legislature without possibility for reelection. In debate about the plan, James Wilson argued that the executive should consist of a single person who would be independent of the legislature and eligible for reelection. This proposal produced an uneasy pause as delegates glimpsed ghosts of kings. After some sharp discussion, the Convention preliminarily chose legislative election of an individual to a single, seven-year term; impeachment for "malpractice or neglect of duty"; and executive powers to veto legislation, to execute the laws, and to make appointments (except for judges, who were to be appointed by the Senate).
When the Convention turned to the relationship of Congress to the executive, they exuded fear of what they called "corruption," a term with a special historic meaning. English kings had developed a technique that jeopardized legislative independence. They "corrupted" Parliament by granting lucrative offices to its members, in a successful effort to sway their loyalties and maximize power. This practice was controversial for many decades on both sides of the Atlantic, amid much condemnation of executive domination of the legislature. Ironically, in Britain holding offices in both branches would eventually have the reverse effect—it would allow the development of parliamentary control of the ministry. The essential point, that having the same officers in both branches might allow either branch to control the other, was not clearly seen at the time of the framing. Instead, the framers banned "corruption" in a traditional move to limit executive power. In the process, they would insulate each branch from the other and foreclose the development of a parliamentary system in the United States.
After extended preliminary discussions, the Convention recessed while a Committee of Detail drafted a document embodying the decisions so far. The committee adopted an enumeration of executive powers that would remain mostly unchanged. It specified that the "executive power" would be in a single person. The title of "president," derived from the Latin term to preside, was considered familiar and reassuring. The president's powers would include being commander in chief, receiving ambassadors, appointing executive officers, exercising a conditional veto, and issuing pardons. The Senate was to have exclusive power to make treaties and to appoint ambassadors and justices.
Debate on the draft began. The Convention had not seriously addressed the president's relation to administration. Gouverneur Morris and Charles Pinckney called for a council of state to assist and advise the president and for a specified group of executive departments for agriculture, manufacturing, foreign affairs, and war. The president would appoint and remove the ministers. Thus the executive branch would have had a constitutional composition. The Convention eventually rejected the Morris-Pinckney plan, keeping only a clause that authorized the president to call for written opinions from his subordinates.
The Convention finally broke a long deadlock over selecting the executive by inventing the Electoral College, a solution that "almost satisfied almost everybody." The small states gained weighted minimum representation, while the large ones gained proportionality otherwise. This device reflected "the indispensable necessity of making the Executive independent of the Legislature" and gave those anxious for popular choice half a loaf. As it turned out, the positive contribution of the Electoral College to American history would consist solely of creating the potential for a presidency tied to the people. The creaky mechanism it created for choosing presidents has caused repeated trouble otherwise.
A spirit of compromise also shaped relations between president and Senate. The executive received appointment and treaty powers—with the Senate's concurrence. The president had gained power in foreign affairs and had lost some in appointments. Both kinds of power were to be shared between the executive and the Senate, in contrast to the British concentration of them in the monarch. Not noticed at the time but important afterward was the framers' failure to provide for any mechanism to resolve disputes between presidents and the Senate over appointments and treaties. By contrast, the president's power to veto legislation was subject to override by Congress; if that effort failed, the president's veto would prevail.
Now the shift from congressional government to a balanced system was complete. The president's term was to be four years, with reelection allowed. Impeachments were to be tried in the Senate, on a two-thirds vote. The major decisions having been made, Gouverneur Morris, an accomplished stylist, "wrote" the Constitution. After adopting the draft, the Convention appended a resolution recommending that it be submitted to conventions in the states, with delegates chosen by the people, not the legislatures. With this procedural step, "the distinction between a constitution and ordinary law became the fundamental doctrine of American political thinking."
The document that the Convention produced contained as much political art as political science. Much was left to the future for resolution. For example, the "necessary and proper" clause, enabling Congress to enact legislation to implement both its own constitutional powers and those of the other two branches, was adopted unanimously without debate. This "sweeping provision," as opponents would later call it, left Congress remarkably free to structure the executive and judicial branches as it liked.
By 1787, both separation of powers and checks and balances were widely accepted as general principles. Madison provided the key link by arguing that checks maintain separation—they bulwark a constitution's parchment barriers. There was spirited disagreement, however, over the institutional arrangements that would satisfy these principles.
In the end, the Constitution employed three main separation of powers techniques. First, it allocated particular functions to specified branches. For example, Congress would raise revenue, and the courts would decide cases. Second, it guaranteed each branch particular attributes of autonomy that experience had suggested. Congress received control over its elections, its membership, and its meetings, and its members received an explicit privilege for what they said in debate. The executive would have an assured term, absent stated grounds for impeachment. Equally important was the creation of an independent political base for the presidency. Severing the executive from dependence on Congress created three truly independent branches.
(Continues...)
Excerpted from Untrodden Ground by Harold H. Bruff. Copyright © 2015 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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