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Overview
Over the course of two centuries, the power of the president of the United States has grown exponentially. From George Washington to Abraham Lincoln, John F. Kennedy and Richard Nixon to George W. Bush, presidential power has both served and harmed the US Constitution. But is the current role of the POTUS what the Founding Fathers intended: a strong leader with an equally strong system of accountability?
In The Imperial Presidency, Arthur M. Schlesinger Jr. explores the growth of the executive branch’s power and influence on the US government. Hailed by the Christian Science Monitor as “brilliant [and] provocative,” this is a book that explores the history of what happened when the constitutional balance was upset in favor of presidential power, and questions how Americans should allow that balance to shape the future.
Product Details
| ISBN-13: | 9780547527352 |
|---|---|
| Publisher: | Houghton Mifflin Harcourt |
| Publication date: | 11/01/2017 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 624 |
| Sales rank: | 314,100 |
| File size: | 1 MB |
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Read an Excerpt
CHAPTER 1
What the Founding Fathers Intended
The place to begin is Philadelphia in the summer of 1787. This is not because the Founding Fathers were infallible, or because they anticipated all the perplexities of the American future, or because their original intent can be supposed to decide constitutional questions in perpetuity. The Constitution, as Chief Justice Marshall said in his most famous opinion, was "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." Woodrow Wilson similarly objected to taking the Constitution as "a mere legal document, to be read as a will or contract." If composed in the spirit of Newton, it has to be construed in the spirit of Darwin. It was "a vehicle of life," and its meaning was determined "not by the original intentions of those who drew the paper, but by the exigencies and the new aspects of life itself." Nor, for that matter, is the ascertainment of original intent all that easy. "No single fault has been the source of so much bad history," C. H. McIlwain reminds us, "as the reading back of later and sharper distinctions into earlier periods where they have no place."
I
For all this, there is great value in consulting the Founding Fathers. Even if the search for original intent is difficult, it is not impossible. If original intent cannot settle constitutional questions, it can throw essential light on them. And it can settle related historical questions — whether or not, for example, presidential practice was indeed, as later Presidents liked to claim, what the Founding Fathers designed and desired. Above all, the Founding Fathers were exceptionally able and intelligent men, wiser on the whole than their posterity. They thought hard about these matters, and their views demand the most careful consideration.
In drafting the Constitution, they were, of course, concerned to correct the deficiencies of the Articles of Confederation, under which the rebellious colonies had been governed during the Revolution. The Articles had bestowed executive as well as legislative authority on Congress, establishing in effect parliamentary government without a prime minister. Article VI gave Congress control over the conduct of foreign affairs, and Article IX gave it "the sole and exclusive right and power of determining on peace and war." But the Constitution was founded on the opposite principle of the separation of power. The men of Philadelphia therefore had to work out a division of authority between the legislative and executive branches. In domestic policy, this division was reasonably clear. In foreign affairs, it was often cryptic, ambiguous and incomplete.
Their experience under the Articles led the Founding Fathers to favor more centralization of executive authority than they had known in the Confederation. Many of them probably agreed with Hamilton's statement in the 70th Federalist that "energy in the Executive is a leading character in the definition of good government." Those who disagreed were reassured by the expectation that Washington would be the first head of state. At the same time, their experience under the British crown led the Founding Fathers to favor less centralization of authority than they perceived in the British monarchy. As victims of what they considered a tyrannical royal prerogative, they were determined to fashion for themselves a Presidency that would be strong but still limited.
Nothing was more crucial for the new nation than the successful conduct of its external relations. There was broad agreement that national safety could best be assured through the development of equal trading relations with the states of Europe. America's "plan is commerce," Thomas Paine wrote in CommonSense, "and that, well attended to, will secure us the peace and friendship of all Europe, because it is the interest of all Europe to have America as a free port." Washington summed up the policy in his Farewell Address: "The great rule of conduct for us in regard to foreign nations is, in extending our commercial relations to have with them as little political connection as possible." Given the clear priority the Founding Fathers assigned to commercial over political relations, it is significant that the Constitution vested control over this primary aspect of foreign policy in Congress, assigning it the definite and unqualified power "to regulate Commerce with foreign Nations."
The Constitution also brought Congress into the treaty-making process, withholding from the President the exclusive authority enjoyed by European monarchs to make treaties. Where the British King, for example, could conclude treaties on his own, the American President was required to win the consent of two thirds of the Senate. "The one can do alone," said Hamilton, "what the other can do only with the concurrence of a branch of the legislature." And Congress received other weighty powers related to the conduct of foreign affairs: the power to make appropriations, to raise and maintain the armed forces and make rules for their government and regulation, to control naturalization and immigration, to impose tariffs, to define and punish offenses against the law of nations and, above all, "to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."
II
This last clause — in Article I, Section 8, of the Constitution — was of prime importance. The Founders were determined to deny the American President what Blackstone had assigned to the British King —"the sole prerogative of making war and peace." Even Hamilton, the most consistent advocate of executive centralization, proposed in the Convention that the Senate "have the sole power of declaring war" with the executive to "have the direction of war when authorized or begun."
In an early draft, the Constitution gave Congress the power to "make" war. Every scholar knows the successful intervention by Madison and Gerry —
Mr. MADISON and Mr. GERRY Moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.
— but no one really quite knows what this exchange meant. Among the delegates, Roger Sherman of Connecticut, for example, responded to Madison and Gerry by saying he thought the original language "stood very well" and that it already permitted the executive "to repel and not to commence war." On the other hand, George Mason of Virginia, after announcing that he was "ag. giving the power of war to the Executive, because not safely to be trusted with it," then said he preferred "declare" to "make"; obviously he did not think he was thereby giving more power to the untrustworthy executive. Professor Lofgren, a most precise student of the episode, can distinguish at least four different interpretations of the Madison-Gerry amendment.
What does seem clear is that no one wanted either to deny the President the power to respond to surprise attack or to give the President general power to initiate hostilities. The first aspect — the acknowledgment that Presidents must on occasion begin defensive war without recourse to Congress — represented the potential breach in the congressional position and would have the most significance in the future. But the second aspect gained the most attention and brought the most comfort at the time. James Wilson, next to Madison the most penetrating political thinker at the Convention, thus portrayed the constitutional solution: 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."
The Founding Fathers did not have to give unconditional power to declare war to Congress. They might have said, in language they used elsewhere in the Constitution, that war could be declared by the President with the advice and consent of Congress, or by Congress on the recommendation of the President. But they chose not to mention the President at all in connection with the war-making power. Nor was this because they lacked realism about the problems of national security. In a famous passage in the 23rd Federalist, Hamilton said that the powers of national self-defense must "exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies. ... The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances." The Founding Fathers were determined that the national government should have all the authority required to defend the nation. But Hamilton was not asserting these unlimited powers for the Presidency, as careless commentators have assumed. He was asserting them for the national government as a whole — for, that is, Congress and the Presidency combined.
The resistance to giving a "single man," even if he were President of the United States, the unilateral authority to decide on war pervaded the contemporaneous literature. Hamilton's observations on the treaty-making power applied all the more forcibly to the war-making power: "The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States." As Madison put it in a letter to Jefferson in 1798: "The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care vested the question of war in the Legisl."
III
At the same time, the Constitution vested the command of the Army and Navy in the President, which meant that, once Congress had authorized war, the President as Commander in Chief had full power to conduct military operations. "Of all the cares or concerns of government," said the Federalist, "the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." The designation of the President as Commander in Chief also sprang from a concern to assure civilian control of the military establishment. By making the Commander in Chief a civilian who would be subject to recall after four years, the Founders doubtless hoped to spare America tribulations of the sort that the unfettered command and consequent political power of a Duke of Marlborough had brought to England.
There is no evidence that anyone supposed that his office as Commander in Chief endowed the President with an independent source of authority. Even with Washington in prospect, the Founders emphasized their narrow and military definition of this presidential role. As Hamilton carefully explained in the 69th Federalist, the President's power as Commander in Chief
would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces ... while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, — all which, by the Constitution under consideration, would appertain to the legislature.
As Commander in Chief the President had no more authority than the first general of the army or the first admiral of the navy would have had as professional military men. The President's power as Commander in Chief, in short, was simply the power to issue orders to the armed forces within a framework established by Congress. And even Congress was denied the power to make appropriations for the support of the armed forces for a longer term than two years.
In addition to the command of the armed forces, the Constitution gave the President the power to receive foreign envoys and, with the advice and consent of the Senate, to appoint ambassadors as well as to make treaties. Beyond this, it had nothing specific to say about his authority in foreign affairs. However, Article II gave him general executive power; and, as the 64th and 75th Federalist Papers emphasized, the structural characteristics of the Presidency — unity, secrecy, decision, dispatch, superior sources of information — were deemed especially advantageous to the conduct of diplomacy.
The result was, as Madison said, "a partial mixture of powers." Madison indeed argued that such mingling was indispensable to the system, for unless the branches of government "be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained." Particularly in the case of war and peace — the war-making and treaty-making powers — it was really a matter, in Hamilton's phrase, of "joint possession."
In these areas the two branches had interwoven responsibilities and competing opportunities. Moreover, each had an undefined residuum of authority on which to draw — the President through the executive power and the constitutional injunction that "he shall take Care that the Laws be faithfully executed," Congress through the constitutional authorization "to make all Laws which shall be necessary and proper for carrying into Execution ... all ... Powers vested by this Constitution in the Government of the United States." In addition, the Constitution itself was silent on certain issues of import to the conduct of foreign affairs: among them, the recognition of foreign governments, the authority to proclaim neutrality, the role of executive agreements, the control of information essential to intelligent decision. The result, as Edward S. Corwin remarked 40 years ago, was to make of the Constitution "an invitation to struggle for the privilege of directing American foreign policy."
IV
One further consideration lingered behind the words of the Constitution and the debates of the Convention. This was the ques tion of emergency. For the Founding Fathers were more influenced by Locke than by any other political philosopher; and, as students of Locke, they were well acquainted with Chapter 14, "Of Prerogative," in the Second Treatise of Government. Prerogative was the critical exception in Locke's rendition of the social contract. In general, the contract — the reciprocal obligation of ruler and ruled within the frame of law — was to prevail. In general, the authority of government was to be limited. But in emergency, Locke argued, responsible rulers could resort to exceptional power. Legislatures were too large, unwieldy and slow to cope with crisis; moreover, they were not able "to foresee, and so by laws to provide for, all accidents and necessities." Indeed, on occasion "a strict and rigid observation of the laws may do harm." This meant that there could be times when "the laws themselves should ... give way to the executive power, or rather to this fundamental law of nature and government, viz., that, as much as may be, all the members of society are to be preserved."
Prerogative therefore was the exercise of the law of self-preservation. It was "the people's permitting their rulers to do several things of their own free choice, where the law was silent, and sometimes, too, against the direct letter of the law, for the public good, and their acquiescing in it when so done." The executive, Locke contended, must have the reserve power "to act according to discretion for the public good, without the prescription of law and sometimes even against it." If emergency prerogative were abused, the people would rebel; but, used for the good of the society, it would be accepted. "If there comes to be a question between the executive power and the people about a thing claimed as prerogative, the tendency of the exercise of such prerogative to the good or hurt of the people will easily decide that question."
Locke's argument, restated in more democratic terms, was that, when the executive perceived what he deemed an emergency, he could initiate extralegal or even illegal action, but that he would be sustained and vindicated in that action only if his perception of the emergency were shared by the legislature and by the people. Though prerogative enabled the executive to act on his individual finding of emergency, whether or not his finding was right and this was a true emergency was to be determined not by the executive but by the community.
(Continues…)
Excerpted from "The Imperial Presidency"
by .
Copyright © 1973 Arthur M. Schlesinger, Jr..
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Table of Contents
Title Page,
Contents,
Title,
Dedication,
Acknowledgments,
Introduction to the Mariner Edition,
Foreword to the 1973 Edition,
1. What the Founding Fathers Intended,
2. Where the Founding Fathers Disagreed,
3. The Rise of Presidential War,
4. Congress Makes a Comeback,
5. The Presidency Resurgent: The Second World War,
6. The Presidency Ascendant: Korea,
7. The Presidency Rampant: Vietnam,
8. The Revolutionary Presidency: Washington,
9. Democracy and Foreign Policy,
10. The Secrecy System,
11. The Future of the Presidency,
Epilogue: After the Imperial Presidency,
Notes,
Index,
About the Author,
Books by Arthur M. Schlesinger, Jr.,
Connect with HMH,
Footnotes,
