The Oath and the Office: A Guide to the Constitution for Future Presidents

by Corey Brettschneider

Overview

An essential guide to the presidential powers and limits of the Constitution, for anyone voting—or running—for our highest office.

Can the president launch a nuclear attack without congressional approval? Is it ever a crime to criticize the president? Can states legally resist a president’s executive order? In today’s fraught political climate, it often seems as if we must become constitutional law scholars just to understand the news from Washington, let alone make a responsible decision at the polls.

The Oath and the Office is the book we need, right now and into the future, whether we are voting for or running to become president of the United States. Constitutional law scholar and political science professor Corey Brettschneider guides us through the Constitution and explains the powers—and limits—that it places on the presidency. From the document itself and from American history’s most famous court cases, we learn why certain powers were granted to the presidency, how the Bill of Rights limits those powers, and what “we the people” can do to influence the nation’s highest public office—including, if need be, removing the person in it. In these brief yet deeply researched chapters, we meet founding fathers such as James Madison and Alexander Hamilton, as well as key figures from historic cases such as Brown v. Board of Education and Korematsu v. United States.

Brettschneider breathes new life into the articles and amendments that we once read about in high school civics class, but that have real impact on our lives today. The Oath and the Office offers a compact, comprehensive tour of the Constitution, and empowers all readers, voters, and future presidents with the knowledge and confidence to read and understand one of our nation’s most important founding documents.

Product Details

ISBN-13:	9780393652123
Publisher:	Norton, W. W. & Company, Inc.
Publication date:	09/18/2018
Pages:	224
Sales rank:	1,127,511
Product dimensions:	5.50(w) x 8.40(h) x 1.10(d)

About the Author

Corey Brettschneider is professor of political science at Brown University, where he teaches constitutional law and politics, as well as visiting professor of law at Fordham Law School. His writing has appeared in TIME, Politico, and the New York Times.

Table of Contents

Introduction: The Oath ix

Section I The Powers of the President

1 Article II and the Limited Presidency 3

2 The Bully Pulpit 19

3 The Power to Execute the Laws 35

4 The Power to Hire and Fire 53

5 The Power to Nominate Supreme Court Justices 71

6 The Commander-in-Chief Power 90

Section II "We the People" and the Bill of Rights

7 Madison and the Creation of the Bill of Rights 111

8 The First Amendment and Free Speech 119

9 The First Amendment and the Freedom of Religion 131

10 The Eighth Amendment and the Ban on Torture 145

11 The Fourteenth and Fifth Amendments and the Guarantee of Equal Protection of the Laws 158

Section III Checks on the President

12 How to Stop a President 175

13 The Judicial Check on a President 186

14 Federalism 195

15 The Congressional Check and Impeachment 207

Conclusion 223

Acknowledgments 227

Notes 231

Index 275

Editorial Reviews

Brettschneider's book, addressed to a presidential aspirant, begins with the question "What do you need to know to be president?" The answer: "Most of all, you need to know the U.S. Constitution." This framing is one of the book's great virtues: It moves the focus away from the too-common and too-narrow question of what the courts might force a president to do in the name of the Constitution to the more capacious question of how a president herself should understand her constitutional role.

The New York Times Book Review - Josh Chafetz

06/18/2018
Brettschneider, a Brown political science professor, delves deeply into the U.S. Constitution for legal guidance to the historically controversial question of the scope of U.S. presidential powers. He approaches the topic through an unusual—and occasionally awkward—conceit, positing himself as the legal adviser to an imagined reader who aspires to be the next president. Brettschneider begins with an exploration of Article II of the Constitution, which sets out the presidency’s explicit powers, then considers the implicit limitations on those powers imposed by the Bill of Rights, and completes his tutorial with a discussion of the Constitution’s provisions for impeachment. Among the questions considered are a president’s right to hire and fire members of the executive branch, constitutional prohibition of cruel and unusual punishment as it applies to torture, and the Constitution’s guarantee of equal protection under the law as it pertains to minorities and immigrants. Some readers will disagree with Brettschneider’s left-leaning conclusions, as when he rejects originalism, a literalist way of interpreting the Constitution associated with the late conservative Supreme Court justice Antonin Scalia, because “it does not account for some of the most widely recognized... rights that we have today.” However, all should find his core discussion of the many considerations inherent in the exercise of presidential powers to be accessible and timely. (Sept.)

Publishers Weekly

"'When the President does it, that means it is not illegal.' So said Richard Nixon. What then are the limits on Presidential action? Can the President of the United States pardon himself, fire anyone in the Executive Branch, or wage war without Congressional approval? Can California develop a foreign policy on immigration and sign international climate treaties? In an era of rising executive power, Corey Brettschneider provides an essential guide for citizens and aspiring office holders on the powers of the President and how the U.S. Constitution constrains that power."

Rob Reich

"Government of, by, and for the people only works when people understand how it works. Corey Brettschneider’s book does a remarkable job of unpacking the modern presidency with precision. A joy to read, a must to understand."

Amy Gutmann

"An insightful and lively analysis of both the constitutional authority of the president of the United States and of the constitutional constraints imposed on that authority. This work is a critical reminder of the proper role of the chief executive in our nation’s system of constitutional government."

Geoffrey Stone

"Those who one day may find themselves behind the Big Desk in the Oval Office need to understand the limits of their power as well as its potential. Brettschneider’s cogent and comprehensive user’s manual–grounded in sophisticated legal and political analysis—is exactly the right place to start."

Gordon Silverstein

"When at the very pinnacles of government the respect required of all parties to operate in a republic is flagrantly disregarded, it’s the job of the people and the Constitution to ensure such disrespect is punished. The Oath and The Office makes it clear that we are close to a reckoning."

Paste

"An accessible and lively guide to the president’s constitutional powers, essential reading for anyone who seeks to become president—or to hold in check those who do."

David Cole

"In The Oath and the Office, Brettschneider explains both the powers of and the limitations on the chief executive, using an engaging and conversational style that any citizen (and hopefully any president) will easily understand. But even when one disagrees with Brettschneider’s advice, this book is an important manual for anyone who wants to be president—and most of all for We the People who are ultimately the president’s boss."

Linda R. Monk

"No office in American government is more studied than the presidency and no figure in American politics is more closely watched than the president. Brettschneider provides the judgment of a renowned constitutional scholar, dramatic cases, historical sweep, a gift for clarity, and a sense of moral urgency. This is a foothold from which we can survey the dangerous course the presidency has taken and our responsibility as citizens to defend the constitution."

Nancy Rosenblum

"Brettschneider's book, addressed to a presidential aspirant, begins with the question 'What do you need to know to be president?' The answer: 'Most of all, you need to know the U.S. Constitution.' This framing is one of the book's great virtues: It moves the focus away from the too-common and too-narrow question of what the courts might force a president to do in the name of the Constitution to the more capacious question of how a president herself should understand her constitutional role."

New York Times

★ 2018-05-28
A legal scholar advises presidents to read the Constitution with great care.During the 2016 presidential campaign, Brettschneider (Political Science/Brown Univ.; Civil Rights and Liberties: Cases and Readings in Constitutional Law and American Democracy, 2013, etc.) was shocked that "proposals to violate the Constitution that had been the stuff of far-fetched classroom hypotheticals" were part of Donald Trump's agenda. The author responded in articles for Politico, Time.com, and the New York Times, which became the basis for this pointed, cogent, and authoritative analysis of presidential policy and power. Addressing future presidents (and certainly the current office holder) and all citizens, Brettschneider parses the text of the Constitution and Bill of Rights, offers historical background to illuminate the reasons for and controversy over provisions, identifies salient exemplary cases, and concludes with recommendations for any president. He distinguishes between an originalist position, which reads the documents "according to the historical meaning of the words at the time of their passage," and a "value-based reading," which asks, "what is our best understanding of the moral principles of the Constitution enshrined in its text and in our case law?" Clearly, the author advocates a value-based reading, since originalists sometimes fail to investigate the history underlying certain provisions. Focusing on a question that arose during the George W. Bush administration regarding the use of "enhanced interrogation," Justice Antonin Scalia argued that the ban on cruel and unusual punishment did not apply, since extracting information is not technically punishment. Brettschneider argues, however, that the prohibition against cruel and unusual punishment, as stipulated in the Bill of Rights, was imported from the British Bill of Rights to end "the arbitrary and cruel abuses—especially torture—committed by kings and queens against their subjects." The author offers a clear explanation of many complex issues, such as the provisions of the 14th Amendment, which guarantees equal protection under the law; and the process involved in impeachment, including the question of whether obstruction of justice is an impeachable offense.A cleareyed, accessible, and informative primer: vital reading for all Americans.

Kirkus Reviews

"[The Oath and the Office] suggests a kind of optimism… that the Constitution embodies values, not just prohibitions and commands, and a constitutionally conscientious president has an affirmative duty to promote those values."

New York Times Book Review