U.S. Presidency 1: The Presidential Debate of 1787

Presidency Syllabus.

Texts:
– Federalist Papers 69 and 70
– Anti-Federalists 67, 70,and 74

Abstract
The lack of a national executive power under the Articles of Confederation was a major factor in the weakness and fragmenting of the American union in the post-Revolutionary era, a point recognized by James Madison and corrected in the Constitution. Opponents of the Constitution, the Anti-Federalists, saw the presidency as an incipient source of tyranny. Rebutting them, Hamilton argued that energy in the executive was critical to competent governance, and that the presidency was sufficiently constrained so that while a president could act as necessary for the good of the union he could not become tyrannical. How do these arguments hold for the contemporary presidency?

1. The Articles of Confederation Had No Executive Power
The U.S. Constitution should be understood as a response to two experiences: the colonial experience and the experience of the newly independent states under the Articles of Confederation. The colonial experience made the founding generation distrustful of strong executive power, and because the colonies were largely self-governing and politically distinct from each other. they initially had no interest in a higher-level government with real authority over them. Consequently an important aspect of the Articles was that they lacked an executive, with the entirety of the governing body being the Congress. If we follow Max Weber’s definition of the state (pdf) as “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory” (emphasis in original), and keep in mind that the force in government is the executive power, we can see that the United States under the Articles were not a true, a single, state, and “the United States, in Congress assembled” (Article II) was not a true government, but at best a quasi-government.* Each state, of course, as true states do, had a successful claim on the monopoly of the legitimate use of force over its territory (although there were disputes over boundaries), and an executive to employ that force.

This confederal system, with only a quasi-government and no effective force common to all the states, proved problematic. James Madison, in “Vices of the Political System of the United States”, his definitive critique of the not-so-United States under the Articles of Confederation, emphasized the lack of force as one of the principal problems of the confederation (and foreshadowed Weber by over a century).

A sanction is essential to the idea of law, as coercion is to that of Government. The federal system being destitute of both, wants the great vital principles of a Political Cons[ti]tution. Under the form of such a Constitution, it is in fact nothing more than a treaty of amity of commerce and of alliance, between so many independent and Sovereign States…

When Madison and Alexander Hamilton successfully promoted a convention to consider revisions to the Articles of Confederation, Madison set the agenda by drafting (the a proposal) for an entirely new governing document, which included a “National Executive.” There seems to have been no objection to this by the convention delegates; debate centered almost wholly on questions relating to the selection process and whether or not the executive would be separated from the legislature^.** This addition of force through an executive was one of the most crucial elements of the Constitution, without which the union would probably have continued on a path toward dissolution. (See Hamilton’s Federalists 6 and 7 on the potential for the collapse of the union.)

2. The Anti-Federalists Hated and Feared the Executive
As I said at the beginning, the Constitution needs to be understood in light of both the colonial experience and the experience under the Articles of Confederation. If Madison (and Hamilton, as we’ll see), wanted a competent executive because they saw the problems resulting from the Articles’ lack of one, the Anti-Federalists feared one because they remembered the problems the colonies had experienced under royal rule. The Anti-Federalists are little read today, but there is much in them that is worth reading and pondering. It’s common to think that as opponents of the Constitution they lost, and dismiss them as unimportant. But of course they did not entirely lose, because their opposition resulted in the addition of the Bill of Rights (the only mention of a Bill of arights in the Federalist Papers is Hamilton’s argument in Federalist 84 against having one). Because of thst, Herbert Storing, the great historian of the Anti-Federalists, has argued that they ought to be considered founders every bit as much as the members of the convention. But I digress; the Anti-Federalists did lose on the issue of the presidency, an institution that invoked much overwrought, but fun-to-read, rhetoric.

Among the prominent anti-federalist writers is Cato (identified by Storing as New York’s then-governor George Clinton–a political opponent of Alexander Hamilton–although historians are not unanimous on the issue), who in Anti-Federalist 67*** condemned the executive as a nascent monarchy.

It is remarked by Montesquieu, in treating of republics, that in all magistracies, the greatness of the power must be compensated by the brevity of the duration, and that a longer time than a year would be dangerous. […] [H]is eminent magisterial situation will attach many adherents to him, and he will be surrounded by expectants and courtiers. His power of nomination and influence on all appointments; […] his control over the army, militia, and navy; the unrestrained power of granting pardons for treason, which may be used to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt; his duration in office for four years—these, and various other principles evidently prove the truth of the position, that if the president is possessed of ambition, he has power and time sufficient to ruin his country.

In Anti-Federalist 70, An Old Whig echoed Cato’s concerns that the presidency would be a monarch and “the fountain of all honors in the United States,” and in 74, Philadelphiensis employs some deliciously purple language to warn us that the president is to be a military king, “and one of the most dangerous kind too—a king elected to head a standing army.” The Old Whig wasn’t looking to the distant future–he believed that a total seizure of power was likely to happen “in the course of less than twenty years.”

3. Hamilton’s Argument for a Strong Executive
Against the alarms of the Anti-Federalists, Hamilton defended the strength of the presidency in Federalist Papers 69 and 70. In 69 he took on the argument about the president’s military powers.

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority 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, as first General and admiral of the Confederacy; 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

He also rebuts a proposal made by a number of Anti-Federalists that instead of a single executive there should be an executive council, composed of several men. The explicit goal of this proposal was to weaken the presidency, but Hamilton rejects the idea on the same grounds in Federalist 70.

Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. […] A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. […]

The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. […]

That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. […]

Hamilton had another argument against weakening the executive by multiplying it; the increased difficulty of holding anyone responsible for the actions of the executive.

[O]ne of the weightiest objections to a plurality in the Executive… is, that it tends to conceal faults and destroy responsibility. … It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author.

World historical experience seems largely to bear out Hamilton’s arguments. There are few examples of an effective multiple executive. Indeed Switzerland’ seven-member executive council may be the only one, but it seems to be adapted to that country’s special circumstances. It tends to ensure executive representation of each of Switzerland’s major ethnic groups (German, French, Italian), and Switzerland’s foreign policy has been relatively simple, in comparison to states that are either more easily invadable or more interested in shaping international affairs. Switzerland also has been exceptionally peaceful domestically, enjoying a civil peace much longer than perhaps any other country in the world.

4. 1787 in a Contemporary Context
There is no doubt the Anti-Federalists were a little over-the-top in critiquing the presidency (some of them would surely have been excellent talk radio hosts). Any organization must have an effective administrator, which the union in 1787 did not have, and obviously they erred in their predictions of an imminent executive tyranny. But can we say they were entirely wrong? Was Hamilton in fact too complacent about the dangers of a strong executive? Throughout the world tyrannies are typically executive tyrannies. The very factors that make an energetic executive effective are the factors, exercised with insufficient constraints, that characterize a dictator. And the very factors that make a legislature slow and inefficient make it less capable of acting in a truly tyrannical fashion. So what has happened with the presidency in the course of 2¼ centuries?

Anti-Federalist 67 argued that the President would “be surrounded by expectants and courtiers.” Some presidential scholars argue that this is the case today. In 1970, one of Lyndon Johnson’s advisers, George Reedy, critiqued the courtier spirit,  in The Twilight of the Presidency.

[T] most important, and least examined, problem of the presidency is that of maintaining contact with reality. […] The process of erosion by which reality gradually fades begins the moment someone says, “Congratulations, Mr. President.”

[…] There is built into the presidency a series of devices that tend to remove the occupant of the Oval Room from all of the forces which require most men to rub up against the hard facts of life on a daily basis. The life of the White House is the life of a court. It is a structure designed for one purpose and one purpose only—to serve the material needs and desires of a single man.

[…]Even more important, however, he is treated with all the reverence due a monarch. … No one ever invites him to “go soak your head,” when his demands become petulant and unreasonable.

Two decades further on, John Podhoretz, writing of his years in the Bush I White House in Hell of a Ride, explicitly described the president’s staff as courtiers:

Actually you worship the man. Yes, ‘worship’ is the right word, ever since the 1988 campaign. […]

The Bush White House was the palace court of the United States, and the OEOB was the domain of courtiers who hoped to be knighted later on, when they, too, could sit at the Round Table and watch John Sununu and Dick Darman work somebody over.

Podhoretz also wrote reverently of Bush’s “little kindnesses,” which were an “astounding quality” in a man “who bears the weight of the world on his shoulders.” Compare with Reedy, who a decade previous wrote;

A president can be rude, insulting, and even downright sadistic to his closest advisers and their only respone wil be: “How fortunate that he has people who understand the tremendous burdens he is carrying.”

Or compare to former Harper’s editor Lewis Lapham’s sneering description of Bush (in The Wish for Kings:Democracy at Bay) as someone “anxious to please and always remembering to write the little notes of thanks and praise.” The chapter in which this description appears is titled “The Courtier Spirit.” From the perspective of Cato, Reedy, and Lapham, Podhoretz is merely a courtier praising the supreme courtier.

And what of Cato’s concern that presidents would use the pardon power to protect men who had committed crimes for them, trying to “prevent a discovery of [their] own guilt?” Need we look further than Bush’s pardoning of Caspar Weinberger and 5 others in the Iran-Contra affair, aborting Weinberger’s trial for lying to Congress? Not for nought did prosecutor Lawrence Walsh denounce the pardons as the completion of the Iran-Contra coverup.

Hamilton also argued, in Federalist 69, that presidents would be successfully constrained by the impeachment power. But in the course of U.S. history there have been only three serious efforts at impeaching a president. Two of these (of Andrew Jackson and Bill Clinton), the only actual impeachments, failed to convict, and probably for the better since both were politically (ideologically and partisanly) motivated. Only the impending impeachment of Nixon, which caused him to resign, can be seen as a successful effort to use the impeachment power to discipline a president for corrupt behavior. And what was the long-term effect of that effort? It neither stopped the Reagan administration from committing egregious violations of law in the Iran-Contra affair nor led to Reagan’s impeachment. Regrettably, impeachment has come to be a bizarre combination of nuclear option and partisan hack job, not as an effective tool for constraining presidents.

But does that negate the value Hamilton saw in a strong executive? Consider the potential for dissolution of the union in 1787, then fast forward to 1861–what would have happened to the union without a strong executive? What would have happened in World Wars I and II without the strength inherent in the presidency? Or think of the importance, during the Civil Rights effort, of the executive’s ability to send federal officials to register voters in the South, to charge racist murderers in federal courts, and to send troops to Little Rock to constrain the violent response to integration?

The difficulty in answering this question with certainty is that Hamilton was correct about the importance of a strong executive to the effective administration of government, but that very strength is what makes the effective at least potentially dangerous. Whichever view one takes, one can hardly argue against the proposition that the power of the presidency has grown significantly since 1787. And a fair argument can be made that it has grown beyond the bounds intended by the Framers of the Constitution. Throughout this course we will look at the growth of the presidency, how that arguably metastatic institution functions within the contemporary American political system, and how that growth came about.

In our next installment we will look at the history of the “mediocre” presidents (as the Simpsons famously named them) in the 19th century, and consider Matthew Crenson and Benjamin Ginsberg’s argument about the cause of their weakness.

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* This claim is somewhat controversial today, but the evidence is clear: the Declaration of Independence speaks of the independence of multiple states, not a single one, the Articles of Confederation explicitly pronounce that “Each state retains its sovereignty, freedom, and independence,” and indeed the very idea of a confederation presumes multiple independent states.

** Madison’s original proposal was to have the executive selected by the legislature, which is interesting in light of the U.S.’s reverence for separation of powers, which we’re taught is an example of the Framer’s genius. The separation of the executive from the legislature happened only through the sustained efforts of Gouverneur Morris to build a coalition opposed to legislative selection, an issue on which he lost several votes on popular election of the executive before succeeding with the innovation of the electoral college. To say that the Framers as a group had some clear vision of the importance of separation of powers is more American mythology than historical fact. But while Madison did not propose a separation of powers system, he was persuaded by Morris’s arguments to favor it, and defended it strongly in Federalist Papers 47-51.

*** The numbering, I think, comes from Storing. Unlike the Federalist Papers, which were a purposeful joint project of Madison, Hamilton and John Jay, and all published in New York (for the purpose of persuading New York specifically to ratify, because imagine the U.S. at the end of the 18th century with New York not present—just look at a map), the Anti-Federalist papers collected by Storing were the products of diverse and disconnected people writing in multiple states.

[Image credit: “The Apotheosis of Washington.” Artist unknown. Morristown National Historical Park, New Jersey.]