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

ApotheosisOfWashington 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.]

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33 thoughts on “U.S. Presidency 1: The Presidential Debate of 1787

  1. Pingback: Introduction: U.S. Presidency | Ordinary Times

  2. One question that came to me when I was reading Anti-federalist 67 is the fact that he doesn’t seem to consider private power at all (or maybe he just doesn’t consider it separate or separable from government power?). Presidents are surrounded by courtiers, but so are CEOs–what was the state of their thinking on this matter at the time?

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    • Interesting question, Dan. I’m not familiar with any writings of the time that focused on private power beyond concern for violence and theft (the Hobbesian/Lockean concerns). I’m not sure that concept was necessarily a part of the 18th century lexicon. But I can’t claim any certainty on that, and would be happy to be corrected if others have different claims.

      Again, keep in mind that the Anti-Federalists were thinking mostly about the dangers of government power because of the context of just having rebelled against just that thing.* But also that the focus of the particular debate they were engaged in was the proposal for a new government. So whatever they may have thought about the dangers of private power, the context certainly shaped their arguments toward a focus on public power.
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      * It should also be said that in some cases they were also just interested in protecting the prerogatives of their own states, and some of the arguments were just more respectable cover for that interest. But as always, it’s not easy–particularly from such a distance–to distinguish real concerns from convenient arguments.

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    • On the one hand, these guys probably understood private power as a fish understands water. On the other hand, these guys were in the first generation to have the notion that ultimate sovereignty wasn’t necessarily always rooted in the king or in god. (or both).

      In other words, in a world where one needed a crown charter to do near any old thing commercial (a practice that would continue, post-revolution, with state charters well in the late 19th century) they probably didn’t have a concept of ‘private power’ that wasn’t ultimately rooted in sovereign government power in some way anyway.

      Though the political electoral ecosystem did discover private power within less than a generation, which in turn directly led to the rise of the Jacksonians (and death, of among others, the Bank of the United States)

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      • On the one hand, these guys probably understood private power as a fish understands water.

        Good point. We’re looking at social/economic/political elites arguing with social/economic/political elites.

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    • They had a few examples of very powerful, very wealthy corporations — that was how more than half the colonies got started, and guys like Hancock regularly dealt with both the British West India Company and the Dutch East India Company. They would have known of, even if most had not personally dabbled in, the international trading of slaves and the associated triangle trade. Many of them had financial ties to and debts owed to the Bank of England.

      The private concentrations of power and wealth for them would have been family-based rather than corporation-based: not for nothing did Thomas Jefferson ally himself with the Randolphs and George Washington with the Lees through the brokerage of marriages.

      Alsotoo the various churches, some of which were Established and some of which were not, could exercise great power over the day-to-day social lives of a lot of people, including the wealthy and powerful.

      To some extent, the wealthy companies, the wealthy families, and the influential (and by induction, also wealthy) churches all sought and obtained degrees of governmental endorsement to back up their power.

      But with all that said, it seems to me that most of their experience of non-governmental actors exerting power over other peoples’ lives was very limited compared to what we experience today in our dealings with modern mega-corporations and the pervasiveness of electronic data. And particularly for these men who were rich and powerful in their own rights, they could stand toe to toe with prominent ministers, heads of major families, and agents of the big trading companies, and consider themselves on roughly equal footing. A big, powerful company is less fearsome and intimidating, and therefore less of an issue to address when chartering a government, when you can just as easily buy or litigate your way in to controlling it as your hand might be forced in commercial dealings.

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  3. “There is no doubt the Anti-Federalists were a little over-the-top in critiquing the presidency”

    BACK in the days, TROLLING meant ?omething.

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  4. It’s a tangent, of course, but I’m not quite sure I agree with:


    Switzerland also has been exceptionally peaceful domestically, enjoying a civil peace much longer than perhaps any other country in the world.

    I agree that the Sonderbund War (1847) was both short and minor (about 100 dead out of population of 2.2M), but some of the events leading up to it could hardly be called civil peace.

    My counter to Switzerland would be Sweden, which hasn’t been at war since 1814, and has been pretty much internally quiescent since the assasination of Gustav III in 1792.

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    • “Internally quiescent” is arguable; not everyone in nineteenth-century Norway was happy sharing a king with the Swedes. (To the credit of Norwegian and Swede alike, the separation in 1905 was pretty much a velvet revolution.)

      But — Sweden only one king at a time since way before Gustav III. So it doesn’t seem like it was a plural executive like Switzerland or Rome under the Second Triumvirate or the France under the Directorate.

      Classically Republican Rome had a two-consul system. But that was really a case of Consul I running the show for one month, then deferring to Consul II for another month, and then taking the lead again, back and forth for a year. Unless they were allies, in which case they worked together to run things, until they didn’t anymore. And when they really needed the government to respond to something, they’d pick a dictator, between the Gracchi and Octavian, they’d bend the rules to let a top dog like Pompey or Caesar run the show on his own.

      Even the ridiculously complex rituals the Venetians used to pick their Doges still produced a single man as the head of government. The only time that system of government really broke down was when the Doge was so corrupt and venal as to have committed treason himself (only happened the one time), or when the Council of Ten went on one of its witch hunts.

      The only other example I can think of in which a plural executive worked was the Tetrarchy, which still had a hierarchy and a quasi-formal “first among equals” between the four heads of government. It must have required a unique mix of the four personalities to stay in place — when Diocletian and Maximian abdicated, the whole thing went into a death spiral and it took twenty years of off-and-on-again civil war before a strongman could patch everything up again.

      So I think history demonstrates that Madison was pretty much right and the AF’s pretty much wrong: you need a single person as executive. Can’t share it.

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      • Burt, I wasn’t claiming that Sweden ever had a plural executive, even during the greatest power of the Hats (parliamentary grouping – effectively tried to make the monarch a figurehead about a century too soon) in the mid-18th century (I wonder if any of the Founding Fathers were aware of the Hats and Caps and their history – presumably they were, since Gustav III’s self-coup reasserting monarchial power happened in 1772).

        I definitely agreed that quite a few Norwegians were unhappy to share a king with Sweden 1814-1905 – probably a majority most of the time. Their country wasn’t Sweden: it was Norway in a personal union (I’ve forgotten the details in the Act of Union whether the Storting theoretically had any say if the Riksdag were to change the succession, and the brief Wikipedia references say nothing to the point) with an effectively outsourced foreign policy – arguably similar to the Dominions immediately post Statute of Westminster. And as you note, the separation in 1905 was briefly tense, but didn’t involve any dying AFAIK.

        I was mostly just defending Sweden’s history of civil peace against the Professor’s Helvetophilia (it’s somewhat surprising to me how little known the Sonderkrieg is). I agree with you (and Hamilton :) about plural executives. FWIW, Uruguay oscillated twice in the 20th C between a collegial executive explicitly modelled on Switzerland’s and a more standard presidential system (the latter has been in effect since 1967). Particularly, I agree about the Tetrarchy being quite obviously extemely unstable. For a short term example of a successful de facto (though not formally so) plural executive, my weak understanding is that the genro functioned that way from the Meiji restoration until the wheels fell off in the 1920s.

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      • the Professor’s Helvetophilia

        By ancestry I’m half Swiss-German, so there is a bit of that.

        But also, I’m not a comparativist by trade, so it’s not surprising, although it is mildly vexing, to be caught out in an error like that. But I’m happy to be corrected, as I now know more than I did when I wrote the post.

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  5. I wonder how the Anti-Federalists would have reacted to Ford pardoning Nixon. One suspects that they would have decried Ford with having been paid off with the Presidency, especially after Ford’s predecessor as VP had been found to be corrupt too. But this gets it wrong, in my opinion; Ford did it for efficiency and practicality reasons — so that the government and the body politic could turn their attention to other kinds of problems.

    Why did you describe the Presidency as “arguably metastatic”? I can postulate a number of different interpretations of that but I’m not sure I can pin it down. Or is that a “Just hold on to your beer caps there, Likko, we’ll get to that in a future lecture.”?

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    • My undergrad mentor worked in the Ford White House, and he agreed with your interpretation if Nixon’s pardoning. I think with hindsight we can see it as a mistake, or at least I do, but not actual corruption.

      Re: “possible” metastasis. I think a good argument can be made that the executive is metastatic, but a counter-argument can be made that we’re just observing the inherent and legitimate exercise of executive authority. I want to remain fairly neutral in my role as teacher and be more descriptive and explanatory than prescriptive and hortatory.

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  6. When I read the piece about Hamilton refuting the idea that a plural executive was a good idea, here’s some phrasing that interested me:

    but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible Executive.

    What interested me was that I thought, “isn’t this what the 25th amendment does, at least potentially?” It doesn’t establish a plural executive, but it does create a structure in which the cabinet *might*, under certain conditions and assuming a certain amount of cyncism, edge us toward something like a situation where the president needs the support of his ministers to stay in power.

    Another item that interests me along these lines is the vice presidency. I know almost nothing about the reasons why the vice presidency was established, but could it have been in part as a bone thrown to the pro-plural executive crowd? Whatever the original intention–and there were probably more than one “intentions”–it seems that the vice presidency has, by now, become something like a junior co-presidency.

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    • Re: the Veepship.

      There’s little debate at the Convention to go by in trying to understand their purpose with the VP (this is the most substantial. My take is that the VP was created just to have someone ready to step in in the case the president became unable to fulfill the duties of the office, and little more (although obviously he’s the Prez of the Senate, for the very little that actually entails). It wasn’t even clear that he would actually become the next president in case of presidential death or just be the acting president. Article II says that “the powers and duties of the said office… shall devolve on the vice-president,” not simply that the office itself would. John Tyler was the first VP to be elevated, and there were questions about whether he was the real president or an acting one, but through his insistence that he was in fact the president, the (more sensible) interpretation became established.

      Some of the Anti-Feds disliked the VP, and Hamilton’s response is found in Fed 68, in the last paragraph. It’s almost just an afterthought, a throwaway line, as though he thought, “well, I guess I have to answer that criticism, but there’s just not a whole lot to say about that office.”

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  7. 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 historian in me is itching to cry out “oh, no! a counterfactual! shame!,” but that wouldn’t be fair, because you’re asking more than a mere counterfactual. You’re positing some of the roles that are best served by an institutionally strong executive, such as overseeing self-defense, keeping the territorial integrity of the union intact in time of rebellion, and enforcing the laws (in your examples, civil rights and equal protection laws), and keeping the territorial integrity of the union intact.

    The first two points assume that there’s a national interest that ought to obtain, that there is and ought to be this *thing* called the United States. Part of what was at issue in 1787-1789 was whether the United States was a state or a confederation, and part of what Hamilton, Madison, and Jay were arguing for was the US as a national state (note, I don’t mean “nation-state,” but I want to distinguish b/w national state and state-state). Another federalist essay (I forget the number) compares the likely fate of the 13 traitors if they don’t unite under a strong head to what was then the recently partitioned Poland. Another possibility of no union (maybe it was the same essay….I hope I’m not making this up) was one or a few colonies/states would come to dominate the others, or the constant rivalry would mean the evil standing armies in all or most of the states. My point is, the arguments for the executive in that case makes the most sense if one also accepts the idea of the US as a national state.

    The third point points to the executive as laws enforcer, where the laws serve a liberty interest. So it’s the executive as protector of liberty. That’s a good point, but I think it’s a little bit anachronistic to 1787, where the notion of a liberty interest seems to have been directed against the national government, at least when it came to constitutional discussions. I’m sure there were dissenting views on this at the time, and the dissenting views grew as time went on. I’m presuming here that the plaintiff in Barron v. Mayor of Baltimore was not just grasping at legal straws to see what would stick, but was tapping on a somewhat popular notion that the constitution protected people against state government intrusions on civil liberties.

    To answer the actual counterfactuals: 1861 would’ve been just another year on a continent divided among two or more larger conglomerations of states in some guise. My guess is that there’d be two or more confederacies, or maybe at least one or two national governments with stronger executives, and maybe these would have divided along the lines of slavery or a putative slave interest. Or maybe not.

    World War I: North America might have been a battleground. Or the “US,” if it existed with its weak executive, would have stayed out of the conflict. The latter option is actually very appealing to me.

    World War II: the Allies would have lost, and Germany would have retained supremacy in eastern Europe for a couple decades until nationalist movements would have beaten it back. Not, however, before it completed its genocides. My only reservations about stating how this means the US needed a strong executive are two. 1) It’s a poor argument for a strong executive to say that sometime in the next 150 years, a murderous dictator would try to take over Europe and a strong executive who presided over a country that, by that time, would have been industrialized enough to supply the good guys would be necessary. 2) The same strong executive office that helped assured US victory in the 20th century was an outgrowth of a weaker, but still strong executive office that forced Indians off their lands, waged war against Mexico, and intervened repeatedly in Latin America.

    Civil Rights: Across the board, these would have been much less robust. If slavery ends in the South, a new set of second-class citizens would be created. Perhaps in some non-slave states, formal equality would be assured by the laws and constitution.

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    • The historian in me is itching to cry out “oh, no! a counterfactual! shame!,”

      Heh. This is going to be a different crowd than my sophomore level presidency class, isn’t it? ;) To be clear, my goal was to give a fair hearing to both the Feds and the Anti-Feds, rather than take a side. I want to set up that this was a real debate, and one that’s still relevant–perhaps more relevant–today. And each side, I think, has evidence they can rely on to make their case in 2014.

      the arguments for the executive in that case makes the most sense if one also accepts the idea of the US as a national state

      Absolutely, and a good point. The Constitution never makes explicit the nature of the union in the way the Articles did. The question of whether it was still fundamentally a confederacy or a unified state hung fire, I think, until the conclusion of the Civil War. I think the nullification debates are better understood if we recognize that perspective, whereas today we tend to view them from the “it’s obvious we’re a national state” perspective. And of course the Anti-Federalists were generally critical of the national state concept, and preferred the confederation. I suppose that and their criticism of the presidency are deeply entwined.

      I think that it’s still legitimate to question that national state concept. Your response to the counterfactuals very much matches my own–those potential outcomes don’t necessarily prove the necessity of a strong executive. But I think others would weigh them differently. (And of course neither of us mentioned the Whiskey Rebellion!)

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      • Thanks for your answer, and for your answer to the VP question as well. For the record, I think historians do counterfactuals whenever they make a statement of causation. To say that x causes y means that if x had not been there, y would not have happened, would have been less likely to happen, or would have had to happen through some other means.

        Riffing off ‘s point below, it’s possible that wwi and wwii would not have happened sans strong national US state. Maybe something much worse or much better would have happened. It’s just hard to know.

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      • it’s possible that wwi and wwii would not have happened sans strong national US state

        There’s your real career prospect, Pierre, writing alternative history Sci Fi novels! “The Cato Conspiracy: How Hitler was prevented by going back in time and killing James Madison, leaving the United States to fracture, Napoleon to thrive, and World War I reparations never imposed.”

        Something about the Barbary pirates continuing unmolested by the U.S. and no “Halls of Montezuma to Shores of Tripoli” song has to be in there, too.

        “Huh,” said the retired Marine sergeant. “I was just thinking of this song, and now I can’t remember it. There’s just a faint scrap, like an echo. I’m sure I’ve heard it before, but now I can’t remember it all.”

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    • Though I think a non-United States at the turn of the 19th century makes the Napoleonic era sufficiently different to make WW1 a far different affair (with different players and probably a generation earlier).

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  8. Someone, perhaps in the thread to the “introduction” OP, mentioned a court decision in the 1890s that enabled the federal government to create regulatory commissions, the practice of which had elements of executive authority, legislative/rules-making authority, and judicial authority. I don’t know (but I should…that type of thing is in the range of my supposed “expertise”) what that decision was, but it did bring to mind such bodies as the FTC or the Fed.

    I was thinking about those bodies (and perhaps also about Vikram’s recent OP on responsibility) when I read that segment by Hamilton about executive responsibility. In a sense, those bodies operate independently of the executive. The president nominates and the senate confirms, but through the term, the president can’t fire.

    Another point about Hamilton’s “responsibility” argument is that it got me thinking of the idea of the “unitary executive” that was floated a lot when the Alito nomination hearings were going on. I don’t know much about the idea other than at the time it seemed to my partisan self to fit in with Bush II’s arrogations of power. I do imagine, however, that an argument like Hamilton’s could be one pillar in the argument for something like the “unitary executive.”

    I look forward to reading more posts.

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    • The unitary executive thing is a bit weird. Of course we have a unitary executive; that’s so obvious I couldn’t figure out why some conservsatives were so breathless over the concept. Then I realized their primary point was an emphasis on what they believe to be the inherent powers of the executive, that the president has inherent authority to do anything that is executivish in nature, in contrast to just those powers explicitly expressed in the Constitution, or properly delegated by Congress.

      That more limited view, the president as a clerk, the executor of Congress’s will, was the dominant early view of the presidency, but the unitary exevutive folks use that term to tie their almost-unlimited power concept back to Hamilton, so–as conservatives–they can claim the mantle of originalism.

      Never mind that Hamilton was a radical outlier from the other Framers on executive power and that even he didn’t go as far as them (for example, he emphasized the legislative’s control over the authority to send the country to war, while the unitary executive folks treat even that as an inherent exevutive power.

      I have no respect for these contemporary “unitary executive” folks. They are intellectual whores for the GOP. Notice how much the talk about it has died down in the last six years? They have no interest in vocally defending Obama’s military intervention in Libya, for example. And their historical arguments are tendentious and reliant on cherry-picking.

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