State of the Union January/February 2009

The Founders’ Great Mistake

Who is responsible for the past eight years of dismal American governance? “George W. Bush” is a decent answer. But we should reserve some blame for the Founding Fathers, who created a presidential office that is ill-considered, vaguely defined, and ripe for abuse. Here’s how to fix what the Founders got wrong—before the next G. W. Bush enters the Oval Office.

Illustration by Steve Brodner

For the past eight years, George W. Bush has treated the White House much as Kenneth Grahame’s Mr. Toad treated a new automobile—like a shiny toy to be wrecked by racing the motor, spinning smoke from the tires, and smashing through farmyards until the wheels come off. Bush got to the Oval Office despite having lost the popular vote, and he governed with a fine disdain for democratic and legal norms—stonewalling congressional oversight; detaining foreigners and U.S. citizens on his “inherent authority”; using the Justice Department as a political cudgel; ordering officials to ignore statutes and treaties that he found inconvenient; and persisting in actions, such as the Iraq War, that had come to be deeply unpopular in Congress and on Main Street.

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Readers are invited to submit mementos—from quotes to videos to books to movies—that best capture the essence of the Bush years.

Understandably, most Americans today are primarily concerned with whether Barack Obama can clean up Bush’s mess. But as Bush leaves the White House, it’s worth asking why he was able to behave so badly for so long without being stopped by the Constitution’s famous “checks and balances.” Some of the problems with the Bush administration, in fact, have their source not in Bush’s leadership style but in the constitutional design of the presidency. Unless these problems are fixed, it will only be a matter of time before another hot-rodder gets hold of the keys and damages the country further.

The historian Jack N. Rakove has written, “The creation of the presidency was [the Framers’] most creative act.” That may be true, but it wasn’t their best work. The Framers were designing something the modern world had never seen—a republican chief executive who would owe his power to the people rather than to heredity or brute force. The wonder is not that they got so much wrong, but that they got anything right at all.

According to James Madison’s Notes of Debates in the Federal Convention of 1787, the executive received surprisingly little attention at the Constitutional Convention in Philadelphia. Debate over the creation and workings of the new Congress was long and lively; the presidency, by contrast, was fashioned relatively quickly, after considerably less discussion. One important reason for the delegates’ reticence was that George Washington, the most admired man in the world at that time, was the convention’s president. Every delegate knew that Washington would, if he chose, be the first president of the new federal government—and that the new government itself would likely fail without Washington at the helm. To express too much fear of executive authority might have seemed disrespectful to the man for whom the office was being tailored.

Washington’s force of personality terrified almost all of his contemporaries, and although he said little as presiding officer, he was not always quiet. Once, when an unknown delegate left a copy of some proposed provisions lying around, Washington scolded the delegates like a headmaster reproving careless prep-schoolers, and then left the document on a table, saying, “Let him who owns it take it.” No one did.

Even when Washington remained silent, his presence shaped the debate. When, on June 1, James Wilson suggested that the executive power be lodged in a single person, no one spoke up in response. The silence went on until Benjamin Franklin finally suggested a debate; the debate itself proceeded awkwardly for a little while, and was then put off for another day.

Many of the conversations about presidential authority were similarly awkward, and tended to be indirect. Later interpreters have found the original debates on the presidency, in the words of former Supreme Court Justice Robert H. Jackson, “almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

In the end, the Framers were artfully vague about the extent and limits of the president’s powers. Article I, Section 8 of the Constitution, which empowers Congress, runs 429 words; Article II, Section 2, the presidential equivalent, is about half as long. The powers assigned to the president alone are few: he can require Cabinet members to give him their opinions in writing; he can convene a special session of Congress “on extraordinary occasions,” and may set a date for adjournment if the two houses cannot agree on one; he receives ambassadors and is commander in chief of the armed forces; he has a veto on legislation (which Congress can override); and he has the power to pardon.

The president also shares two powers with the Senate—to make treaties, and to appoint federal judges and other “officers of the United States,” including Cabinet members. And, finally, the president has two specific duties—to give regular reports on the state of the union, and to “take care that the laws be faithfully executed.”

All in all, the text of Article II, while somewhat ambiguous—a flaw that would be quickly exploited—provided little warning that the office of president would become uniquely powerful. Even at the convention, Madison mused that it “would rarely if ever happen that the executive constituted as ours is proposed to be would have firmness enough to resist the legislature.” In fact, when citizens considered the draft Constitution during the ratification debates in 1787 and 1788, many of their concerns centered on the possibility that the Senate would make the president its cat’s-paw. Few people foresaw the modern presidency, largely because the office as we know it today bears so little relation to that prescribed by the Constitution.

The modern presidency is primarily the intellectual handiwork not of “the Framers” but of one Framer—Alexander Hamilton. Hamilton’s idea of the presidency can be found in a remarkable speech he gave to the convention, on June 18, 1787. In it, Hamilton argued that the president should serve for life, name Cabinet members without Senate approval, have an absolute veto on legislation, and have “the direction of war” once “authorized or begun.” The president would be a monarch, Hamilton admitted, but an “elective monarch.”

Hamilton’s plan was so far from the mainstream of thought at the convention that none of its provisions was ever seriously discussed. Nonetheless, Hamilton was and remains the chief theorist of the presidency, first in writing his essays for The Federalist and then in serving as George Washington’s secretary of the Treasury. In this latter role, acting as Washington’s de facto prime minister, Hamilton took full advantage of the vagueness and brevity of Article II, laying the groundwork for an outsize presidency while the war-hero Washington was still in office.

In The Federalist, Hamilton had famously proclaimed that “energy in the executive is a leading character in the definition of good government.” Just how much energy he favored became clear during America’s first foreign crisis, the Neutrality Proclamation controversy of 1793. When Britain and France went to war, many Americans wanted to aid their Revolutionary ally. But Washington and the Federalists were rightly terrified of war with the powerful British Empire. Washington unilaterally proclaimed that the United States would be neutral.

France’s American supporters, covertly aided by Thomas Jefferson, fiercely attacked Washington for exceeding his constitutional authority. The power to make treaties, they said, was jointly lodged in the president and the Senate; how could Washington unilaterally interpret or change the terms of the treaty of alliance with France?

Under the pen name “Pacificus,” Hamilton wrote a defense of Washington’s power to act without congressional sanction. The first Pacificus essay is the mother document of the “unitary executive” theory that Bush’s apologists have pushed to its limits since 2001. Hamilton seized on the first words of Article II: “The executive power shall be vested in a President of the United States of America.” He contrasted this wording with Article I, which governs Congress and which begins, “All legislative powers herein granted shall be vested in a Congress of the United States.” What this meant, Hamilton argued, was that Article II was “a general grant of … power” to the president. Although Congress was limited to its enumerated powers, the executive could do literally anything that the Constitution did not expressly forbid. Hamilton’s president existed, in effect, outside the Constitution.

That’s the Bush conception, too. In 2005, John Yoo, the author of most of the administration’s controversial “torture memos,” drew on Hamilton’s essay when he wrote, “The Constitution provides a general grant of executive power to the president.” Since Article I vests in Congress “only those legislative powers ‘herein granted,’” Yoo argued, the more broadly stated Article II must grant the president “an unenumerated executive authority.”

Hamilton’s interpretation has proved durable even though there is little in the record of constitutional framing and ratification to suggest that anyone else shared his view. In times of crisis, power flows to the executive; too rarely does it flow back. And while Washington himself used his power wisely (Jeffersonians found out in 1812 that pulling the British lion’s tail was poor policy), it was during his administration that the seeds of the “national-security state” were planted.

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Garrett Epps is a professor of law at the University of Baltimore.

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