THE OLD WAY:
FOUNDING AND FORMS
When Abraham Lincoln repeatedly refused to talk “policy” to assembled groups of citizens on his way from Illinois to Washington, D.C.; when Rutherford B. Hayes reported in his diary that he had reflected upon the propriety of sending a special message to Congress; when George Washington consulted his advisers as to the most appropriate form for his inaugural addresses—these presidents, like almost all others in the nineteenth century, were appealing to a common stock of political opinion and a family of rhetorical practices that constituted a doctrine. This chapter traces the origins and rationale for that doctrine, and illustrates its characteristic features expressed in formal modes of rhetoric. Chapter Three examines informal rhetoric and behavior, and assesses the extent to which the doctrine changed or developed throughout the nineteenth century.1
Metaphorically, the doctrine can be considered a “common law” of rhetoric, since this set of prescriptions and proscriptions of modes of speech derived from constitutional principle but developed through various practices. Scholars in our time have not been very interested in the connections between these principles and practices. When these phenomena are mentioned, the focus is on the practices shorn of the opinions surrounding them. Replacing the opinions of founders and presidents is often the “theory” of the historian or political scientist, who suggests that these presidents generally opposed involvement in legislation or an energetic role in public policymaking and hence had no need for popular rhetoric. The nineteenth-century presidencies are viewed as valuable examples of the absence of twentieth-century practices, interesting for what they lack rather than for alternatives that they offer.
Yet the nineteenth-century doctrine was in fact robust, forward-looking, almost “up-to-date” in its conceptions of national politics. The nationalization of American politics, “big government,” and a powerful presidency were all generated by the nineteenth-century constitutional order, prescribed by its most coherent partisans, and predicted by astute opponents of the constitutional polity.2 The architects of the constitutional order and most nineteenth-century presidents believed that a strong national government led by a strong executive was compatible with, indeed required, the proscription of most of the rhetorical practices that have now come to signify leadership.
CONSTITUTIONAL PRINCIPLES
To understand the place and character of presidential rhetoric in nineteenth-century American politics, we need to briefly outline four basic theoretical concerns that shaped the founders’ understanding of the entire system. These are the issues of demagoguery, republicanism, independence of the executive, and separation of powers. The founders had other theoretical concerns, such as the issue of federalism, but these four were the core issues behind the practical structural decisions for the national government and the place of the presidency within it. One indication of their centrality is Woodrow Wilson’s powerful attack on nineteenth-century practice (the subject of Chapter 5 below). Wilson explicitly based his reinterpretation of American politics upon a critique of these core constitutional considerations.
Demagoguery
The founders worried especially about the danger that a powerful executive might pose to the system if power were derived from the role of popular leader.3 For most federalists, “demagogue” and “popular leader” were synonyms, and nearly all references to popular leaders in their writings are pejorative. Demagoguery, combined with majority tyranny, was regarded as the peculiar vice to which democracies were susceptible. While much historical evidence supported this insight, the founders were made more acutely aware of the problem by the presence in their own midst of popular leaders such as Daniel Shays, who led an insurrection in Massachusetts. The founders’ preoccupation with demagoguery may appear today as quaint, yet it may be that we do not fear demagoguery today because the founders were so successful in institutionally proscribing some forms of it.
The original Greek meaning of “demagogue” was simply “leader of the people” and the word was applied in premodern times to champions of the people’s claim to rule, as opposed to the claims of aristocrats and monarchs. As James Ceaser points out, the term has been more characteristically applied to a certain quality of leadership—that which attempts to sway popular passions. Since most speech contains a mix of rational and passionate appeals, it is difficult to specify demagoguery with precision. But as Ceaser argues, we cannot ignore the phenomenon simply because it is difficult to define, and he suggests that it possesses at least enough intuitive clarity that few would label Dwight Eisenhower, for example, a demagogue, while most would not hesitate to so label Joseph McCarthy. The key characteristic of demagoguery seems to be an excess of passionate appeals. Ceaser categorizes demagogues according to the kinds of passions that are summoned, dividing these into “soft” and “hard” types.
The soft demagogue tends to flatter his constituents, “by claiming that they know what is best, and makes a point of claiming his closeness [to them] by manner or gesture.”4 Hamilton focuses on this danger in the midst of a lengthy discussion of the need for sufficient duration of presidential tenure to protect the executive from servile pliancy to popular passion and to protect the people from a manipulative demagogue.
It is a just observation that the people commonly intend the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset as they continually are by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it.5
In The American Democrat, James Fenimore Cooper wrote that demagoguery is the “peculiar danger of a democracy,” and flattery the mark of a demagogue. “The man who is constantly telling people that they are unerring in judgment, and that they have all power, is a demagogue.” By 1838, the danger appeared solely in its “soft” guise since the regime had legitimated majority rule and popular sovereignty, enabling “the demagogue [to] always [put] the people before the constitution and the laws, in face of the obvious truth that the people have placed the constitution and the laws before themselves.” At the founding the problem of demagoguery was larger because the political stakes were higher, raising the prospect of “hard” demagoguery.6
The hard demagogue attempts to create or encourage divisions among the people in order to build and maintain his constituency. Typically, this sort of appeal employs extremist rhetoric that ministers to fear. James Madison worried about the possibility of class appeals that would pit the poor against the wealthy. But the “hard” demagogue might appeal to a very different passion. “Excessive encouragement of morality and hope” might be employed to create a division between those alleged to be compassionate, moral, or progressive, and those thought insensitive, selfish, or backward. Hard demagogues are not restricted to the “right” or to the “left.”7
Demagogues also can be classified by their object. Here the issue becomes more complicated. Demagoguery might be good if it were a means to a good end, such as preservation of a decent nation or successful prosecution of a just war. The difficulty is to ensure by institutional means that demagoguery would tend to be employed for good ends and not simply for the satisfaction of overweening ambitions of immoral leaders or potential tyrants. How can political structures be created that permit demagoguery when appeals to passion are needed, but proscribe it for normal politics?
The founders did not have a straightforward answer to this problem, perhaps because there is no unproblematic institutional solution. Yet they did address it indirectly in two ways: they attempted both to narrow the range of acceptable demagogic appeals through the architectonic act of “founding” itself, and to mitigate the effects of such appeals in the day-to-day conduct of governance through the particular institutions they created. They did not choose to make provisions for the institutional encouragement of demagoguery in time of crisis, refusing to adopt, for example, the Roman model of constitutional dictatorship for emergencies.8
Many references in The Federalist and in the ratification debates warn of demagogues of the hard variety who through divisive appeals would aim at tyranny. The Federalist literally begins and ends with this issue. In the final paper Hamilton offers “a lesson of moderation to all sincere lovers of the Union [that] ought to put them on their guard against hazarding anarchy, civil war, a perpetual alienation of the states from each other, and perhaps the military despotism of a victorious demagogue.…”9 This concern with “hard” demagoguery at the founding was not merely, though it was partly, a rhetorical device itself designed to facilitate passage of the Constitution. It also reveals a concern to address the kinds of divisions and issues exploited by “hard” demagoguery. From this perspective, the founding can be understood as an attempt to settle the large issue of whether the one, the few, or the many would rule (in favor of the many “through” a constitution); to reconfirm the limited purposes of government (security, prosperity, and the protection of rights); and thereby to give effect to the distinction between public and private life. At the founding, these large questions were still matters of political dispute. Hamilton argued that adoption of the Constitution would settle these perennially divisive questions for Americans, replacing those questions with smaller, less contentious issues. Hamilton called this new American politics a politics of “administration,” distinguishing it from the traditional politics of disputed ends. If politics were transformed and narrowed in this way, thought Hamilton, demagogues would be deprived of part of their once-powerful arsenal of rhetorical weapons because certain topics would be rendered illegitimate for public discussion. By constituting an American understanding of politics, the founding would also reconstitute the problem of demagoguery.
I have briefly described some foundational tenets of modern liberalism. The founders were not the first liberals, of course. They reflected the mode of reasoning and form of argument of liberal political philosophy.10 Like the liberal theorists, the founders seldom wrote about rhetoric directly. This poses a small research problem; how are we to discover their understanding of political rhetoric? The answer to the research problem turns out to be an insight into the character of liberal politics, for rhetoric is taught indirectly in liberal polities. Because liberal theorists and the founders were so concerned to circumscribe politics, to narrow the public sphere, they generally addressed problems of rhetoric indirectly, through discussions of institutions.
Moreover, as I shall argue, the principal actors in the government would be taught rhetorical practice through institutional mores, incentives, and rewards. To see how it could be otherwise, consider the fact that Aristotle, Quintilian, and Cicero, all of whom lived in polities whose governments penetrated deeply into what we consider the private sphere, wrote treatises on rhetoric and addressed them directly to rhetoricians. As Carnes Lord has shown, Aristotle, for example, attempted to persuade young rhetoricians to follow his precepts rather than their instincts or the precepts of sophists and well-known contemporaries, in order to control tendencies toward demagoguery.11 There are no comparable treatises on rhetoric by the political philosophers most consulted by the founders (Locke, Hume, Montesquieu, etc.).12 Replacing a doctrine of rhetoric or theory of persuasion addressed directly to political actors are sets of teachings on the building of institutions. It is primarily in discussions of the principles underlying the major national institutions that the founders addressed the problems of rhetoric. And it is through analysis of these institutional structures and practices that we can reconstitute an American rhetorical doctrine.
If the overriding concern about demagoguery in the extraordinary period before ratification of the Constitution was to prevent social disruption, division, and possibly tyranny, the concerns expressed through the Constitution for normal times were broader: to create institutions that would be most likely to generate and execute good policy or be most likely to resist bad policy. Underlying the institutional structures and powers created by the Constitution are three principles designed to address this broad concern: representation, independence of the executive, and separation of powers.
Representation
As the founders realized, the problem with any simple distinction between good and bad law is that it is difficult to provide clear criteria to distinguish the two in any particular instance. It will not do to suggest that in a democracy good legislation reflects the majority will. A majority may tyrannize a minority, violating its rights; even a nontyrannical majority may be a foolish one, preferring policies that do not further its interests. Finally, the factual quest to find a “majority” may be no less contestable than a dispute over the merits of proposals. Contemporary political scientists provide ample support for the latter worry when they suggest that it is often both theoretically and practically impossible to discover a majority will—that is, to count it up—due to the manifold differences of intensity of preferences and the plethora of possible hierarchies of preferences. These considerations lie behind the distrust of “direct” or “pure” democracy.13
Yet an alternative understanding—that legislation is good if it objectively furthers the limited ends of the polity—is also problematic. It is perhaps impossible to assess the interests of a nation without giving considerable attention to what the citizenry considers its interests to be. This consideration lies behind the animus toward monarchy and aristocracy.14 Identifying and embodying the proper weight to give popular opinion and the appropriate institutional reflections of it is one of the characteristic problems of democratic constitutionalism. The founders’ understanding of republicanism as representative government reveals this problem and the Constitution’s attempted solution.
Practically, the founders attempted to accommodate these two requisites of good government by four devices. First, they established popular election as the fundamental basis of the Constitution and of the government’s legitimacy. They modified that requirement by allowing “indirect” selection for some institutions (e.g., the Senate, Supreme Court, presidency)—that is, selection by others who were themselves chosen by the people. With respect to the president, the founders wanted to elicit the “sense of the people,” but they feared an inability to do so if the people acted in a “collective capacity.” They worried that the dynamics of mass politics would at best produce poorly qualified presidents and at worst open the door to demagoguery and regime instability. At the same time, the founders wanted to give popular opinion a greater role in presidential selection than it would have if Congress chose the executive. The institutional solution to these concerns was the Electoral College, originally designed as a semi-autonomous locus of decision for presidential selection, and chosen by state legislatures at each election.15
Second, the founders established differing lengths of tenure for officeholders in the major national institutions, which corresponded to the institutions’ varying proximities to the people. House members were to face reelection every two years, thus making them more responsive to constituent pressure than members of the other national institutions. The president was given a four-year term, sufficient time, it was thought, to “contribute to the firmness of the executive” without justifying “any alarm for the public liberty.”16
Third, the founders derived the authority and formal power of the institutions and their officers ultimately from the people but immediately from the Constitution, thus insulating officials from day-to-day currents of public opinion, while leaving scope for assertion of deeply felt and widely shared public opinion through constitutional amendment.
Finally, the founders envisioned that the extent of the nation itself would insulate governing officials from sudden shifts of public opinion. In his well-known arguments for an extended republic, Madison reasoned that large size would improve democracy by making the formation of majority factions difficult. But again, argued Madison, extent of the territory and diversity of factions would not prevent the formation of a majority if the issue were an important one.17
It is the brakes upon public opinion rather than the provision for its influence that causes skepticism today.18 Because popular leadership is so central to modern theories of the presidency, the rationale behind the founders’ distrust of “direct democracy” should be noted specifically. This issue is joined dramatically in The Federalist, no. 49, in which Madison addresses Jefferson’s suggestion that “whenever two of the three branches of government shall concur in [the] opinion … that a convention is necessary for altering the Constitution, or correcting breaches of it, a convention shall be called for the purpose.” Madison recounts Jefferson’s reasoning: because the Constitution was formed by the people, it rightfully ought to be modified by them. Madison admits “that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions.” But he objects to bringing directly to the people disputes among the branches about the extent of their authority. In the normal course of governance, such disputes could be expected to arise fairly often. In our day they would include, for example, the war powers controversy, the impoundment controversy, and the issue of executive privilege.
Madison objects to recourse to “the people” on three basic grounds. First, popular appeals would imply “some defect” in the government: “Frequent appeals would, in great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.” The Federalist points to the institutional benefits of popular veneration—stability of government and the enhanced authority of its constitutional officers. Second, the tranquility of the society as a whole might be disturbed. Madison expresses the fear that an enterprising demagogue might reopen disputes over “great national questions” in a political context less favorable to their resolution than the constitutional convention.
Finally, Madison voices “the greatest objection of all” to frequent appeals to the people: “the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government.” The executive might face political difficulties if frequent appeals to the people were permitted because other features of his office (his singularity, independence, and executive powers) would leave him at a rhetorical disadvantage in contests with the legislature. Presidents would be “generally the objects of jealousy and their administration[s] … liable to be discolored and rendered unpopular,” Madison argues. “[T]he members of the legislative department on the other hand are numerous.… Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people.…”19
Madison realizes that there may be circumstances “less adverse to the executive and judiciary departments.” If the executive power were “in the hands of a peculiar favorite of the people … the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question.” The ultimate reason for the rejection of “frequent popular appeals” is that they would undermine deliberation and result in bad public policy:
The passions, therefore, not the reason, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.20
There are two frequent misunderstandings about the founders’ opinion on the “deliberative” function of representation. The first is that they naively believed that deliberation constituted the whole of legislative politics—that there would be no bargaining, logrolling, or nondeliberative rhetorical appeals. The discussion of Congress in The Federalist, nos. 52 to 68, and in the constitutional convention debates, reveals quite clearly that the founders understood that the legislative process would involve a mixture of these elements. The founding task was to create an institutional context that made deliberation more likely, not to assume that it would occur naturally or, even in the best of legislatures, predominantly.21
The second common error, prevalent in leading historical accounts of the period, is to interpret the deliberative elements of the founders’ design as an attempt to rid the legislative councils of “common men” and replace them with “better sorts”—more educated and above all more propertied individuals.22 Deliberation, in this view, is the byproduct of the kind of person elected to office. The public’s opinions are “refined and enlarged” because refined individuals do the governing. Although this view finds some support in The Federalist and was a worry of several Anti-Federalists, the founders’ Constitution places much greater emphasis upon the formal structures of the national institutions than upon the backgrounds of officeholders.23 Indeed, good character and high intelligence, they reasoned, would be of little help to the government if it resembled a direct democracy: “In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”24 As we shall see, some of the modes of rhetoric emerged as part of the formal structure designed to encourage deliberation.
The presidency thus was intended to be representative of the people, but not merely responsive to popular will. Drawn from the people through an election (albeit an indirect one), the president was to be free enough from the daily shifts in public opinion so that he could refine it and, paradoxically, better serve popular interests. Hamilton expresses well this element of the theory in a passage in which he links the problem of representation to that of demagoguery:
There are some who would be inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberative sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.… [W]hen occasions present themselves in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection.…25
Independence of the Executive
In order to “withstand the temporary delusions” of popular opinion, the executive was made independent. The office would draw its authority from the Constitution rather than from another governmental branch. The framers were led to this decision from their knowledge of the states, where, according to John Marshall, the governments (with the exception of New York) lacked any structure that “could resist the wild projects of the moment, give the people an opportunity to reflect and allow the good sense of the nation time for exertion.” As Madison stated at the convention, “Experience had proved a tendency in our governments to throw all power into the legislative vortex. The executives of the states are in general little more than Cyphers; the legislatures omnipotent.…”26
While independence from Congress was the immediate practical need, it was a need based upon the close connection between legislatures and popular opinion. Because independence from public opinion was the source of concern about the legislatures, the founders rejected James Wilson’s arguments on behalf of popular election as a means of making the president independent of Congress.
The independence of the executive created the conditions under which presidents would be most likely to adopt a different perspective from Congress on matters of public policy. Congress would be dominated by local factions that, according to plan, would give great weight to constituent opinion. The president, as Thomas Jefferson was to argue, was the only national officer “who commanded a view of the whole ground.” Metaphorically, independence gave the president his own “space” within, and his own angle of vision upon, the polity. According to the founding theory, these constituent features of discretion are entailed by the twin activities of executing the will of the legislature and leading a legislature to construct good laws to be executed, laws that would be responsive to long-term needs of the nation at large.27
The constitutional role of the president in lawmaking raises the question of the meaning and purpose of separation of powers. What is the sense of “separation of power” if power is shared among the branches of government? In the 1940s and 1950s, political scientists easily refuted those legalists who assumed that the founders wanted to distinguish so carefully among executive, legislative, and judicial power as to make each the exclusive preserve of a particular branch. However, the legalistic error has given rise to another.
Political scientists, following Richard Neustadt, have assumed that since powers were not divided according to the principle of “one branch, one function,” the founders made no principled distinction among kinds of power. Instead, according to Neustadt, they created “separate institutions sharing power.”28 The premise of that claim is that power is an entity that can be divided up to prevent any one branch from having enough to rule another. In this view, the sole purpose of separation of powers is to preserve liberty by preventing the arbitrary rule of any one center of power.
The Neustadt perspective finds some support in the founders’ deliberations, and in the Constitution. Much attention was given to making each branch “weighty” enough to resist encroachment by the others. Yet this “checks and balances” view of separation of powers can be understood better in tandem with an alternative understanding of the concept. Powers were separated and structures of each branch differentiated in order to equip each branch to perform different tasks. Each branch would be superior (although not the sole power) in its own sphere and in its own way. The purpose of separation of powers was to make effective governance more likely.29
Ensuring the protection of liberty and individual rights was one element of effective governance as conceived by the founders, but not the only one. Government also needed to ensure the security of the nation and to implement policies that reflected popular will.30 These three governmental objectives might conflict; for example, popular opinion might favor policies that violate rights. Separation of powers was thought to be an institutional way of accommodating the tensions between governmental objectives.
Table 2.1 presents a simplified view of the purposes behind the separation of powers. Note that the three objectives of government—popular will, popular rights, and self-preservation—are mixed twice in the Constitution: they are mixed among the branches and within each branch so that each objective is given priority in one branch. Congress and the president were to concern themselves with all three, but the priority of their concern differs, with “self-preservation” or national security of utmost concern to the president.
The term “separation of powers” perhaps has obstructed understanding of the extent to which different structures were designed to give each branch the special quality needed to secure its governmental objectives. Thus, while the founders were not so naive as to expect that Congress would be simply “deliberative,” they hoped that its plural membership and bicameral structure would provide necessary, if not sufficient, conditions for deliberation to emerge. Similarly, the president’s energy, it was hoped, would be enhanced by unity, the prospect of reelection, and substantial discretion. As we all know, the Court does not simply “judge” dispassionately; it also makes policies and exercises will. But the founders believed that it made no sense to have a Supreme Court if it were intended to be just like a Congress. The judiciary was structured to make the dispassionate protection of rights more likely, if by no means certain.
TABLE 2.1 Separation of Powers
Objectives |
Special Qualities and Functions |
Structures and Means |
CONGRESS |
||
1. popular will 2. popular rights 3. self-preservation |
deliberation |
a. plurality b. proximity (frequent House elections) c. bicameralism d. competent powers |
PRESIDENT |
||
1. self-preservation 2. popular rights 3. popular will |
energy and “steady administration of law” |
a. unity b. four-year term and eligibility c. competent powers |
COURT |
||
1. popular rights |
“judgment, not will” |
a. small collegial body b. life tenure c. power linked to argument |
The founders differentiated powers as well as structures in the original design. These powers (“the executive power,” vested in the president in Article II, and “all legislative power herein granted,” given to Congress in Article I) overlap and sometimes conflict. Yet both the legalists’ view of power as “parchment distinction” and the political scientists’ view of “separate institutions sharing power” provide inadequate guides to what happens and what was thought ought to happen when powers collided. The founders urged that “line-drawing” among spheres of authority be the product of political conflict among the branches, not the result of dispassionate legal analysis. While not dispassionate, this political conflict would be constrained and structured, in part, by parchment arguments, debate over the principles that informed the Constitution. Contrary to more contemporary views, they did not believe that such conflict would lead to deadlock or stalemate.31
Consider the disputes that sometimes arise from claims of “executive privilege.”32 Presidents occasionally refuse to provide Congress with information that its members deem necessary to carry out their special functions, usually justifying assertions of executive privilege on the grounds of either national security or the need to maintain the conditions necessary to sound execution, including the unfettered canvassing of options.
Both Congress and the president have legitimate constitutional prerogatives at stake: Congress has a right to know and the president has a need for secrecy. How does one discover whether in any particular instance the president’s claim is more or less weighty than Congress’s? The answer will depend upon the circumstances—for example, the importance of the particular piece of legislation in the congressional agenda versus the importance of the particular secret to the executive. There is no formula independent of political circumstance with which to weigh such competing institutional claims. The most knowledgeable observers of those political conflicts are the parties themselves: Congress and the president.
Each branch has weapons at its disposal to use against the other. Congress can threaten to hold up legislation or appointments important to the president. Ultimately, it could impeach him. For his part, a president may continue to “stonewall”; he may veto bills or fail to support legislation of interest to his legislative opponents; he may delay political appointments; and he may put the issue to a public test, even submitting to an impeachment inquiry for his own advantage. The lengths to which presidents and Congresses are willing to go was thought to be a rough measure of the importance of their respective constitutional claims. Nearly always, executive-legislative disputes are resolved at a relatively low stage of potential conflict. In 1981, for example, President Reagan ordered Interior Secretary James Watt to release information to a Senate committee after the committee had agreed to maintain confidentiality. The compromise was reached after public debate and “contempt of Congress” hearings were held.
This political process is dynamic. Viewed at particular moments the system may appear deadlocked; considered over time, substantial movement becomes apparent. Similar scenarios could be constructed for the other issues over which congressional and presidential claims to authority conflict, such as the use of executive agreements in place of treaties, the deployment of military force, or the executive impoundment of appropriated monies.33
From the founding point of view, conflict between the branches should be encouraged by the system. To do so in ways that would produce beneficial results, the Constitution had to prescribe forms of political behavior consonant with the special tasks and perspectives of each governmental branch. For separation of powers to work, how legislators and presidents were to act was to be as important as what they would stand for. Indeed, from the point of view of institutional theorists like the founders, there was no greater political problem than to establish the ways in which politicians would be encouraged to behave—that is, the forms of political activity.
OFFICIAL RHETORIC
The founding understanding of the problems of demagoguery, representation, independence of the executive, and separation of powers resulted in a presidency that embodied the myriad demands of republicanism in a new and peculiarly American way. Freed from the need to consult the people continually, the president was nevertheless to be judged by them periodically; independent enough to be forceful and preeminent in matters of command, he remained an unequal partner in the deliberative process; and situated in an office in which demagoguery could be most harmful, he would be constrained by structures and practices that made it unprofitable and unlikely. The development of presidential rhetoric in the nineteenth century reflected the force of the general constitutional theory. Two general prescriptions for presidential speech emerged.
First, policy rhetoric—that is, recommendations for new laws, or detailed descriptions of the state of the union with suggestions for change—would be written, and addressed principally to Congress. Of course, some presidents could be expected to try to speak to the people through these messages; but since these addresses would be directed in the first instance to Congress, the rhetoric would be constrained by the written form and the character of the immediate audience. To the extent that the people read these speeches, they would be called upon to raise their understanding to the level of deliberative speech.
Embodying two demands of republicanism, rhetoric to Congress would be public (available to all) but not thereby popular (fashioned for all). The Constitution contains this principle in two of its provisions. In Article I, Section 7, attached to the presidential privilege of a veto, is the president’s duty to present Congress with a veto message, stating “his objections to that House in which the bill shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it.” And in Article II, Section 3, another deliberative duty is placed upon the president: “He shall from time to time give to the Congress information on the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.” The Constitution does not say that such rhetoric shall be written, although the veto clause implies it. But, following principles of the general theory of the Constitution, early presidents and Congresses assumed that written messages were constitutionally prescribed.
Second, rhetoric that was directed primarily to the people at large developed along lines consistent with the case against popular leadership. Nowhere are they mentioned in the Constitution, but the practices of issuing proclamations and offering an inaugural address were instituted in the first presidency with attention to their constitutional propriety. The inaugural address, for example, developed along lines that emphasized popular instruction in constitutional principle and the articulation of the general tenor and direction of presidential policy, while tending to avoid discussion of the merits of particular policy proposals.
Like many other institutions and practices, the specific forms of presidential rhetoric were not discussed, let alone settled, during the convention and ratification debate. Like the status of the executive departments, the specific modes of rhetoric were left for determination by early Congresses and presidents. George Washington was particularly sensitive to the need to establish constitutionally informed, useful precedents—so much so that he devoted considerable time during his first year as president to decisions regarding the symbolic dimension of his office. These included: when and in what manner to appear before Congress; when and how to receive congressmen at the White House; how to establish the protocol between the president and governors of the states; with whom the president should stay while on official excursion; and how his daily “line of conduct” and style of living should be managed so as to enhance the dignity of his office while supporting popular attachment to republicanism.34 Most important for present purposes, Washington devoted considerable time to deciding upon the appropriate modes of rhetoric.
Inaugural Addresses
After extensive preparation, Washington offered the first of what would be three predominant types of inaugural address in the nineteenth century. The first president used the occasion to praise virtuous men, to display his own character and virtue, and to implore fellow officers of the government to take their guidance from the Constitution and from “that Almighty Being who rules over the Universe.” Washington refused to talk policy. Indeed, he had originally prepared a seventy-three-page set of recommendations to Congress as his first draft of the Inaugural, thinking that he would speak as part of his constitutional duty to “recommend measures to Congress.” He discarded the draft, as he mentions in the final speech itself, because the circumstances seemed inappropriate.35 Just what the circumstances required never became clear to Washington. He took his oath before “the people” assembled outdoors, but delivered his remarks to a select audience of congressmen and dignitaries and addressed the remarks to “Fellow Citizens of the Senate and House of Representatives,” not to the people at large as all presidents after Adams were to do.
The first inaugural ceremony had some resemblance to a royal appearance before Parliament, and when Washington concluded his oath, the Chancellor (of New York, who administered the oath) proclaimed, “Long Live George Washington, President of the United States.”36 Washington was groping for a model of speech and ceremony that would establish the dignity of his office but not appear monarchical. His peculiar difficulty was to offer a republican but non-popular address. Glen Thurow analyzed his solution as follows:
He tries to make himself as good an example as possible for the assembled Congressmen and for those who are to follow. He displays his patriotism, his sense of duty, his loyalty to the Constitution, and his freedom from creed or vain ambition throughout the speech. Washington sees the powers and responsibilities of his office as stemming from the Constitution and hence, only indirectly from the people. It is only through the force of his example that he could be said to have a direct relationship to the people in the speech. His outstanding qualities provide a model for other politicians, and attracts the people at large to their government. This model helps to infuse the Constitution with the proper spirit. But Washington’s relationship to the people is not the grounds of either his powers or his duties.37
In its immediate hearing the speech was successful. The famous orator Fisher Ames “watched entranced and with some resentment” that such a simple display of character “so denied the importance of the elocutionist’s art.” “It seemed to me,” he wrote, “an allegory in which virtue was personified, and addressing those whom she would make her votaries.”38 Biographer James Flexner reports that the entire audience, including the envious John Adams, was in tears.
Yet Washington did not regard the speech a success. While the Address eschewed policy rhetoric and made no place for demagoguery or the flourishes of high oratory, Washington worried that its emphasis on virtue and, more particularly, the pomp attendant to the ceremony might too easily and wrongly be imitated by future presidents aspiring to monarchy.39 Therefore, four years later, at the time of his second inauguration, Washington remained virtually silent, offering only two short paragraphs (this time to all “Fellow Citizens”), in which he promises to speak later if the occasion is proper to thank the citizenry for “the confidence which has been reposed in me” (perhaps alluding to a Farewell Address), and he pledges not to violate the oath of office.40
John Adams attempted to revive the form of the first inaugural and produced the type of speech Washington feared. Thurow perceptively describes it as an unintentional parody of Washington’s first Address that “led to a somewhat ludicrous defense of Adams’ own patriotism and to a grudging acquiescence in the Congressional acclaim of Washington’s greatness—all, incidently, in a sentence that must be the longest and most convoluted in the history of American political oratory.”41
Jefferson reconstituted the inaugural address into a form that was adhered to by all presidents until Lincoln. These speeches attempt to articulate the president’s understanding of republican principle. Many of them hardly allude at all to particular policy disputes, except as they can be deduced or extrapolated from the general interpretation of the Constitution. Jefferson, for example, tries to show “that the differences between the true party of Federalism and the true party of Republicanism is not a difference of principle and the principles of American government are shared by all true Republicans and Federalists.”42 Jefferson’s interpretations of principles do, in fact, support many of his party’s policies, but he attempts to mitigate party divisiveness by the form of his remarks.
Later presidents were more specific in their discussions of public policy. James Polk, for example, offered the most detailed list of policy objectives (prior to the Civil War), urging a lower tariff, no third Bank of the United States, and the annexation of Texas and Oregon.43 However, the discussion of these topics is prepared by and emerges from an enumeration “of the principles which will guide me in the administrative policy of the government [that] is not only in accordance with the examples set by all my predecessors, but is eminently befitting the occasion.” When Polk discusses the issue of tariffs, for example, he offers his thoughts in the context of his understanding of the meaning of the constitutional power “to lay and collect taxes, duties, and excises.”
After the Civil War, the form of address was reversed. Presidents tended to enumerate policy concerns first, and then proceed to justify those policies in terms of vaguely articulated republican principles. The issues most frequently mentioned were (1) civil service reform, and (2) sound and stable currency and the payment of debts in specie.44 Many of these presidents did devote special attention to proposed constitutional reforms, and these provided an avenue to serious discussion of constitutional principle. Benjamin Harrison criticized the two-term presidency proposal, while Hayes proposed a six-year term. Harrison also suggested that the Secretary of the Treasury be independent of the president, and McKinley was critical of the thirteen-month “lame duck” congressional sessions between election and seating. Every president in the nineteenth century, except Zachary Taylor, mentioned the Constitution, and most of these addresses were at least partly structured by reflection upon its meaning. All of this was to change in the twentieth century. Symptomatic of the larger changes in form would be the fact that only half of the twentieth-century inaugural addresses even mention the word Constitution (or any of its provisions), and none of the twentieth-century addresses contain analyses of the meaning of the Constitution.
Proclamations
The other major “official” forms of popular communication in the nineteenth century were proclamations and executive orders. There is no strict division of the executive’s “ordinance power” between executive orders and proclamations, but the general rule seems to have been (down to the present day) that proclamations pertain to matters of general or national concern, while executive orders are directed to parts (for example, individual exemptions from Civil Service rules, matters of administrative detail, etc.).45 Of course, as students of government regulation would be quick to point out, narrow rules of executive orders may have important policy consequences, but for present purposes the character of proclamations is more interesting for what it reveals about the nineteenth-century understanding of popular leadership.
The first proclamation declared a day of thanksgiving and was issued by President Washington at the behest of Congress. In September of 1789, a joint committee of Congress waited on the president and presented him with Congress’s resolution requesting him to recommend to the people a day of thanksgiving and prayer. The resolution did not specify the form that the president’s “recommendation” should take. Washington adopted the form used by state governments, which themselves resembled “the form used by His Britannic Majesty.”46 This form, with insignificant emendations, has been preserved to the present day (although the extent and purposes of the use of proclamations have changed). These documents begin, “By the President of the United States of America, A Proclamation.” This is followed by the preamble, which is a series of “whereas” statements (sometimes this “preamble” will be several pages long and ninety per cent of the text); then the body of the document begins (“Now therefore, I declare …”). Lastly, there is a formula of attestation, the signature of the president, and the countersignature of the secretary of state below the seal.47
The form of the proclamation virtually ensures that the central rhetorical appeal of any proclamation will be the authority of the president (or of the government as a whole) rather than factors peculiar to the president’s persuasive abilities. Put another way, the proclamation’s persuasive power derives more from the fact that the president proclaims, or commands, than it does from a case that he builds.
This rhetorical character is no more evident than in what is perhaps the most famous proclamation—Lincoln’s Emancipation Proclamation. Lincoln simply declares “that on the first day of January, A.D. 1863, all persons held as slaves within any State … shall be then, thenceforward and forever free.…”48 He does not justify his action in the proclamation. There is no case presented or brief upon the evils of slavery. (Richard Hofstadter once remarked that the Emancipation Proclamation “had all the moral grandeur of a bill of lading.”)49 Lincoln’s example represents the pure case of the proclamation as command, although probably the typical case as well, in terms of its form (not gravity of issue).
However, some proclamations do contain an argument proper—an attempt to persuade. Standing at the opposite extreme from the Emancipation Proclamation is Andrew Jackson’s proclamation nullifying an attempt by a state to assert the primacy of its law over the Union’s. Jackson offers a detailed examination of the constitutional principle within an appeal to “Fellow Citizens” to think through “the momentous case” he has reviewed. For all the direct argument to the people, however, it is striking that Jackson seems prevented by the requirements of the form from attempting the blatant appeal to passion for which his oratorical abilities were reputedly well suited. Wishing to address the people on an issue of great moment, he does not, in fact, go to them directly, but rather indirectly, through a form—the only form permitted him by the governing doctrine of the time. The written form, along with the tone set by the particular demands of the “whereas … I declare” format, may have helped to raise Jackson’s reflections to (or sustain them at) a level of deliberative speech.
The majority of proclamations in the nineteenth century did not address such serious issues. Most were hortatory and declaratory, like Washington’s Thanksgiving Proclamation. Nevertheless, when important issues were communicated to the people, the proclamation served as the vehicle. In our time, momentous issues are more likely to be presented orally and visually in a context that makes the dramatic performance as important as the tangible text. For that reason, the use and significance of proclamations has changed considerably, even though their form remains the same.
The movement away from the formalism embodied by proclamations toward less structured informal speech gains support from the most influential literature on the presidency today, or at least is reflected in that literature. Following Neustadt, most observers of the presidency hold that a president’s power to command depends upon his power to persuade.50 Without the power to persuade, so this reasoning goes, the formal authority promised by the Constitution will not become actual. Certainly there is good sense to the notion that commands are not, and never were, self-executing; they always require some background conditions that make authority possible. Reversing the emphasis of the current theory of leadership, the nineteenth-century presidents differ with Neustadt over the locus of those authority-making conditions. Instead of command depending upon persuasion, persuasion depends upon command. While command requires deference to authority, for nineteenth-century presidents that is not achieved primarily by establishing “bargaining advantages,” as it is for contemporary observers. Rather, deference to authority is encouraged by the public articulation of constitutional principle by the principal officers of the government and by the habitual attendance to form. Jackson’s arguments, for example, carry with them a weight that they could not have if he were not president, or if, while president, he did not act like a constitutional officer.
This understanding of leadership is captured in a very oblique way by the Court’s opinion in the sole case dealing with the status of presidential proclamations, Lapeyre v. United States.51 There, the issue was whether a proclamation has to be published in order to have legal effect. The proclamation in question was written on June 24, 1865, but not published in newspapers until three days later. The Court held that if the proclamation is written and sealed in the proper form, that is enough for it to take legal effect—it need not be heard (or read) for its power to be binding; it need only be executed properly by a president.
Of course, in practice, proclamations may occasionally need to be supplemented with public reasoning (that is, with persuasion rather than the implied threat of coercion), and this may be so even when there is a reservoir of deference to presidential authority at the time of promulgation. In the nineteenth century, the sole “official” avenue for such public persuasion led through Congress, not to the people directly.52
Messages to Congress
Most of the messages to Congress were “Special Messages,” written reports that generally confined themselves to a single issue. Often appended to a Special Message was a detailed technical report from an executive department. The Annual Message (now known as the State of the Union Address) and veto messages received the most scrutiny and were the most carefully crafted presidential remarks. As a group, messages to Congress were institutional devices suited to the demands of separation of powers and the president’s role as copartner in a deliberative process. To better understand the salient features of the nineteenth-century doctrine regarding popular leadership, consider the form and development of the Annual Message.
Washington’s first Inaugural Address served also as his first Annual Message, and it established a short-lived precedent that was to become the subject of party controversy. Following British practice, the president received formal replies to his address from both houses of Congress. (In the House, James Madison chaired the special committee assigned to write the reply.) The two replies addressed each point of Washington’s speech and thus constituted a kind of oath on the part of congressmen to do the virtuous deeds that Washington urged. The president received a committee of each branch of Congress at the White House and replied to each reply, reading from a written text.53 (No accounts establish whether Washington prepared his own remarks on the basis of an advance copy of the congressmen’s, or whether he simply anticipated theirs.) The practice continued for all oral addresses by the president to Congress through the John Adams administration.
Since “the custom was regarded as an English habit, tending to familiarize the public with monarchical ideas,” President Jefferson abandoned the practice. Jefferson’s main objection was to the oral format, and the peculiar way that the president’s physical presence might affect the deliberative process. “I have had principal regard,” he said, “to the convenience of the legislature, to the economy of their time, to their relief from the embarrassment of immediate answers on subjects not yet fully before them, and to the benefits thence resulting to the public affairs.” Henry Adams shrewdly observes: “The habit of writing to Congress was convenient especially to presidents who disliked public speaking.”54 Jefferson’s practice of sending all messages to Congress in writing remained the rule until Woodrow Wilson dramatically broke precedent with his appearances before Congress.55
However sound Jefferson’s argument against oral presentation, it is not clear why “replies” are not more consistent with the republican principle than messages without them. Replies formally constituted a deliberative relation between the branches and offered the potential for the exercise of considerable legislative power. For this reason, the abandonment of the practice was lamented in the early nineteenth century by prominent congressmen, men who were reputed for their forceful criticisms of executive power.
John Randolph in 1809 suggested:
The answer to an Address, although that answer might finally contain the most exceptionable passages, was in fact the greatest opportunity which the opposition to the measures of the Administration had of canvassing and sifting its measures.… This opportunity of discussion of the answer to an Address, however exceptionable the answer might be when it had received the last seasoning for the presidential palate, did afford the best opportunity to take a review of the measures of the Administration, to canvass them fully and fairly, without there being any question raised whether the gentleman was in order or not; and I believe the time spent in canvassing the answer to a speech was at least as well spent as a great deal that we have expended since we discontinued the practice.56
In the midst of one of the most serious interbranch disputes in American history—the dispute arising from Jackson’s “Protest” to the Senate—Daniel Webster reflected back upon the rhetoric of reply and contrasted its republican character favorably to Jackson’s attempt to appeal to the people through Congress. In Webster’s view, refraining from the rhetoric of reply gives much more support to monarchical designs than engaging in it.
Formerly, Sir, it was a practice for the President to meet both houses, at the opening of the session, and deliver a speech, as is still the usage of some of the State legislatures. To this speech there was an answer from each house, and those answers expressed, freely, the sentiments of the house upon all the merits and faults of the administration. The discussion of the topics contained in the speech, and the debate on the answers, usually drew out the whole force of parties, and lasted sometimes a week. President Washington’s conduct, in every year of his Administration, was thus freely and publicly canvassed. He did not complain of it; he did not doubt that both houses had a perfect right to comment, with the utmost latitude, consistent with decorum, upon all his measures. Answers, or amendments to answers, were not unfrequently proposed, very hostile to his own course of public policy, if not sometimes bordering on disrespect. And when they did express respect and regard, there were votes ready to be recorded against the expression of those sentiments. To all this President Washington took no exception; for he well-knew that these, and similar proceedings, belonged to the power of popular bodies. But if the President were now to meet with us with a speech, and should inform us of measures, adopted by himself in the recess, which should appear to us the most plain, palpable, and dangerous violations of the Constitution, we must, nevertheless, either keep respectful silence, or fill our answer merely with courtly phrases of approbation.57
Webster’s remarks were made in a more general context of criticism of Jackson’s attempt to appeal to the people through a communication to Congress, and he raises objections to popular appeals similar to those delineated in Federalist 49. The Senate, in fact, refused to officially “receive” the communication after reading it to the assembled body, for the reason that it was a popular appeal in the guise of an official communication. This fact indicates how well accepted the doctrine was at that time, but it conceals another point: Jackson was “forced” by the same doctrine to appeal to Congress in the first instance. The effect of this was to strip the “Protest” of any manifestly improper language or appeals to passion that could be easy marks for congressional censure. Indeed, in the lengthy debate that ensued (over a document that the Senate had already voted not to officially “receive” or publish in their Journal), several vigorous opponents of Jackson remarked that they could find no fault with his language, but instead with his conclusions and his motives.58 Finally, this dispute, which began with a Senate resolution declaring that body’s opinion that Jackson’s bank policy was unconstitutional, evolved into a deep and serious discussion of the connection of the structure of the bureaucracy to the problem of executive accountability.59 It would be hard to find a better example of a formal constraint fostering deliberation.
One measure of the distance between nineteenth- and twentieth-century politics in America is the careful attendance to forms and formalities in the former and the instinctive contempt for them today. The great French political scientist Alexis de Tocqueville detected the tendency of democracies to disregard formality while being the regimes most in need of them.
Men living in democratic centuries do not readily understand the importance of formalities and have an instinctive contempt for them.… Formalities arouse their distain and often their hatred.…
[T]heir chief merit is to serve as a barrier between the strong and the weak, the government and the governed, and to hold back the one while the other has time to take its bearings. Formalities become more important in proportion as the sovereign is more active and powerful and private individuals become more indolent and feeble. Thus democracies by their nature need formalities more than other peoples and by nature have less respect for them. This deserves most serious attention.60
Nineteenth-century presidents and their publics appreciated this insight more than their counterparts do today. As I indicate in the next chapter, their appreciation of the political importance of formality extended to “unofficial” or “informal” speech and behavior by presidents. The political story behind the formalities is not, as one might imagine today, the shrewd ways presidents got around them, but rather the power, political meaning, and democratic utility of formality itself.
1 Abraham Lincoln, “Speech at Pittsburgh, Pa., February 15, 1861,” in The Collected Works of Abraham Lincoln, ed. Roy P. Basler, 9 vols. (New Brunswick, N.J.: Rutgers University Press, 1953–55), 4:210; Rutherford B. Hayes, Diary and Letters of Rutherford B. Hayes, ed. Charles Richard Williams, 6 vols. (Columbus: Ohio State Archeological and Historical Society, 1924), 3:447; James Thomas Flexner, George Washington, 4 vols. (Boston: Little, Brown & Co., 1969), 3: ch. 15; Douglas Southall Freeman, George Washington, 6 vols. (New York: Charles Scribner’s Sons, 1954), 6:188.
2 While I rely upon the writings of Federalists, it is important to point out that many leading critics of the Constitution during the ratification campaign argued against the new government because of its national, strong executive properties. In their powerfully argued reservations to the proposed polity, which spoke of the virtues of legislative power, of decentralization, and of small government, the Anti-Federalists confirm the proposition that the Constitution can best be interpreted as facilitating the nationalization of American politics and the increase of executive power. See, for example, the essays of “Brutus,” in The Complete Anti-Federalist, ed. Herbert J. Storing, 7 vols. (Chicago: University of Chicago Press, 1981), 2.9; and Herbert Storing’s important study, What the Anti-Federalists Were For (Chicago: University of Chicago Press, 1981). The case for “big government” from the Federalist perspective is made by Storing as well: “The Problem of Big Government,” in A Nation of States, ed. Robert Goldwin (New York: Rand McNally, 1963). For a contrary view, see Theodore Lowi, The Personal President (Ithaca, N.Y.: Cornell University Press, 1985), ch. 2.
3 The Federalist literally begins and ends with this issue. In the first number, “Publius” warns “that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying obsequious court to the people, commencing demagogues and ending tyrants.” And in the last essay, “These judicious reflections contain a lesson of moderation to all the sincere lovers of the Union, and ought to put them upon their guard against hazarding anarchy, civil war, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from TIME and EXPERIENCE.”
4 James W. Ceaser, Presidential Selection: Theory and Development Princeton, N.J.: Princeton University Press, 1979), 12, 54–60, 166–67, 318–27. See also V. O. Key, The Responsible Electorate (New York: Random House, 1966), ch. 2; Stanley Kelley Jr., Political Campaigning: Problems in Creating an Informed Electorate (Washington, D.C.: Brookings Institution, 1960), 93; Pendleton E. Herring, Presidential Leadership (New York: Rhinehart, 1940), 70.
5 Federalist, no. 71, p. 432.
6 James Fenimore Cooper, The American Democrat (Indianapolis, Ind.: Liberty Classics, 1931 reprint; orig. publ. 1838), 101–102, 112–13, 120–28.
7 Federalist, no. 10, p. 82; Ceaser, Presidential Selection, 324.
8 Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton, N.J.: Princeton University Press, 1948), ch. 3. Behind their indirect approach may have been the thought that excessive ambition needs no institutional support and the faith that in extraordinary circumstances, popular rhetoric, even forceful demagoguery, would gain legitimacy through the pressure of necessity.
9 Harvey Flaumenhaft, “Hamilton’s Administrative Republic and the American Presidency,” in The Presidency in the Constitutional Order, ed. Joseph M. Bessette and Jeffrey Tulis (Baton Rouge and London: Louisiana State University Press, 1981), 65–114. Of course, the Civil War, and turn-of-the-century progressive politics discussed in Chapter Three below, show that Hamilton’s “administrative republic” has been punctuated with the sorts of crises and politics he sought to avoid.
10 In speaking of the founders as “liberals,” I mean to include the Anti-Federalists along with the Federalists. As the Anti-Federalist “Agrippa” stated, “Both parties … found[ed] their arguments on the idea that these [individual] rights ought to be held sacred.” Essays on the Constitution of the United States, ed. Paul Leicester Ford (Brooklyn, N. Y.: Historical Printing Club, 1892), 61–62. A probing study that makes the connection of liberalism and leadership its theme is Robert Eden, Political Leadership and Nihilism (Gainesville: University of Florida Press, 1984).
11 Carnes Lord, “Aristotle’s Poetics and Rhetoric” (Ph.D. dissertation, Cornell University, 1970). For a contrary thesis on Aristotle’s intention, see Larry Arnhart, “Aristotle on Political Reasoning: A Commentary on the Rhetoric (Ph.D. dissertation, University of Chicago, 1977).
12 Hume did discuss certain problems of modern style in “Of Eloquence,” a short discourse in his Essays, but he did not write a treatise or substantial theory. A possible exception is Hobbes, from whom we have two treatises on rhetoric and one on sophistry. Most of this material is an abridgment of Aristotle’s Rhetoric, however. Like Marx, who was to translate Aristotle’s Rhetoric later, Hobbes appears uninterested in instructing rhetoricians, but rather intrigued by the political understanding of the work, and by the analysis of the passions in particular. Thomas Hobbes, “The Whole Art of Rhetoric,” “The Art of Rhetoric,” and “The Art of Sophistry,” in The English Works of Thomas Hobbes, ed. Sir William Molesworth, 10 vols. (London, 1839), 6:423 ff, 511 ff. Karl Marx, “Letter to His Father: On a Turning Point in His Life (1837),” in Writings of Young Marx on Philosophy and Society, ed. Lloyd D. Easton and Kurt H. Guddet (New York: Doubleday & Co., 1967), 47.
13 Federalist, no. 10, p. 77; no. 43, p. 276; no. 51, pp. 323–25; no. 63, p. 384; no. 73, p. 443. Kenneth Arrow, Social Choice and Individual Values (New York: John Wiley & Sons, 1963); Benjamin I. Page, Choices and Echoes in Presidential Elections (Chicago: University of Chicago Press, 1978), ch. 2.
14 Federalist, no. 39, p. 241; see also Martin Diamond, “Democracy and the Federalist: A Reconsideration of the Framers’ Intent,” American Political Science Review 53 (March 1959): 52–68.
15 Federalist, no. 39, p. 241; no. 68, pp. 412–23. See also James Ceaser, “Presidential Selection,” in The Presidency in the Constitutional Order, ed. Bessette and Tulis, 234–82. Ironically, the founders were proudest of this institutional creation; the Electoral College was their most original contrivance. Moreover, it escaped the censure of and even won a good deal of praise from anti-federalist opponents of the Constitution. Because electors were chosen by state legislatures for the sole purpose of selecting a president, the process was thought more democratic than potential alternatives, such as selection by Congress.
16 Federalist, no. 71, p. 435. The empirical judgment that four years would serve the purpose of insulating the president is not as important for this discussion as the principle reflected in that choice, a principle that has fueled recent calls for a six-year term.
17 Federalist, no. 9; no. 10.
18 Gordon Wood, The Creation of the American Republic 1776–1787 (New York: W. W. Norton, 1969); Michael Parenti, “The Constitution As an Elitist Document,” in How Democratic Is the Constitution? ed. Robert Goldwin (Washington, D.C.: American Enterprise Institute, 1980), 39–58; Charles Lindblom, Politics and Markets (New York: Basic Books, 1979), Conclusion.
19 Federalist, no. 49, pp. 313–17.
20 Ibid., 317.
21 See Federalist, no. 57; Joseph M. Bessette, “Deliberative Democracy,” in How Democratic Is the Constitution? ed. Robert Goldwin, 102–116; Michael Malbin, “What Did the Founders Want Congress To Be—and Who Cares?” paper presented to the American Political Science Association, Denver, Colo., September 2, 1982. On the status of legislative deliberation today, see Joseph M. Bessette, Deliberation in Congress (Ph.D. dissertation, University of Chicago, 1977); William Muir, Legislature (Chicago: University of Chicago Press, 1982); and Arthur Maas, Congress and the Common Good (New York: Basic Books, 1983).
22 Wood, Creation of the American Republic, ch. 5; Ceaser, Presidential Selection, 48.
23 Federalist, no. 62 and no. 63, pp. 376–90; “Agrippa,” in The Antifederalists, ed. Cecilia M. Kenyon (New York: Bobbs Merrill Co., 1966), 134–60.
24 Federalist, no. 55, p. 342; Max Farrand, ed., The Records of the Federal Convention of 1787, 4 vols. (New Haven, Conn.: Yale University Press, 1966), 1:53.
25 Federalist, no. 71, p. 432; Madison expresses almost the identical position in no. 63, where he states, “As the cool and deliberate sense of the community, ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be most ready to lament and condemn. In these critical moments how salutary will be … [a Senate].”
26 John Marshall, Life of George Washington, quoted in Charles Thatch, The Creation of the Presidency, reprint (Baltimore: Johns Hopkins University Press, 1969), 51; Farrand, Records, 2:35; 2:22, 32.
27 Federalist, no. 68, p. 413; no. 71, p. 433; no. 73, p. 442; see also Storing, “Introduction,” in Thatch, Creation of the Presidency, pp. vi–viii; Thomas Jefferson, Inaugural Address, March 4, 1801.
28 Richard Neustadt, Presidential Power, 3rd ed. (New York: John Wiley & Sons, 1980; orig. publ. 1960), 26, 28–30, 170, 176, 204. See also James Sterling Young, The Washington Community (New York: Columbia University Press, 1964), 53. This insight has been the basis of numerous critiques of the American “pluralist” system, which allegedly frustrates leadership as it forces politicians through a complicated political obstacle course.
29 Farrand, Records, 1:66–67; Federalist, no. 47, pp. 360–80; see especially Storing, What the Anti-Federalists Were For, 60–61. See also U.S. Congress, Annals, 1:384–412, 476–608; Louis Fisher, Constitutional Conflict between Congress and President (Princeton, N.J.: Princeton University Press, 1985). Cf. M.J.C. Vile, Constitutionalism and the Separation of Powers (London: Oxford University Press, 1967), ch. 1.
30 In many discussions of separation of powers today, the meaning of “effectiveness” is restricted to only one of these objectives—the implementation of policy that reflects popular will. See, for example, Donald Robinson, ed., Reforming American Government (Boulder, Colo.: Westview Press, 1985).
31 See, for example, Lloyd Cutler, “To Form a Government,” Foreign Affairs (Fall 1980): 126–43.
32 Gary J. Schmitt, “Executive Privilege: Presidential Power to Withhold Information from Congress,” in The Presidency in the Constitutional Order, ed. Bessette and Tulis, 154–94.
33 Richard Pious, The American Presidency (New York: Basic Books, 1979), 372–415; Gary J. Schmitt, “Separation of Powers: Introduction to the Study of Executive Agreements,” American Journal of Jurisprudence, vol. 27 (1982): 114–38; Louis Fisher, Presidential Spending Power (Princeton, N.J.: Princeton University Press, 1975), 147–201.
34 James Hart, The American Presidency in Action: 1789 (New York: Macmillan Co., 1948), ch. 2.
35 James T. Flexner, George Washington and the New Nation, 1783–1793, 6 vols. (Boston: Little, Brown & Co., 1969), 6:183; James Southall Freeman, George Washington, 6 vols. (New York: Charles Scribner’s Sons, 1954), 6:188.
36 Flexner, George Washington, 187.
37 Glen E. Thurow, “Voice of the People: Speechmaking and the Modern Presidency,” address delivered at Wake Forest University, October 1, 1979, p. 9.
38 Quoted in Flexner, George Washington, 188.
39 Thurow, “Voice of the People,” 10.
40 Inaugural Addresses of the Presidents of the United States (Washington, D.C.: Government Printing Office, 1952), 4.
41 Thurow, “Voice of the People,” 12.
42 Ibid., 14. See also Inaugural Addresses, 12.
43 For an enumeration of the major topics discussed in nineteenth-century addresses, see Edward W. Chester, “Beyond the Rhetoric: A New Look at Presidential Inaugural Addresses,” Presidential Studies Quarterly 11, no. 1 (Winter 1981): 571–81. See also the introduction to Arthur Schlesinger, Jr., The Chief Executive: Inaugural Addresses of the Presidents of the United States (New York: Crown Publishers, 1965).
44 Chester, “Beyond the Rhetoric,” 575.
45 James Hart, The Ordinance-Making Power of the President of the United States (Baltimore: Johns Hopkins University Press, 1925), 315–23.
46 Hart, Presidency in Action, pp. 24–28; Annals, 1:949–50.
47 Hart, Presidency in Action, p. 27. Hart details some of the subtle but important changes from British practice, including the replacement of the royal “we” with “I” in the declaratory sentence.
48 James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, 1789–1897, 10 vols. (Washington, D.C.: U.S. Government Printing Office, 1896–1899), 8:3358.
49 Richard Hofstadter, The American Political Tradition (New York: Knopf, 1948), 132.
50 See the discussion of Neustadt in Harvey C. Mansfield, Jr., “The Ambivalence of Executive Power,” in The Presidency in the Constitutional Order, ed. Bessette and Tulis, ch. 9; see also Peter Sperlich, “Bargaining and Overload: An Essay on Presidential Power,” in The Presidency, ed. Aaron Wildavsky (Boston: Little, Brown & Co., 1969), 168–92.
51 17 Wall. (U.S.) 191. See also Harvey C. Mansfield, Jr. “The Ambivalence of Executive Power,” 320–21.
52 A statistical overview of the various types of official rhetoric, displaying the marked differences between the nineteenth and twentieth century, is presented in Tables 5.1 to 5.5 in Chapter Five.
53 Annals, 1:31–38, 241–42; Hart, Presidency in Action, 30–32.
54 Henry Adams, History of the United States During the Administration of Thomas Jefferson, 5 vols. (New York: Scribner’s, 1889), 1:247–48. See also Noble E. Cunningham, The Process of Government under Jefferson (Princeton, N.J.: Princeton University Press, 1978), ch. 5.
55 Wilson did not revive the practice of reply.
56 Quoted in Adams, History, 248.
57 Daniel Webster, “The Presidential Protest,” speech delivered in the Senate on May 7, 1834 (in Daniel Webster, The Works of Daniel Webster, 6th ed., 4 vols. [Boston: C. C. Little and J. Brown, 1853], 4:374).
58 Annals, 10:1374.
59 For contemporary use of the theories presented in Jackson and Webster’s speeches, see Herbert J. Storing, “American Statesmanship: Old and New,” in Bureaucrats, Policy Analysts, Statesmen: Who Leads? ed. Robert Goldwin (Washington, D.C.: American Enterprise Institute, 1980).
60 Alexis de Tocqueville, Democracy in America, ed. J. P. Mayer (New York: Doubleday, 1969), 698–99. For a commentary on this passage and reflection upon the status of forms today, see Harvey C. Mansfield, Jr., “The Forms and Formalities of Liberty,” The Public Interest 70 (Winter 1983): 121–31.