“The executive Power shall be vested in a President of the United States of America . . . . he shall take care that the laws be faithfully executed . . . .”
—U.S. Constitution, Article II, Section 1, Paragraph 1 and Section 3
Astonishing as it may seem today, America’s Founding Fathers doubted whether our new republic should have a chief executive officer at all. It was only with great difficulty and long debate that they settled on creating the office of the president. In fact, in the nation’s first constitution, the Articles of Confederation, under which the nation was governed from 1781 to 1788, there was no chief executive. Under the Articles all matters, including national defense, foreign relations, and government spending (such as it was), were to be decided by a supermajority of nine votes in a Congress of all thirteen states. Each state had one vote. If Congress was out of session—as it was most of the time—an executive committee of nine states could convene to exercise the powers of the national government, but only by a unanimous vote of all.
As the new nation made its way through the first few years of peaceful independence after the final victory over the British in Yorktown in 1781, almost everyone came to agree that the national government was too feeble and needed to be reformed. The new nation nearly failed in the 1780s under the Articles of Confederation. The economy plunged into a depression, and state legislatures were illustrating exactly the kind of “tyranny of the majority” that the Founders feared even more than a strong executive. In fact, the Founders thought many of the runaway state legislatures were behaving as lawlessly and arbitrarily as King George III had done. Thomas Jefferson observed that “173 despots would surely be as oppressive as one.” And Elbridge Gerry wrote, “The evils we experience arise from an excess of democracy.” Forrest McDonald explains the situation in his Constitutional History of the United States:
If Congress had inadequate power, the states had an excess—and sorely abused it. During the war the unbridled state legislatures recklessly suppressed the legal rights of hordes of people suspected, or accused, of being loyal to Britain; they passed bills of attainder, declaring long lists of people guilty of treason without trial; they confiscated private property wantonly. Nor did lawless government end with the coming of peace. The legislatures overturned private contracts, reneged on public debts, openly violated treaty obligations, enacted fraudulent systems of public finance, and censured courts when they dared interfere to protect private rights. On top of that, they levied taxes twenty to a hundred times as high as in the colonial period. On the whole, Americans were less secure in their lives, liberty, and property than they had been under royal authority.
It was for these reasons that the Philadelphia Convention of 1787 was convened. That famous convention—an “assembly of demigods” as it has often been called—had a number of serious problems to work through to remedy the weaknesses of the Articles of Confederation, but perhaps none was more difficult than the question of how to design the executive office. It was necessary to create a presidency as a check on runaway legislators, but it was equally important to make sure that the president himself did not become a tyrant. Keep in mind that the chief object of criticism in the Declaration of Independence was King George III. All the political history that the Founders had studied reinforced the lesson that tyranny was a constant threat to liberty, even in a well-constructed republic. Many among the Founders did not simply doubt whether a chief executive was necessary, but feared that it might be dangerous to have one.
The Founders’ belief that the powers of the presidency must be limited is best understood in light of their debates about how the office should be designed: whether the president should be a single wholly independent executive or should be a plural council of several individuals, and whether he should be selected from and answerable to Congress directly or chosen by the people. The Philadelphia Convention decided that the office of the president needed to be independent of the legislative branch.
In the 1780s, some state governors were chosen by state legislatures and answerable to them in much the same fashion as European prime ministers are answerable to parliaments. But the governors who were creatures of state legislatures were considered weak figures, and most states abandoned this method of selecting their chief executives early on.
Alexander Hamilton thought the president should serve for life, but a president-for-life looked to the Founders too much like an elected king, and the idea was swiftly rejected. The Framers debated proposals for a single six-year term, but settled on four years. There was vigorous debate about whether the president should be eligible for reelection, or limited to a single term. Skeptics of executive power feared that a president would trade on personal popularity to be re-elected indefinitely, becoming essentially an elected monarch. (Here they anticipated Franklin Roosevelt’s presidency.) Hamilton’s argument that eligibility for re-election would be an instrument of accountability and an inducement to better presidential performance carried the day.
The Electoral College has become an extremely unpopular feature of our Constitution in recent decades, especially after the 2000 election, when Democrat Al Gore won the largest number of popular votes (though still less than 50 percent), but George W. Bush won the presidency because he won more electoral votes. The modern liberal complains that the Electoral College method of choosing the president is anti-democratic. The Founders would have answered: Precisely.
Enlightened Democracy: The Case for the Electoral College by Tara Ross (World Ahead, 2004).
The logic of the Electoral College needs to be understood within the broader logic of the Founders’ main concern with avoiding the tyranny of the majority—the historic downfall of most democracies. While the president was conceived as a counterweight to the majoritarian tendencies of Congress, the Founders also worried that the president himself could be the focus of populist majoritarianism if he were a directly and popularly elected figure. The Founders believed that presidents who were concerned with popularity—as all modern presidents are—would be more prone to demagoguery. There was little debate at the Philadelphia Convention on this question: the Founders most emphatically did not want the president chosen by direct popular election.
The Electoral College system, in which each state gets one vote for each representative in the House and one vote for each of its senators, should be seen as one more of the many subtle checks to tyranny of the majority in the Constitution—like the separation of powers and the indirect election of senators. (Remember that at the time of the Founding and up until the early twentieth century, the Senate was chosen by state legislatures rather than by popular election. It is no accident that the move to direct election of U.S. senators coincided with the transformation of the presidency during the Progressive Era.)
Just as it was thought—correctly, for the most part—that state legislatures would choose eminent men for the Senate, the Founders believed that an electoral college would prove a “filtering” mechanism by which eminent men of sound disposition and broad appeal would be chosen for president.
Modern critics of the Electoral College fail to understand that the Founders wanted to create a certain type of democratic republic, one that did not run by simple majority rule, but rather one whose institutions would create a certain type of majority—a deliberative majority—a majority less prone to the unsound populist passions of the moment, and to self-interest. In simple language, the Founders wanted to generate majorities that think. This is one reason for the many constitutional limits on government power, the deliberate procedural and institutional roadblocks to hasty lawmaking, our independent judiciary, and American federalism.
The Electoral College is entirely consistent with the Founders’ aim of creating what might be called, in contrast to a simple majority, a constitutional majority. The electoral college assists in generating a deliberative majority by compelling candidates to get votes distributed among all the states—large and small; north, south, east, and west; industrial and agricultural; urban and rural—and not just in big cities or a handful of populous states. A presidential candidate has to keep the diverse interests of different states and populations in mind to win a truly national majority. Candidates with only regional appeal, such as Strom Thurmond in 1948 or George Wallace in 1968, cannot succeed in winning the constitutional majority required by the Electoral College.
The controversial 2000 election actually shows the logic of the Electoral College playing out as the Founders intended. While Al Gore won about 500,000 more popular votes than George W. Bush, Bush won majorities in thirty states, while Gore only won majorities in twenty. In fact, the entire margin of Gore’s popular majority came from just a single large state—California—meaning that he actually received fewer votes than Bush in the other forty-nine states. Bush’s votes were more evenly distributed throughout the nation than Gore’s—which is exactly the logic of a constitutional majority, as opposed to a mere popular majority. In other words, Bush was more widely acceptable to the nation than Gore was. The 2000 election showed the Electoral College system at its best, ensuring that the interests of small states could make a difference—something the delegates from small states worried about in 1787.
Both Richard Nixon in 1968 and Bill Clinton in 1992 received only about 43 percent of the popular vote in a three-way election, but both had large majorities in the Electoral College—bolstering the legitimacy of election results, and therefore the stability of the country.
Al Gore lost the traditionally Democratic state of West Virginia in part because of his well-known hostility to the coal industry, one of the state’s major economic sectors. Had Gore won West Virginia as Democratic presidential candidates typically have, he would have won the Electoral College, and the fracas in Florida would not have mattered. (Gore also lost his home state of Tennessee, in part because of his hostility to coal and also because of his ambivalence about gun control.)
The Constitution did not specify how the individual states were to select their electors for the Electoral College, but most adopted some scheme of popular election, and the winner-take-all format that we know today. This method of choosing electors has the advantage of transforming a small majority or even a mere plurality in the popular vote into a large constitutional majority in the Electoral College vote.
Political parties, which developed rapidly in the early years of the American republic, came to perform some of the same “filtering” function as the Electoral College, especially in the long-time practice of party bosses meeting and compromising on what candidate a party should put forward for the presidency. Although the Electoral College has survived, the rise of primary elections and the decline of parties has moved our presidential selection closer to the kind of populist demagogic system the Founders feared.
Today we take for granted the cliché that the president of the United States is “the most powerful man in the world.” But consider that for the Founders the term “president” had a much more modest and restrained meaning. “President” derives from “preside”—as in an officer who presides over a meeting the way a chairman sits at the head of a committee. The Latin root from which it derives, praesidere, means “to sit in front or at the head of.” Consider George Washington’s practice as the president of the Constitutional Convention in Philadelphia in 1787. He barely spoke on the substance of the issues, in part because he thought it would be improper to do so.
In contrast to Article I of the Constitution, which sets out the specific “enumerated powers” of Congress, Article II, establishing the presidency, is shorter and much less specific about the powers of the presidency. Many scholars have noted an ambiguity between the language of Article I, which speaks of the powers “herein granted” to Congress, and Article II, which speaks of “the executive power” without defining “executive power” in any detail. It is clear that the president has some specific responsibilities and unitary powers, such as conducting foreign relations and defending the nation as “commander in chief.” And the president has the power to veto congressional legislation. But many of his powers are deliberately mixed or tempered—such as his executive branch and judicial appointments and treaty-making powers, all of which require the “advice and consent” of the Senate. And even the “commander in chief” power is mitigated by the fact that Congress, not the president, is given the power to declare war, as well as to determine the size and nature of our armed forces. The structure of the president’s powers makes clear that the Founders intended the president to stand guard over a whole system that is designed to keep him in check at the same time.
It is significant that the Founders chose the term “president” for the new nation’s chief executive officer rather than the more familiar term “governor.” In fact, the Philadelphia Convention considered calling the new chief executive “governor of the united People and States of America,” but the term was rejected precisely because the Framers disliked the memory of strong colonial governors. “President” was little used as a political term prior to the Constitution’s adoption of the title.
There is nothing in Article II that specifies how a president should behave in office, or even what his most important duties actually are. America was fortunate to have as its first president a man of extraordinary character who set a precedent for presidential conduct that most of his successors have followed. In fact, the Philadelphia Convention might not have finally approved the office of the president if it had not been known by everyone that the trusted George Washington would be its first occupant. Washington is by far the most important man ever to hold the office.
The reason Washington had the near-universal respect of leading Americans at the time had more to do with his authentic republican character than his generalship in the Revolutionary War. And a single moment in Washington’s pre-presidential career tells why. In 1783, a group of army officers, angered by the lack of pay and disgusted with the feebleness of the national government under the Articles of Confederation, met in Newburgh, New York, to contemplate what amounted to a military coup. Forrest McDonald’s narrative of the climactic meeting, which Washington decided to attend, cannot be improved upon:
To the surprise of everyone, [Washington] attended the meeting in person, and by virtue of rank he presided over it. By the score, officers came in, tempers blazing, only to sit in embarrassed silence as Washington rose. He had written a short speech, and as he took it from his coat pocket he reached with his other hand and extracted a pair of eyeglasses, which only a few intimates knew he needed. “Gentlemen,” he began, “you will permit me to put on my spectacles, for I have not only grown gray, but almost blind, in the service of my country. . . . This dread alternative, of either deserting our Country in the extremist hour of her distress, or turning our arms against it . . . has something so shocking in it, that humanity revolts at the idea. . . . I spurn it,” he added, as must every man “who regards that liberty, and reveres that justice for which we contend.” The officers wept tears of shame, and the mutiny dissolved. As Thomas Jefferson said later, “The moderation and virtue of one man probably prevented this Revolution from being closed by a subversion of liberty it was intended to establish.”
What a rare moment this is in the long history of politics. Washington could easily have led a military coup and installed himself as king or ruler of the new American nation. Seldom is it that a person of Washington’s presence and force of character passes up the opportunity to take power for himself, let alone gives it up willingly and easily.
Founding Father: Rediscovering George Washington by Richard Brookhiser (Free Press, 1997).
Shortly after the Newburgh meeting, the final peace treaty with Britain was signed, and Washington resigned as head of the Continental army, returning to his farm at Mt. Vernon and saying he would never again enter public life, like Cincinnatus returning to the plow. As McDonald puts it, “This was an awesome display of disinterested love of country.”
Americans in 1787 knew they could count on the “moderation and virtue” of this one man enough to entrust him with the brand new and undefined office of the presidency. And Washington knew his decisions and actions would be crucial to whether the office—and the Constitution—would succeed for the ages. “Few who are not philosophical spectators,” he wrote, “can realize the difficult and delicate part which a man in my situation has to act. . . . In our progress toward political happiness my station is new; and, if I may use the expression, I walk on untrodden ground. There is scarcely any part of my conduct which may not hereafter be drawn into precedent.”
Right away Washington’s republican modesty showed itself in setting important early precedents. One of the first was the seemingly simple matter of how the president should be formally addressed. Vice President John Adams thought the dignity of the office required that the president be treated with an august salutation; he wanted “His High Highness the President of the United States and protector of their Liberties.” But this sounded to many people too much like a European-style “title of nobility” such as is expressly forbidden in the Constitution, and Washington preferred to be addressed simply as “the President of the United States.”
Article II mentions that the president may “recommend to [Congress] such Measures he shall judge necessary and expedient,” but Washington did not send a steady stream of legislative proposals to Congress, as is the common practice of modern presidents, instead leaving many important matters of policy up to Congress. Washington used the veto power only twice, believing, along with most early presidents, that he should block only laws he believed were unconstitutional, rather than any legislation he thought unwise. He declined to veto a tariff bill, for example, that did not contain features he desired, nor did he veto a congressional pay act that he disagreed with. He did cast one veto on national security grounds, of a bill that would have reduced the size of the frontier army, but his only other veto was of a bill apportioning congressional seats in a way that he thought violated a clause in Article I.
Perhaps the most important precedent Washington set was his decision to relinquish the office after two terms, even though he could have remained president as long as he wished to. All of his successors followed his example until Franklin Roosevelt, whose election to a fourth term led Congress to pass the Twenty-second Amendment to the Constitution limiting presidents to two terms.
Washington was completely unique. Unlike any other president, he filled the role of a head of state “above party politics or partisanship.” Washington is the only president we’ve ever had who did not belong to a political party, and his famously quarrelsome Cabinet reflected both sides of the American political divide at that time. It was always inevitable that American politics—and therefore presidential contests—would divide into parties. But many of the precedents for presidential conduct in office that Washington set are still with us.
Is there any doubt that in the absence of the Twenty-second Amendment, Bill Clinton would have run for re-election as many times as he possibly could?
Many of the arguments we have today about presidential power, such as on executive privilege, the commitment of military forces to hostilities, and other national security matters, arose in Washington’s presidency in almost exactly the same terms as today. The checks and balances in the Constitution are hard to work out rigidly or precisely, and the virtue and character of leaders are important—a fact we shall return to in some of the portraits of particular modern presidents in this book.
Partly inspired by Washington’s example, and partly because of Americans’ deep attachment to the principles behind the Constitution, presidents for our first century followed Washington’s example in considering themselves responsible for measuring legislation and policy by the standard of the Constitution. During Washington’s presidency there was a ferocious argument about whether the Constitution authorized the federal government to charter a national bank. Jefferson and James Madison thought a bank was unconstitutional, but Alexander Hamilton persuaded Washington that it was permitted by the Constitution.
Both sides in the bank dispute had strong arguments, and it is not self-evident which side was right. The point is, all the political leaders at that time thought it necessary to argue for or against any proposed government action on constitutional grounds—a practice that fell into desuetude in the twentieth century. (In the twenty-first, though, Obamacare’s individual mandate to purchase health insurance has revived constitutional debate in a way probably never intended or desired by President Obama.)
Even if the “General Welfare” and “necessary and proper” clauses of Article I of the Constitution allow for a wide latitude of interpretation, resorting to the Constitution for legislative and executive authority had a salutary effect on our political deliberations, and limited the growth of government. The culture of budgetary “earmarks” that has become so pervasive in Congress today would have been unthinkable in the nineteenth century, when many presidents simply vetoed special interest spending bills that Congress passed. As James Madison had argued in Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined . . . to be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.”
So when Congress in 1794 appropriated $15,000 for relief of French refugees who had fled from insurrection in San Domingo to the U.S., Madison, still in the House at that time, objected: “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents. If once they broke the line laid down before them for the direction of their conduct, it was impossible to say to what lengths they might go.” It was not surprising, then, that when he was president a few years later, Madison vetoed spending bills that he thought were unconstitutional, such as John C. Calhoun’s “internal improvement” bill to have the federal government build interstate roads. Madison took a strict view of congressional power, arguing that there was no clause in the Constitution that gave Congress power over internal improvements:
I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States. . . . The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
In the 1840s and 1850s it became popular in Congress to give away land instead of money to favored special interests. Several presidents resisted this congressional profligacy on constitutional grounds. In 1854, for example, Congress passed an act granting 10 million acres of public land to be used on behalf of the mentally ill. President Franklin Pierce vetoed the act, noting that while he sympathized with the cause of aiding the mentally ill,
I can not find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States. To do so would, in my judgment, be contrary to the letter and spirit of the Constitution and subversive of the whole theory upon which the Union of these States is founded. And if it were admissible to contemplate the exercise of this power for any object whatever, I can not avoid the belief that it would in the end be prejudicial rather than beneficial in the noble offices of charity to have the charge of them transferred from the States to the Federal Government.
In 1859, Congress passed a land grant act, which would have given 6 million acres of federal land to the states to establish agricultural colleges. President James Buchanan’s long veto message discussed at length how the bill exceeded constitutional limits:
The Constitution is a grant to Congress of a few enumerated but most important powers, relating chiefly to war, peace, foreign and domestic commerce, negotiation, and other subjects which can be best or alone exercised beneficially by the common Government. All other powers are reserved to the States and to the people. For the efficient and harmonious working of both, it is necessary that their several spheres of action should be kept distinct from each other. This alone can prevent conflict and mutual injury. Should the time ever arrive when the State governments shall look to the Federal Treasury for the means of supporting themselves and maintaining their systems of education and internal policy, the character of both Governments will be greatly deteriorated. The representatives of the States and of the people, feeling a more immediate interest in obtaining money to lighten the burdens of their constituents than for the promotion of the more distant objects intrusted to the Federal Government, will naturally incline to obtain means from the Federal Government for State purposes. . . . This would confer on Congress a vast and irresponsible authority.
Grover Cleveland vetoed three hundred bills in all, many of them private pension bills that made appropriations of tax money to single individuals, usually Civil War veterans Congress wished to reward. Cleveland called all such bills “raids on the public treasury.”
This was not the only instance in which Buchanan defended the Constitution from congressional attempts to slip its bonds and give away money or land to favored interests. In 1860, Congress passed a similar land grant bill, this time the first Homestead Act that proposed to give away or sell western lands for settlers. This Buchanan vetoed as well, referring to the logic and argument of his previous veto:
This state of the facts raises the question whether Congress, under the Constitution, has the power to give away the public lands either to States or individuals. . . .
The advocates of this bill attempt to sustain their position upon the language of the second clause of the third section of the fourth article of the Constitution, which declares that “the Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” They contend that by a fair interpretation of the words “dispose of” in this clause Congress possesses the power to make this gift of public lands to the States for purposes of education.
It would require clear and strong evidence to induce the belief that the framers of the Constitution, after having limited the powers of Congress to certain precise and specific objects, intended by employing the words “dispose of” to give that body unlimited power over the vast public domain. It would be a strange anomaly indeed to have created two funds—the one by taxation, confined to the execution of the enumerated powers delegated to Congress, and the other from the public lands. . . . This would be to confer upon Congress a vast and irresponsible authority utterly at war with the well-known jealousy of Federal power which prevailed at the formation of the Constitution.
The third kind of legislation that drew presidential opposition on constitutional ground was disaster relief. In 1887, Congress passed a bill granting federal funds for drought relief in Texas. President Grover Cleveland, a Democrat, vetoed the bill, writing,
I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that though the people support the Government, the Government should not support the people.
These examples, and the reasoning these presidents gave for their vetoes, are discussed here at length because they stand in stark contrast to the constitutional discourse, or lack of it, that we hear from our politicians today, aside from a few throwbacks like Ron Paul and some Tea Party-influenced members of Congress who are attempting to revive this older style of constitutional reasoning. The principled constitutional objections of the eighteenth- and nineteenth-century presidents (and many eminent members of Congress, too) have been swept aside, so that land grants, disaster relief, and appropriations for favored individuals and special interests are now commonplace, and few are the instances where modern presidents attempt to interpose themselves to defend the Founders’ intended limits on central government power. The gradual desuetude of constitutionalism is why we seldom hear the Constitution discussed in presidential campaigns, or mentioned even in inaugural addresses any more.
The Rhetorical Presidency by Jeffery K. Tulis (Princeton University Press, 1987).
Why did the president cease to be the defender of the Constitution against populist enthusiasms and congressional mischief? How did this tectonic shift in American politics happen, and when?
There are two main reasons for the development of the presidency as we know it today. The first is that the theorists of the Progressive Era, especially Woodrow Wilson, sought deliberately to eliminate the Constitution’s limits on government power, and especially to inflate the power and status of the president. But also, presidents simply started talking too much.
Today it is forgotten that presidents before the twentieth century spoke publicly very seldom, and then usually in the most general terms, such as greetings or “information about the state of the union.” Our first twenty-five presidents gave an average of just twelve speeches a year. And even this low average is skewed upward by late-nineteenth-century presidents, who began giving more speeches around the country after the spread of the railroads made presidential travel more feasible. George Washington averaged three public speeches a year; John Adams only one; Thomas Jefferson five; and James Madison—zero. Even President Andrew Jackson, thought with good reason to have introduced a measure of populism into presidential politics, was reticent about making too many speeches. He averaged only one public speech a year as president.
Two of the nineteenth-century exceptions to this pattern of rhetorical modesty are exceptions that prove the rule. It is nearly forgotten today that one of the charges of impeachment brought against President Andrew Johnson in 1868 was that he simply talked too much, and in a manner that we would today call “divisive.” In contrast to all of his predecessors, President Johnson toured the nation giving campaign-style speeches to drum up support for his policy proposals and to attack the Republican Congress. One of the articles of impeachment read, in part:
“Madison took the country into war, the British burned down his house, and he still didn’t give a speech.”
___________________________
George Will
That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and the dignity and propriety thereof . . . did . . . make and deliver with a loud voice certain intemperate, inflammatory, and scandalous harangues, and did therein utter loud threats and bitter menaces as well against Congress as the laws of the United States. . . . Which said utterances, declarations, threats, and harangues, highly censurable in any, are peculiarly indecent and unbecoming of the Chief Magistrate of the United States, by means whereof . . . Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule, and disgrace, to the great scandal of all good citizens. [emphasis added]
Johnson’s predecessor, Abraham Lincoln, is the other exception that proves the rule. But it should be noted that the subject of Lincoln’s many speeches—the division of the nation, North from South—was a constitutional issue, and that most of his speeches (as well as those of his opponents) were centered on resolving constitutional problems.
Prior to the twentieth century, most presidents communicated with Congress and the public through written messages rather than speeches and seldom spoke on behalf of specific policy proposals. According to presidential scholar Jeffrey Tulis, author of the seminal study of the history of presidential rhetoric, only four presidents before Theodore Roosevelt attempted to defend or attack specific proposed legislation in speeches. At one appearance on tour in New York, President Benjamin Harrison begged off commenting on current issues before Congress, saying, “You ask for a speech. It is not very easy to know what one can talk about on such an occasion as this. Those topics which are most familiar to me, because I am brought in daily contact with them, namely public affairs, are in some measure forbidden to me. . .” [emphasis added].
The presidency of Theodore Roosevelt is the clear dividing line between what Tulis calls “the common law of presidential rhetoric” before the twentieth century and the modern practice. It is not coincidence that we remember Roosevelt for referring to the presidency as “the bully pulpit.” Roosevelt’s highly combative public campaign starting in 1905 on behalf of the Hepburn Act—a proposal to extend federal government regulation of railroad rates—set a new precedent for public presidential advocacy for a specific policy idea. While presidents had long recommended measures to Congress in their written reports, Roosevelt was the first to go beyond this, to go “over the heads” of Congress directly to the American people, in the manner of an election campaign, to whip up public pressure on Congress to enact a specific measure. Presidents of both parties ever since have followed this mode of conduct, which is very different from what the Founders had in mind. Far from being a brake on public opinion as the Founders intended, the modern presidency has thrown out its braking function and has pushed the political accelerator through the floor.
Most conventional analyses of the presidency ascribe the beginning of the modern expanded conception of presidential power to Franklin Roosevelt and the New Deal, but in fact Woodrow Wilson and his fellow Progressives were really responsible for the most radical break in the understanding of the nature of the office and the conduct appropriate to it. Wilson went far beyond Theodore Roosevelt not only in his practice but also his theory of the presidency. He completed the revolution that Roosevelt started.
Among other things, Wilson started the now-familiar spectacle of the in-person state of the union speech before a joint session of Congress. Article II of the Constitution says that the president “shall from time to time give to the Congress Information of the State of the Union . . . he may, on extraordinary Occasions, convene both Houses, or either of them. . . .” Notice that the Constitution does not specify that state of the union messages must be annual events, but only that they be made “from time to time,” and that the president can convene Congress on “extraordinary” occasions, not every year in January, for a speech. Every president prior to Wilson had transmitted his state of the union message in the form of a long letter to Congress rather than appearing in person. Nearly every president since Wilson has followed his practice, and the state of the union speech has evolved into a media ritual akin to the Queen’s speech that opens new Parliaments in Britain. The Queen’s speech, though, is understood as purely ceremonial and without major political significance. The annual state of the union speeches are now major events on every president’s calendar, regarded as premier occasions for presidents to gain some political momentum on behalf of their agenda. Rather than providing “information” on the state of the union, today’s state of the union speeches are typically long laundry lists of proposals the president wishes to see enacted.
Four eminent conservative political scientists summarize what this profound change in presidential rhetoric means for us today:
Popular or mass rhetoric, which Presidents once employed only rarely, now serves as one of their principal tools in attempting to govern the nation. Whatever doubts Americans may now entertain about the limits of presidential leadership, they do not consider it unfitting or inappropriate for presidents to attempt to “move” the public by programmatic speeches that exhort and set forth grand and ennobling views. It was not always so. Prior to this century, popular leadership through rhetoric was suspect.
The modern presidency has become exactly what the Founders most feared and opposed. Skeptics of the new institution, such as the Anti-federalist author who wrote under the pen name of “Cato,” predicted that the office would come to be characterized by “ambition with idleness—baseness with pride—aversion to truth—flattery—treason—perfidy—violation of engagements—contempt of civil duties—hope from the magistrate’s weakness; but above all, the perpetual ridicule of virtue.” (Sounds like a pretty good description of the Clinton presidency in particular.)
The image of Liberty was used prominently on coins issued by the United States throughout the nineteenth century—on dollars, half dollars, quarters, dimes, and at different periods even on the nickel and the penny. Only in 1909, with the Lincoln penny, did a president first appear on our coinage. Today Liberty has been replaced by images of presidents (often after a transitional period involving an Indian Head, an Eagle, or some other prominent person) on all these denominations of coins.
The Founders would have regarded Barack Obama’s promises of “hope and change” with abhorrence. In fact, reining in public expectations of the president would be an important step in re-establishing the primacy of the Founders’ view of America. It may be unrealistic to expect that any president in a mass media age will revive the nineteenth-century practice of rhetorical restraint, or go from taking an active role in advocating policy changes to leaving the leading role to Congress, as the Founders envisioned. Even conservatives judge Ronald Reagan a successful president because he was “the great communicator” who used the modern mass media effectively to achieve important policy changes and to revive the nation’s flagging spirits in the early 1980s. But the inflation of the presidential office has undermined our ability to be a self-governing people.
There is one important yardstick from the Founding that ought still to be applied to every president: whether he defends the Constitution. This presupposes that a president understands and agrees with the founding document. Many modern presidents have seldom discussed the Constitution in any substantive way. Apart from their statements on the Constitution—and their record of abiding by its limits, or not—presidents’ constitutionalism can also be judged by their judicial appointments, especially to the Supreme Court. Some presidents have approached this duty casually or—in the case of some Republican presidents—with extraordinary incompetence. This book will assign a letter grade to each president according to his understanding and defense of the Constitution, or lack thereof, and the character of his Supreme Court appointments—evaluating the modern presidency, and the men who have held the office, according to the constitutional perspective of the men who designed it in 1787.