by Ray Raphael
This does not mean that a president who interprets the Constitution broadly, as even Jefferson did in the end, is necessarily abusing his office, for that document does contain one sentence that can be pushed to almost any limit: “The executive Power shall be vested in a President of the United States of America.” We do not have to agree with Hamilton that this single statement vests the president with near boundless power to understand its importance; rather, we have only to look at popular expectations. By creating a single executive, the framers fashioned an office that would literally personify the government. Before, under the Articles of Confederation, the “United States” was embodied by “the United States in Congress assembled,” but now one man was at the helm, a figurehead for the nation. That George Washington was the office’s first occupant accentuated this aspect of the presidency. The president was a quasi-king, stripped of much of the pomp and many of the powers of his British counterpart but still filling a similar, if lesser, symbolic function. That in part explains the intensity of the contested elections of 1796 and 1800; allegedly, the winner would be the nation, the loser not.47
Partly, then, the expansion of presidential powers under the first three administrations can be explained by the symbolic nature of that office, which the Constitution did not and could not adequately convey. There are contributing factors as well. These start with the prestige of the first president, who at the outset of his term could not be opposed without suffering political harm. Then, as the office fleshed out during Washington’s occupancy—the president’s control of his appointees, his dominance in foreign relations, executive leadership in setting a domestic agenda—it became increasingly clear that no group could prevail and no policy could be implemented without the president joining in. Practically as well as symbolically, presidential elections became do-or-die affairs, and this in turn accelerated the formation of a two-party system. Finally, once the president had become the head of his party as well as the nation, he had every incentive to stretch the limits of his powers to overcome political opposition. These interrelated aspects of the office—symbolic, practical, and political—combined to create a feedback system that functioned like a ratcheted tool: the presidency would expand but not contract by its own doing. Only if the ratchet were released by some countervailing agent, whether the courts, Congress, or public outcry, would expansion be checked.
Viewed in this light, Jefferson’s free use of executive powers, despite his previous attachment to a strict construction of the Constitution, reveals the natural trajectory of the office, not merely a self-serving shift in one man’s ideology. The presidency was becoming more than any of the framers except Hamilton had called for; even Gouverneur Morris might have been amazed, although not necessarily disappointed, in the increasing sweep of presidential authority. From the time George Washington took office on April 30, 1789, the presidency embarked on an evolutionary course that would take it well beyond the strictures of the original rule book.48
We could continue to explore the expansion of the presidential office in subsequent administrations, but the end of Jefferson’s administration affords a natural resting spot. By then a particular form of executive leadership had been debated, refined, set in writing, and tested by the generation we know today as the founders. Both the original parameters and the direction in which the office was likely to evolve had been established. In later years, the growth of the nation would further extend the scope of presidential reach in both absolute and relative terms. The president would become more powerful not only because his nation was but also because the expansion of government would have a more direct effect on executive functions than on legislative ones; a nation that would grow fortyfold from Jefferson’s time did not require forty times as many laws, but it did need a vastly expanded administrative machinery. Further, with the increase of nationalism and revolutions in media, people would focus more attention on their nationally elected leader than on local representatives, whom the framers had assumed would be the people’s closest tie with government. Already more dominant than the framers had expected, the presidency was certain to continue its ascendant course.
Although the framers could not be expected to foresee the various transformations that increased the president’s power and prominence, they themselves were partly responsible for the later growth of the presidency. Once they had approved James Wilson’s motion for a single chief executive and rejected George Mason’s attempt to diffuse executive authority with an independent council, and once they had ceded to Gouverneur Morris’s relentless push to free the chief executive from Congress and permit reelection, the presidency was bound to take on a life of its own. In the real world, if not on paper, that meant the president must become a political actor in his own right, and this in turn encouraged him to maximize his powers to the extent that was politically feasible. The precise stipulations in the Constitution were only a starting point. Equally important in the long run were the hidden yet in some sense natural repercussions of creating a single, independent chief executive.
EPILOGUE
Then and Now—Translations
On October 15, 1789, as President Washington set out from New York with two aides and six servants to tour through New England, he observed firsthand everyday life in the nation he was expected to lead. After crossing from Manhattan on King’s Bridge, he traveled through what is now the Bronx and home to some 1.4 million people, mostly living in buildings taller than any tree Washington passed by. That evening in his diary the president described the first leg of his journey:
The road for the greater part, indeed the whole way, was very rough and stoney, but the land strong, well covered with grass and a luxurient crop of Indian corn intermixed with pompions [pumpkins] which were ungathered in the fields. We met four droves of beef cattle for the New York market (about 30 in a drove) some of which were very fine—also a flock of sheep for the same place. We scarcely passed a farm house that did not abd. in geese. Their cattle seemed to be of a good quality and their hogs large but rather long legged.
A farmer himself, Washington was pleased. The following day in Connecticut, on the road from Norwalk (now home to Xerox Corporation) to Fairfield (where General Electric is headquartered), he noted,
The superb landscape … is a rich regalia. We found all the farmers busily employed in gathering, grinding, and expressing the juice of their apples; the crop of which they say is rather above mediocrity. The average wheat crop they add, is about 15 bushels to the acre from their fallow land—often 20 & from that to 25…. The principal export from Norwalk & Fairfield is horses and cattle—salted beef & porke, lumber & Indian corn, to the West Indies—and in a small degree wheat and flour.1
If the country Washington observed was very different back then, so too was the manner in which he observed it, close-up and literally on the ground, experiencing every stone and pebble on his way and accompanied only by a party of eight—no Air Force One, no Secret Service, no advance team, no press corps. Personal contact was still possible in a nation inhabited by fewer than four million people; now, with our numbers grown eightyfold, we encounter a president’s image daily but not the man himself. Back then, no prior presidents had shown the way; now forty-four men have held the office and precedents abound. In Washington’s time, the president of the United States still struggled for international recognition; now he leads the world’s premier superpower. How can all these changes not affect the nature of the presidency, and further, how can they not affect our understanding of how the people of the founding era viewed the office they had just created?
When we think of what the presidency signified to post-Revolutionary Americans and now connotes to us, we must account for such differences in context and therefore meanings. “The past is a foreign country,” wrote the novelist L. P. Hartley. “They do things differently there.” We cannot assume their moral and political language translates directly to ours, yet despite all the differences, and in some sense even because of t
hem, Americans today hark back to those early times hoping to reaffirm a national identity. With so much to be lost in translation, this is risky business, yet we can hardly do otherwise. Veneration of a family’s ancestors or a society’s founders is key to cementing social bonds, and the United States, more than most nations, has a clearly demarcated founding generation to revere. Further, because our government is bound by a written constitution, we have a legal obligation to investigate the terms of that contract as understood by the people who ratified it, granting their assent in proxy for ours. These two reasons, societal bonding and legal obligation, drive us to listen closely to the framers, but when we do, how can we be sure we understand what we hear? Was the presidency that they created the same as the one we infer? These are not abstract or academic concerns, for they drive a question we cannot help asking, even if there is no sure way of providing an answer: How would the framers, and their fellow Americans who ratified the Constitution, regard what the presidency has become?
Any attempt at cross-time translation will encounter serious problems, not the least of which is the absence of absolute verification. None of the nation’s founders are around to tell us, “Yes, this is exactly what we meant,” or “No, you are off base when you read our words that way.” Since no hypotheses can be confirmed once and for all, the best we can hope for is that our interpretations are not inconsistent with any of the available evidence from those times.
To avoid reading history backward or at least minimize its inherent dangers, we must explore the similarities and differences between the presidency as it was originally intended and the office today. A likely starting point is to ask, in very general terms, what goals for executive functioning we share with the founding generation and how our goals differ. If we wish to evaluate both the framers’ performance in creating a viable office—what they got right and what they got wrong—and the performance of subsequent generations in carrying out their wishes, we need to be clear about whose standards we are using, ours or theirs.
The framers believed, and we do too, that the chief executive should facilitate efficient governance. We might not choose the term they used, “vigor,” but we expect the same results. Efficiency, though, should not be used to justify an overreach of executive authority. Although rule by committee had proved cumbersome during Revolutionary days, monarchical rule was even worse. Limits must be placed on executive prerogatives. Patronage should not go unchecked. On the other hand, the chief executive should be able to check legislative overreach. Balanced government was and is the ideal.
The president is the head of state, representing American interests with foreign nations. Simultaneously, he (now he/she) is to set a high moral tone within the nation. Only because a president does not seek power for its own sake can he be entrusted to command the armed forces.
The presidency must be anchored by a credible electoral process that has the people’s trust. Unless losers as well as winners accept the results, the office will not function properly.
These goals, general as they are, provide some commonality across time. To deny any, then or now, would be to venture beyond the limits of acceptable discourse.
In several ways, though, our values have changed over time, and expectations of the presidency have evolved accordingly. Most notably, of course, we no longer allow our government to sanction slavery, as framers of the Constitution did. While this dramatic turn does not directly affect views of the presidency per se, it both highlights the differences over time and hints at other changes that do. Doubtless, nobody at the Federal Convention imagined that any American citizen, including women, blacks, and those without property, could enjoy the franchise, that white males would someday constitute only a minority of those casting votes for the president, and that a person of color or a woman might actually run for or even occupy the highest office in the land. This revolution in the composition of the civic body, as sweeping as it is, signifies even more than an expansion of the president’s constituency. The role of the electorate, both in choosing and in influencing the president, has changed. Today the people, not presidential electors, effectively choose the president. (Although residual peculiarities of the elector system still allow for the election of a president who does not win the popular vote, the electors themselves have nothing to do with this. It would be unconscionable for a member of the Electoral College to vote according to his own discretion, as the framers assumed he would do.) Further, once in office the president is expected to follow the “mandate” granted him by the voters, or at least not to cross them; the people place limits on discretionary governance. In short, the framers did not perceive the historical thrust toward democracy, a plausible and even logical evolution of their own notion of popular sovereignty.2
In a related vein, eighteenth-century Americans held to a different ethic of campaigning. Self-promotion and pandering to voters—the framers deemed these dishonorable, and even more dishonored would be a president who bowed to the desires of those who financed his campaign. Indeed, the very act of bankrolling a campaign would have been viewed as evidence of corruption; the president ought never to be bought, either before or after his election. Today, we accept the melding of money and politics with a grain of salt, but accept it we do, and that probably marks the largest difference between our view of the presidency and that of the founding generation.
The framers also believed that the ideal president should be nonpartisan in every sense of the word, representing no party, region, or interest group. At the Federal Convention, the goal was to create an office that would lessen differences, not accentuate them. During ratification debates, the prospect of a nonpartisan presidency under Washington provided at least a weak palliative to calm Anti-Federalists. We have not totally forsaken this ideal, but it is increasingly difficult to locate. To gain a party’s nomination, a presidential candidate must convince fellow Democrats or Republicans that he/she will vanquish the opposition, and then in the general election the candidates, or at least their surrogates, routinely vilify each other. Eventually, the winner will issue the presumptive “I will be a president for all Americans” pronouncement, but even then a president who takes bipartisanship seriously and acts on that principle is accused of being too weak and told to start “acting like a Democrat” or “acting like a Republican.” We put forth mixed messages, causing a president to fall short no matter which path he or she follows.3
Such are the basic parameters of the presidency, then and now. Keeping both the framers’ values and our own in mind, where they merge and where they diverge, we can compare what they believed they created with the presidency of today. Has the office achieved what they expected of it?
In several ways that we often take for granted, it has. The president’s role as commander in chief, a provision that frightened Anti-Federalists in 1787–88, has indeed helped to ensure civilian control of the military. Elsewhere in the world, political turmoil often leads to military takeovers, but we don’t worry about that in the United States. Civilian control has produced immeasurable dividends, and the very fact that we forget to acknowledge it constitutes a tribute to its success.
The presidential veto, also of concern to Anti-Federalists, has not produced, by itself, executive abuses of power. It is invoked rarely, albeit threatened more often, yet it has still served to check the power of Congress, as the framers intended. The veto and the override, in conjunction, have furthered the interests of balanced governance, precisely the framers’ intention.
Similarly, the provision for impeachment of the president has not destroyed the balance of powers, as some contemporaries had feared. Twice, in the cases of Andrew Johnson and Bill Clinton, the ruling majority in the House of Representatives has issued articles of impeachment, but in both instances the Senate determined that the charges fell short of the tough standards for conviction the framers had set: “Treason, Bribery, or other high Crimes and Misdemeanors.” Only once, when Richard Nixon clearly broke the law, did the likely
prospect of impeachment and conviction cause a resignation. The notion behind impeachment was that even the president must somehow be held accountable but that the means of dismissing him should not be amenable to political manipulation. Although some still might argue that Johnson had in fact committed an impeachable offense, he was acquitted in large measure because of the fear of setting a precedent for political manipulation of the impeachment process, which the framers had hoped to prevent. Impeachment, in short, has toed the fine line they hoped it would.
With one glaring exception, the election of Abraham Lincoln, the transition from one president to the next has been peaceful. Losers have accepted the results, even when they had reason to do otherwise. This too was not guaranteed at the outset. Anti-Federalists feared that a president who failed to be reelected would find some means of remaining in power, but George Washington, the nation’s first president, voluntarily became its first ex-president, and then John Adams, after coming up short in the contested election of 1800, quietly boarded a stage to return home on the eve of his successor’s inauguration. All subsequent presidents who were defeated at the polls have lived with the results, as the framers hoped and we now assume.
Again with only one exception, presidents have not sought to repeat in office more than once. The framers did not stipulate a limit on the number of presidential terms, but many Anti-Federalists wanted such a constraint, and finally, more than a century and a half later, their concern was answered in the form of the Twenty-Second Amendment. Before that, seven presidents followed Washington’s precedent and retired after two terms; only Franklin Delano Roosevelt, facing a war of historic proportions, sought a third term. Delegates to the Federal Convention wanted to create a strong executive leader who had no expectation of lifetime tenure, and in this they had their way.
