by Logan Beirne
He would live happily as a gentleman farmer for a precious few years—until called upon to oversee the creation of the United States Constitution.24
George Washington’s actions throughout the Revolutionary War reveal much about what powers the founding generation meant to bestow on the president. With the Revolution, they established a new and radical republic. They consciously sought to break away not only from British dominance but also from the monarchical mold. They needed to develop their own alternative. In forming their understanding of the appropriate powers for the United States president and commander in chief, the Founders had before them the example of George Washington, their original commander in chief.
Washington had carefully defined the commander-in-chief powers through his actions, as he strove to defend the nation without trampling its republican principles. This was quite a balancing act and America watched intently, with many expecting him to stumble. Newspapers circulated accounts of Washington’s treatment of prisoners. Politicians wrote letters detailing the commander’s war powers. Soldiers gossiped about his military commissions. Citizens witnessed his defense of their rights. Washington’s precedents were known. And they were loved.
He was hailed as “the great soldier of liberty—a man whose exceptional virtue and patriotism assured final triumph. ”25 In fact, so great was the public approval of his wartime conduct that few debate whether Washington could have made himself king.26 But instead, he became a legend.
When it came time to vote on the new Constitution, the states all elected delegates to their individual ratifying conventions. When these delegates saw the words naming the president “Commander in Chief of the Army and Navy of the United States,” they knew exactly what that meant: the powers that the great soldier of liberty had shaped in the crucible of war. These war powers became officially fixed in the presidency once the states approved the Constitution one by one, and it went into operation on September 13, 1788. 27
When they set about to fill this new executive office, Americans could imagine no one else but Washington in it. So his adoring countrymen promptly elected him the first president of the United States, with votes from 100 percent of the electors.28 In doing so, they placed him right back into the role that he had already defined for all future presidents: America’s commander in chief.
In the same way that eyes are the window to the soul, Washington is the window to presidential war powers. Washington’s eyes faced horrible prisoner abuse. They witnessed the emergence of dictatorial military might. They oversaw military commissions and swift executions of enemies of the state. They also carefully watched over American citizens’ lives and livelihoods. In fact, they had seen so much that they were deteriorating by the end of the war. But that would not impede the great man from defining the new nation.
With his spectacles, the “Father of Our Country” not only saved the republic from an incipient military coup but also wrote hundreds of letters to instruct posterity on how the American republic should defend itself from a perilous world. As always, he led by example, expressing what the new nation should—and should not—do in the name of liberty. We need his direction still.
Washington confronted issues similar to those we face today. And he triumphed. “Held in the highest veneration over the whole continent,” he epitomized to America what it meant to lead a United States at war.29 And when our Founders adopted the Constitution with him in mind, he became the model for all subsequent commanders in chief.30 It is about time we looked to that model for guidance.
In a gripping eulogy delivered upon Washington’s death in 1799, Pastor Jedidiah Morse said, “Washington was the directing spirit without which there would have been no independence, no Union, no Constitution and no Republic. His ways were the ways of truth. His influence grows. In wisdom of action, in purity of character he stands alone.” He “hoped posterity will be taught” how Washington transformed the nation, for stories of his deeds will undoubtedly be “instructive to future generations.”31
I hope so too. We still have much to learn from him.
EPILOGUE
GOVERNING FROM THE GRAVE
“No matter how ingenious, imaginative or artfully put, unless
interpretive methodologies are tied to the original intent of
the framers, they have no more basis in the Constitution than
the latest football scores. To be sure, even the most
conscientious effort to adhere to the original intent of the
framers of our Constitution is flawed, as all methodologies
and human institutions are; but at least originalism has the
advantage of being legitimate and, I might add, impartial.”1
—CLARENCE THOMAS, ASSOCIATE JUSTICE OF THE SUPREME
COURT OF THE UNITED STATES, 2008
In some fundamental respects, America’s current challenges in the ongoing War on Terror mirror those that General Washington faced well over two centuries ago. We have fierce debates today concerning war tactics, drone strikes on Americans, torture, military tribunals, citizens’ rights during wartime, and how to reconcile the needs of national defense with liberty and self-rule. It is not too late to learn from Washington’s leadership as we navigate our nation towards a better future.
We are lucky to have such a tremendous exemplar to help guide us through troubled times. We can study Washington himself and the founding generation’s writings for object lessons in leadership that were developed in the heat of battle and internal strife. To this day, the Founders illustrate how a republic may effectively confront and defeat mortal dangers while retaining its core values. But just in case we are not enlightened enough to learn from them volitionally, there is another important reason to study the founding generation: our legal system calls for it.
More precisely, the legal theory of originalism requires attention to the past. According to this theory of interpretation, the Constitution’s provisions have a fixed and discernible meaning that was established at the time of enactment. In order to determine what war powers are granted to today’s president, originalism bids us to study the founding era to explain what it meant to be “Commander in Chief of the Army and Navy of the United States” when the Constitution was enacted.
Originalists contend that because our democratic republic’s laws emanate from “we the people,” it is important to understand what the people who enacted these laws had in mind. Originalism calls for modern interpreters of the Constitution to ascertain what was meant by “commander in chief ” to the people when they enshrined their will in that document. Originalists reason that to do otherwise would subjugate the will of the people who created the law to the will of the unelected judges interpreting it.
This theory has some powerful adherents. In the 2008 District of Columbia v. Heller opinion, ruling on the meaning of the “right to bear arms,” the justices of the Supreme Court clearly displayed their originalist stripes. In fact, the Heller opinion has been described as “the most detailed display of originalist jurisprudence by a majority opinion in the Court’s history.”2 Led by Justice Antonin Scalia, an avowed originalist, the majority analyzed what the language of the Constitution meant to Americans of the founding era. Scalia’s opinion—which was joined by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, and Clarence Thomas—reasoned that the Second Amendment, at the time it was enacted, was understood to allow citizens to possess firearms, even if not serving in a militia. With this opinion, the majority of the United States’ final arbiters of justice displayed their belief that history directly shapes modern law. And they are not alone.
Originalists come in many forms. Broadly speaking, liberal jurists and scholars tend to place less weight on original understanding than conservatives do, not least because originalist methodology tends to produce conservative results. But conservative judges are not alone in according at least some authority to history. It is notable, for example, that Justice John Paul Stevens’s d
issent in Heller likewise focused on originalist arguments. The rest of the Supreme Court’s more liberal wing, which then consisted of Justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter,3 joined Stevens in looking at the history of the Constitution’s drafting in order to elucidate its meaning. While they arrived at different conclusions based upon their specific analyses, what is most important to this discussion is that both sides relied on the history of the founding. The Heller opinion and dissent both reflect the common notion among judges and legal scholars that “triangulating from the wisdom of the past to the . . . circumstances of the present is at least the default point of departure,” as William Galston put it. He added, “The alternative to that is chaos.”4
There certainly are many scholars and jurists who are skeptical of originalism or even reject it altogether. Some of these critics claim that it is ridiculous to allow antiquated—and arguably unascertainable—notions from centuries past to govern modern society. They see the Constitution as a living document whose meaning should be adapted to the realities of our day. For example, what constituted “cruel and unusual” punishment in the eighteenth century may not be the same as how it is understood today. Proponents of a “living Constitution” argue that as times change, judges should reinterpret the words of the text in order to keep the document relevant, even if the new reading does not fit the original meaning or even the clear sense of the words.
Justice Scalia rejects this approach, arguing, “Every time you insert into the Constitution—by speculation—new rights that aren’t really there you are impoverishing democracy. You are pushing one issue after another off the democratic stage.”5 Rather than permit the voters and their legislators to decide issues, inserting new rules into the Constitution largely takes those choices out of their hands and into the courts. Scalia admits that originalism can serve to maintain antiquated laws that are no longer useful or beneficial. But our democratic republic has a solution for outdated laws, as Scalia points out: a law “may well be stupid, but if it’s stupid, pass a law” to replace it.6 The republic needs to pass new laws that better reflect the will of modern society, instead of allowing judges to discover new meanings in old law, thus aggrandizing their own role at the expense of the political process. In the case of a “stupid” or outdated constitutional provision, the people can amend the Constitution using the mechanisms that the forward-thinking Founders provided.
The interpretation of a law based on its meaning hundreds of years ago may sometimes yield results that appear to be absurd. For example, the Constitution names the president as “Commander in Chief of the Army and Navy.” The Framers did not anticipate airplanes, so does this mean that the president should not also command the Air Force? Many originalists consider this a straw-man argument because the phrase “Army and Navy” in the eighteenth century encompassed all the armed forces—and all their weaponry. Only the most comically hyper-literal originalist would believe it excludes the Air Force. Even so, this example illustrates how the meaning of the eighteenth-century text may conflict with contemporary common sense. But even if there were a genuine concern over this issue, there is a way to clarify that the president is the commander in chief of the Air Force: pass a constitutional amendment.
It is not the purpose of this book to advocate for a particular level of deference to originalism, or to contend that the history of the Constitution’s enactment should be the ending point of an inquiry into its meaning. Rather, I argue that historical understanding should at least be a starting point for interpreting the Constitution.7 People will have varying subjective convictions as to the merits of originalism in constitutional analysis, but even those who are intellectually opposed to it must agree that this mode of interpretation is objectively important if only because major players believe it is important.8 It is undeniable that history directly affects law and policy today.
There are various angles of history to look at, however, and thus there are different approaches to originalism, as the result in Heller suggests. Some scholars and jurists seek the “original intent” of those who wrote the Constitution. To interpret the Commander in Chief clause, they would aim to discern what the delegates to the Constitutional Convention intended that phrase to mean when they wrote it. They would examine the delegates’ diaries, the Federalist Papers, and other documents of the Framers to determine what war powers those men intended the Constitution to grant the president. Many academics and judges prefer to cast a broader net.
The more prominent branch of originalism seeks to determine the “original meaning” rather than the “original intent” of the Constitution. In this line of inquiry, one must look at history to determine how the constitutional text was understood by the “original readers—the citizens, polemicists, and convention delegates who participated in one way or another in ratification.”9 The idea is to ascertain the will of the entire people rather than just the elite few who drafted the document. The full “intent” of the Framers at the Constitutional Convention may not have been conveyed to the delegates at the state ratifying conventions, or the farmers in the field, through the Constitution’s brief words. Those seeking the “original meaning” of the Constitution’s Commander in Chief text would be interested not only in the delegates’ documents, but also in speeches, debates, newspapers, and even dictionaries of the time.10 This book, by drawing upon all of these sources, incorporates both major branches of originalism.
When the Founders adopted the Constitution, Washington’s precedents were no secret.11 His frequent letters communicated his views to Congress and the state legislatures, many of whose members became Framers of the Constitution.12 But his precedents were much more widely disseminated than that. His practices were likewise known by the soldiers who witnessed them, the townsfolk who talked about them, and the farmers who read the newspaper reports. The episodes recounted in this book were on the tips of the everyday tongue during the revolutionary years. The American people loved what they heard and exalted Washington for his military leadership.
To Americans of the time, the plain meaning of the phrase “Commander in Chief” was cast by their recent memories of the only commander in chief that the new nation had ever had. When they created the presidency, Washington personified what it meant to be commander in chief specifically, as well as the president more broadly. In fact, he was so fully identified with the role that when it came time to elect their first president, he received a vote from every single elector. When the American people ratified the Constitution, they envisaged their Revolutionary War commander as the legal model for all subsequent presidents.
While we can certainly derive personal enrichment from our founding generation’s struggles, the direct impact of those struggles on modern law provides a practical reason to study the revolutionary era. I am not attempting to oversimplify the weighty issues addressed in this book by arguing that “Washington did X, therefore the modern presidents can also do X under the powers granted them by the Commander in Chief clause.” Instead, I more humbly assert that the precedents set by Washington in wartime should be taken into consideration when we interpret the presidential powers established by the Constitution. Does the president have a constitutional power to torture foreign enemy combatants? Overrule Congress on war tactics? Deny formal trials to enemies? Trample on the rights of American citizens? At least consider our first commander in chief’s principles when searching for an answer.
George Washington’s actions as a leader in wartime demonstrate the moral and practical truths on which the nation was founded. In this way, the story of America’s first commander in chief both constrains and empowers contemporary occupants of the Oval Office. Luckily, General Washington set a good example. He still governs from the grave.
“The foundation of our Empire was not laid in the gloomy age of Ignorance and Superstition, but at an Epocha when the rights of mankind were better understood and more clearly defined, than at any former period . . . . At this auspicious period, the
United States came into existence as a Nation, and if their Citizens should not be completely free and happy, the fault will be intirely their own.”13
—GEORGE WASHINGTON, 1783
ACKNOWLEDGMENTS
When we were growing up, my father took us to a reenactment of the Battle of Lexington every year. My mother (a true force of nature who inexplicably looked impeccable even at 4 A.M.), sister, brothers, and I would wake up before dawn and wait in the freezing cold around the little town green. Men in costume would eventually march in, conduct a brief, exciting battle, and then run off just in time for us to head to a nice, warm breakfast. We went to a delightfully hokey restaurant where the waiters pretended to be patriots from 1775. My father, with his boundless wit and humor, would have us laughing around the table as he attempted to trick the man impersonating George Washington into breaking character.
This was on my mind many years later as I sat in Bill Eskridge’s Constitutional Law class at Yale Law School. Bill was explaining how presidents have long pointed to the Commander in Chief clause in the Constitution as the source of a whole host of powers, yet many debate what that clause even means. He said, “too bad we cannot ask the Founders what they meant.” I instantly thought of the waiter my father tormented. This idea stuck in my head as I started digging with the saintly Teresa Miguel through Yale Law Library’s extensive primary source collections. And with Bill Eskridge’s tremendous help, encouragement, and wisdom, I wrote the academic paper that would eventually evolve into this book—and that evolution came with an enthusiastic push from Amy Chua. The paper came up in conversation the next year while I was speaking with Amy at her office hours. She had read it and said, “Logan, you need to make this into a book!” It had never occurred to me that I could write anything, let alone a book. But with Professors Eskridge and Chua’s amazing help, I was able to work with the unstoppable Glen Hartley at Writers Reps to do just that.
