Mr. President (42 page)

This did not apply to lesser public officers “charged with petty duties,” he continued, but “it is incumbent on those only who accept great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake.”

Although Jefferson conjoined them, there were actually two sets of contingencies here: “the safety of the nation” and “some of its very high interests.” At the Federal Convention, on August 17, delegates had agreed that the president should possess “the power to repel sudden attacks” without waiting for Congress to convene. (That is why they required congressional approval if the nation were to “declare war” but
not if the president was forced by an invasion to “make war.”) Here indeed was a case of “self-preservation,” to use Jefferson’s term, but imagine the outcry at the convention if a delegate had moved that the president should be empowered to act as he saw fit, without consulting Congress, anytime he claimed the nation’s “very high interests are at stake.” With few exceptions, they would have recoiled in an instant. George Mason and Elbridge Gerry would not have been the only ones to demand a more precise explication for what “high interests” might entail and expound on the dangers of allowing the president to define them as he pleased. There was no surer path to the destruction of republican government. Had the convention occurred in 1807 instead of twenty years earlier, speakers undoubtedly would have observed that Napoleon had risen to power and ended republican dreams in France by claiming to promote the high interests of his nation.

Yet who among the delegates, had he subsequently served as president under the Constitution he helped to create, would have
rejected
using the muscle of his office to further what he supposed to be the high interests of the nation, as Jefferson did with the Louisiana Purchase and the Embargo? It should come as no surprise that a president, once in office, comes to favor a broad construction of the sparse list of powers granted him by the Constitution. Specifically, he is empowered to command the armed forces but not raise them or determine when and why they go to war. He can recommend legislation and veto it, but he is not directly authorized to shape it. He can grant reprieves and pardons only for federal offenses. He can negotiate treaties but not execute them without the approval of a supermajority of senators. Finally, he can appoint ambassadors and judges, again with Senate consent, but the Constitution does not directly state that these appointees are to function as his underlings; judges certainly shouldn’t, and ambassadors, by a strict reading of the Constitution, are as beholden to the Senate as to the president. By contrast, Congress possesses a long list of sweeping powers that include taxation, coining and borrowing money, regulating commerce, raising armed forces and declaring war, and so on, coupled with the authority “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Little wonder, then, that presidents interpret their authority liberally. A president is expected not by law but by common wisdom to be “the general guardian of the National interests” (Gouverneur Morris’s words), yet
how can he accomplish this task without expanding his reach beyond the strictures of the short list of his designated powers?

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.

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:

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,

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 them, 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.