One of the most controversial recent presidential actions is the Obama administration’s desire to enter a “nuclear deal” with Iran. To prod Iran into an agreement that he appears desperately to want, President Obama intends to waive sanctions imposed under earlier legislation and executive action. As shown by an open letter to the Iranian government authored by Senator Tom Cotton and signed by 47 Republican senators, a hotly-debated aspect of the deal is which role, if any, Congress would play in this spectacle.
Tag Archive for: Federalist No. 69
The Real Character of the Executive
From the New York Packet
Friday, March 14, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
I PROCEED now to trace the real characters of the proposed Executive, as they are marked out in the plan of the convention. This will serve to place in a strong light the unfairness of the representations which have been made in regard to it.
The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.
That magistrate is to be elected for FOUR years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between HIM and a king of Great Britain, who is an HEREDITARY monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between HIM and a governor of New York, who is elected for THREE years, and is re-eligible without limitation or intermission. If we consider how much less time would be requisite for establishing a dangerous influence in a single State, than for establishing a like influence throughout the United States, we must conclude that a duration of FOUR years for the Chief Magistrate of the Union is a degree of permanency far less to be dreaded in that office, than a duration of THREE years for a corresponding office in a single State.
The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.
The President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. The king of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time past does not affect the reality of its existence; and is to be ascribed wholly to the crown’s having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. The qualified negative of the President differs widely from this absolute negative of the British sovereign; and tallies exactly with the revisionary authority of the council of revision of this State, of which the governor is a constituent part. In this respect the power of the President would exceed that of the governor of New York, because the former would possess, singly, what the latter shares with the chancellor and judges; but it would be precisely the same with that of the governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied.
The President is to be the “commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have power to grant reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States.” In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature. [1] The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States. Thirdly. The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offense of treason is limited “to levying war upon the United States, and adhering to their enemies, giving them aid and comfort”; and that by the laws of New York it is confined within similar bounds. Fourthly. The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment. The British monarch may prorogue or even dissolve the Parliament. The governor of New York may also prorogue the legislature of this State for a limited time; a power which, in certain situations, may be employed to very important purposes.
The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occasion. Every jurist [2] of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plentitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty; and this may have possibly given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal Executive would exceed that of any State Executive. But this arises naturally from the sovereign power which relates to treaties. If the Confederacy were to be dissolved, it would become a question, whether the Executives of the several States were not solely invested with that delicate and important prerogative.
The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor.
The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king; nor is it equal to that of the governor of New York, if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it. The power of appointment is with us lodged in a council, composed of the governor and four members of the Senate, chosen by the Assembly. The governor CLAIMS, and has frequently EXERCISED, the right of nomination, and is ENTITLED to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of the President, and exceeds it in the article of the casting vote. In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale, and confirm his own nomination. [3] If we compare the publicity which must necessarily attend the mode of appointment by the President and an entire branch of the national legislature, with the privacy in the mode of appointment by the governor of New York, closeted in a secret apartment with at most four, and frequently with only two persons; and if we at the same time consider how much more easy it must be to influence the small number of which a council of appointment consists, than the considerable number of which the national Senate would consist, we cannot hesitate to pronounce that the power of the chief magistrate of this State, in the disposition of offices, must, in practice, be greatly superior to that of the Chief Magistrate of the Union.
Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. But to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group.
The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.
PUBLIUS.
1. A writer in a Pennsylvania paper, under the signature of TAMONY, has asserted that the king of Great Britain owes his prerogative as commander-in-chief to an annual mutiny bill. The truth is, on the contrary, that his prerogative, in this respect, is immemorial, and was only disputed, “contrary to all reason and precedent,” as Blackstone vol. i., page 262, expresses it, by the Long Parliament of Charles I. but by the statute the 13th of Charles II., chap. 6, it was declared to be in the king alone, for that the sole supreme government and command of the militia within his Majesty’s realms and dominions, and of all forces by sea and land, and of all forts and places of strength, EVER WAS AND IS the undoubted right of his Majesty and his royal predecessors, kings and queens of England, and that both or either house of Parliament cannot nor ought to pretend to the same.
2. Vide Blackstone’s “Commentaries,” vol i., p. 257.
3. Candor, however, demands an acknowledgment that I do not think the claim of the governor to a right of nomination well founded. Yet it is always justifiable to reason from the practice of a government, till its propriety has been constitutionally questioned. And independent of this claim, when we take into view the other considerations, and pursue them through all their consequences, we shall be inclined to draw much the same conclusion.
Article II, Section 1, Clause 1 of the United States Constitution
Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 1, Lawrence J. Spiwak 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 1, Federalist No. 69, Lawrence J. SpiwakArticle II, Section 1, Clause 1
1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
Under Article II Section 1, Clause 1 of the Constitution, the “executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected….” By establishing the then-radical concept of an elected Chief Executive with a fixed term, the Founding Fathers made a bold statement to the world that the newly-formed United States of America was rejecting outright any notion that it would tolerate a new American monarchy (and, with it, presumably an accompanying peerage of Lords made up of selected landed gentry).
Without question, time has proved that the concept of an elected chief executive with a fixed term has served the American people well. Yet, when this idea was first proposed, the citizens of a post-Revolutionary War America were skeptical. As a result, Alexander Hamilton was forced in Federalist No. 69 to sell the Founder’s vision to a wary public.
Hamilton began his essay by reiterating the point that one simply could not compare the position of President to the King of England, for if one did, “there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.” Indeed, explained Hamilton, while the President is “re-eligible [only] as often as the people of the United States shall think him worthy of their confidence,” the King of England was a “hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever.” (Emphasis in original.) As Hamilton so elegantly summarized the issue: “The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.”
But Hamilton did not stop there.
For example, Hamilton explained that while a President could be impeached, “there is no constitutional tribunal to which [the King] he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.”
Similarly, Hamilton pointed out that while a President can veto a piece of legislation, the Congress can nonetheless override this veto by two-thirds votes in both houses. In contrast, the King of England had “an absolute negative upon the acts of the two houses of Parliament.”
Moreover, while a President may “nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution”, Hamilton argued that there were no such constraints on the King. (Emphasis in original.) To the contrary, Hamilton forcefully argued that the King of England was
“emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king….”
And what about issues of foreign policy? Again, in Hamilton’s view, the powers of President and King stood in stark contrast.
Under the Constitution, while the President is the “commander in chief”, only Congress may formally declare war. On the other hand, Hamilton pointed out that the power of the British King went beyond commander-in chief and extended to “the declaring of war and to the raising and regulating of fleets and armies….” (Emphasis in original.)
Moreover, while the President has the power to make treaties only with the advice and consent of the Senate, Hamilton demonstrated that the King was “the sole and absolute representative of the nation in all foreign transactions” and could “of his own accord make treaties of peace, commerce, alliance, and of every other description.”
So, viewing Hamilton’s arguments with the benefit of over two hundred years of history, what can we learn about Article II Section 1, Clause 1 of the Constitution? In my view, the lesson is simple and obvious: no matter how much we may disagree with the policies of a particular President, there are (fortunately) significant Constitutional checks and balances to curtail potential abuses of his authority. Indeed, to paraphrase Hamilton, so long as the power of the government remains “in the hands of the elective and periodical servants of the people”, the United States is no danger of being characterized as “an aristocracy, a monarchy, and a despotism.”
Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC. He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia. The views expressed in this article do not represent the views of the Phoenix Center, its Adjunct Follows, or any if its individual Editorial Advisory Board Members.
Article I, Section 08, Clause 10-13 of the United States Constitution
Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 10-13, Horace Cooper 1. The Federalist Papers, 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 10-13, Federalist No. 69, Horace Cooper, The Articles of ConfederationArticle 1, Section 8, Clause 10-13
10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
13: To provide and maintain a Navy;
It is especially timely to discuss the so-called “war” powers of Congress in light of recent events internationally. Although much focus at present is directed at the issue of the President’s authority, this essay will focus exclusively on the United States Congress.
- To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
- To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
- To provide and maintain a Navy;
Pointedly Congress does not have specific authority to carry out the prosecution of a military engagement, but it does have significant authority to participate in the decision and continuation of that military engagement. In that sense, the “War Power” is divided between the President and Congress.
Many Americans forget that the “War Powers” under the Articles of Confederation ostensibly rested with the national government but was far more attenuated in reality because it relied upon an enthusiastic acquiescence of the several states: Article III of the Articles of Confederation. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.
The Founders sought to address this matter. Not unlike the present debates over the President’s authority to carry out military actions, the Founders feared the ability of the monarch to enter into war without the consent of the people as they had witnessed the royal wars for centuries in Europe. At the same time, they had learned that they should not take the principle of diffusion of war power too far. In their mind, the Articles of Confederation had in fact gone too far and it represented a major national security threat for the newly independent United States of America.
As James Madison would explain to Thomas Jefferson in a letter in 1798, “The constitution supposes, what the History of all [Governments] demonstrates, that the [Executive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the [Legislature].”
Thus, specific war powers are granted to the Congress – not the least of which is the actual power to declare war.
During the existence of the Articles of Confederation, the national government had the sole authority to create courts for the trials of piracy and related felonies committed on the high seas. However, the national government did not have any authority to address the issue of compliance with the existing international rules against piracies and other crimes on the high seas. Prior to the Revolution, all of the European nations had entered into agreements but the U.S. did not have authority to enforce these rules or to reject them. The Constitution specifically addresses that limitation and gave the Federal government the ability to choose to comply, reject or modify international agreements regarding piracy.
First, Congress has the specific power to “declare war.” A declaration of war is a formal declaration issued by at least one national government indicating that a state of war exists between that nation and another. Congress has officially declared war five times. In Federalist 69 Hamilton reminds readers that the power to declare war was an important one since the President of the U.S. did not have it. Under the Constitution, Hamilton explains, the president’s authority was:
“. . . in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the land and naval forces . . . while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all of which by the Constitution would appertain of the legislature.”
Next, let us look at the power of Congress to grant letters of Marque and Reprisal. This power grant a far more unusual and yet clearly lawful means for Congress to carry out its international and/or national security interests. Here’s the essence of the power: Congress can authorize a private person or private army – not a part of the United States armed forces – to conduct reprisal military-like operations outside the borders of the U.S.
Not unlike the powers exercised by the French Foreign legion, our Constitution authorizes Congress to grant such a right presumably with payment or a bounty in any instance in which the citizens of the U.S. are injured by individuals or armies of another country whenever the other country denies justice to the American(s) who have been harmed.
Additionally there is the rarely examined “capture clause” – the power of Congress to establish the rules for the distribution of spoils of captured enemy ships or captured territories. In the modern war era, military victims publicly eschew the capturing or claiming of the goods and property of the conquered parties. However, this was not always so. In fact, the so-called “capture clause” was considered extremely important to the fledgling nation of America.
Often times the federal government could not afford to pay soldiers or obtain credit to buy armaments. By being able to set up a means for disposing of the goods and other spoils that were captured in battle, the U.S. had an alternative way to address this issue. General George Washington declared during the Revolutionary War that a centralized and standardized system for the handling of prizes was vital to the war effort. In fact, one of the first federal courts created by the United States government under the Articles of Confederation was the Federal Appellate Court of Prize – which existed to adjudicate disputes over spoils captured in war.
The final war power of Congress involves the authority to raise and support armies and to provide and maintain a navy. While most of the early residents of America recognized that the federal government should have authority to “raise and support” armies, ultimately there was some disagreement over how that power should be dispersed. Under the crowns of Europe, kings could not only declare war, they also had individual power to “raise and support” armies without needing the input of their subjects. Even when Kings co-existed with Parliaments, their ability to exercise their war powers nearly carte-blanche stymied the ability of their subjects to exercise any significant influence – not just in war – in nearly all matters of national interest since wars sapped resources, finances, and labor in a way that Parliament couldn’t readily counteract.
Additionally the standing army operated as a direct threat not just on the purse strings of the nation but a clear threat was aimed at the citizenry as well especially when these forces concentrated themselves within the home territories in large numbers. Instead of giving this power to the President, our system specifically requires that Congress approve the creation and timing of all rules involving the establishment of an army and navy. In fact, this grant of authority is the basis for Congress’ power to establish the Uniform Code of Military Justice as well as selective service requirements. With regard to the army in particular, the Constitution included the appropriations limitation as a means to quell fears that a standing army might be used to threaten American citizens.
Indeed Congress has broad power when it comes to war making. But it is noteworthy that this power is divided in many ways with the President – not as a point of confusion or a result of a lack of trust in either the executive or the legislature, but instead as part of a precise calculation that if both the President and Congress must collaborate in order to carry out war, war would not be entered into easily or for long.
Horace Cooper is a legal commentator and a senior fellow with The Heartland Institute
Federalist No. 68 & Federalist No. 69 – Janine Turner
Federalist Paper 68, Federalist Paper 69, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 68, Federalist No. 68, Federalist No. 69, Federalist No. 69Howdy from Texas! As I read Federalist Papers No. 68 and 69 it becomes evident in a factual way how earnestly and tenaciously our founding. Constitutional forefathers strove to protect our liberties and our Republic. Once again, they based their decisions, not on rhetoric or reason but on the wisdom wrought by history.
In no circumstance was this more evident than in regard to the election of the President of the United States. In Federalist Paper No. 68, Alexander Hamilton, states this with precision and clarity.
“Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption. These most deadly adversaries of Republican government, might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”
Could this be more relevant throughout our history and even today? We, and democracy, have been under continuous attack from varied countries for the past two centuries and we are under attack today. “The enemy is in the field,” whether it be via the insidious silencing by an overzealousness of “political correctness” or a literal attack on our soil.
America represents hope and hope is the envy of the enemy.
Our founding fathers wanted to protect our Republic from intrigue and corruption with the establishment of the electoral process. This provided a sort of perspective permeating through the passions of the people as well as a balance of power throughout the country. In times of peace and prosperity the perspective of an electorate seems redundant. Never have we seen, nor experienced the horrors that our forefathers endured that warranted and verified the need to establish such a window of wisdom laid in the hands of a few. Tyranny can easily slide in our backdoor while we slumber. Today, soldiers don’t beckon at our door to spend the night in our homes – this doesn’t mean it may not happen yet again.
Our only guarantee lies within the guarding and respecting and understanding the premise and principles upon which our Constitution was established.
We must never let ourselves be so far removed from the history or teaching of tyranny that we relinquish the reigns to the horse that pulls the cart. If we do this, our horse will pull our cart over a cliff into an oblivion of despair that will then be beyond our control.
“Liberty cannot be preserved without a general knowledge among the people.” John Adams.
Liberty cannot be sustained without a general knowledge of the United States Constitution.
The Electoral College is also important because it balances the power between the states. If we abolished the electoral process then the more populated states, such as California, Texas and New York would control the policies and direction of the country. One has to wonder about the “winner takes all” policy regarding the electorate that exists presently in all of the states except Maine and Nebraska. My understanding of “winner takes all” is that it undermines the electoral process. It also may falsely represent the political inclination of the states and eliminate electoral votes from certain regions that could, when added all together, actually determine an election. Is, “winner takes all” a violation of the United States Constitution? Does it circumvent the amendment process?
Federalist Paper No. 68 is enlightening and intriguing. Federalist Paper No. 69 is a smart, insightful comparison of our United States Constitution with the British rule of the king. Revealing are the nine points Alexander Hamilton makes by this exercise: Term limited, Impeachment possible, Checks by the legislative body, Power to command the military but not declare war or raise arms, Treaties made with concurrent power of the legislature, Appointment of officers with approval of the legislature, No power to convey privileges, Can prescribe no rules concerning commerce or coins, No particle of spiritual jurisdiction.
The comparison of the United States Constitutional restrictions to those of the British crown are awesome and revealing. Brilliant were the checks instilled upon the Executive branch of the United States’ government. This, of course, begs the question how have these limits prevailed today?
My curiosity is peeked by Alexander Hamilton’s statement about the President’s power of nomination being just that – a nomination – approved by the Senate – in ALL categories.
“The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution.
The President’s nominations of ambassadors, public ministers, judges, and in general all officers of the United States established by law and whose appointment are not otherwise provided for by the Constitution must be held to the scrutiny and “consent of the senate.”
How does the bloating of our modern day federal government, with unapproved and unchecked “bureaucrats and czars,” fair under this Constitutional scrutiny? These are the bleeds that rupture the heart of a Republic and threaten a seizure of the people.
Thoughts to ponder.
God Bless,
Janine Turner
Tuesday, August 3rd, 2010
Federalist No. 68 – The Mode of Electing the President, From the New York Packet (Hamilton)
Federalist Paper 68, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XII, Constitutional Amendment XII, Federalist No. 39, Federalist No. 51, Federalist No. 64, Federalist No. 68, Federalist No. 69, Federalist No. 70, Federalist No. 71, Federalist No. 72, Joerg W. KnipprathFederalist 68 to 72 address the election and structure of the Presidency. Who better to address that than Alexander Hamilton, whose knowledge of executive power combines with an affinity for it that caused much suspicion during his political career?
The first essay is a brief foray into the Electoral College. The matter excited so little passion during the ratification debates that Hamilton barely gets his writing hand limbered up. He allows himself to wax poetic and substitute a couplet edited from Alexander Pope’s Essay on Man for some of the acerbic put-downs of his preceding efforts as Publius. Yet, the frivolity of the approach should not obscure the delicate political balances reflected in the constitutional settlement of the President’s election. The Framers’ had rejected direct popular election (an easy call due to its profound conflict with the idea of the United States as a confederated republic), election by Congress, election by the state legislatures, and election by electors selected by regional electors elected by the people (Hamilton’s multi-layered proposal).
The Framers wanted at once to have an energetic executive and to prevent the emergence of an American Caesar. The first would be accomplished by unity in the office, the latter through, among other things, care in the selection of the person. They also were deeply fearful that some foreign power might place a Manchurian Candidate among the presidential contenders. Hamilton mentions that concern in his defense of the system, a concern also reflected in the requirement that the President be a natural-born citizen. This was no small matter to the Framers. There were various plots and other connections between foreign agents and American politicians and military officers (the Wilkinson/Burr cabal with Spain, for example). Moreover, these kinds of intrigues to place a foreigner in executive office were familiar, both because they were common abroad, and because of the Confederation Congress’s offer in 1786, quickly withdrawn, to the republican-minded Prince Henry of Prussia to become regent of the U.S.
The Framers faced several practical problems. Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.
As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51.
That last step corresponded to the Framers’ experience with the election of the British prime minister and cabinet, and with the practice of several states. However, consistent with the state-oriented structure of American federalism, such election in the House had to come through a majority of state delegations, not individual Congressmen. Though modified slightly by the Twelfth Amendment as a result of the deadlock of 1800, this process is still in place.
The Electoral College also was to be the mediating device that would balance the desire for popular input with the realistic concern that a direct popular vote would promote candidates with “talents for low intrigue, and the little arts of popularity.” Hamilton, a skilled in-fighter, possessed very sharp elbows politically, but lacked those particular talents and despised them in others. As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”
Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than a vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.
There is also the problem of corruption of the electors. Every polity must address that. The Republic of Venice had a truly byzantine system of election and selection by lot of those whose sole responsibility it would be to elect the Doge (the executive). The sheer number of participants and the unpredictability of the eventual identity of the Venetian electors made vote-buying, influence-peddling, and intimidation impractical. In Federalist 68, as well, Hamilton assures the reader that, in the American system, corruption and the influence of faction are avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they meet in separate states at the same time. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.
Though the constitutional shell remains, much of the system operates differently than the Framers hoped. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.
Today, the nominating function is performed by political parties, while election is, in practice, by the voters. Elections by the House are still possible, if there is a strong regional third-party candidate. But the dominance of the two parties (which are, in part, coalitions of factions) suppresses competition, and the last time there was a reasonable possibility of electoral deadlock was in 1968, when Alabama Governor George C. Wallace took 46 electoral votes. Mere independent national candidacies, such as that of Ross Perot in 1992, have roughly similar levels of support in all states and are unlikely to siphon electoral votes and block the usual process.
Parties have had a beneficial effect in that they have prevented repetitions of the debacles of 1800 (when, due to the tie vote between Jefferson and Burr, it took the House 36 ballots and probable political intervention by Hamilton on the former’s behalf to resolve the election) and of 1824 (when the election dominated by just the regional candidacies anticipated by the Framers was thrown into the House and extensive bargaining precipitated charges of corruption that stymied the J. Q. Adams presidency). Had parties not emerged to provide necessary lubrication, the creaky constitutional machinery well might have had to be reformed. Though they have smoothed the process, parties arguably also have promoted the very evils (other than foreign intrigue) that Publius assured his readers were avoided under the electoral system designed by the Framers.
At the same time, the emergence of modern political parties has not made the Electoral College obsolete, as it still promotes important values. It reinforces the founding principle that the U.S. is a confederated republic and not a consolidated national government, as analyzed so persuasively by Madison in Federalist 39. Despite the occasional misfire, as in the election of 2000, the Electoral College often gives the narrow victor in the popular vote a mandate through a significant electoral college majority. The need to find a lot of electoral votes to overturn such a result reduces the likelihood of persistent challenges. Elections such as 1948, 1960, 1968, and 1992 come to mind. Proposals to change or abolish the Electoral College have appeared frequently since the Constitution’s adoption and are of predictable types. But they always lose steam, as there has been no showing that they will serve republican values better than the current system. Indeed, efforts to change the system have declined in the last half century, even after the contested election of 2000, a testimony to the enduring legitimacy of the Electoral College.
Friday, July 30th, 2010
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is http://www.tokenconservative.com
Federalist No. 69 & Federalist No. 70 – Cathy Gillespie
Federalist Paper 69, Federalist Paper 70, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 68, Federalist No. 69, Federalist No. 69, Federalist No. 70, Federalist No. 70, Federalist No. 71, Federalist No. 72, Federalist No. 73, Federalist No. 74, Federalist No. 75, Federalist No. 76, Federalist No. 77Greetings from Long Beach Island New Jersey! What fun I’ve been having reading the Federalist Papers on the beach! And what interesting looks I get from passersby who take the time to glance at the cover of my book.
Federalist Papers 68-77 are especially interesting to me personally, as I have been fascinated by the Presidency for as long as I can remember. My first “political” experience was writing to President Nixon when I was in grade school, telling him I was praying for him during his struggles. In Junior high, I begged my father to take me to SMU, in Dallas near where I grew up, to stand in a rope line in order to catch a glimpse of President Gerald Ford. I voted for the first time in 1980, proudly casting my ballot for Ronald Reagan. My first college course in political science at Texas A&M was taught by an expert in the Presidency, and although regretfully I can’t remember his name, I loved the course so much, I switched my major from business to political science that semester!
During the last decade, I got an even closer look at the Presidency through my husband’s work with President George W. Bush, and opportunities our family had to interact with him. I had always admired President Bush’s steady leadership, and his unwavering commitment to certain values and principles, most notably keeping America safe. But getting to know him personally, I admired the way he carried the office of the Presidency. When you are President, you are always President, whether relaxing in a small group or at public events. President Bush respected the office, and lived every day in a way that could make our country proud.
Thank you to Professor Joerg Knipprath for your enlightening and thorough essays on Federalist Papers No. 69 (The Real Character of the Executive ) and 70 (The Executive Department Further Considered ). The historical background you provide gives a useful prism from which to view these two papers that explore the President’s powers versus those of the British Monarch and the New York Governor, and the decision of the founders to have a unified executive, versus two or more heading that branch.
In Federalist No. 69 Publius makes a convincing argument that the United States Presidency, while powerful enough to head the country, is not as powerful as the King, or even the New York Governor (with the exception of the power to make treaties). This is a fascinating comparison, and reveals the founders’ thought process on why the Presidency of our country is vested with certain powers and limited in others.
Some of the President’s powers originally outlined by the founders have waned, while others have increased. The President’s term in office still remains at four years, but is now limited to two terms by the twenty-second Amendment.
The President’s power to
“nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution,”
has been expanded over the years by the President’s ability to create “Czar” positions. These “Czar” positions sound eerily similar to the power Publius ascribes to the King, and denies the President having:
”The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices.”
Time Magazine provides an interesting history of “Czars” in the United States at this link: http://www.time.com/time/politics/article/0,8599,1925564,00.html
Time states the first Czar existed in President Woodrow Wilson’s cabinet during World War I, when Wilson appointed Bernard Baruch to head the War Industries board, and was known as the Industry Czar. This must have been the proverbial camel’s nose under the tent, as the use of “Czars” has mushroomed from that point forward.
In Federalist No. 70, Publius defends the decision of the founders to have a single executive in the office of the Presidency head the executive branch, versus two or more individuals. The benefits of a unified executive make an extraordinary amount of sense, especially in protecting the people’s liberty through transparency, and accountability. As difficult as it was to pinpoint blame in Watergate, for example, imagine how much more difficult it might have been had there been two Chief Executives. Professor Knipprath quotes Harry Truman’s famous line, “the buck stops here,” and that indeed is one of the most important attributes of the United States Presidency.
The founders’ grasp of history, as they detail the failures of past plural executives, such as the Achaens, or the dissensions between the Consuls and the military Tribunes in Roman history once again illuminates their arguments. And their grasp of human nature is equally as profound –
“Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity.”
“Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character.”
Our United States Presidency is a unique institution, crafted thoughtfully and skillfully by our founding fathers!
On to Federalist #71!
Good night and God Bless,
Cathy Gillespie
Tuesday, August 3rd, 2010
Federalist No. 68 & Federalist No. 69 – Janine Turner
Federalist Paper 68, Federalist Paper 69, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 68, Federalist No. 68, Federalist No. 69, Federalist No. 69Howdy from Texas! As I read Federalist Papers No. 68 and 69 it becomes evident in a factual way how earnestly and tenaciously our founding Constitutional forefathers strove to protect our liberties and our Republic. Once again, they based their decisions, not on rhetoric or reason but on the wisdom wrought by history.
In no circumstance was this more evident than in regard to the election of the President of the United States. In Federalist Paper No. 68, Alexander Hamilton, states this with precision and clarity.
“Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption. These most deadly adversaries of Republican government, might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”
Could this be more relevant throughout our history and even today? We, and democracy, have been under continuous attack from varied countries for the past two centuries and we are under attack today. “The enemy is in the field,” whether it be via the insidious silencing by an overzealousness of “political correctness” or a literal attack on our soil.
America represents hope and hope is the envy of the enemy.
Our founding fathers wanted to protect our Republic from intrigue and corruption with the establishment of the electoral process. This provided a sort of perspective permeating through the passions of the people as well as a balance of power throughout the country. In times of peace and prosperity the perspective of an electorate seems redundant. Never have we seen, nor experienced the horrors that our forefathers endured that warranted and verified the need to establish such a window of wisdom laid in the hands of a few. Tyranny can easily slide in our backdoor while we slumber. Today, soldiers don’t beckon at our door to spend the night in our homes – this doesn’t mean it may not happen yet again.
Our only guarantee lies within the guarding and respecting and understanding the premise and principles upon which our Constitution was established.
We must never let ourselves be so far removed from the history or teaching of tyranny that we relinquish the reigns to the horse that pulls the cart. If we do this, our horse will pull our cart over a cliff into an oblivion of despair that will then be beyond our control.
“Liberty cannot be preserved without a general knowledge among the people.” John Adams.
Liberty cannot be sustained without a general knowledge of the United States Constitution.
The Electoral College is also important because it balances the power between the states. If we abolished the electoral process then the more populated states, such as California, Texas and New York would control the policies and direction of the country. One has to wonder about the “winner takes all” policy regarding the electorate that exists presently in all of the states except Maine and Nebraska. My understanding of “winner takes all” is that it undermines the electoral process. It also may falsely represent the political inclination of the states and eliminate electoral votes from certain regions that could, when added all together, actually determine an election. Is, “winner takes all” a violation of the United States Constitution? Does it circumvent the amendment process?
Federalist Paper No. 68 is enlightening and intriguing. Federalist Paper No. 69 is a smart, insightful comparison of our United States Constitution with the British rule of the king. Revealing are the nine points Alexander Hamilton makes by this exercise: Term limited, Impeachment possible, Checks by the legislative body, Power to command the military but not declare war or raise arms, Treaties made with concurrent power of the legislature, Appointment of officers with approval of the legislature, No power to convey privileges, Can prescribe no rules concerning commerce or coins, No particle of spiritual jurisdiction.
The comparison of the United States Constitutional restrictions to those of the British crown are awesome and revealing. Brilliant were the checks instilled upon the Executive branch of the United States’ government. This, of course, begs the question how have these limits prevailed today?
My curiosity is peeked by Alexander Hamilton’s statement about the President’s power of nomination being just that – a nomination – approved by the Senate – in ALL categories.
“The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution.
The President’s nominations of ambassadors, public ministers, judges, and in general all officers of the United States established by law and whose appointment are not otherwise provided for by the Constitution must be held to the scrutiny and “consent of the senate.”
How does the bloating of our modern day federal government, with unapproved and unchecked “bureaucrats and czars,” fair under this Constitutional scrutiny? These are the bleeds that rupture the heart of a Republic and threaten a seizure of the people.
Thoughts to ponder.
God Bless,
Janine Turner
Tuesday, August 3rd, 2010
Federalist No. 69
Federalist Paper 69, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Article II, Federalist No. 69, Federalist No. 73, Federalist No. 74, Federalist No. 75, Federalist No. 76, Federalist No. 77, Joerg W. KnipprathIn Federalist 69, Hamilton responds to the charge by the Constitution’s opponents that the president is an American king. He compares the powers of the “president of confederated America” (interesting phrasing) under the Constitution with those of the king of Great Britain and the governor of New York. He chooses the latter for several reasons. First, the essays of Publius are written during the pendency of the New York and Virginia ratifying conventions and were obviously intended in the first instance to influence those closely-fought skirmishes.
Second, Hamilton was deeply involved in state politics as a member of the downstate faction that favored both the Constitution and, later, the Federalist Party. Though it is hard to believe today, New York City politically was, in many ways, a Tory town. It was a hotbed of Loyalist sentiment during the Revolutionary War, so much so that the British made it their headquarters. Hamilton was intimately familiar with the operation of his state’s government and, given the emerging significance of the city and state, would find New York’s system more important than others’.
Third, the governor of New York was a rather strong chief executive compared to the state governors at the time. Comparing the president’s powers favorably to those of a republican American state executive would resonate particularly well with the persuadable delegates by avoiding charges that comparing the prerogatives of the president to those of the British monarch was irrelevant to the cause, as no American king was to be crowned.
But there is one more reason. The governor of New York, George Clinton, was the presiding officer at the convention and a staunch Antifederalist. He was also a member of the upstate Albany faction politically opposed to Hamilton. Clinton is the likely author of potent attacks on the Constitution in “Letters of Cato.” Many historians believe that it was the publication of some of those letters that induced the Constitution’s supporters to organize the effort that became The Federalist. The executive was one of Cato’s particular concerns. In an essay published four months before Federalist 69, Cato labeled the president the “generalissimo of the nation,” assailed the scope of the president’s powers, compared those powers alarmingly with those of the king of Great Britain (especially the war power), and warned, “You must, however, my countrymen, beware that the advocates of this new system do not deceive you by a fallacious resemblance between it and your own state government [New York]….If you examine, you…will be convinced that this government is no more like a true picture of your own than an Angel of Darkness resembles an Angel of Light.” Hamilton had no choice but to respond.
The result is a brief comparative overview, the particulars of which do not matter much today, as the king’s prerogatives, already circumscribed then, are virtually non-existent now. The essay does provide an introduction to various powers of the president, most of which are in Article II of the Constitution. Hamilton will delve into greater detail of various of them over the course of Federalist 73 to 77.
The Framers saw Congress as the most dangerous branch, and the one most likely to encroach on the domain of the others. While there were dangers in an independent and powerful executive, the lessons from the Revolutionary War and life under the Articles showed the need for just such an officer. The turbulence of state governments with weak and dependent executives only proved the point. Most agreed that a strong, independent executive was needed. But, how strong?
What is significant for us is the dog that does not bark, the constitutional clauses that are not mentioned by Publius. Not long after the Constitution was approved, Hamilton used the occasion of Washington’s Neutrality Proclamation in 1793 to advance a broad theory of implied executive powers. His position, vigorously challenged by Madison during the Pacificus-Helvidius debates, was that the president has all powers that are not denied to him under the Constitution either expressly or by unambiguous grant to another branch. That approach has been used by subsequent presidents to fuel the expansion of executive power.
Article II is rather short, and the president’s powers few and specific. Beyond that, the boundaries are vague. It was broadly understood that George Washington would be the first president. The general recognition of his propriety and incorruptibility meant that he would have discretion to define the boundaries of the office. Indeed, Washington was expected to do so, and he was well aware of that responsibility. In addition to the oath of office, there are three clauses whose text suggests room for discretion. Those three, the executive power clause, the commander-in-chief clause, and the clause that the president “shall take Care that the Laws be faithfully executed,” have proved to be generous reservoirs of necessary implied executive powers.
Publius spends little time on the commander-in-chief clause, and essentially none on the others. He portrays the role of the president as if he would be confined to leading the troops in military engagements. While Washington, with Hamilton as his aide, actually dressed in military regalia and mounted up to lead troops during the Whiskey Rebellion, they soon delegated that project to General “Light Horse Harry” Lee. That is the least likely role of the president today. Indeed, even during the ratification debates, that was a questionable view not usually advocated, as it frightened republicans by blurring the line between civilian control and military command and was thought likely to lead to the election of “military chieftains.”
The executive power clause is the principal source for the president’s implied or inherent powers, those that the president’s detractors would disparagingly call royal or prerogative powers. The textual significance is that, while Article I says that, “All legislative powers herein granted shall be vested in a Congress …,” Article II declares that, “The executive power shall be vested in a President …”[italics added]. That affirmative grant to the president has to mean something, and –unlike Article I regarding Congress–it has to mean more than the powers mentioned later in the text. The question ever since has been, “Just what does it mean?” Presidents have massaged that ambiguity and the flexibility of the other elastic clauses mentioned to act unilaterally, as necessity demands, usually in military affairs, foreign relations, and national security matters. Executive unilateralism came under particular scrutiny by Congress, the courts, the academy, and the media during the Bush(43) administration, though interest in that topic has slackened since the election of 2008–perhaps not coincidentally.
Not surprisingly, as advocate for the Constitution’s adoption, Hamilton does not spend time defending, or even recognizing, the theory of implied executive powers that he embraced soon thereafter. The enumeration of specific limited presidential powers and Hamilton’s soothing interpretations in Federalist 69 do not give due credit to the possible sweep of the executive office. His next essay presents a more forthright defense of the need for an energetic executive.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is http://www.tokenconservative.com
Federalist No. 69 & Federalist No. 70 – Cathy Gillespie
Federalist Paper 69, Federalist Paper 70, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 69, Federalist No. 69, Federalist No. 70, Federalist No. 70Greetings from Long Beach Island New Jersey! What fun I’ve been having reading the Federalist Papers on the beach! And what interesting looks I get from passersby who take the time to glance at the cover of my book.
Federalist Papers 68-77 are especially interesting to me personally, as I have been fascinated by the Presidency for as long as I can remember. My first “political” experience was writing to President Nixon when I was in grade school, telling him I was praying for him during his struggles. In Junior high, I begged my father to take me to SMU, in Dallas near where I grew up, to stand in a rope line in order to catch a glimpse of President Gerald Ford. I voted for the first time in 1980, proudly casting my ballot for Ronald Reagan. My first college course in political science at Texas A&M was taught by an expert in the Presidency, and although regretfully I can’t remember his name, I loved the course so much, I switched my major from business to political science that semester!
During the last decade, I got an even closer look at the Presidency through my husband’s work with President George W. Bush, and opportunities our family had to interact with him. I had always admired President Bush’s steady leadership, and his unwavering commitment to certain values and principles, most notably keeping America safe. But getting to know him personally, I admired the way he carried the office of the Presidency. When you are President, you are always President, whether relaxing in a small group or at public events. President Bush respected the office, and lived every day in a way that could make our country proud.
Thank you to Professor Joerg Knipprath for your enlightening and thorough essays on Federalist Papers No. 69 (The Real Character of the Executive ) and 70 (The Executive Department Further Considered ). The historical background you provide gives a useful prism from which to view these two papers that explore the President’s powers versus those of the British Monarch and the New York Governor, and the decision of the founders to have a unified executive, versus two or more heading that branch.
In Federalist No. 69 Publius makes a convincing argument that the United States Presidency, while powerful enough to head the country, is not as powerful as the King, or even the New York Governor (with the exception of the power to make treaties). This is a fascinating comparison, and reveals the founders’ thought process on why the Presidency of our country is vested with certain powers and limited in others.
Some of the President’s powers originally outlined by the founders have waned, while others have increased. The President’s term in office still remains at four years, but is now limited to two terms by the twenty-second Amendment.
The President’s power to
“nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution,”
has been expanded over the years by the President’s ability to create “Czar” positions. These “Czar” positions sound eerily similar to the power Publius ascribes to the King, and denies the President having:
”The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices.”
Time Magazine provides an interesting history of “Czars” in the United States at this link: http://www.time.com/time/politics/article/0,8599,1925564,00.html
Time states the first Czar existed in President Woodrow Wilson’s cabinet during World War I, when Wilson appointed Bernard Baruch to head the War Industries board, and was known as the Industry Czar. This must have been the proverbial camel’s nose under the tent, as the use of “Czars” has mushroomed from that point forward.
In Federalist No. 70, Publius defends the decision of the founders to have a single executive in the office of the Presidency head the executive branch, versus two or more individuals. The benefits of a unified executive make an extraordinary amount of sense, especially in protecting the people’s liberty through transparency, and accountability. As difficult as it was to pinpoint blame in Watergate, for example, imagine how much more difficult it might have been had there been two Chief Executives. Professor Knipprath quotes Harry Truman’s famous line, “the buck stops here,” and that indeed is one of the most important attributes of the United States Presidency.
The founders’ grasp of history, as they detail the failures of past plural executives, such as the Achaens, or the dissensions between the Consuls and the military Tribunes in Roman history once again illuminates their arguments. And their grasp of human nature is equally as profound –
“Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity.”
“Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character.”
Our United States Presidency is a unique institution, crafted thoughtfully and skillfully by our founding fathers!
On to Federalist #71!
Good night and God Bless,
Cathy Gillespie
Tuesday, August 3rd, 2010