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The Command of the Military and Naval Forces, and the Pardoning Power of the Executive
From the New York Packet
Tuesday, March 25, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THE President of the United States is to be “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.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.

“The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers.” This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office.

He is also to be authorized to grant “reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.” Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.

PUBLIUS.

Greetings 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

 

The Powers of the President, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

In 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

 

Howdy from Texas. I thank you for joining us! I have been absolutely swamped prepping pre-production for Constituting America’s RV road trip across the country!! Our winners are going to revealed throughout the next few weeks as we travel to the winners home states and film them for our documentary! Our first winner is revealed today.

He is Jacob Wood from California. He won Best Song High School. Jacob is very talented. Our judge, John Rich, chose his entry as the winner. Jacob is a talented songwriter, musician and has a wonderful voice!! Please check his out his song on our site and if all goes according to my mission, you will soon hear his song on the radio!!

Thus, with all the prep for our cross-country tour, I have been unable to keep up with our Federalist Paper’s daily read. Today, however, as I am on the plane to California, I am attempting to catch up on my reading and blogging.

Federalist Paper No. 74, by Alexander Hamilton, once again resonates the importance of being most vigilantly informed about the candidates we choose as President. Yes, we have a masterful system of checks and balances, but there are powers inherent in the office of Presidency and to those we must take note.

Knowledge is power. As I continue to read these papers. I am continually impressed by the fact that we must know our Constitution and understand the distinct powers that are given to our representatives. This is the only want that they may be kept in check and the majesty of the people protected.

The power of pardoning is one to be taken seriously. Thus, knowing the deeply rooted intentions of our President is essential, as he has the power to pardon anyone. We are so far removed from tyranny, and intrigue from foreign countries, that we grow lazy regarding the potential far-reaching and destructive powers a pardon may present.

Yes, at times, solitary wisdom may prevail over a mob of passions. Yet, power in one is always dangerous. Our Constitution goes to great lengths to prohibit powers from being invested in either one or the few.  However, in the instance of pardoning, the power is solely in the President.

History of our country has proven that this power has been treated with respect and dignity most of the time. However, there have been times when people who are most undeserving of a pardon have been pardoned. Up to now, they may have been benign in regard to how they affect our Republic but they may not always be.

We must thoroughly vet our candidates. Some day, a Presidential pardon may override the genius of the people and our Republic may be jeopardized.

God Bless,

Janine Turner
Sunday, August 15th, 2010

 

Guest Essayist: Allison Hayward, Vice President of Policy at the Center for Competitive Politics

Federalist Paper 74 appeared on March 25, 1788 – readers should recall that this is roughly 6 months after the Constitution has been sent to the states for ratification.  Only one day earlier, on March 24, Rhode Island in a popular referendum rejected the Constitution by a margin of about 10 to 1(Rhode Island eventually ratified the Constitution via convention in 1790, by a vote of 34-32).  At this point, only  six states had ratified the document.

So we can forgive Hamilton for sounding just a tad defensive in this essay.

As noted previously, Hamilton is a strong defender of executive power, so he is ready and eager to explain to readers the important principles informing his view.  He has two tasks – first, reassuring readers that the powers of the Presidency are not extreme, and the nation’s executive will not become a monarch.  Second, that to the extent the President has power to act unilaterally, it is in situations where government by committee would be intolerable.  There’s a tension between these two tasks that is evident from Hamilton’s first sentence:

“THE President of the United States is to be “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.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it.”

But is the power as commander-in-chief really “so evident in itself?”  The commander-in-chief power has been invoked in recent years to justify unilateral warmaking power by the Executive.  Critics of that argument note that in fact the power to declare war belongs to Congress, and is thus not solely within the President’s ambit.

In modern times, there are many foreign entanglements that involve our armed forces but aren’t “wars.”  To be sure, the President’s ability to send American troops into combat would not mean much without a standing army — an institution the Federalists promised would not come to pass.  What powers should the President have in these limited engagements — today?  Should Congress be able to undo Presidential deployments, or condition them on Congressional approval, such as in the War Powers Act?  When the President and Congress disagree, who decides which side wins?  Do we really want the Supreme Court involved?

Hamilton also raises and defends the Presidential power of the pardon.  Hamilton argues that the pardon is necessary to temper the severity of criminal law, and the President is the best positioned individual to grant it – and be held accountable to the people for having done so.  In language that probably seems a little odd to us today, Hamilton observes that the pardon will help preserve domestic tranquility, even in cases of treason:

“On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief           Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”

Again, this is a striking passage that should remind us all of the tenuousness of the new nation, and the feeling among the founders that this experiment could quite easily go wrong.  I was reminded of this when looking over the ratification timeline in preparing this blog.  I had forgotten that as a precondition to entering the nation, Vermont had to enter into a peace treaty with New York.

To me, that sounds like a premise for a comedy, perhaps with Ben and Jerry declaring independence from the United States and commissioning a new national anthem from Phish.  But at the founding, tensions between states were no laughing matter.  The legacy of violence and mistrust was real.  In fact the first use of the pardon was for participants in the Whiskey Rebellion, for Washington perhaps sensed the need for just such a “welltimed offer of pardon” to “restore the tranquillity of the commonwealth.”

The Presidential pardon in modern times has had a mixed record. The Department of Justice typically makes clemency recommendations to the President, but the President is not bound to follow them.  President Gerald Ford’s pardon of Richard Nixon (before indictment or conviction for anything) may have spared the nation an ugly incident, but also may have cost Ford his reelection in 1976.

Critics accused President Clinton of rewarded a campaign supporter by pardoning fugitive financier Marc Rich.  Classes of individuals have been pardoned too, most notably all Confederate soldiers, and all Vietnam draft dodgers.  Hamilton correctly observed that the pardon, as an aspect of law enforcement, could mollify and temper the force of criminal law.

But it is less clear to what degree Hamilton could see – or wanted to acknowledge – the Presidential pardon as a political favor.

Monday, August 9th, 2010

Allison Hayward is the Vice President of Policy at the Center for Competitive Politics