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Revisiting The Creation of the Presidency in the 21st Century

Forrest McDonald, a renowned scholar on the American presidency, described The Creation of the Presidency by Charles C. Thach, Jr. as “an unprecedented achievement.” Given the opportunity to write a reflective review on the book from a twenty-first century perspective, I am convinced that Thach fundamentally changed the field when his work was first published in 1923. Recent scholarship and new evidence have disproven many of his key arguments, however, leaving The Creation of the Presidency as a helpful tool to understand the evolution of historical work, but not an authoritative source on the origins of the presidency.

Surveying footnotes and bibliographies from the 1920s to the 1970s, and perhaps even later, demonstrates that The Creation of the Presidency has been widely read and cited in American political historiography.[1] And for good reason. Thach was one of the first scholars to argue that the delegates to the Constitutional Convention intended to create a powerful executive. This argument might seem obvious in the twenty-first century, but in 1923, Thach challenged decades of scholarship that had glorified congressional authority. Furthermore, Thach wrote his book after many weak presidential administrations appeared content to follow Congress’ lead, before world wars, depressions, and the Cold War fueled the dramatic expansion of executive authority.

Despite its widespread adoption, The Creation of the Presidency feels like the product of another era. Current scholars follow a number of best practices that did not apply to scholarship when Thach published The Creation of the American Republic. For example, Thach relies heavily on lengthy block quotations that often take up most or all of an entire page. He embraces certain anachronisms: rather than the labels the founders themselves would have used to describe their views, he uses the term “conservative” to describe the founders’ political positions, including limited government reform, a strong executive, a guarantee of property rights for the minority, and retaining basic ideals of free government. While some of these views continue to resonate in right-leaning circles, in the contentious political climate of 2019, “conservative” has a completely different connotation than Thach intended, more often referring to a political position characterized by social and religious values, opposition to gun reform, and hostility to immigration reform. Taken together, these distinctive facets of Thach’s book demonstrate how the language and conventions of historical writing have drifted in the last ninety-six years.

Since then, scholars have also shifted their focus in a number of important ways. Part of this change flows from our very different frames of reference: the current U.S. government, and the executive in particular, barely resemble the government of the early 1920s. In the final paragraph of his conclusion, Thach wrote “that never yet has the choice of the people put into office a corrupt President, and that the office as organized successfully has withstood and completely recovered from the violent direct assault of a hate-blinded Congress.” This conclusion reflects the still-relatively constrained executive branch in 1923 and a reverence for the presidency that is incompatible with the evolution of government over the last century.

To be fair, the Teapot Dome Scandal that tarnished President Warren Harding’s legacy was just beginning to unfold as The Creation of the Presidency was published. Yet President Ulysses S. Grant’s cabinet was full of scandals and President Andrew Johnson was probably rightly accused of corruption. But since the publication of The Creation of the Presidency, scandal has become far less of an exception in government. President Richard Nixon resigned to avoid impeachment over his role in the Watergate break-ins and fifty-five officials from his administration were convicted of felonies. Some recent administrations have also been decimated by convictions: sixteen felony convictions during President Ronald Reagan’s administration, nine in President George W. Bush’s presidency, and seven felony convictions in President Donald Trump’s administration, as of September 2018. These wrongdoings demonstrate that the terms of Article II of the U.S. Constitution are not sufficient to prevent corruption in the executive branch. Accordingly, recent studies of the presidency explore the flaws embedded in the Constitution and the ramifications for executive authority.

Next, since the 1950s, there has been an explosion of new evidentiary material that has produced scholarship that disproves or disagrees with Thach’s arguments. The paper projects of many founding figures, including George Washington, Alexander Hamilton, James Madison, Thomas Jefferson, and others, have completely revolutionized scholarship and how historians can examine the American Revolution and the Early Republic. However, these projects were any decades from commencing at the time of Thach’s publication. Similarly, Thach had to rely solely on Max Farrand’s The Records of the Federal Convention for his study. Scholars now recognize Farrand’s compilation as flawed: the volumes published documents out of order leading to chronological confusion; they misattributed statements and articles to the incorrect authors; and Farrand did not have access to modern scanning techniques that have since revealed edited and removed texts. Since then, the powerhouse editing project The Documentary History of the Ratification of the Constitution has corrected many of the weaknesses in Farrand’s work, and provides a much more thorough documentary base for today’s scholars.

Thach’s treatment of James Madison’s role in the construction of the Constitution is one example of how new evidence and scholarship has challenged Thach’s arguments. In the preface, McDonald noted that Thach is dismissive of Madison’s contributions to the Constitution and the shape of the executive. For example, Thach wrote “the truth is that Madison’s views on executive power were extremely vague when he came to Philadelphia in 1787.” Though debate remains about Madison’s legacy, recent work by Jack Rakove, Mary Sarah Bilder, Noah Feldman, and others demonstrate that Madison played a much more meaningful role in both the Federal Convention and the Virginia Ratification Convention than Thach acknowledged. These works show how Madison’s ideas on executive power certainly evolved over the course of the 1780s and 1790s, but that does not mean his ideas were unformed or vague. [2]

Recent scholarship has also focused on how much the federal government evolved in response to foreign pressures and domestic challenges in the first few years of its existence. This emphasis on the organic evolution of the government conflicts Thach’s position that the executive looked much like the delegates intended. For example, Thach argues that the delegates to the Constitutional Convention did not intend for the Senate to serve as a council for foreign affairs. Instead, he contends that the delegates agreed that the Senate would play a small role in the diplomatic process, meaning that the Senate’s role in the Early Republic was largely consistent with the delegates’ expectations for the upper house of Congress.

I disagree. If the delegates believed that they had limited the Senate’s power, then they would have had no reason to fear the Senate’s power. But as Madison confessed in his letters, and Thatch himself noted, many delegates did fear that the Senate was too powerful and would usurp presidential authority over diplomacy. Additionally, several delegates in the state ratification conventions expressed concerns that the president would be left without support because the Constitution contained no established executive council. Supporters of the Constitution reassured these delegates that the Senate would serve that role. [3] Finally, the behavior of Washington and the senators once they were in office remains the best indicator of their expectations. In August 1789, Washington visited the Senate for the first time to request advice on an upcoming peace commission. In his diary, Senator William Maclay from Pennsylvania wrote that he spoke up during Washington’s visit because he worried that the Senate would lose its right to advise the president if he remained quiet: “I rose reluctantly indeed, and from the length of the pause…it appeared to me, that if I did not, no other one would. And we should have these advices and consents ravish’d in a degree from Us.” Maclay’s fears proved prescient and Washington quickly abandoned the Senate as a council for foreign affairs and turned to other options—a significant departure from the Constitution and the delegates’ expectations.

Next, Thach argues that Charles Cotesworth Pinckney’s proposed council reveals much about the shape of the executive branch. In May 1789, Pinckney had proposed an executive council made of the department secretaries and the Chief Justice of the Supreme Court. The president could require this council’s opinion, but was not bound to follow its recommendations. The delegates rejected this proposal—twice. In 1791, Washington created a cabinet that looked quite similar to Pinckney’s council; another departure from the Constitution. Thach uses Washington’s cabinet as evidence that the delegates intended for the department secretaries to serve as a council for the president. Many scholars initially agreed with Thach and assumed that a cabinet was inevitable from the very beginning of the presidency. That logic is flawed. We cannot read that intent back onto the Constitution just because a similar council emerged several years later.

Finally, Thach suggests that the constitutional language allowing the president to “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 Offices,” was meaningless and simply a holdover from the British Privy Council. He asserts that the British government played little role in the creation of the executive during the Convention, instead suggesting that the Governor of New York was a much more likely model for the presidency.

Recent scholarship has revealed how attentive the delegates were to the international community. They were eager to form a powerful government that would impress European nations, but they were also careful to avoid recreating the mistakes they saw in the British government system.[4] These concerns suggest that the phrasing in Article II, Section 2 is far from meaningless. The delegates were determined to make sure the president took responsibility for his decisions and that his advisors took responsibility for their advice. Requiring the department secretaries to submit their opinions in writing protected transparency in the executive branch and prevented secretive cabals from forming around the president. Washington’s subsequent in-person meetings with the department secretaries represented yet another deviation from the Constitution.

Ultimately, The Creation of the Presidency is worth reading for those who want to understand how the historiography surrounding the executive evolved. For those who just want to learn about the formation of the presidency, more recent scholarship would be a better choice.

[1] See, for example Gordon Wood, The Creation of the American Republic, 1969; Christopher Collier, Decision in Philadelphia, 1987; and Jack Rakove, Original Meanings, 1996.

[2] See here Jack Rakove, A Politician Thinking, 2017; Mary Sarah Bilder, Madison’s Hand, 2015; and Noah Feldman, The Three Lives of James Madison, 2017.

[3] See Madison to Thomas Jefferson, 24 October, 1787; “Federal Farmer,” 3 January 1788.

[4] See, for instance Eliga Gould, Among the Powers of the Earth, 2012.

Reader Discussion

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on January 03, 2020 at 10:59:28 am

Thank you for this insightful review of Thach in relation to the subsequent work on the presidency. I would only draw out two points that merit emphasis simply because of the enormous challenge of understanding the time period during which the Constitution was created.

1) Every generation of course labors under the influences of its own concerns. The progressive era of Thatch's time was disposed to accept the notion that power means the power to positively reform or lead. The preference for examining the Framing Convention in Philadelphia over the state conventions was not only because it was more convenient to use Max Farrand, but it was also congenial conceptually to the reformist ethos of the time.

2) We still retain something of Thatch's biases here, or at least we need to be aware of that potential tendency with respect to using the term "powerful." And this follows upon the observation that the Framers were trying to be "careful to avoid recreating the mistakes they saw in the British government system."

There is "power" as in the positive power to promote some substantive social end, as already noted, and then there is "power" as in the power to restrain or police boundaries. Both might be "powerful" but they are different in kind. This latter more negative and defensive conception of the office, I would argue, was the one closest to the idea of the presidency that was proposed and ratified.

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Hans Eicholz

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.