There is a broad similarity between the way constitutional provisions and monuments are wrongly discarded.
Pointing the finger at Woodrow Wilson is tempting. It is a common enough trope to blame Wilson while longing for a return to the founding (in Weiner’s case, the “first” founding, as in the Mayflower Compact). Weiner traces the roots of the “creeping Caesarism” of the presidency—which eclipses liberty, disregards prudence, and neglects deliberation in the name of decisive action—to Wilson, or at least Wilsonianism. This craving for a “great leader” regardless of circumstances subordinates both Congress and the citizenry. Weiner’s solution is to return Congress to its preeminent place in the constitutional order. I find myself at least in partial agreement with Weiner’s concerns, particularly that our preoccupation and preference for executive action distorts the Constitution and neglects virtues and habits that do not stem from the executive, such as deliberation—all the more so when so many pressing issues call for careful deliberation and judgment, not quick action. Yet I think the problem Weiner seeks to diagnose runs deeper than Wilson. I want to suggest a different diagnosis of the problem, which may stem from a somewhat different conception of the American constitutional order.
Some elements of the presidency that Weiner bemoans—the idea that the president may represent a national vision of the people, or that the president sets the political agenda— not only have constitutional roots but they are plausible constitutional developments. Yet when traits like executive “energy” are unmoored from the constitutional scheme—and the separation of powers in particular—they threaten other constitutional virtues and values. In this way, President George W. Bush’s insistence that he is “the decider” strikes me as akin to claims from the Supreme Court that it “speaks” for the Constitution. Both the president and the Court have their role to play in the constitutional order. In some cases, the president must decide; in others the Court may speak for the Constitution. There is, thus, some truth to these statements, but they are partial truths. Viewing the whole Constitution from the lens of the executive or the Court—and I would add the Congress—distorts our constitutional vision. Thus I agree with Weiner’s complaint that a focus on executive efficiency and dispatch has been extended in areas where such virtues do not belong, and it has eclipsed the equally important—perhaps more important—virtue of congressional deliberation.
And yet, the necessity of a powerful if limited executive finds expression in the Constitution. I think we will be better positioned to take on a distorted view of the executive if we first acknowledge and apprehend the roots of executive power in the Constitution. We might best do this by noting that the Constitution was not just about limiting power, but empowering a certain form of government to help foster and protect liberty. As Alexander Hamilton put it in The Federalist, No. 31, “there ought to be no limitation of a power destined to effect a purpose, which is itself incapable of limitation” (Hamilton 1961, 194). Hamilton insisted on this point as a “primary truth” in thinking about politics and worried about placing “constitutional shackels” on powers given the variety of “national exigencies” we were bound to confront. To complete the objects entrusted to it, the government ought to be free from all other controls save “the public good and the sense of the people” (195). James Madison echoed this insistence in The Federalist, No. 41, “It is in vain to oppose constitutional barriers to the impulse of self-preservation.” (Madison 1961, 270). Madison says this, no less, after having argued in an earlier paper that, “energy in Government requires not only a certain duration of power, but the execution of it by a single hand” (Madison 1961, 234). Publius, of course, was also deeply concerned about how such power would be responsibly exercised and contained. This required, to borrow Edmund Burke’s phrase, bringing together “opposite elements” and a “combining mind.”
This combing mind was, at times, a split mind on the reach of executive power. Unlike Madison, Hamilton saw a wide-ranging role for the executive. In his writings and as a member of the executive branch, Hamilton argued that an energetic, independent, and stable executive was essential to sustain the Constitution. As he opened The Federalist, No. 70, “There is an idea, which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. The enlightened well wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles” (Hamilton 1961, 471). To be sure, as Weiner suggest, Hamilton went out of his way in various papers to illustrate that the new executive was in stark contrast to the British monarch (Hamilton 1961, 452). Yet elsewhere in the essays Hamilton insisted upon executive independence and discretion that were suggestive of features of the King’s prerogative. Yet part of what made the president different from the King was the republican principle of a due dependence on the people and a due sense of responsibility to them. Hamilton, in fact, argued that unity is more consistent with republican principles than attempts to divide executive power because unity is more likely to foster accountability and responsibility.
Yes, The Federalist, No. 70 is not the whole of Hamilton (and certainly not the whole of the Constitution), but it is a crucial piece and suggests, as do numerous other papers, a more than “reactive” role for the president. For Hamilton, it was not just that a republican form of government required an executive; it required an executive with wide-ranging discretion to act as a positive force in directing the government. This vision came out more fully in Hamilton’s Pacificus essays in defense of President Washington’s Proclamation of Neutrality. In defending Washington’s constitutional authority to seize the initiative and declare the United States neutral, Hamilton penned a line that has been seized on by proponents of a powerful executive rooted in Article II of the Constitution: “The general doctrine then of our constitution is, that the EXECUTIVE POWER of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument” (Hamilton 2007, 13). Of course, to say that there is something called “executive power” does not specify what that power is, only that the president is vested with it, save whatever exceptions or qualifications the Constitution makes. The president, accordingly, might be extraordinarily powerful, or an “errand boy,” depending on how we read “executive” power. Thomas Jefferson called Hamilton’s position a heresy and urged Madison to take up his pen “and cut him to pieces in the face of the public.” Madison took up his pen to confine the Constitution’s definition of “executive” power.
My point is twofold. First, I think Hamilton’s understanding suggests that there is some constitutional grounding for an active executive and some features of the modern executive are natural constitutional developments. Second, and just as surely, this does not make Neo-Hamiltonian views of sweeping executive power correct. On the contrary, I think Weiner is right that reading Hamilton’s other pieces on the executive branch gives a more limited view of executive power. Hamilton, unlike many contemporaries who turn to him such as John Yoo, clearly vests the power to wage war with Congress. If Hamilton envisioned executive administration as a guiding force in the nation—as is certainly true today—he was perfectly comfortable with Congress altering the direction of foreign policy or public policy. Given circumstances, the executive may be the first to act. A clear instance of this is President Obama’s order to move against Osama bin Laden in Pakistan. But even if the executive might be the first to act, Congress is not obligated to accept the president’s judgment. There is no escaping judgment in the constitutional scheme and this is where Congress has too often failed. Indeed, I think Weiner is entirely correct that many issues that have gravitated to the executive properly belong to Congress and are ideally suited to Hamilton’s understanding of Congressional deliberation and lawmaking. Congress ought to move the nation to a state of war, come up with rules of engagement for enemy combatants in an unorthodox war as in Afghanistan or Iraq, codify standards for drone strikes, and the like. We should recall that Hamilton defended executive unity and dispatch by contrasting it with the functional virtues of Congress: “In the legislature, promptitude of decision is more often an evil than a benefit. The differences of opinion, and the jarring of parties in that department of government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection; and serve to check excesses in the majority” (Hamilton 1961, 475).
A synoptic vision of the Constitution will help us keep an eye on this balance. From the perspective of constitutional design, the separate institutions have unique responsibilities: they serve different functions, interests, and principles. I think Weiner is right that we have lost sight of this balance—particularly between Congress and the President. We would benefit from more Congressional deliberation even when Congress approves of presidential action. And Congress and the public should not forgo the sort of conflicted deliberation and prudential judgment that Weiner describes because of fast moving events. Is the threat of terrorism really different from other threats America has faced? Is a denial of habeas, even to suspected terrorists, consistent with American principles? These issues should not be decided by executive fiat or Congressional abdication, but as part of a robust public debate that weighs and considers the range of opinions, values, and possibilities that Weiner describes. I would add that conflict and tension between the branches, as we see between Hamilton and Madison over the nature of executive power, is a healthy thing. The interaction of the coordinate departments—including competing principles and considerations—within the constitutional scheme is a primary way of containing an abuse of power and weighing competing concerns. Clashes between the Congress and the president—partly rooted in representing different versions of the population—stem from constitutional design. This is true, too, of what we could call “institutionally induced hypocrisy.” That is, the tendency to see things from an institutional perspective. It is not surprising that President Obama has a more sympathetic take on executive power than did Senator Obama. This is not a criticism; it is a feature of constitutional design.
And yet because of constitutional design I am less sure of Weiner’s solution. While speaking of Congress’s virtues, Weiner also notes how frequently Congress defers to the other branches. Certainly Congress has the constitutional tools at its disposal to reassert itself. But it has given little indication that it will. Making the case for Congress to do so is helpful. Yet I wonder if Congress’s short sightedness and deference is the result of a deeper constitutional failure. The Congress has not functioned, at least since the early years of the twentieth century, as was expected. Congress, by design, is supposed to have a self-interested motivation in defending its institutional power. As a collective body, however, the self-interest of Congress may be in deferring fraught issues to the other branches of government—particularly enabling presidential initiative. Might we need, then, a deeper constitutional fix to address the problems than Weiner suggests?