I am pleased to share with you the top 5 Law & Liberty podcasts of 2020.
I agree with Greg Weiner that Woodrow Wilson changed the character of the American presidency and of the entire American political order, and not for the better. Where I disagree with Greg is whether Wilson and his 20th century successors expanded presidential power over national security and foreign affairs to such an extent that they undermined the constitutional system of separation of powers. When it comes to national security and foreign affairs, there is far more continuity between the “founding” presidency and the contemporary presidency [aka the “imperial” presidency] than most of the latter’s detractors care to admit.
I will begin by noting that the principles of the founding generation are important for modern Americans to understand, but so are the practices of the founders. The magisterial writings of the founding generation should not be our sole source of information when attempting to gauge the proper limits of executive and legislative power. These men functioned as practical statesman as well, and if one exclusively reads the writings of George Washington, James Madison and Thomas Jefferson, one is left with an incomplete portrait of their understanding of the Constitution. Their actions as public officials help us define the constitutional parameters of legislative and executive power.
Another area of disagreement between Greg and me is that Greg sees many of these early presidential practices as “exceptions” to the rule, while I believe that from day one these “exceptions” were the rule.
While it is true that George Washington should never be associated with Caesar, and I implicitly did so (borrowing Greg’s “creeping Caesarism” line and applying it to the entirety of the American presidency), I continue to believe that in the realm of national security and foreign affairs George Washington embraced an expansive view of presidential power. And while this might not put Washington in the same league as Harry Truman or Barack Obama, there is a clear and compelling record that indicates that the nation’s early chief executives, whatever else their differences, shared Thomas Jefferson’s belief that certain national security measures should remain known “to their executive functionary only.”
President Washington was determined that never again would the Commander in Chief be subjected to the endless congressional delays and leaks which crippled the American war effort during the Revolution. As Washington observed in a letter to Patrick Henry in 1777, “there are some secrets . . . which none but the Commander in Chief at the time, should be acquainted with.” General Washington not only utilized “disinformation” techniques against the British during the war, he also used them against American political leaders, believing that “when the imposition did not completely take place at home, it could never sufficiently succeed abroad.” Washington used private money to fund secret operations and unilaterally shifted funds designated by Congress for other purposes to sustain his secret initiatives, which included political kidnappings such as the effort to snatch George III’s son and hold him hostage. A man of great personal integrity, Washington nonetheless believed that the Byzantine world of international relations required a level of cunning and duplicity that tend to be frowned upon in polite society or by congressional oversight committees.
As I mentioned in my previous response to Greg, these beliefs were put into practice by President Washington in 1790 when he called for the creation of a Contingency Fund (or “secret service fund” as it was quickly labeled), in his first annual message to Congress. Congressman James Madison of Virginia led the fight for passage of the Contingency Fund on the floor of the House. Madison noted during the debate that the kind of secret diplomatic and non-diplomatic operations under consideration could be best performed by the president “alone” rather than in concert “with a large body.” The Contingency Fund exempted the president from reporting to Congress for what purpose or to whom these secret funds were sent, and it passed both houses of Congress.
The Contingency Fund would be used by Presidents Washington, Jefferson, and Madison, and many of their 19th century successors, for a range of diplomatic and covert operations that provided the president with an array of options including the use of force. While both Madison and Jefferson publicly extolled the virtues of deference to Congress and limited executive power, they were both, Jefferson especially, practitioners of the unilateral exercise of executive power. Jefferson dissembled to Congress regarding his instructions to American naval forces both before and during the naval war with the Barbary pirates; he was the first president to authorize a covert operation designed to overthrow a foreign head of state (the Pasha of Tripoli); his policy toward Native Americans consisted of bribing Native American Chiefs to hand over their lands; he spent unappropriated funds during the war scare of 1807; and he sought to “crush” those American citizens who dared violate his embargo by running contraband across the border with Canada. Civil and military officials in New York and New England were instructed that “no effort should be spared to compass the object” of “crush[ing]” smugglers who defied his edict.
As an ex-President, Jefferson encouraged his friend James Madison to burn down St. Paul’s Cathedral in retaliation for the British burning of Washington, D.C., by hiring a few arsonists. And of course, Jefferson’s concept of presidential emergency power would make the editors of The New York Times, and perhaps even Dick Cheney, blush: “On great occasions every good officer must be ready to risk himself in going beyond the strict line of the law,” and he added that there were “extreme cases where the laws become inadequate to their own preservation, and where the universal recourse is a dictator, or martial law.” For Jefferson, “a strict observance” of the rule of law was “one of the high duties of a good citizen” but it was not the highest duty. “The laws of necessity, of self-preservation, of saving our country when in danger, are of a higher obligation.” And, he noted, in a lesson lost in our increasing legalistic, process obsessed nation, “to lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”
As previously mentioned, we can understand more about the nature of executive power in America by examining the exercise of that authority by the founding generation. I would argue that if the “father of the Constitution,” James Madison, considered an executive action proper, than perhaps critics of these actions who contend that they are “unconstitutional” need to rethink their position. Like Jefferson, James Madison was no shrinking violet when it came to the unilateral exercise of executive power. Madison understood that the tools available to the executive branch regarding foreign affairs were wide ranging and mirrored the nature of a corrupt world. Madison’s worldliness was revealed during his service as Jefferson’s Secretary of State when he procured a prostitute to entertain a visiting Tunisian diplomat, hoping to enhance foreign intercourse between the United States and that nation. As President, Madison plotted to overthrow Spanish colonial rule in East and West Florida, all the while deceiving members of Congress and foreign diplomats. Madison’s Secretary of State blatantly lied about American involvement in the Floridas to Spanish officials, the latter representing a nation to which the United States was at “peace.” Madison’s covert operation in West Florida worked like a charm, while in East Florida, the administration’s efforts to induce a “spontaneous,” “indigenous” uprising failed when fugitive slaves and Native Americans expressed little interest in becoming part of the American experiment. Madison also dispatched secret agents throughout Latin America whose goal was to encourage uprisings against Spanish colonial rule, thus beginning a long tradition of American intervention in that region. Both Jefferson and Madison were drawn to secret, congressionally unauthorized operations because they allowed them to project American force without maintaining a large standing military; they were relatively inexpensive and therefore kept their balanced budget goals within reach; and perhaps most importantly, they allowed the United States to proselytize among those who had not yet embraced the self-evident truths of the Declaration of Independence.
As the founding generation retired from the scene, the tactics they utilized were handed down to a new generation of American leaders, including Andrew Jackson who attempted to covertly acquire Texas from Mexico; or to President John Tyler and Secretary of State Daniel Webster, who conducted, in concert with the British secret service, an intelligence operation against citizens of the United States in order to diffuse a border dispute between the U.S. and Canada; and on to James K. Polk. According to Greg, Polk is as an example of a President “acting in consultation with Congress according to the constitutional model.” Polk got his congressional declaration of war against Mexico, but only after he maneuvered the Mexicans into firing the first shot. His machinations inside Mexico and along the disputed Texas-Mexico border make Lyndon Johnson’s Gulf of Tonkin hijinks look like amateur hour.
Space considerations preclude an account of Abraham Lincoln’s actions during the American Civil War, but suffice it to say that President Lincoln and his Secretary of State, William Seward, shared Jefferson’s belief that “a strict observance” of the rule of law was “one of the high duties of a good citizen” but it was not the highest duty. “The laws of necessity, of self-preservation, of saving our country when in danger, are of a higher obligation.” The American Civil War was a precursor to the Cold War and the War on Terror in that many key victories were achieved far from the battlefield using methods guaranteed to offend those committed to ill-defined notions of international law and an unbending devotion to legal processes and procedures at home. We would do well to keep this aspect of Lincoln’s presidency in mind when we judge the actions of his successors in confronting their own crises.
Before I conclude this portion of my response to Greg, I would simply note that between 1789 and 1973 a series of American presidents, including prominent members of the founding generation, were given wide latitude to conduct the nation’s foreign and security policies in a manner they deemed to be in the national interest. These included policies that relied on the use of force. Some of these undertakings can be seen as acts of statesmanship, many did not achieve their objectives, some initiatives aggravated existing problems, but few members of Congress seriously questioned the president’s authority to conduct them. The real compromisers of the Constitution were those who attempted in the mid-1970s to curtail this “new” phenomenon known as the “imperial” presidency. They did so while invoking the legacy of the founding fathers, whose historical record they grossly distorted without the slightest sense of shame. In so doing, they paved the way for expanded congressional and judicial involvement in foreign affairs and national security.
I will respond to Greg at a future date on the use of signing statements, the unconstitutional role of the House of Representatives in certain aspects of foreign affairs, and the treatment of detainees in the war on terror. Greg, by the way, is a great guy, and I am convinced that someday he will see the light.