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The Breaking Point

The State of the Union Address only matters if some amount of institutional pride and constitutional legitimacy attaches to the remarks. A review of the Union possesses authenticity if the one making it demonstrates how his use of the office affirms our ongoing experiment in republican constitutionalism. The President, that is, must vouchsafe to the members of Congress that the executive powers used have been within the law and strengthen the Constitution, even while dealing with the practical problems at hand.

But this really hasn’t been true for some time, and it seems fanciful to even say it. As you, the informed reader, know, chief executives use the occasion to make a full court political press, along the way touting their accomplishments, chastising the opposition party and, to keep things honest, taking a few swipes at their own party. Oh, and when the American heroes seated in the audience are given a shout-out, we clap fervently.  Go Team America!

We’re only surprised now when a President actually gives the game away by, say, reprimanding the justices of the Supreme Court seated mutely before him, for an unappreciated ruling. So it was no surprise, then, that President Trump’s State of the Union address last night predictably provided to Congress and the public his full list of policies that must be implemented for the continued rejuvenation of America. The President does not really communicate to Congress but to the country, and with President Trump plenty of before and after speech tweeting.

When it comes to the current President’s norm-busting, some of it has been refreshing, some of it has not. It would have been a welcome surprise for Trump to break with Woodrow Wilson’s century-old precedent of making the SOTU a spoken address to the Congress. But a written communication, as was done in olden days, isn’t really a contemporary possibility. Maybe a tweet-thread/storm to Congress could now suffice? It would be hard, I think, to reduce the SOTU to an even more infantilized spectacle than it has become.

Seeking enlightenment in this regard, I count it a wonderful opportunity to have recently read Jeffrey Tulis’ masterful work, The Rhetorical Presidency, for an upcoming podcast. First published in 1987, Tulis’ book has received praise as a truly outstanding assessment of how Presidents have understood and practiced the art of rhetoric to fulfill their role or even extend it beyond what is considered constitutionally permissible.

Tulis’ book breaks down presidential rhetoric into three categories: the Old Way, the Middle Way, and the New Way. The Old Way largely prevailed for most of the 19th century. Presidents didn’t speak to the public directly to gin up support for policies or agendas. They spoke with formality, usually in writing, to Congress almost exclusively, and here the President would detail how he had met his constitutional duties, with only a general outline of policy direction. Citizens reading these various forms of written communication would have to raise their own level of constitutional understanding, as they weren’t the primary audience. Tulis notes that those who violated these norms during the 19th century, cough Andrew Johnson, paid dearly for their rhetorical transgressions.

Four concerns shaped this “common law” understanding of acceptable communications from a sitting President: demagoguery, republicanism, independence of the executive, and separation of powers. Notably, preventing the rise of demagoguery—that is, the leader who would purposely divide Americans into opposed groups—required a President who was independent from popular tumults and from Congress. Conserving republicanism against its deterioration into a populist-driven democracy entailed certain forms of behavior vis-a-vis Congress and the citizenry. The President should use his authority, as Publius noted, as an auxiliary precaution to defend his office and the Constitution from popular passions. Thus, we can say that the executive’s task was to embody the defense of the Constitution with high formality and regard for his office.

But this 19th century common law did not last. We can arrogantly draw our usual conclusion that things changed, technology sped us up, and the government had to get bigger, and with it the powers of the presidency. Tulis’ response, however, is worth considering. This Old Way didn’t doubt the need for a strong President, or for a powerful national government; it assumed them. And under the Old Way, it was thought that a President insulated from popular pressures, incoming and outgoing, would be more constitutionally equipped to run such a government. Thus, an ever-expanding conception of the presidency, one that believes with Woodrow Wilson that “The President is at liberty, both in law and conscience, to be as big a man as he can,” is the one finally incapable of acting constitutionally. Or, we might add, even competently.

While the definitive switch in soft constitutional rules governing presidential rhetoric changed during Theodore Roosevelt’s administration, Tulis largely accepts the 26th President’s justification for that change. TR argued that he had to openly campaign for the Hepburn Act of 1906 creating the Interstate Commerce Commission and with it, the modern administrative state, in order to save the core constitutional purposes of our country. Convenient. The industrial plutocrats needed chastening, but so also did the incipient socialist agitators, TR proclaimed. Maybe. But if Teddy didn’t quite alter the constitutional furniture of executive power, Wilson surely aimed to, and he wasn’t quiet about it. Thus the New Way arrived, of Presidents who democratically campaign almost incessantly for their policies.

Gone is the lodestar of constitutional formality and the costs imposed have been steep. Again, Tulis:

Symptomatic of the larger changes in form would be the fact that only half of the twentieth-century inaugural addresses even mention the word Constitution (or any of its provisions), and none of the twentieth-century addresses contain analyses of the meaning of the Constitution.

Russell Muirhead, in his Foreword to the revised edition of The Rhetorical Presidency, observes that “what we need is diagnostic power, or an account of politics that empowers us to diagnose the health of our politics, to assess what parts are in good or bad repair, to see what might be treated and even cured.” Looming in Muirhead’s thought is that our politics is the element that is in bad repair. But politics is the enterprise of free persons. Things are unpredictable, but might we know who we are and where we are likely going? The answer is a tenuous yes. We should begin with Tulis’ “profound diagnosis of the American presidency” in order to help us understand “whether the presidential powers that were created to make the Constitution work might be used, finally, to bring it down.”

Reader Discussion

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on January 31, 2018 at 05:32:11 am

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The Breaking Point | Top 100 Blog Review
on January 31, 2018 at 11:00:00 am

Nice!

I find myself in agreement with Tulis (and you) on both the SOTU and Presidential rhetoric.
SOTU is "performance art" with expected applause, Bronx Cheers and / or calculated silence. and all the politicos are but actors upon the stage of (as The Trumpster remarked last night) America's monument to itself. His remark may be true but it would be better were it a monument to America's Constitution. How much better it would have been were The Trumpster to have followed his comment (as an example) on the Government owing loyalty to the citizenry with a comment grounding that "duty of loyalty" in the theoretical / political character of our Founding / COTUS!

Over the decades, I have waited in vain for a President to make just such an argument. Sadly, it has not happened.
Consider the effect of a determined defense / exegesis of our Constitution presented to the entire nation; consider the different possible response to any given policy prescription / initiative by the President were he to ground such prescriptions in specific constitutional / institutional powers AND / OR to justify NON-ACTION (say, the *opioid crisis*) based upon COTUS" limited grant of powers to the Executive and the Legislative.

Instead, we are treated to another list of promises from government, irrespective of such promised policy prescriptions meeting constitutional muster.

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gabe
on January 31, 2018 at 11:53:49 am

It's a great book; it almost singlehandedly got political scientists outside of the Hebert Storing/Claremont circles to pay attention to Woodrow Wilson and the tremendous effects the Progressives had on our Constitution.

I was just wondering recently what Tulis would make of Trump's use of Twitter and his working of the media during the campaign to get free advertising. To my mind, Trump is a perfect embodiment of the Modern Presidency in the 21st century, with tweets taking the place of Fireside Chats; the odd thing about is that he's trying to use the informal methods of the Modern Presidency to end several overreaches of formal power by the Modern Presidency. Last time I heard Tulis talk at Claremont, he was most focused on Congress regaining its powers

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CJ Wolfe
on January 31, 2018 at 12:03:26 pm

Muirhead's Foreword ponders this and thinks it's probably a force for the bad, unless Trump actually decides to build a workable majority that represents a cross-section of the country.

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Richard M. Reinsch II
on January 31, 2018 at 12:29:46 pm

Richard:

Here is the funny thing. I suspect that Trump, by very virtue of his rather unique style and less hardened political bias, may be uniquely positioned to do what many of us wish, i.e., use the Presidential pulpit to advance Constitutional understanding amongst the great mass of deplorables (such as I). He has positioned himself such that many people, previously unconcerned with governance, now actively follow his silly tweets. he has an audience. They are primed to listen. Can he find it within himself (or within his communications staff?) to use this following to advance Constitutional understanding? When was the last time, the average citizen (my tailgating buddies, for instance) could be expected to listen to what a President actually said, rather than read the media's distorted narrative. should The Trumpster make the effort, there may be a substantial audience.
Perhaps, I read too much, but in a number of areas Trump does appear to recognize and respect constitutional limitations.

Let us hope. Then again, I did hold a hope that the Seahawks would make it to the SuperBowl - that worked out well!

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gabe
on January 31, 2018 at 13:55:40 pm

"...whether the presidential powers that were created to make the Constitution work might be used, finally, to bring it down.”

This is always a possibility for any or all Branches of Government, for it is not possible to change the spirit of the law, without changing the letter of the law, and thus our Constitution.

For example, it is a self-evident truth that a human person can only conceive a human person, and thus every son or daughter of a human person can only be, in essence, a human person. One can know through both Faith and reason, that you have been you from the moment you were created and brought into being, at your conception, and I have always been me, from the moment I was created and brought into being at my conception, which is why our Founding Father's stated, unanimously, that our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, Is Endowed to us from God, at the moment of our creation, which they knew was not the same moment we came forth from our mother's womb.
There is the breaking point for every Branch of Government; the erroneous notion that a human person is not, in essence, human, until the moment they are born.

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Nancy

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