As we celebrate this week the 225th anniversary of the signing of the Constitution in 1787 at the Constitutional Convention, it is a fitting time to think seriously about the critical, but uneasy relationship of executive power and the rule of law that has existed since the founding.
Two of the most important framers – Alexander Hamilton and James Madison – who shared the nom de plume, Publius, in authoring the brilliant Federalist Papers quickly found themselves in bitter disagreement over the proper scope of presidential power. Hamilton defended George Washington’s unilateralism in declaring 1793 Neutrality Proclamation with a sweeping defense of presidential prerogative. Madison strongly disagreed, arguing that a declaration of neutrality was, in effect, a declaration that there should be no war, a decision that rightfully belonged to Congress.
As the political controversy over the executive powers that Presidents George W. Bush and Barack Obama have exercised in homeland and national security reveals, the conflict between Hamilton and Madison was but the first debate over the relationship between presidential power and the Constitution. For the most part, these disputes have taken place amid a strong consensus that the success of the Framers experiment – the exalted, elusive ambition stated in the Preamble of the Constitution – urging “We the People,” to forge a “More Perfect Union” – required extraordinary statesmanship that only the president could provide. America’s great presidents are our guiding stars – the standard we use to measure our leaders, especially during crises. In grappling with the crises of war and the Great Recession, Republican President Bush and Democratic President Obama sought inspiration from, and hoped their leadership was worthy of the memory of their most celebrated predecessors. Only a few presidents have been deemed worthy of such enduring respect and reverence: George Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt. It is almost as if they occupied a different office and lived on a different plane from the others who have held the office.
America’s most revered statesmen – Washington, Jefferson, Jackson, Lincoln and Roosevelt – all reveal that democratic leadership involves a vital connection between leaders and led. It requires first of all that the leader remain answerable to his followers. Even as the president takes bold initiatives and ignores public opinion in the short-run, he must enable his followers to hold him accountable in ways that are practicable and timely. Furthermore, extraordinary democratic statesmanship is not displayed in isolation. Party building and partisan leadership has been central to this task of civic education. Washington apart, America’s most celebrated statesmen were all central to either the creation or reconstruction of political parties. Episodically, periods of partisan realignment have given presidents the political strength to embark on ambitious projects of national reform.
These episodes, though they may appear to threaten our Constitution, have a revolutionary quality to them. These great political transformations have engaged the American people in popular contests over the meaning of their rights and how to protect them. Presidential statesmanship has provided a critical ingredient to these harsh partisan contests. They have required presidents to think constitutionally: to interpret the meaning of the Declaration of Independence, the Constitution, and the relationship between these two sacred political texts for their own time. In this sense, our most important presidents have truly been constitutional refounders, justifying Jefferson’s exalted, elusive hope that the Constitution would “belong to the living.”
This is not to say that presidents are all-powerful, or that political parties are not important in contemporary American Politics. Starting with Ronald Reagan’s presidency, and the challenges it posed to New Deal principles and policies, a new form of party politics arose, which pulled the modern presidency in the vortex of partisan conflict. With the election of Barack Obama to the presidency, and the enactment of the Affordable Care Act – the holy grail of progressive politics – this new form of presidency-centered partisan combat appears to have reached a culmination. Partisan rancor and polarization is more central to the polity than has been the case since FDR’s New Deal refounding. The question is, and I am not sure of the answer, is whether we are in the midst of another refounding; or whether the prospects of a refounding are dimmed by contemporary American democracy’s emphasis on the presidency. For all the important differences between the Democrats and Republicans, the current election might come down to whom voters believe is best-suited to manage the welfare and national security states forged upon the New Deal – President Obama or his challenger Mitt Romney – at a time when the country faces the profound challenges of a Great Recession and a seemingly permanent struggle against global terrorism.
Refoundings seem to arise from the ashes of great crises; and all of us should hope that those sorts of crises will not occur again. The prospect of presidential greatness is always dangerous, but it is necessary as a country goes through the growing pains of development: the Founding of the Nation (Washington), the awakening of mass democracy (Jackson), the Civil War (Lincoln), the Great Depression, and World War II (FDR) were part of America’s maturation, and required extraordinary democratic leadership. But in our own age, with the welfare and national security states in place, such leadership may not only be unnecessary, but very dangerous.
The task for today’s effective leaders, then, might not be to leave their mark on the nation – to build a new political order in their own image as past great statesmen have. Instead, their responsibility may simply be to administer the welfare and national security states that form the core of America’s responsibilities at home and abroad. The good news is that contemporary presidents can, as Alexander Hamilton hoped they would, carry out “extensive and arduous enterprises for the public benefit.” Extraordinary presidential leadership played a critical part in the two greatest triumphs of recent American history –the end of forced segregation in the South (LBJ) and the triumphant conclusion to the Cold War (Ronald Reagan and George H.W. Bush). Even as many Democrats disagreed with President George W. Bush about the Iraqi War, not many of them wanted presidents to be handcuffed by the Constitution or partisanship in meeting the challenges of the invisible, but relentless enemy of terrorism. Even as many Republicans scorn President Obama’s forceful maneuvers that resulted in an immense stimulus package and the enactment of the Affordable Care Act, few GOP loyalists expect Mitt Romney to dismantle the welfare, not to mention the national security state, should he be elected this coming November.
Still, the more powerful executive establishment we have built in the 20th and 21st centuries has not come without a price. The danger has been, and still is, that presidents will abuse their privilege as the embodiment of the national will. The troubling reality of contemporary presidential politics, as the political scientist Theodore Lowi has put it, “is that there is a Watergate of some kind every day in the life of the president.” The modern presidency requires a vigilant citizenry to guard against executive aggrandizement that undermines the Constitution. And yet, the modern presidency in its very power may weaken our democracy.
As President Obama proclaimed in his acceptance speech at the Democratic National Convention, the great challenge of our time is to reconnect the presidency to an active and competent citizenship. We can only hope that President Obama or President Romney will offer inspiring and responsible democratic leadership. But no president, no matter how decent and talented, can restore the vitality of American democracy from up high. In the end, no president can rule responsibly over a complaisant people, mired in rank apathy. It’s up to us to stand against this apathy, and to ensure that the White House belongs, as Jefferson insisted it should, to the American people.
This post was modified from a Constitution Day Lecture on “The Presidency and Refoundings in American Politics,” given on September 17, 2012 at West Point Academy.