Crisis and Command: A History of Executive Power from George Washington to George W. Bush (4 page)

Blackstone had much in common with Montesquieu and Locke. He defined the executive's primary job as prosecution of the laws and praised the British constitution's concentration of executive authority in a "sole magistrate of the nation" because it produced "unanimity, strength, and dispatch."
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In words that would be repeated during the Philadelphia Convention (though often without attribution), Blackstone criticized the idea of dispersing the executive power among different officials. "Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in government." For that reason, Blackstone concluded, the British constitution made the King of England "not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him."
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Blackstone located the foreign affairs power in the Crown because the King represented the nation, and large bodies could not successfully conduct foreign affairs. "The king [had] also the sole prerogative of making war and peace," exclusively exercised the treaty power, could raise armies and navies on his own, and was "generalissimo, or the first in military command, within the kingdom." Blackstone also recognized executive prerogative but limited it to the "discretionary power of acting for the public good," which, if it "be abused to the public detriment" would be "exerted in an unconstitutional manner."
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Unlike Locke and Machiavelli, Blackstone believed that Parliament could "lop off" or more "clearly define" the prerogative; in other words, the prerogative could only operate when the laws were silent, and not when they were in opposition. This legislative check, however, was more apparent than real, because the King possessed an absolute veto over legislation -- restricting executive prerogative could happen only with the Crown's consent.
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The colonists' understanding of British political history also influenced American constitutional thought during this period. Struggle between the Stuart Kings and Parliament produced the Civil War, Oliver Cromwell's Interregnum, the brief Restoration of the Stuarts, and then the Glorious Revolution and ultimate settlement. While the political, economic, and social causes of this turmoil were complex, the constitutional lessons were well known. Charles I refused to call Parliament into session for 11 years and sought to run foreign policy and the military without legislative funding. His efforts to evade Parliament led to his downfall. During the Restoration, the monarchy again tried to govern without Parliament, and again failed. After the 1688 Glorious Revolution, the monarchy and Parliament reached a settlement that clarified the latter's control over legislation, funding, and support of the military.

In the mid-eighteenth century, Britain was evolving from an executive branch personally centered on the King toward a cabinet system. The King ruled through a privy council usually composed of handpicked advisers and confidants. Parliament maintained its check on the executive through the power of the purse and its enactment of legislation. After the Glorious Revolution, the system developed into a nascent cabinet, whose members were chosen based on their ability to convince Parliament to adopt Crown policies, and ministers resorted to bribery and patronage to build legislative coalitions. In the mid-eighteenth century, for example, apparently one-third of all members of the House of Commons held offices appointed by the King, and another 5 percent benefited from government contracts. Patronage was the 1700s' version of today's congressional earmarks. Favors held legislators together when party discipline did not yet exist.

Change in the British political system had a profound impact on the colonists. The Revolutionary generation viewed these events through the lens of opposition ideology, which excoriated the Hanoverian Kings' efforts to manipulate Parliament, the permanent executive ministries, the new financial system backing the British Empire, and the spread of patronage and bribery throughout Parliament.
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Corruption, standing armies, constant wars, and a large public debt sapped the British constitution's checks and balances and assaulted the rights and liberties of the British people.
Cato's Letters
, a tract of 144 much-quoted essays written by John Trenchard and Thomas Gordon, disseminated such ideas widely in the colonies -- half of the private libraries of the day held a copy.
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The American Revolution was more than just a revolt against the idea of monarchy. Historians have puzzled over why the Framers rebelled when they were loyal British citizens, enjoying prosperity and growth, and victorious against France in the Seven Years' War. But victory brought a permanent military presence in the colonies and the need for heavier taxation, as well as trade regulation and monopolies imposed by Parliament. This contrasted sharply with London's previous policy of benign neglect, which had permitted the colonies to control their internal affairs and finances. Americans viewed the new taxation and regulation as nothing less than the overthrow of the checks and balances of the ancient constitution, and rebelled, not so much in an effort to curb executive power, but to maintain the historic balance between the Crown and Parliament on the one hand and the state assemblies on the other.

EXECUTIVE POWER IN THE CRITICAL PERIOD

INDEPENDENCE PUT AMERICAN theories of governance to the test, and they failed miserably. The Revolutionaries established one national charter, the Articles of Confederation, which soon proved crippled from lack of executive organization and leadership. The revolutionists wrote their state constitutions to undermine the structural integrity of the executive branch, and the results were legislative abuse, special-interest laws, and weak governments. Dissatisfaction with this state of affairs, even in a postwar time of relative peace and prosperity, led American nationalists to draft a new Constitution that would create a stronger, more independent executive branch within a more powerful national form of government. They would become known as the Federalists.

Scholars often misunderstand the Articles of Confederation. Drafted in 1777 and ratified in 1781, the Articles established the first American national government. Some have concluded that a power was legislative, such as the power to make war, simply because the Articles of Confederation granted it to the Continental Congress.
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Andrew Rudalevige is one such critic of presidential power who believes that the Articles lacked an independent executive branch.
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This view mistakes the Articles of Confederation as creating a legislature, which it did not. As Chief Justice John Marshall recognized, the "confederation was, essentially, a league; and Congress was a corps of ambassadors."
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It had no power of taxation nor power of internal legislation, and it was not chosen on the basis of popular representation. It had as much real legislative power in the United States then as the United Nations has today.

Rather, the Articles of Confederation created America's national executive, which inherited the Crown's imperial powers in the colonies, while the states retained their legislative powers.
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It kept "the sole and exclusive right and power of determining on peace and war," entering into treaties, and conducting foreign relations.
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It had the power to appoint committees and officers to administer federal law, the central function of the executive. Congress's problem was not a lack of executive power, but the way that power was organized and supported. Initially, Congress created committees to carry out decisions, a design that proved disastrous with troops in the field fighting the British. In 1781, Congress replaced committees with executive departments headed by individual secretaries, an improvement, but Congress continued to try to micromanage policy, and the executive still lacked "method and energy," in the words of a young Alexander Hamilton.
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The states, which continued to control supply and internal legislation, failed to supply revenue to the national government or comply with its requests. This experience led General Washington to forever favor placing responsibility for executive action in a single, accountable leader.

Once peace arrived, Congress proved utterly incapable of handling its executive duties. It could not establish even a small military to protect northern forts near the Canadian border, which the British refused to hand over, in violation of the 1783 peace treaty.
30
Britain and France imposed harmful trading rules against American ships, while Spain closed the critical port of New Orleans to American commerce. American ambassadors could do nothing because Congress had no authority over commerce with which to threaten retaliation. It could not even approve an agreement with Spain, negotiated by John Jay, to reopen New Orleans and thereby the Mississippi, the chief route for American farm exports. Dissatisfaction with congressional weakness climaxed with Shays' Rebellion in August 1786. A mob of 1,500 men blocked the Massachusetts legislature from meeting, though the discontents soon scattered after a brief confrontation with state volunteers. Nationalists like Henry Knox and George Washington exaggerated the threat into 12,000 soldiers who had planned to rob banks and overthrow the state government. Congress's dismal record and the looming threat of chaos and disorder augured by Shays' Rebellion were at the forefront of the minds of the delegates as they met in Philadelphia.

Experimentation with the executive went to extremes in the states. Some eliminated the independence of the governor's office. In all but one state, the assembly elected the governor, making clear who served whom. Some states tried executive committees or required the governor's decisions to be approved by a council of state appointed by the legislature. As Professor Gordon Wood has observed, the councils often made the governors "little more than chairmen of their executive boards."
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States limited the governor's term and eligibility. Most states either provided for the annual election of the governor, restricted the number of terms a governor could serve, or both. Pennsylvania tested the farthest reaches of radicalism by replacing the single governor with a 12-man executive council elected annually by the legislature.
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The Revolution had occurred because the colonists wanted to maintain the independence of their legislatures from the control of the British King-in-Parliament. Their cure was to make the executive subordinate to the assemblies.

Some of the revolutionaries wanted to restrict the substance as well as the structure of executive power. Thomas Paine's
Common Sense
not only attacked the British monarchy, but it also called for an end to executives in the colonies. Paine proposed to his fellow Americans that they adopt governments run by legislatures, which would have only a presiding officer.
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Thomas Jefferson's draft for the Virginia constitution merely gave the governor the title merely of the "Administrator."
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Jefferson enumerated the powers the executive
could not
exercise: He could not dismiss the legislature, regulate the money supply, set weights and measures, establish courts or other public facilities, control exports, create offices, or issue pardons. The Administrator could not "declare war or peace, issue letters of marque or reprisal, raise or introduce armed forces, or build armed vessels...forts or strongholds." Although the draft ceded to the Administrator any remaining "powers formerly held by the king," there was little left.

But most states either gave the governor exclusive power to decide when to use the militia, or required that he consult the council before calling in the military. Although Virginia prohibited the governor from exercising any prerogative, it generally rejected Jefferson's advice and authorized the governor, with the advice of a council of state, to "exercise the Executive powers of Government."
35
States sided with John Adams, who for once had his day over his friend and future rival. Adams urged states to reproduce the forms and powers of the British constitution after adjusting for popular sovereignty. His plan call ed for a governor, a commons, and a mediating senate. According to Adams, "a people could not long be free, nor even happy whose government is in one assembly." Adams gave the governor a veto and control of the armed forces. He advised the adoption of an executive "who, after being stripped of most of those badges of domination called prerogatives, should have a free and independent exercise of his judgment, and be made also an integral part of the legislature."
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Although the states experimented radically with the control of the executive branch, its substantive powers remained relatively unchanged.

The revolutionaries saw no need to reduce the substance of the executive power because they used constitutional structure to control their executives. Most state constitutions gave assemblies the power to choose the governors and allowed the executive to serve for only one-year terms, often with a limit on reelection. These states further bound their executives by requiring them to receive the consent of a council of state before exercising any independent authority.

Only one state, New York, freed its governor from these legislative shackles. British occupation of New York City for most of the war and the terrible state of its security (the state legislature had to meet in seven different locations during the first year of the war) gave its inhabitants a reason to break ranks on a vigorous executive.
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New York vested "the supreme executive power and authority of this State" in a single governor. The people, not the assembly, elected him, and there was no limit on the number of three-year terms he could serve. No privy council was created to look over his shoulder, only a council of appointment and a council of revision to review the constitutionality of legislation.
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The constitution vested him with the position of "general and commander-in-chief of all the militia, and admiral of the navy of this State," the power to dismiss or call the legislature into session and to issue pardons, and the duty to make recommendations for legislation and to "take care that the laws are executed to the best of his ability."
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The first governor, George Clinton, won such success with these powers that the state returned him to office for 18 consecutive years, despite the British occupation. Clinton, wrote fellow New Yorker Gouverneur Morris, could not have been more suited to an office of such potential. He was a man "who had an aversion to councils, because, to use his own words, the duty of looking out for dangers makes men cowards."
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