by
Michael Liss
How
do you feel about an Imperial Presidency?
Attorney
General William Barr has been on a bit of a bender recently. He’s suggested that
communities that are critical of law enforcement will lose police
protection, disagreed with
the Inspector General’s report about the FBI and the Russia investigation,
and warmed the
hearts of the faithful at Notre Dame in decrying a “war on
religion.”
While
Mr. Barr rarely fails to make news, his most consequential opinions came in a
speech he gave to the Federalist Society on November 15, 2019, in which he went
on, at some length, as to why he supports the broadest possible interpretation
of Presidential powers.
It’s
pointless to argue with Barr about his personal political views, regardless of
the tone in which they are delivered. And it’s shouting into gale-force winds
to note that his zeal for an uber-powerful Presidency seems to wax and wane
depending on the party identification of the person occupying the Oval Office.
What is interesting, and important, is reviewing the customized version of
history that leads him to take his present view of both Presidential power and
the nature of the relationships among the three branches of government.
His
first dive into the past is a fascinating one:
The grammar school civics class version of our Revolution is that it was a rebellion against monarchial tyranny, and that, in framing our Constitution, one of the main preoccupations of the Founders was to keep the Executive weak. This is misguided. By the time of the Glorious Revolution of 1689, monarchical power was effectively neutered and had begun its steady decline. Parliamentary power was well on its way to supremacy and was effectively in the driver’s seat. By the time of the American Revolution, the patriots well understood that their prime antagonist was an overweening Parliament. Indeed, British thinkers came to conceive of Parliament, rather than the people, as the seat of Sovereignty.
I
went to grammar school, and I think this is a very clever argument, albeit
completely misleading. He’s conflated two separate thoughts—a debatable one
that the colonists were not rejecting a strong executive, with an unsupported
one that “patriots well understood that their prime antagonist was an
overweening Parliament.” And he’s forgotten that
Parliament was not some malevolent jellyfish made up of a thousand stinging MPs
and Lords. They, too, had Executive leadership—a Cabinet and a Prime Minister
(Lord North, during most of the Revolutionary War whom, ironically, 19th
Century historians judged too subservient to the King).
What
most of the colonists opposed, and what caused them to revolt, was
authoritarianism, regardless of the package in which it came. They did not
reject the authority of Parliament in order to embrace King George III, and, by
extension, did not see an all-powerful Executive as a desirable alternative to
an all-powerful legislature. As Jefferson put it in the Declaration of
Independence, “[a] Prince whose character is thus marked by every act which may
define a Tyrant, is unfit to be the ruler of a free people.” The men who signed
the Declaration were asserting their aspiration to be free of government by
fiat, free of government without representation. That’s what British rule meant
to them.
Jefferson’s
words are the poetry of that aspiration, but we don’t necessarily need to look
deeply into his writings or those of the other Founders to deduce this—we also
can judge it from conduct. The newly independent states did not leap into a
complex and binding contract including a powerful Chief Executive. Instead,
they opted for the Articles of Confederation, which had no Chief Executive at
all. Given a first choice of governing schemes, men of property and influence
(the only folks who counted) chose the loosest form of alliance. The reasons
for this were many—but the most prominent had to be the unwillingness to cede local
control to a larger entity in which they would risk losing influence. The
once-colonists saw themselves more as citizens of the individual States, and
not the United States. Barr asserts that:
American thinkers who considered inaugurating a republican form of government tended to think of the Executive component as essentially an errand boy of a Supreme legislative branch. Often the Executive (sometimes constituted as a multi-member council) was conceived as a creature of the Legislature, dependent on and subservient to that body, whose sole function was carrying out the Legislative will.
Again,
this is only partially true. American aristocracy surely preferred to rule,
rather than to be ruled, and Benjamin Franklin, for example, had a miserable
time as the largely figurehead Governor of Pennsylvania. But New York’s
Governor George Clinton, on the other hand, had a tight fist on power, and
Virginia’s Governor from 1784-86 was the formidable Patrick Henry (who was
later to lead the opposition to the ratification of the new Constitution).
Barr’s
conclusion is that the failures of the Articles of Confederation were simply a
result of a lack of Executive authority: “They had seen that the War had
almost been lost and was a bumbling enterprise because of the lack of strong
Executive leadership.” Again, he’s conflating two things. The management
of the War was a bumbling enterprise, but it was a bumbling enterprise because
of both a lack of a strong Executive and an overall lack of a strong federal
government. It’s telling that Barr doesn’t acknowledge the contradiction in his
own position: The most powerful nation in the world at that time was
England—the very same country he previously derided as being in the hands of a
Parliament with a figurehead King as Chief Executive.
The
Articles failed for any number of prosaic reasons. No one took the new nation
seriously, and there was little reason to do so. Thirteen states loosely tied
together, each exercising a considerable amount of autonomy, and, in effect, possessing
veto power over national policy, were inadequate to the challenges of building
a new nation surrounded by hostile powers. The British, despite having signed
the Treaty of Paris four years earlier to end the War of Independence, never
quite reconciled themselves to the idea of leaving, and there were forts where
the disembarkation process seemed particularly slow. States were fighting over
boundaries; no one was collecting taxes; the new nation’s currency was a
largely worthless script; and trade was a tangle of often inward-directed
tariffs and preferences.
Many
(not all) of the leaders of the Revolution knew there had to be change, but
Barr is careless in implying that the choice was obvious, was acknowledged by a
broad consensus, and was primarily tied to the lack of a strong Chief
Executive.
In
fact, there was nothing even approaching unanimity that the Articles should be
abandoned. An effort to tinker with them crashed and burned at Annapolis when
only five states (and just 12 men) showed up. Things were sufficiently delicate
that even the phrase “Constitutional Convention” was too much for many, so the
folks with the figurative wrecking ball (Madison, Adams, Hamilton, Franklin,
John Jay, and, quietly, George Washington), had to tip-toe up to it by
insisting, in effect, that they were just replacing the shutters and doing a
fresh paint-job. It is only after they all assembled in Philadelphia, and
Virginia sprung its complex and far-reaching “Virginia Plan,” that many
of the delegates realized the true purpose of the meeting. Not all were happy
about it.
I
don’t want to fall into the trap of misstating history just to show Barr does
the same. There was substantial support from many of the attendees for change,
and that change included a Chief Executive with a job description that went
beyond sinecure. Where he and I differ is the Framers’ understanding of the
scope of Presidential authority.
From
my perspective, you have to give great weight to the centrality of George
Washington to the entire debate. This is not because of anything he wrote (not
a word of the Constitution was penned by him), nor because of anything he said
during the Convention (he was a literally silent Chair). Rather, it was
because he was the Indispensable Man. In 1787, before political parties, and
before Washington actually had a governing record as President to gripe about,
people judged him on his service to the fledgling nation, which was considered
unsurpassed. They saw him as incorruptible, above politics, and honor-bound to
duty. His motives were never in question.
We
can be certain that the mostly high-born and influential attendees might have
had a slightly more skeptical view, but it was irrelevant. Every single one of
them knew the public believed in Washington’s near demi-god status, and that
Washington’s blessing was needed for a new form of government. He had taken the
first step by supporting a Constitutional Convention and becoming its Chair.
Would he take the second by throwing his weight in favor of the finished
product?
This
created a fascinating dynamic in the drafting and debate when the conversation
turned to a Chief Executive. Washington wasn’t going to agree to any role that
lacked substance. This wasn’t just a matter of pride. Washington prized
his life at Mount Vernon and felt he had to fulfill his pledge to emulate the
Roman General Cincinnatus and retire (permanently) to private life. He also had
an acute sense of his own mortality. The Washington men didn’t survive past
their 50s, and, by the time of the Convention, he was already 55. Only a call
to a higher duty could lure him.
In
short, the job had to be a big one. And, to complicate things further, the
debate and the negotiations literally had to take place in front of his eyes.
Things could get tense. If the new form of government was to have an Executive,
and that job were to have the legitimacy in the public’s eyes that Barr
insisted that Governors lacked, it had to be affirmed by Washington.
Washington’s acceptance of the Presidency gave it the prestige it needed, and
by extension, lent that prestige to the entire new governing
scheme.
All
that being said, the attendees weren’t there just to satisfy Washington, and
the adoption of a vibrant Chief Executive wasn’t a universal panacea. A new government
meant a complex rearrangement of power among the States, among regions, and
between the government and its citizens. There were at least four points of
view represented at the Convention and in the 13 States. Some believed the
Articles were perfectly fine: They liked the autonomy it afforded their States
(and the power it gave to the aristocracy in those States) and were loath to
give it up. The importance of this group became even more apparent during the
ratification stage. Others accepted the idea that a new government was needed,
with an Executive office, but not a new strong Executive—whatever powers the
nominal head of state might have would be substantially circumscribed by a
Legislature that would dominate, and it was the makeup of that Legislature (one
house or two, proportional representation or not) that concerned them more. The
third group conceived of an Executive closer to the type of Presidency we have
today. The fourth’s views might be found both in Madison’s original construct,
which included a Presidential veto of State laws, and in the
extraordinary speech at the Convention given by Hamilton, who literally
proposed a President for Life.
Obviously,
Washington would never have gone for either a continuation of the Articles or a
largely ceremonial Presidency. But, if the debate were to advance to a newer
form of government with a stronger Chief Executive another problem would have
to be addressed: Washington himself could be trusted with authority, but his
successor was an unknown. Making the job big enough for Washington to accept
would, at minimum, potentially endow it with more power than the Convention
would have been comfortable giving to a lesser man. So, if we are to divine the
Framers’ intent as to the extent of Presidential power, we should accept that
the text of the Constitution is the boundary. That is the most that the Framers
were willing to grant (and the States willing to ratify) to even Washington—and
that, only after a Bill of Rights was attached. If Barr is floating, as the
Framers’ idea, an all-powerful-yet-benevolent-tribune-of-the-people President,
then he’s spinning it out of whole cloth. That construct is not supported by
the text of the Constitution (or The Federalist Papers), or by contemporaneous
behavior. What the Framers agreed to and wrote, and what the States
subsequently ratified, is what they meant, not less, but not more. Any broader
assertion of Presidential power than exceeds that original grant of authority
to Washington (and his successors) has to be defended on other
grounds.
You
may not be surprised that William Barr has a plan for that. That’s a different
battle, and I”ll take it up on another day
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