U.S. Presidency 1: The Presidential Debate of 1787

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James Hanley

James Hanley is a two-bit college professor who'd rather be canoeing.

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  1. Avatar madmilker
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    I’ll be dip, you still here. 🙂Report

  2. Avatar Dan Miller
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    One question that came to me when I was reading Anti-federalist 67 is the fact that he doesn’t seem to consider private power at all (or maybe he just doesn’t consider it separate or separable from government power?). Presidents are surrounded by courtiers, but so are CEOs–what was the state of their thinking on this matter at the time?Report

    • Avatar James Hanley in reply to Dan Miller
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      Interesting question, Dan. I’m not familiar with any writings of the time that focused on private power beyond concern for violence and theft (the Hobbesian/Lockean concerns). I’m not sure that concept was necessarily a part of the 18th century lexicon. But I can’t claim any certainty on that, and would be happy to be corrected if others have different claims.

      Again, keep in mind that the Anti-Federalists were thinking mostly about the dangers of government power because of the context of just having rebelled against just that thing.* But also that the focus of the particular debate they were engaged in was the proposal for a new government. So whatever they may have thought about the dangers of private power, the context certainly shaped their arguments toward a focus on public power.
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      * It should also be said that in some cases they were also just interested in protecting the prerogatives of their own states, and some of the arguments were just more respectable cover for that interest. But as always, it’s not easy–particularly from such a distance–to distinguish real concerns from convenient arguments.Report

    • Avatar Kolohe in reply to Dan Miller
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      On the one hand, these guys probably understood private power as a fish understands water. On the other hand, these guys were in the first generation to have the notion that ultimate sovereignty wasn’t necessarily always rooted in the king or in god. (or both).

      In other words, in a world where one needed a crown charter to do near any old thing commercial (a practice that would continue, post-revolution, with state charters well in the late 19th century) they probably didn’t have a concept of ‘private power’ that wasn’t ultimately rooted in sovereign government power in some way anyway.

      Though the political electoral ecosystem did discover private power within less than a generation, which in turn directly led to the rise of the Jacksonians (and death, of among others, the Bank of the United States)Report

      • Avatar James Hanley in reply to Kolohe
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        On the one hand, these guys probably understood private power as a fish understands water.

        Good point. We’re looking at social/economic/political elites arguing with social/economic/political elites.Report

    • Avatar Burt Likko in reply to Dan Miller
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      They had a few examples of very powerful, very wealthy corporations — that was how more than half the colonies got started, and guys like Hancock regularly dealt with both the British West India Company and the Dutch East India Company. They would have known of, even if most had not personally dabbled in, the international trading of slaves and the associated triangle trade. Many of them had financial ties to and debts owed to the Bank of England.

      The private concentrations of power and wealth for them would have been family-based rather than corporation-based: not for nothing did Thomas Jefferson ally himself with the Randolphs and George Washington with the Lees through the brokerage of marriages.

      Alsotoo the various churches, some of which were Established and some of which were not, could exercise great power over the day-to-day social lives of a lot of people, including the wealthy and powerful.

      To some extent, the wealthy companies, the wealthy families, and the influential (and by induction, also wealthy) churches all sought and obtained degrees of governmental endorsement to back up their power.

      But with all that said, it seems to me that most of their experience of non-governmental actors exerting power over other peoples’ lives was very limited compared to what we experience today in our dealings with modern mega-corporations and the pervasiveness of electronic data. And particularly for these men who were rich and powerful in their own rights, they could stand toe to toe with prominent ministers, heads of major families, and agents of the big trading companies, and consider themselves on roughly equal footing. A big, powerful company is less fearsome and intimidating, and therefore less of an issue to address when chartering a government, when you can just as easily buy or litigate your way in to controlling it as your hand might be forced in commercial dealings.Report

  3. Avatar Kolohe
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    “There is no doubt the Anti-Federalists were a little over-the-top in critiquing the presidency”

    BACK in the days, TROLLING meant ?omething.Report

  4. Avatar Pierre Corneille
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    “Two of these (of Andrew Jackson and Bill Clinton),….”

    You probably meant Andrew Johnson.Report

  5. Avatar scott the mediocre
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    It’s a tangent, of course, but I’m not quite sure I agree with:


    Switzerland also has been exceptionally peaceful domestically, enjoying a civil peace much longer than perhaps any other country in the world.

    I agree that the Sonderbund War (1847) was both short and minor (about 100 dead out of population of 2.2M), but some of the events leading up to it could hardly be called civil peace.

    My counter to Switzerland would be Sweden, which hasn’t been at war since 1814, and has been pretty much internally quiescent since the assasination of Gustav III in 1792.
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    • Avatar Burt Likko in reply to scott the mediocre
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      “Internally quiescent” is arguable; not everyone in nineteenth-century Norway was happy sharing a king with the Swedes. (To the credit of Norwegian and Swede alike, the separation in 1905 was pretty much a velvet revolution.)

      But — Sweden only one king at a time since way before Gustav III. So it doesn’t seem like it was a plural executive like Switzerland or Rome under the Second Triumvirate or the France under the Directorate.

      Classically Republican Rome had a two-consul system. But that was really a case of Consul I running the show for one month, then deferring to Consul II for another month, and then taking the lead again, back and forth for a year. Unless they were allies, in which case they worked together to run things, until they didn’t anymore. And when they really needed the government to respond to something, they’d pick a dictator, between the Gracchi and Octavian, they’d bend the rules to let a top dog like Pompey or Caesar run the show on his own.

      Even the ridiculously complex rituals the Venetians used to pick their Doges still produced a single man as the head of government. The only time that system of government really broke down was when the Doge was so corrupt and venal as to have committed treason himself (only happened the one time), or when the Council of Ten went on one of its witch hunts.

      The only other example I can think of in which a plural executive worked was the Tetrarchy, which still had a hierarchy and a quasi-formal “first among equals” between the four heads of government. It must have required a unique mix of the four personalities to stay in place — when Diocletian and Maximian abdicated, the whole thing went into a death spiral and it took twenty years of off-and-on-again civil war before a strongman could patch everything up again.

      So I think history demonstrates that Madison was pretty much right and the AF’s pretty much wrong: you need a single person as executive. Can’t share it.Report

      • Avatar scott the mediocre in reply to Burt Likko
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        Burt, I wasn’t claiming that Sweden ever had a plural executive, even during the greatest power of the Hats (parliamentary grouping – effectively tried to make the monarch a figurehead about a century too soon) in the mid-18th century (I wonder if any of the Founding Fathers were aware of the Hats and Caps and their history – presumably they were, since Gustav III’s self-coup reasserting monarchial power happened in 1772).

        I definitely agreed that quite a few Norwegians were unhappy to share a king with Sweden 1814-1905 – probably a majority most of the time. Their country wasn’t Sweden: it was Norway in a personal union (I’ve forgotten the details in the Act of Union whether the Storting theoretically had any say if the Riksdag were to change the succession, and the brief Wikipedia references say nothing to the point) with an effectively outsourced foreign policy – arguably similar to the Dominions immediately post Statute of Westminster. And as you note, the separation in 1905 was briefly tense, but didn’t involve any dying AFAIK.

        I was mostly just defending Sweden’s history of civil peace against the Professor’s Helvetophilia (it’s somewhat surprising to me how little known the Sonderkrieg is). I agree with you (and Hamilton 🙂 about plural executives. FWIW, Uruguay oscillated twice in the 20th C between a collegial executive explicitly modelled on Switzerland’s and a more standard presidential system (the latter has been in effect since 1967). Particularly, I agree about the Tetrarchy being quite obviously extemely unstable. For a short term example of a successful de facto (though not formally so) plural executive, my weak understanding is that the genro functioned that way from the Meiji restoration until the wheels fell off in the 1920s.
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      • Avatar James Hanley in reply to Burt Likko
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        the Professor’s Helvetophilia

        By ancestry I’m half Swiss-German, so there is a bit of that.

        But also, I’m not a comparativist by trade, so it’s not surprising, although it is mildly vexing, to be caught out in an error like that. But I’m happy to be corrected, as I now know more than I did when I wrote the post.Report

    • Avatar James Hanley in reply to scott the mediocre
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      Fair point.Report

  6. Avatar Burt Likko
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    I wonder how the Anti-Federalists would have reacted to Ford pardoning Nixon. One suspects that they would have decried Ford with having been paid off with the Presidency, especially after Ford’s predecessor as VP had been found to be corrupt too. But this gets it wrong, in my opinion; Ford did it for efficiency and practicality reasons — so that the government and the body politic could turn their attention to other kinds of problems.

    Why did you describe the Presidency as “arguably metastatic”? I can postulate a number of different interpretations of that but I’m not sure I can pin it down. Or is that a “Just hold on to your beer caps there, Likko, we’ll get to that in a future lecture.”?Report

    • Avatar James Hanley in reply to Burt Likko
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      My undergrad mentor worked in the Ford White House, and he agreed with your interpretation if Nixon’s pardoning. I think with hindsight we can see it as a mistake, or at least I do, but not actual corruption.

      Re: “possible” metastasis. I think a good argument can be made that the executive is metastatic, but a counter-argument can be made that we’re just observing the inherent and legitimate exercise of executive authority. I want to remain fairly neutral in my role as teacher and be more descriptive and explanatory than prescriptive and hortatory.Report

  7. Avatar Pierre Corneille
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    When I read the piece about Hamilton refuting the idea that a plural executive was a good idea, here’s some phrasing that interested me:

    but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible Executive.

    What interested me was that I thought, “isn’t this what the 25th amendment does, at least potentially?” It doesn’t establish a plural executive, but it does create a structure in which the cabinet *might*, under certain conditions and assuming a certain amount of cyncism, edge us toward something like a situation where the president needs the support of his ministers to stay in power.

    Another item that interests me along these lines is the vice presidency. I know almost nothing about the reasons why the vice presidency was established, but could it have been in part as a bone thrown to the pro-plural executive crowd? Whatever the original intention–and there were probably more than one “intentions”–it seems that the vice presidency has, by now, become something like a junior co-presidency.Report

    • Avatar James Hanley in reply to Pierre Corneille
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      Re: the Veepship.

      There’s little debate at the Convention to go by in trying to understand their purpose with the VP (this is the most substantial. My take is that the VP was created just to have someone ready to step in in the case the president became unable to fulfill the duties of the office, and little more (although obviously he’s the Prez of the Senate, for the very little that actually entails). It wasn’t even clear that he would actually become the next president in case of presidential death or just be the acting president. Article II says that “the powers and duties of the said office… shall devolve on the vice-president,” not simply that the office itself would. John Tyler was the first VP to be elevated, and there were questions about whether he was the real president or an acting one, but through his insistence that he was in fact the president, the (more sensible) interpretation became established.

      Some of the Anti-Feds disliked the VP, and Hamilton’s response is found in Fed 68, in the last paragraph. It’s almost just an afterthought, a throwaway line, as though he thought, “well, I guess I have to answer that criticism, but there’s just not a whole lot to say about that office.”Report

  8. Avatar Pierre Corneille
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    But does that negate the value Hamilton saw in a strong executive? Consider the potential for dissolution of the union in 1787, then fast forward to 1861–what would have happened to the union without a strong executive? What would have happened in World Wars I and II without the strength inherent in the presidency? Or think of the importance, during the Civil Rights effort, of the executive’s ability to send federal officials to register voters in the South, to charge racist murderers in federal courts, and to send troops to Little Rock to constrain the violent response to integration?

    The historian in me is itching to cry out “oh, no! a counterfactual! shame!,” but that wouldn’t be fair, because you’re asking more than a mere counterfactual. You’re positing some of the roles that are best served by an institutionally strong executive, such as overseeing self-defense, keeping the territorial integrity of the union intact in time of rebellion, and enforcing the laws (in your examples, civil rights and equal protection laws), and keeping the territorial integrity of the union intact.

    The first two points assume that there’s a national interest that ought to obtain, that there is and ought to be this *thing* called the United States. Part of what was at issue in 1787-1789 was whether the United States was a state or a confederation, and part of what Hamilton, Madison, and Jay were arguing for was the US as a national state (note, I don’t mean “nation-state,” but I want to distinguish b/w national state and state-state). Another federalist essay (I forget the number) compares the likely fate of the 13 traitors if they don’t unite under a strong head to what was then the recently partitioned Poland. Another possibility of no union (maybe it was the same essay….I hope I’m not making this up) was one or a few colonies/states would come to dominate the others, or the constant rivalry would mean the evil standing armies in all or most of the states. My point is, the arguments for the executive in that case makes the most sense if one also accepts the idea of the US as a national state.

    The third point points to the executive as laws enforcer, where the laws serve a liberty interest. So it’s the executive as protector of liberty. That’s a good point, but I think it’s a little bit anachronistic to 1787, where the notion of a liberty interest seems to have been directed against the national government, at least when it came to constitutional discussions. I’m sure there were dissenting views on this at the time, and the dissenting views grew as time went on. I’m presuming here that the plaintiff in Barron v. Mayor of Baltimore was not just grasping at legal straws to see what would stick, but was tapping on a somewhat popular notion that the constitution protected people against state government intrusions on civil liberties.

    To answer the actual counterfactuals: 1861 would’ve been just another year on a continent divided among two or more larger conglomerations of states in some guise. My guess is that there’d be two or more confederacies, or maybe at least one or two national governments with stronger executives, and maybe these would have divided along the lines of slavery or a putative slave interest. Or maybe not.

    World War I: North America might have been a battleground. Or the “US,” if it existed with its weak executive, would have stayed out of the conflict. The latter option is actually very appealing to me.

    World War II: the Allies would have lost, and Germany would have retained supremacy in eastern Europe for a couple decades until nationalist movements would have beaten it back. Not, however, before it completed its genocides. My only reservations about stating how this means the US needed a strong executive are two. 1) It’s a poor argument for a strong executive to say that sometime in the next 150 years, a murderous dictator would try to take over Europe and a strong executive who presided over a country that, by that time, would have been industrialized enough to supply the good guys would be necessary. 2) The same strong executive office that helped assured US victory in the 20th century was an outgrowth of a weaker, but still strong executive office that forced Indians off their lands, waged war against Mexico, and intervened repeatedly in Latin America.

    Civil Rights: Across the board, these would have been much less robust. If slavery ends in the South, a new set of second-class citizens would be created. Perhaps in some non-slave states, formal equality would be assured by the laws and constitution.Report

    • Avatar James Hanley in reply to Pierre Corneille
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      The historian in me is itching to cry out “oh, no! a counterfactual! shame!,”

      Heh. This is going to be a different crowd than my sophomore level presidency class, isn’t it? 😉 To be clear, my goal was to give a fair hearing to both the Feds and the Anti-Feds, rather than take a side. I want to set up that this was a real debate, and one that’s still relevant–perhaps more relevant–today. And each side, I think, has evidence they can rely on to make their case in 2014.

      the arguments for the executive in that case makes the most sense if one also accepts the idea of the US as a national state

      Absolutely, and a good point. The Constitution never makes explicit the nature of the union in the way the Articles did. The question of whether it was still fundamentally a confederacy or a unified state hung fire, I think, until the conclusion of the Civil War. I think the nullification debates are better understood if we recognize that perspective, whereas today we tend to view them from the “it’s obvious we’re a national state” perspective. And of course the Anti-Federalists were generally critical of the national state concept, and preferred the confederation. I suppose that and their criticism of the presidency are deeply entwined.

      I think that it’s still legitimate to question that national state concept. Your response to the counterfactuals very much matches my own–those potential outcomes don’t necessarily prove the necessity of a strong executive. But I think others would weigh them differently. (And of course neither of us mentioned the Whiskey Rebellion!)Report

      • Avatar Pierre Corneille in reply to James Hanley
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        Thanks for your answer, and for your answer to the VP question as well. For the record, I think historians do counterfactuals whenever they make a statement of causation. To say that x causes y means that if x had not been there, y would not have happened, would have been less likely to happen, or would have had to happen through some other means.

        Riffing off @kolohe ‘s point below, it’s possible that wwi and wwii would not have happened sans strong national US state. Maybe something much worse or much better would have happened. It’s just hard to know.Report

      • Avatar James Hanley in reply to James Hanley
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        it’s possible that wwi and wwii would not have happened sans strong national US state

        There’s your real career prospect, Pierre, writing alternative history Sci Fi novels! “The Cato Conspiracy: How Hitler was prevented by going back in time and killing James Madison, leaving the United States to fracture, Napoleon to thrive, and World War I reparations never imposed.”

        Something about the Barbary pirates continuing unmolested by the U.S. and no “Halls of Montezuma to Shores of Tripoli” song has to be in there, too.

        “Huh,” said the retired Marine sergeant. “I was just thinking of this song, and now I can’t remember it. There’s just a faint scrap, like an echo. I’m sure I’ve heard it before, but now I can’t remember it all.”Report

    • Avatar Kolohe in reply to Pierre Corneille
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      Though I think a non-United States at the turn of the 19th century makes the Napoleonic era sufficiently different to make WW1 a far different affair (with different players and probably a generation earlier).Report

  9. Avatar Pierre Corneille
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    Someone, perhaps in the thread to the “introduction” OP, mentioned a court decision in the 1890s that enabled the federal government to create regulatory commissions, the practice of which had elements of executive authority, legislative/rules-making authority, and judicial authority. I don’t know (but I should…that type of thing is in the range of my supposed “expertise”) what that decision was, but it did bring to mind such bodies as the FTC or the Fed.

    I was thinking about those bodies (and perhaps also about Vikram’s recent OP on responsibility) when I read that segment by Hamilton about executive responsibility. In a sense, those bodies operate independently of the executive. The president nominates and the senate confirms, but through the term, the president can’t fire.

    Another point about Hamilton’s “responsibility” argument is that it got me thinking of the idea of the “unitary executive” that was floated a lot when the Alito nomination hearings were going on. I don’t know much about the idea other than at the time it seemed to my partisan self to fit in with Bush II’s arrogations of power. I do imagine, however, that an argument like Hamilton’s could be one pillar in the argument for something like the “unitary executive.”

    I look forward to reading more posts.Report

    • Avatar J@m3z Aitch in reply to Pierre Corneille
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      The unitary executive thing is a bit weird. Of course we have a unitary executive; that’s so obvious I couldn’t figure out why some conservsatives were so breathless over the concept. Then I realized their primary point was an emphasis on what they believe to be the inherent powers of the executive, that the president has inherent authority to do anything that is executivish in nature, in contrast to just those powers explicitly expressed in the Constitution, or properly delegated by Congress.

      That more limited view, the president as a clerk, the executor of Congress’s will, was the dominant early view of the presidency, but the unitary exevutive folks use that term to tie their almost-unlimited power concept back to Hamilton, so–as conservatives–they can claim the mantle of originalism.

      Never mind that Hamilton was a radical outlier from the other Framers on executive power and that even he didn’t go as far as them (for example, he emphasized the legislative’s control over the authority to send the country to war, while the unitary executive folks treat even that as an inherent exevutive power.

      I have no respect for these contemporary “unitary executive” folks. They are intellectual whores for the GOP. Notice how much the talk about it has died down in the last six years? They have no interest in vocally defending Obama’s military intervention in Libya, for example. And their historical arguments are tendentious and reliant on cherry-picking.Report

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