Thomas Jefferson became the third President of the United States in 1801. For his inauguration, he walked from a boarding house to the new Capitol building where he was sworn into office by Chief Justice John Marshall. When it was done, he walked back to his boarding house. Late for dinner, he took one of the few open seats, declining a better one near the fireplace.
That is all rather difficult for us to imagine nowadays. But Jefferson had his reasons for avoiding the undemocratic trappings of an elite leader. Less than 15 years earlier, he and his fellow Founding Fathers had hammered out the brilliant document we know as the U.S. Constitution. (Jefferson himself was not at the Constitutional Convention, but his views were well represented. Serving as U.S. minister to France, Jefferson bombarded his friend James Madison with ideas and instructions for the Constitution).
It is rather a miracle that the Constitution emerged at all. Bitter differences of opinion that were not entirely settled by the Convention. They couldn’t be; the document, before the Bill of Rights, was only some 4,500 words long – including the signatures. Once it was all done, nearly violent differences arose between leading figures such as Adams, Hamilton, and Jefferson. The first two favored a strong central government, while Jefferson did not.
Personalities of course played a role. As much as they were at odds, Adams and Jefferson could agree on their hatred of Hamilton. Washington devoted much time trying to calm down the differences between the opposing factions. When Washington warned against the spirit of partisanship, he was not warning against a future event; he was expressing his distaste of disputes that already existed.
But where did those disputes come from, and why do they remain unresolved, in some ways right up to today?
The biggest reason was that the U.S. Constitution was written to do something that the Founding Fathers at first had avoided: the creation of a strong central government. When the United States first declared its independence, the leaders of the states wrote a document called The Article of Confederation and Perpetual Union. Basically, this document left each state more or less as an independent country, just associated with each through the Articles. Trouble was, it didn’t work. The new “country” had no money, and hence no army, no navy, no court system, and no chief executive. States were threatening war against each other. The possibility that the United States might cease to exist was real.
So, a convention was called in Philadelphia to fix the problems with the Articles. The delegates fixed them alright; they threw them into the trashcan and started anew. (In case you were wondering how they got away with that, it was a combination of the prestige and power of the delegates, and the fact that ALL the states ultimately ratified the new document.) What emerged was a much more powerful central government. But underneath that, it created a more powerful country. The states gave up their sovereignty (some not entirely willingly). Needless to say, there was a lot of concern about the power of this new entity! That is why we have the Bill of Rights, which protected both individuals and states from the central government.
But next to the surrender of sovereignty, there was the creation of the office of President of the United States.
This was a big deal. The Articles of Confederation had no such animal. There was a person with the title of president, but he was just the presiding officer of Congress – best compared to the speaker of the House today. And the office of president had great legal powers, even at the beginning. In many other countries, the chief executive role is split between two offices – the chief of state, and the head of government. In America, they were combined.
Where this became far more important was in the last century. While the government has expanded – both in terms of legal powers, and number of agencies – the powers of the presidency have expanded even faster. The executive agencies all report to one person – the president of the United States. While his appointees have to be confirmed by the Senate, he may dismiss them at any time and replace them with “acting” heads, so there is relatively little independence.
The growth of presidential power has much more to do with legal power than the actual size of the government. The number of civilian employees of the federal government right now is almost exactly what it was 40 years ago. Nor is there anything sinister about how that growth took place.
On the national security side, it was the Cold War that led us to have the biggest military/security establishment on the planet. On the civilian side, it was problems that the individual states could not possibly address individually, such as the Great Depression, Appalachian poverty, and racial issues.
Twice, approximately a century apart, it was Federal power that liberated Black Americans. But as is so often the case, there was a catch.
The government can use its legal power and its financial resources to attach the proverbial zillion strings to its grants of money. Every time you take federal money, you accept those strings – and you may not even know what the future strings might be. There are some interesting cases of that right now, but it is not entirely new.
This is a power that has been used with gay abandon across the ideological spectrum – who can forget the Obama administration’s imposition of rules concerning who could use which toilet in schools – and it is being exercised with particular enthusiasm at the moment. Again, it is the president – more than Congress – who is in a position to do this.
Congress can pass laws, but that takes time, and there is opportunity for debate, discussion, compromise, and so on. The president only has to sign an order. Yes, there may be lawsuits, but only a small percentage of presidential decisions wind up in court, and if you’re the plaintiff, the burden is on YOU to prove that the president has exceeded his powers. Not as easy as it sounds.
The Constitution does have a couple of clauses allowing for the removal of a president, but they’re not very practical. No one has ever been removed. President Nixon probably would have been if he had not resigned. But the first famous impeachment trial – that of Andrew Johnson in 1868 – established the tradition that you could not remove a president for political reasons; it has to be for legal malfeasance. Even disabled presidents (Wilson and Eisenhower come to mind) have remained in office. Of course, that was possible because, as the office became more like a monarchy, people did not find out all the details of their health issues.
What is particularly striking is how little has been done to define the powers of the presidency in regard to war and the military. The Constitution’s language is a bit unusual here. Mostly, the Constitution says that the president may do this and may not do that, Congress may do this and may not do that, etc. But when it comes to the military, it merely says that the president IS “commander in chief.”
Does that merely mean that the president may take personal command of the forces in the field (most of the Founding Fathers had military experience, after all), or does it mean that the president may start World War III if he feels like it? It is surprising that after the Korean and Vietnam Wars and various other crises that the country has not addressed this.
Maybe in a few years we should do just that.
