The kind of president the founders imagined | GUEST COMMENTARY
Since the current Supreme Court seems influenced by, if not obsessed with, the philosophy of “originalism,” it behooves the justices and all of us to revisit the original images of the presidency as envisioned by the founders. That intellectual exercise will reveal how far we have wandered from the presidency the founders imagined to the one envisioned by a recent occupant of the Oval Office who believes in the absolute immunity of the Commander-in-Chief from criminal prosecution.
According to NYU Professor Emeritus Louis Koenig, the presidency was created by a group of men “who had their fingers crossed.” Koenig’s description of the founders’ anxiety in creating this historically unique office reveals the founders’ conflicting interests and objectives in creating the presidency. On the one hand, they wanted an executive head of government with sufficient “energy,” (Alexander Hamilton) to lead the fledgling country into the future. On the other hand, they dreaded the possible return of a king and the loss of liberty that would inevitably follow.
It is important to remember that the founders had no model on which to base the design of this new office. According to political scientist Gregory L. Gregg, “Though we tend to take it for granted, to have an institution that would in some ways resemble a monarchy and yet would be limited in its power and influence and that would be elected periodically was something unheard of at the time.”
After vigorous debate, including the number of people who would serve as chief executive, the length of the term of office, the means of selection and removal, and the actual powers to be exercised, the founders settled on a limited, constrained president with only a small number of enumerated powers. That chief executive would exercise those powers in the context of two other branches of government exercising checks and balances, James Madison’s “ambition checking ambition.” The founders, then, sought to create power in the executive, but not unlimited power. Otherwise, they feared that the unchecked ambitions of powerful men (they were blind about the potentiality of women to govern) could lead to a return of monarchy. The safety and security of democracy resided in a system of republican government led by a powerful but limited chief executive.
During the almost 250 years of the presidency, the office grew far beyond the limitations imposed on it by the founders. In some cases, the accretion of power resulted from presidential responses to crises facing the nation — including a civil war, major financial catastrophes, world wars and more recently terrorism and nuclear proliferation. The accumulation of presidential power also occurred because of the ambition and even grandiosity of some of the occupants of the office.
Although the growth of presidential power was significant, the acceptance of that growth by Congress, the federal courts and the public was always tentative due to the details of our constitution. We have never collectively accepted the idea of an absolute ruler who could impose his (or her) will on our nation without fear of challenge or rejection. We were willing to grant the president elevated powers during a crisis, but we always expected that the passing of the crisis would mean the return to the balance of power among the three branches of government.
And we never accepted the notion that a president is above the law. A year after the Civil War ended the U.S. Supreme Court struck down the constitutionality of a military tribunal President Abraham Lincoln had used to prosecute Northern civilians, thereby limiting presidential power during an emergency. The court’s language in the case of Ex parte Milligan (1866) in instructive:
“The Constitution of the United States is a law for rulers and people, especially in war and peace, and covers with the shield of protection all classes of men at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.”
No one can reasonably argue that the POTUS of today can precisely resemble the presidency imagined by the founders. But no one should argue that the wisdom of the founders in designing a powerful chief executive, constrained by countervailing branches of government, accountable to the people and to the rule of law, and guided by some humility should be easily abandoned.
Michael Eric Siegel (MSiegel1@jhu.edu) is an adjunct professor of government at Johns Hopkins University.