by John Yoo
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."20 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.21
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.22 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.23
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.24Andrew Rudalevige is one such critic of presidential power who believes that the Articles lacked an independent executive branch.25This 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."26 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.27 It kept "the sole and exclusive right and power of determining on peace and war," entering into treaties, and conducting foreign relations.28 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.29 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 for
efront 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."31 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.32 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.33 Thomas Jefferson's draft for the Virginia constitution merely gave the governor the title merely of the "Administrator."34 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."36 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.37 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.38 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."39 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."40
New York's definition of what fell within the executive power remained fairly unexceptional. Indeed, it was similar to those that Pennsylvania had given its pitiful executive. It was only when these powers were in the hands of an independent and unitary executive that vigorous government emerged. These lessons did not go unnoticed. New York's experience influenced not only the later constitution-writing efforts of Massachusetts and New Hampshire, but also the work of the Philadelphia Convention.41 During the struggle for ratification, Publius -- the pseudonym used by Alexander Hamilton, James Madison, and John Jay to author The Federalist -- expressed the thoughts of many when he declared that the New York constitution "has been justly celebrated both in Europe and in America as one of the best of the forms of government established in this country."42 As Charles Thach concluded, "[H]ere was a strictly indigenous and entirely distinctive constitutional system, and, of course, executive department, for the consideration of the Philadelphia delegates."43
The Framing generation had learned another corollary to this lesson. A legislature unbalanced by an independent executive brought its own dangers. In states such as Pennsylvania, where the executive had no veto, was straddled by a privy council, and was chosen by the assembly, the legislature exercised virtually unlimited authority. During the Constitutional Convention, James Madison argued that "[e]xperience has proved a tendency in our governments to throw all power into the legislative vortex. The Executives of the States are in general little more than cyphers; the legislatures omnipotent."44 Legislative supremacy produced such "instability and encroachment" that if not checked, Madison predicted, "a revolution of some kind or the other would be inevitable." Though the colonies had won the Revolution, unrestrained state legislatures failed to follow through on the 1783 Peace Treaty with Britain, imposed destructive trade barriers, and passed laws that oppressed minorities and property owners. Despite the colonies' victory, the problems of government were so serious that historians came to describe these years as the "Critical Period."45
Later constitutions followed New York's example. Massachusetts, which adopted its constitution in 1780, and New Hampshire, which ratified a similar document in 1784, both provided for executives elected directly by the people with independent constitutional powers. Those states, for example, gave their governors the authority to make war, for offensive reasons as well as self-defense. Massachusetts's experience marks a sea change in attitudes toward the executive during the Critical Period. In 1778, the state legislature drafted a constitution for ratification by the people that required the governor to carry out the laws of the legislature but gave him no independent constitutional powers. The people rejected the proposal, with 28-year-old Theophilus Parsons, a future chief justice of the state supreme court, penning a historically significant critique known as the "Essex Result." Parsons argued that the 1778 constitution violated the separation of powers by undermining the independence of the executive and concentrating authority in the legislature. He rejected the weak executive and called instead for a directly elected governor who would share the power to veto legislation with a privy council. Dividing authority over the military, in particular
, was foolish: "Was one to propose a body of militia, over which two Generals, with equal authority, should have the command, he would be laughed at." Control over the military, the Essex Result concluded, should rest alone in the hands of the governor. Although Parsons recognized that the executive might try to expand his overall authority through the exercise of his war power, he decided that the governor's ability to respond quickly to emergencies justified centralization in the governor. The executive must be one person, Parsons argued, to clothe it with the speed and secrecy to enforce the laws internally and to defend against external threats.46
Massachusetts's constitution of 1780 followed through on Parsons's arguments. It created a "supreme Executive magistrate," who was elected directly by the people for renewable one-year terms. The executive was to be Commander-in-Chief of the armed forces and hold a conditional veto over legislation. With the consent of a council, the governor would make all appointments to the executive and judicial branches. To the reformers who would attend the Philadelphia Convention, the Massachusetts constitution "came to stand for the reconsidered ideal of a 'perfect constitution,'" writes Wood. It "seemed to...have recaptured the best elements of the British constitution that had been forgotten in the excitement of 1776.47 Its enumeration of the powers vested in the Commander-in-Chief, understood in light of the Essex Result, illustrates the contemporary understanding of the proper and most effective structure of the executive branch.
New York and Massachusetts provided the models for the delegates who met in Philadelphia in the summer of 1787. The Framers could have followed the path they knew best and treated the executive as Congress's Clerk-in-Chief, but instead they chose a less popular but more effective direction. By the end of the Critical Period's exuberant experimentation with dominant legislatures, states began to opt for executives very much like that of 1787. Why? As Gordon Wood has argued, the Framers believed that the 1776 constitutions had been the product of excessive revolutionary fervor. Unchecked by independent executives and judiciaries, the state legislatures had passed legislation infringing property rights, cancelling debts, and oppressing minorities. Factions, or special interest groups working at the expense of the broader public, had arisen. Unrestrained democracy had produced sharp and abrupt swings in policy that destabilized the newly independent states. The movement to restrain out-of-control legislatures, at both the state and national levels, proved so strong that Wood has likened it to a "Thermidorian" reaction.48