The Idea of Presidential Representation: An Intellectual and Political History 0700628150, 9780700628155

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The Idea of Presidential Representation

A MERIC AN P OLIT IC AL T HOUGHT

Wilson Carey McWilliams and Lance Banning Founding Editors

The Idea of Presidential Representation An Intellectual and Political History

Jeremy D. Bailey

University Press of Kansas

Published by the University

© 2019 by the University Press of Kansas All rights reserved

Press of Kansas (Lawrence, Library of Congress Cataloging-in-Publication Data Kansas 66045), which was organized by the Kansas Board of Regents and is operated and funded by Emporia State University, Fort Hays State University, Kansas State University, Pittsburg State University, the University of Kansas,

Names: Bailey, Jeremy D., 1974– author. Title: The idea of presidential representation : an intellectual and political history / Jeremy D. Bailey. Description: Lawrence, Kansas : University Press of Kansas 2019. | Series: American political thought | Includes bibliographical references and index. Identifiers: LCCN 2019004057 ISBN 9780700628155 (cloth) ISBN 9780700628162 (ebook) Subjects: LCSH: Presidents—United States. | Executive power—United States. | Representative government and representation—United States. | Executive-legislative relations—United States. | Separation of powers—United States. | United States—Politics and government— Philosophy. Classification: LCC JK516 .B35 2019 | DDC 352.23/50973—dc23 LC record available at https://lccn.loc.gov/2019004057.

and Wichita State University British Library Cataloguing-in-Publication Data is available. Printed in the United States of America 10 9 8 7 6 5 4 3 2 1 The paper used in this publication is recycled and contains 30 percent postconsumer waste. It is acid free and meets the minimum requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48–1992.

For Mom and Dad

CONTENTS

Acknowledgments ix Introduction

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1. Presidential Representation in the 1780s 12 2. Jefferson’s Federalists, Jackson’s Whigs, and Lincoln’s Democrats 42 3. The Progressives and Presidential Representation 82 4. The National Security Constitution and Presidential Representation at Midcentury 126 5. Reformed Democrats and Unitarian Republicans Conclusion: Law and Opinion 190 Notes

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Index

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ACKNOWLEDGMENTS

With completing a book comes relief and satisfaction. This time, however, I took special pleasure in reflecting on my good fortune to work in a field with so many good scholars and so many good people. First and foremost, I am in debt to those authors who have clearly influenced this project. My title borrows from Richard Hofstadter’s 1970 Idea of a Party System: The Rise of Legitimate Opposition in the Unites States, 1740–1840. I should also mention Jim Ceaser’s 1979 Presidential Selection: Theory and Development and Jeff Tulis’s 1988 The Rhetorical Presidency. These three books are pillars in my intellectual development, and I still wrestle with their conclusions. I am deeply thankful for that. This project began as an article for a special edition on the historical presidency in Presidential Studies Quarterly edited by Stephen Skowronek and Bruce Miroff. Stephen and Bruce pushed me, and, as a result, I found that I had more to say than could be put in an article. Thank you. Fred Woodward recruited this project for the University Press of Kansas. His retirement, while much deserved, is a tremendous loss for the field. David Congdon found additional reviewers for the press, provided encouragement along the way, and gave the book his full attention. I presented chapter 4 at Colorado College and Claremont McKenna College and chapters 3 and 4 at annual meetings of the American Political Science Association. I presented chapter 1 at the annual Lincoln Forum on American Political Thought hosted by the Jack Miller Center as well as at the Shawnee Trail Conference in American Political Thought. Individuals who provided advice on individual chapters include Roger Abshire, Wyndham Bailey, Paul Carrese, James Ceaser, Naomi Choi, Jeff Church, Justin Dyer, Connor Ewing, Alin Fumurescu, Benjamin Kleinerman, Daniel Klinghard, Marc Landy, Jacob Little, Rafe Major, Phillip Munoz, Eric Nelson, Justin Peck, Brandon Rottinghaus, Boris Shor, George Thomas, David Tucker, Doug Van, and Mariah Zeisberg. Haimo Li helped me track down many of the sources cited here, and his energy and creativity made this a much better book. Jim Ceaser will surely find much to disagree with here, but over the last decade he has been a model and a mentor more than he could know.

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Portions of chapter 2 were published in Presidential Studies Quarterly and are reproduced with permission. This book is dedicated to my parents, who taught me to look to the past for guidance and for liberation. They also taught me to think for myself, and their leadership of a congregation in New Orleans provided me with a daily lesson on the necessary tension between public opinion and the rule of law.

The Idea of Presidential Representation

Introduction

The American people have been suffering without knowing it from the division of purpose between their democracy and their law. Herbert Croly, Progressive Democracy

In 2016, prominent Democrats argued that members of the Electoral College who were pledged to Republican Donald Trump should vote for Democrat Hillary Clinton in order to prevent the country from electing, in their view, a demagogue who was unqualified to be president. Citing Alexander Hamilton’s Federalist No. 68, they argued for a revival of so-called Hamilton Electors, men and women who would put aside the voting and use their own judgment to choose the better candidate. There was no small amount of irony in this. The party of Thomas Jefferson and Andrew Jackson was looking to Alexander Hamilton to argue that elites should use their better information to fix the results of the presidential election. Meanwhile, among academics, the theory of presidential representation has emerged as a hot topic. There is a new and rich quantitative literature in political science challenging claims that the presidents represent the whole nation, finding instead that presidents represent core partisans and narrow constituencies. But other prominent political scientists have reinvigorated calls for presidential leadership, this time a fast track legislative authority, on the grounds that only the president has the electoral incentive to pursue the national public good. Meanwhile, Harvard political theorist Eric Nelson has challenged the very foundation of scholarship on the American Revolution by arguing that there is continuity between the Revolution and the Constitution, with the continuity being that both were a victory for a group of royalist patriots who wished to preserve monarchical power over

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legislative power as the only legitimate way to locate authority in republican government.1 Thus, according to Nelson, the creation of the presidency was a victory for the royalist patriots, but also for the theory that the executive alone represents the people. This emerging confusion is set against a fairly straightforward consensus among scholars of American political thought and development. That set of arguments, most associated with the work of James Ceaser and Jeffrey Tulis, is that the founders created a certain kind of presidency because they appreciated the dangers of demagogy, a danger they had learned from their reading of antiquity and from their experience in the state governments.2 According to this story, the Constitution does not envision a president who represents the people but instead creates a president who serves as a check on the people’s representatives in Congress. Further, this constitutional design was deliberately and fundamentally transformed by the Progressives, who were impatient with the counter-majoritarian features of constitutional design and who wished to hitch policy reform to presidential leadership.3 Though Ceaser, Tulis, and their followers read this change as a story of decline, their larger point that there was change is a common reading of twentieth-century American politics.4 Consider, for example, the following statement from Justice Robert Jackson’s famous concurring opinion in Youngstown. “Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations.”5 This would seem to be an obvious point. Presidential power cannot be reduced to a set of provisions in the Constitution, because the president’s power is no doubt related to the president’s standing in public opinion. Presidents today take stock of tracking polls showing whether they command majority approval, whether the country is on the “right track,” and whether specific policy proposals are favored by more or less people. The best evidence for this is that presidents employ public relations experts to advise them, sometimes even elevating this kind of expertise over knowledge about policy or political experience. But what makes Justice Jackson’s statement so interesting is that it comes from a sitting member of the Supreme Court in the context of deciding a legal question about the president’s constitutional authority. More precisely, Jackson offered this reflection on presidential power in the context of arguing that Truman did not have the authority under the Constitution to nationalize the steel industry. Indeed, this opinion is probably the most

introduction

important judicial opinion on executive power. It is famous for its framework, allowing judges to classify an action into one of three positions, and in turn recommending whether judges should defer or not to presidential authority. Jackson’s statement seems to mean that his recommended legal decision has something to do with the president’s political standing. More than that, his statement implies that what he as a judge decides about the president’s constitutional authority has something to do with what he observes to be changes in the president’s relationship to the attention of the people. Because the president has become more powerful politically, the judge must be especially vigilant against executive claims to legal authority. The enduring difficulty, then, is that the president’s extraconstitutional power seems to be related to the ebb and flow of the president’s constitutional power. This book is about the implicit relationship between law and opinion that is suggested in Robert Jackson’s statement. Were it not given in the context of a judicial resolution of a question of legal authority, Jackson’s statement would be commonplace. This is because scholars of the presidency have long assumed that there is something called the modern presidency, and a large part of this modern presidency has to do with the resources and expectations associated with the increasingly democratized nature of the presidency. It is commonplace for presidents to claim a mandate from their elections, and presidents routinely claim to speak on behalf of the American people in ways that members of Congress cannot. This point is worthy of emphasis. Today, presidents of both parties claim that they are representative of the American public. There are two consequences of this claim. The first is that presidents claim to have a different quality or kind of representation than members of Congress. Going all the way back to Jefferson and Jackson, presidents have argued that they represent the whole while Congress represents the parts. The second is that presidents are potentially more than merely executive officers. Rather than conceiving of themselves as enforcing laws passed by the nation’s representatives in Congress, presidents see themselves both as enforcers of the law and as lawmakers themselves. Put this way, the idea that the president represents the people would seem to be a direct challenge to the idea, going back to John Locke, that the executive and legislative powers should be held in distinct hands. It is not surprising then that the idea of presidential representation has its critics, those who say that it does not or should not exist. But we know next to nothing about the history of this idea. To be sure, we

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are aware that presidents have claimed to represent the people, and books on the presidency routinely include the handful of famous quotations from Jefferson and Jackson, from Theodore Roosevelt and Woodrow Wilson. But we know next to nothing about whether the claims by these were representative of the views within the larger Washington community outside the White House. To the extent we do, it is mostly a general impression that presidential representation is a feature of the modern presidency. But we do not have the clear conception of the before or after that the term the “modern” presidency implies. This is in part because representation as a concept continues to elude us even in the legislative context. But it is mostly because we lack a history of the idea in the context of executive power. My argument is that contests over executive power and the nature of presidential representation have endured not only because of the imprecise wording of the Constitution. Rather, this imprecision grows out of the nature of executive power itself, and is exacerbated by the federal form underlying the separation of powers. The problem is that there are two rival arguments for executive power in republican constitutionalism.6 One looks to the law, and the other to public opinion. Each foundation provides an attractive normative argument from republican political theory, while at the same time moderating some of the other’s excesses. The argument from law appeals to our desire for equality (all are equal under the law) and promotes stability (the rule of law). The argument from public opinion appeals to our desire for democracy (the majority must govern) and promotes progress (the earth belongs to the living). These rival foundations ensure that power remains contested both as a matter of formal law and as a matter of informal opinion. Federalism and the separation of powers under the Constitution further complicate these struggles by mingling them with rival claims of representation with respect to public opinion. As Madison conceded in Federalist No. 37, the delegates to the Convention of 1787 encountered the difficulty of balancing the requirements of energy and stability with the desire for republican principles. They attempted to solve this not by creating a mixed constitution, based on economic class, but rather by attaching different principles to the House, Senate, and presidency. These different principles would in turn be harnessed by different “wills,” and these wills would include different constituencies. The emergence of parties altered this framework but did not replace it. In fact, the first parties explicitly took sides in the contest between law and opinion. The Federalists represented the party of law and the Republicans the

introduction

party of opinion. The argument for party was first a proxy for the argument for public opinion, and once the parties became what Richard Hofstadter called “legitimate,” both parties saw that they could not reject out of hand the argument from public opinion.7 But the question of executive power—and as a result, presidential representation—was altering these developments even as it itself was changed by them. The rise of parties meant that partisanship would frequently drive debate about executive power, but it would be incorrect to reduce all arguments about executive power to partisanship. The use of executive power in republican government requires explanation, and if that explanation is going to be persuasive, it must attempt to rise above party politics even as it takes into account the way party politics changes the incentives for using and explaining power. The point can be flipped around to apply to the other side as well. Just as partisan accounts are incomplete, so too are examinations of executive power—particularly by scholars of prerogative and by scholars in the public law tradition—that emphasize philosophic or legal argument and omit consideration of presidential representation.8 The two arguments came to us impacted, one with the other, at the beginning, and for all the development that has ensued, they have remained so. Critics of Presidential Representation Today, presidential representation has its critics. One set is normative, and the other is empirical. The first set objects to the desirability of presidential representation on grounds that it is bad for democracy. The second set objects to the existence of presidential representation as a matter of fact. One source of confusion is the question of what it is. That is to say, the precise nature of the relationship between the presidency and the public has long been a central concern of political science.9 There is also new and wide disagreement about presidential representation. One question has to do with partisanship. Do presidents represent the moderates whom they have convinced to join their electoral coalition, or do they cater instead to the committed partisans who make up their reliable electoral base?10 Does the president or Congress serve as the more likely representative of moderate voters?11 Another question has to do with the national interest. Do presidents work on behalf of the whole nation, or are they motivated instead to work on behalf some narrow constituency? With respect to the question of partisanship, B. Dan Wood has argued that scholars of the presidency need to move beyond what he calls the “myth of presidential representation.”12

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In his view, presidents are not pulled by electoral self-interest to the median voter. Instead, they appeal to fellow partisans. Specifically, Wood’s president campaigns and governs with eye on “potential” support, that is, a coalition of the committed and the persuadable. With respect to the question of the whole nation, Douglas L. Kriner and Andrew Reeves have offered evidence showing that presidents are like members of Congress in that they too seek “particularistic” policies favoring one region or constituency at the cost of the whole. Pointing to trade policy, disaster declarations, and the allocation of federal grant spending, Kriner and Reeves show that presidents pursue policies that enhance reelection (or the election of their party’s nominee) by targeting swing states with a disproportionate share of federal dollars. Thus, just as in David Mayhew’s classic account of members of Congress preferring particularistic policies over universalistic ones, Kriner and Reeves’s president “focuses like a laser beam” on the narrow constituencies that he deems necessary to win states like Ohio, Florida, and Pennsylvania.13 Likewise, John Hudak, who is a fellow at the Brookings Institution, argues in a 2014 book that presidents seek and are effective in “pork barrel politics” because they are geographically strategic in their quest for reelection. After all, “presidents are well positioned to engage in micro-level decisions in a host of policy areas including the distribution of federal funds.” Because the president is not chosen by a national plebiscite, the claim that the president represents a national constituency is a clear fallacy.14 But not all empirical political scientists reject the theory of presidential representation. For some scholars, presidential representation offers an important structural corrective to the inability of Congress to make policy. Part of the problem with Congress is partisanship: as Congress grows more polarized, Congress becomes less able to achieve the compromise necessary to address important issues such as immigration, social security, global warming, and so on. But the source of the problem might run deeper. Indeed, according to William G. Howell and Terry M. Moe, commonly offered solutions such as fixing campaign finance and gerrymandered districts will not address the real problem, which is that members of Congress are, under the Constitution, necessarily tied to localities. In their view, an empowered presidency offers the only solution to an outmoded constitution, because, under the Constitution, only the president has the desire to act on behalf of the United States. Their presidents “set their sights on the nation as a whole and strive to represent the national interest,” “rise above the fray,” and, “with their unique perch,” “they see national problems like no one else.” Because

introduction

presidents have different incentives than members of Congress, presidents are more likely to pursue policies that they believe serve the common good.15 This defense of presidential representation on structural grounds gets us back to something like a normative defense of presidential representation. This is because presidential representation has its virtues. Textbooks and presidential biographies typically celebrate presidential “leadership” and “achievement.” These achievements are all the more impressive if they seem to rely on or enhance democracy rather than circumventing it.16 We might even go as far as to say that presidential representation has it virtues because of its association with plebiscitary democracy. Howell and Moe’s recommendation to fix American politics is a modified version of the ancient practice of plebiscite. They would amend the constitution to give the president “fast track authority” in all policy matters. The president would recommend measures, and Congress would then have to provide a yes or no vote without amendments. This is necessary, they argue, because presidents are more accountable with respect to long-term national objectives. Moreover, at least one political theorist, Jeffrey Green, has argued for a recovery of plebiscitary democracy for its promotion of candor in public life. Because leaders who rely on plebiscitary appeals subject themselves to public scrutiny—indeed, they insist on it—they call attention to what Green sees as “a serious weakness of contemporary democratic thought,” namely, “that it cannot speak about the People.” For Green, the plebiscitarian moment has the potential to reveal the people as “a single and unified collective,” if the people are conceived in “ocular” rather than vocal terms. But what is especially necessary for this plebiscitary judgment is that the leader truly engage the public in a candid way. For that to happen, the leader cannot “control” the “conditions in which he or she appears.” This means that plebiscitarian leadership is more willing to accept risk than is the case under deliberative and pluralistic models.17 To be sure, normative theorists are generally suspicious of executive claims to represent public opinion. This is not only because such claims are historically associated with gross violations of minority rights, but also because, on their face, such claims belittle the importance of deliberation and compromise among citizens about the common good. Because elections alone cannot guarantee authentic representation, any claim to represent a unified national will must be suspect. For example, Nancy Rosenblum worries that the “tenor of ecstasy” and “palpable wave of unity” “overrides politics understood as representation and negotiation of particulars”:

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“There is only consolidation of national homogeneity in the plebiscitarian executive by spontaneous acclamation en masse.”18 More recently, in a 2014 book, Columbia University political theorist Nadia Urbinati included plebiscitarianism as one of three “disfigurations” of democracy. While it remains attractive to populists on the right and to those on the left impatient with constitutional limitations on power, its chief problem is that it is “a celebration of the politics of passivity” because it reduces all questions of opinion to questions of will.19 Because it replaces accountability with the virtue of “being popular,” it removes democracy’s central requirement and thus alters it, rendering it fake.20 It seeks to reduce participation to the barest of yes-no decisions and thus undermines discussion and information seeking as a public good. Indeed, political theory has long debated the meaning and requirements of representation. Going back at least as far as Rousseau, there is a strong tradition arguing that true representation, even in the legislative branch, is impossible. Because it is impossible for a single person to represent all, the claim to do so must either rely on blunt plebiscites—where the executive has the power to propose—or be a tactic of demagoguery. Moreover, many theorists of representative democracy advocate what they call “thick” accounts of representation that go beyond the “thin” reliance on elections that merely give authority to lawful representatives. They advocate ongoing deliberation beyond election day, deliberation among all citizens and deliberations between voters and representatives. In place of “mandates,” this thicker understanding requires—in addition to freedoms of speech and press—a permanent, high quality, and pluralistic access to representatives.21 In my view, these debates are as old as democracy itself, and this book cannot resolve them. Rather, it aims to deepen them by placing them in the larger history of the American presidency. It is curious, for example, that both groups of quantitative scholars believe that it is the modernity of presidential representation that matters most. Concluding that modern presidents are different because they are partisan, B. Dan Wood questions “whether modern presidents and presidential candidates even understand what it means to be ‘enlightened statesmen’ in the sense intended by Madison in Federalist 10.”22 What is important to notice is that Wood is not content with his empirical claim about how presidents behave today. Rather, he explains this empirical claim by invoking a broader understanding of the constitutional design and of American political development, namely that parties changed everything. So by this account, the emergence of political

introduction

parties transformed presidents into partisan presidents, thus rendering presidential representation impossible. Yet Howell and Moe see change in a different way. They argue that the presidency as we know it was created by Progressives in the early twentieth century, and their innovations were designed to lessen the importance of partisanship for presidential administration. So, in the view of Howell and Moe, the presidency itself—that the president can and does see the whole—is confirmation that the Constitution of 1787 has already been “forever changed.”23 In this, both schools follow the standard teaching of American political development that the Progressives changed the Constitution by inventing a modern, representative presidency.24 It is my view that this story of American political thought and development does not match up to the facts. As scholars have pointed out, it does not take seriously enough the claims of nineteenth-century presidents such as Thomas Jefferson, Andrew Jackson, and Grover Cleveland.25 Likewise, it sometimes treats the emergence of parties as determinative without acknowledging that parties and partisanship have not remained constant.26 But more importantly, it does not adequately describe how the contemporaries of the presidency understood the claims of presidential representation made by presidents and their surrogates. That is, and to borrow Richard Hofstadter’s classic formulation, it does not give us enough evidence to determine when or whether presidential representation became “legitimate.” What we need to know is whether members of Congress and other members of the Washington community accepted the premise of the claim that presidents can and do represent the people. To date, we simply do not have this information. My argument is that, in place of a before-and-after moment of transformation, the evidence shows that presidential representation has long been contested and remains unsettled. The explanation for this is twofold. First, constitutional democracy pits two foundational arguments into opposition, namely, arguments from law and arguments from opinion. Because the argument from opinion is never wholly conceded by those who would prefer to ground authority in the law, and because democratic citizens inevitably chafe against laws made by prior generations, presidential representation remains contested. Second, because the eternal contest between law and opinion takes place in the American context of federalism, arguments about presidential representation are entangled between the rival claims of the state and national governments, between the part and the whole.

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The chief virtue of presidential representation is accountability. Going back to Hamilton’s writings in The Federalist, defenders of presidential power have argued that unity in the executive allows for the people to place blame and credit where they otherwise could not. Hamilton’s point was to argue against a plural executive, not a plural legislative, but his argument nonetheless opens the possibility that the presidency contributes not only “energy” to the government but also “responsibility.” Thomas Jefferson emphasized this part of the presidency and initiated reforms that would enhance executive power while at the same time tethering it to public opinion. Thus Jefferson attempted to transform the presidency by institutionalizing appeals to the people in the presidency itself. The requirements for this new presidency would be that the president “throw himself on the people” instead of taking a broad construction of constitutional grants of authority. Jefferson was but one reformer who saw presidential representation as a way to improve democratic practice. Since Jefferson, countless presidents and intellectuals have argued that presidents can overcome the problems of legislatures whose members seem either captive to special interests or too cynically parochial to rise above the demands of constituents in their districts or states. As a result, the presidency has undeniably become more plebiscitarian and more powerful. But the argument from the other side endures. As the following pages will show, members of Congress as well as other members of the Washington community have long pushed back against reforms aimed at making the president more representative of the national electorate. It is telling that the Twelfth Amendment, ratified in 1804, offers the Constitution’s last word on the Electoral College. This is because a considerable number of Federalists and Whigs and Republicans outside the White House have remained skeptical of attempts to ground executive authority in national public opinion. Throughout American political history, critics of presidential representation have worried that a plebiscitary presidency would undermine the stability promised by the Constitution, a stability often rooted in federalism and sometimes reinforced by party organizations. Most recently, even as Republicans embraced executive power, they remained ambivalent about grounding executive power in appeals to the people and instead found in Hamilton’s argument a president whose power derived from the formal “unitary” structure of the office. The history of presidential representation reveals that separation of powers is not merely a question of formal power. Rather it is also one of

introduction

constituency, as each department rallies different constituencies for purposes of self-defense and sometimes even aggression. Each constituency glimpses a part of the Constitution and attempts to force its partial truth on the other. What follows, then, is a history of an enduring and necessary feature of our politics.

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1 Presidential Representation in the 1780s

The eldest of the lord’s proprietors shall be palatine; and upon the decease of the palatine, the eldest of the seven surviving proprietors shall always succeed him to prevent the making of the office in this little government hereditary and to avoid the mischief of faction in election. John Locke, “The Fundamental Constitutions of Carolina”

It is often said the Founders created the Electoral College as way to dilute the influence of ordinary voters in selecting the president. This understanding dominates modern journalistic accounts of the presidency as well as most textbooks on American history and government.1 This understanding, as will be discussed in chapter 4, was also influential among intellectuals, first, in the Progressive critique of the Constitution, a critique that set out to unmask the Founders as antidemocratic, and second, among their conservative critics who wanted to use the authority of the Founders as a breakwater against the democratizing currents of the twentieth century. But the truth is more complicated than either side would have it. In 1787, the status and legitimacy of public opinion had not been resolved one way or the other, and, just as important, there was not a consensus about the relationship between public opinion and the legislative and executive branches. But before the question of public opinion as a legitimate source of authority could come into focus, Americans first had to construct an executive branch and arrive at a way to select the head of that department. The problem was crystal clear: how to give a body the power to choose the executive without inviting corruption and faction. In reaching for seniority as the organizing principle in the quotation above, Locke and his colleagues

presidential representation in the 1780s

constructed a bizarre alternative to hereditary succession and legislative selection. The Americans were no less perplexed in 1787. The Virginia Plan, which framed the debates in the Constitutional Convention, was especially vague on the question of the executive. After all, Madison confessed in April 1787 to George Washington that even though a “national Executive must also be provided,” “I have scarcely ventured to form my own opinion either of the manner in which it ought to be constituted or of the authorities with which it ought to be cloathed.” But Madison revealed something else to Washington in that letter. He argued that the “principle of representation” should change to proportionate representation, so that “Virginia and Massachusetts” would have more power than “Delaware or Rhode Island.” In an important miscalculation, he predicted that a “majority of the States” would favor it, and the “lesser States” would then have to “yield to the predominant will.” But Madison also revealed that the change in representation was necessary not because of basic considerations of fairness or democratic theory. Rather, the reason that the change in representation was necessary was that it would be the incentive to the large states to give up their power to the national government. As he put it, the way to get Virginia and Massachusetts to agree to give the national government more power was to give Virginia and Massachusetts a greater share of that power. For the large states to agree to create a more powerful national government, they would have to be assured that they would have more say in that government.2 Madison’s explanation to Washington tells us more about the presidency than scholars have realized. It reveals that Madison knew that the large and small states would calculate the way they would benefit or lose under any replacement for the Articles of Confederation. But more than that, it shows that Madison was thinking about the ways the large states would need to be bribed in order to agree on a new constitution. They would have to expect to gain in national political power if they were to agree to give away more control over their own internal governments. This is well known in the context of the debates over representation in Congress, but it has remained strangely underappreciated in the context of the presidency. Scholars have consistently pointed to the creation of the presidency as one of the more difficult issues facing the Convention of 1787. A good deal of the difficulty was caused by the interrelated of questions of how the president would be elected and who would do the electing. This dilemma took up a staggering ten days over the course of the last two months of

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the Convention.3 But because the question of who elects the president was connected to the question of whether the president would be eligible for reelection, textbooks have long treated the question of presidential representation as driven by the larger imperative of executive independence. According to this view, the biggest problem with selection by Congress was that most delegates saw that this method would require that presidents have term limits in order to ensure that the president not become dependent on the body (Congress) that chooses him. Because many of these men wanted the president to be eligible for reelection, they were forced to find some alternative to selection by Congress.4 So, under this account, eligibility for reelection outweighed the virtues of selection by the legislature, and thus the Framers created the Electoral College as a way to elect the president without relying on Congress and without relying on mass democracy. Or to use the language of Federalist No. 68, the Electoral College offered a way for the president to be elected by a selected group of “men most capable” and allow the president’s “continuance in office” to depend on “the people themselves.”5 The classic study of the thinking behind the original design of the Electoral College is James Ceaser’s 1979 book Presidential Selection: Theory and Development. Ceaser offers an alternative to two older and rival schools, what he calls an aristocratic school and a democratic school. The aristocratic school, represented by Sir Henry Maine, reads the Electoral College to be mostly aimed at limiting the popular choice of the president. The democratic school, represented by Martin Diamond, reads the Electoral College as going as far toward direct popular selection as certain practical imperatives, such as slavery and the differing suffrage requirements across the states, would allow. Ceaser concedes that certain “practical” considerations were instrumental in the move to the Electoral College, but he also writes that “a theoretical distrust of popular elections was also partly at issue, at least for Hamilton, Jay, and in some measure Madison.”6 But in his view, the more important point is that even though the convention included two rival groups, men who feared a popular presidency and men who trusted it, both groups shared common objectives. These objectives grew out of their common experience under the state constitutions. Specifically, both groups wanted to lessen the likelihood of demagogues, and they wanted to rein in legislative power. These objectives had a common source. This source was the overriding reluctance to embrace the emerging theory that popular authority was the surest foundation for republican governance. Thus,

presidential representation in the 1780s

according to Ceaser, the men at the Constitutional Convention created institutions run by representatives who would filter—that is, refine and enlarge—the preferences of the “common man,” and they “wanted to prevent the president from defining himself and from being looked upon as a popular favorite.”7 Because the Framers desired statesmanship rather than leadership, and nonpartisanship rather than partisanship, they designed the president to be “independent” from popular pressure.8 In his 1988 book The Rhetorical Presidency, Jeffrey Tulis built on this account to argue that for the Framers, independence was the virtue that would need to be cultivated, and this independence was understood as independence from Congress because Congress was dependent on public opinion.9 But Harvard political theorist Eric Nelson has challenged this account of the early republic in a recent book. Nelson concludes that the Constitution represented a triumph for a group of “royalist patriots” who wished to preserve a powerful executive. In his view, this group included Federalists, especially men such as Alexander Hamilton and James Wilson, who had already reconciled themselves to a powerful monarch in order to dispute the authority of Parliament over the colonies during the imperial crisis of the 1770s. In his reading, this intellectual move was more than a convenient way to get around the problem posed by Parliament, a body in which the Americans would never have real power. Instead, the move to regard the king as the only connection between the colonies and the British empire was not a move at all but rather part of a long-standing account of representation informing one school of thought. According to this royalist school, the central requirement for representation was authority, not resemblance. So it matters not whether a representative looks like his constituents or shares their interests. Rather, what matters is that the representative has been authorized by them. Unlike legislative majorities, who were authorized to represent only some faction or some combination of factions, the king alone was authorized to act on behalf of the whole kingdom. So the defense of the king laid the way for the creation of the presidency, and both rested on a strong theory of representation by the executive.10 But there is a twist in Nelson’s account. These royalist patriots differed among themselves as to the basis of the authorization necessary for ratification. According to one view, which he ascribes to James Wilson, authorization required an election, so the executive must be an elective one. But according to another view, which he ascribes to Hamilton, election was not necessary because authority rests in consent to the form and practice

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of government generally and not in the choice of particular individuals. In Nelson’s opinion, the Wilsonian view of authorization as election was incoherent because it could never account for how a person could be represented by someone for whom they did not vote.11 But this incoherence was not addressed because the tension between the two theories of authorization never came to a head during ratification. Neither theory stood in the way of the more immediate object, creating a strong presidency under the new Constitution.12 Nelson’s account reveals one problem with the way that that we have conceived of presidential representation during the 1770s and 1780s. For too long we have relied on a strong presidency versus weak presidency dichotomy, a dichotomy that obscures the diversity of thought that also existed concerning the sources of executive power. If Nelson is right, then there were different grounds for arguing for presidential independence even among those who were partisans of a strong executive. One school was more concerned with authority by way of electoral accountability, and the other was wary of accounts of political authority that drew too closely on the people as a direct source of political authority. This means that proponents of ratification supported the strong presidency created by the Constitution but they disagreed among themselves about the source of that strength. This point can be illustrated by the diversity of arguments about the elective nature of the presidency given by supporters of ratification. Assuming the pen name “An American Citizen,” Tench Coxe wrote in Philadelphia’s Independent Gazetteer that the president was different from the British king because he is “to be one of the people at the end of his short term.” But more than a comment about the president’s limited tenure, Coxe was also making a claim about the way presidents are chosen. “He is originally one of the people,” and “he is created by their breath.”13 A month later and writing under the same name in the same city, Noah Webster contrasted the president both to the hereditary king of England and to the king and consuls of ancient Rome. In his view, the presidency was clearly not hereditary, nor was it simply elective. Instead of being “elected by the body of the people, in their public assemblies,” the president is elected “by a few men—chosen by the several legislatures—their inspection—separated at a vast distance— and holding no office under the United States.” This was an improvement, because whereas Rome was plagued by “excessive bribery and corruption,” the new American way “almost precludes the possibility of corruption.” This was also an improvement in terms of the motivating force of the president,

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because “it is impossible that an executive officer can act with vigor and impartiality, when his office depends on the popular voice.”14 For Coxe, the president was to be trusted because he was created by the people, but for Webster, the president was to be trusted because he was not. But there is a second problem, and that problem is federalism. In a 1995 article in Journal of American History, the historian Shlomo Slonim argued that “antimajoritarianism was by no means the primary motivation behind the creation of the Electoral College.”15 Rather, the Electoral College emerged as an attractive compromise to the small states, as well as to the slave states, who wished to preserve their perceived advantage gained in the Connecticut Compromise. So, for example, while Delaware enjoyed equality in the Senate with Virginia, Virginia enjoyed a ten-to-one advantage in the House in the first Congress. But in the Electoral College Virginia’s ten-to-one advantage was reduced to twelve-to-three, that is, to a four-to-one advantage. Likewise, for the larger states, some alternative to legislative selection of the president became necessary once the delegates settled on the terms of the Connecticut Compromise. For Slonim, this explains why Gouverneur Morris, who arrived late to the convention and had missed the first debate on the presidency, voiced opposition to legislative selection on July 7, proposing election by “the people at large,” even though legislative selection of the president had been agreed upon by a nine-to-two vote as far back as June 2. This would explain why legislative selection seemed to stick around until the small states were given equality in the Senate, that is, until the large states insisted on some mechanism that would not treat the states as equals. So “in the eyes of its admirers, the Electoral College represented a brilliant scheme for successfully blending national and federal elements in the selection of the nation’s chief magistrate.”16 In 1997, in his prize-winning study of the convention, the Stanford historian Jack Rakove likewise concluded that the Electoral College grew out of “explicitly political calculations” because it “built on the ‘compromise’ of July 16.”17 In 2003, political scientists James Pfiffner and Jason Hartke argued that calculation about the three-fifths clause, not concerns about the ability of ordinary voters, is what led to the compromise over the Electoral College.18 Colonial Practice The problem of geographic divisions of authority and executive representation actually preceded the Convention of 1787. It often escapes notice that Americans had experience with an independent, popularly elected executive

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before the Revolution. In 1636, Plymouth colony’s “Pilgrim Code of Law” called for “a governor and seven assistants” to be elected “by the freemen” of the colony. This governor would be responsible for “the execution of such laws and ordinances as are or shall be made and established for good of this corporation.”19 Likewise, the 1639 Fundamental Orders of Connecticut established a governor and six assistants who would have the power to execute the laws and who would be chosen by freemen who had taken an oath of fidelity.20 Further, the 1662 charter for Connecticut and 1663 charter for Rhode Island provided for popularly selected governors.21 In both states, the governor and deputy-governor were joined by a council of ten or twelve assistants. In council, the executive’s job was to carry out the decisions of the General Assembly, which was comprised of two members from each town.22 Moreover, early practice placed governors and legislatures on different representational paths. By 1644, both Massachusetts and Connecticut relied on a distinction between “magistrates” (the governor and the assistants) and “deputies” (legislators representing their towns).23 The executive magistrates were elected by voters in the aggregate, but legislative deputies were elected according to lines drawn around towns or electoral districts. The governor was chosen by the whole, and deputies were chosen by the part. To be sure, in Massachusetts, the 1692 charter establishing Massachusetts Bay Province represented a movement back toward monarchical authority. The 1692 charter replaced the popularly elected governor with one appointed by the king to be the king’s “personal representative,” and the assistants were selected by the General Court rather than by freemen.24 But it is nonetheless true that colonial practice reveals that the idea of presidential representation existed in America even before there was a presidency. More important, this emerging practice of executive representation was entangled in debates not only about the nature of the British empire but also about the nature of American federalism. This means that claims of representation were likely to be contested not only across different departments of government but also across different levels of government. In addition, colonial practice revealed the ways representation brings attention to the question of geography by tying representation to claims from specific districts. These districts would likely vary according to population, and these differences in population would attach themselves to notions of fairness in representation that would serve their interests according to whether they were small or large. In this, the colonial Americans linked debates over representation to debates over separation of powers and therefore to executive

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power. Their practice of associating differing electoral constituencies with rival institutions would emerge as a source of contention during the constitution-making period of the 1770s and 1780s. This can be seen in the state constitutions that were most influential in the creation of the presidency. Those constitutions are the Massachusetts Constitution of 1780 and the New York Constitution of 1777, the very constitutions that James Wilson would use as a model when defending popular selection of the president in 1787. State Constitutions Virginia wrote the first constitution after Americans declared independence. The Virginia Constitution of 1776 went out of its way to declare that the old government exercised under the king was “totally dissolved.” In its place, it created three “separate and distinct” departments with a bicameral legislature, a governor, and a judiciary headed by a “supreme Court of appeals” and a “General Court.” The governor was to be chosen by joint ballot of both houses of the legislative branch, the House of Delegates and the Senate. Choosing the executive was noncontroversial. Each of the four plans submitted for consideration included some form of legislative selection of the governor, and the main choice seemed to be whether to have the lower house or both houses do the selecting. Jefferson’s draft was the lone proponent of selection by the House of Delegates rather than by joint ballot.25 This consensus among state constitutional reformers was not confined to Virginia. Seven other states formed constitutions with legislative selection of the governor.26 In addition to the previously mentioned exceptions of Rhode Island and Connecticut, the other exceptions were Maryland and, later, Massachusetts and New York. According to Gordon Wood, “since the governors were not regarded in any sense as ‘representatives’ of the people, it seemed obvious that such legislative election was the best means—along with specially high property qualifications stipulated in many states—to guarantee” that someone with the requisite “wisdom, experience and virtue” would be chosen.27 If the Virginia model was mainstream, Pennsylvania’s was the outlier. Wood labels the Pennsylvania Constitution as the constitution where “radical Whig thought found its fullest expression.” The legislature was unicameral; there were no property qualifications for voting; and there would be a “council of censors” that would meet every seven years to determine if the constitution needed to be amended. The “governor was totally eliminated,” and in its place the executive power was given to a twelve-member

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executive council. The council’s members were chosen by the people, and, if Joseph Reed is to be believed, like members of the assembly, they were considered to be “representatives of the freemen of the commonwealth.”28 The introduction of representation into the executive council was, like the unicameral legislature and the board of censors, a radical innovation, but it is also worth pointing out that the council would have at its head a “president,” and the assembly, not voters, would select this officer.29 It is possible, however, that one of the writers of the constitution, George Bryan, had advocated for a popularly selected executive. In a proposal “The Genuine Principles of the Ancient Saxon, or English[,] Constitution,” the writer “Demophilus” argued that a new constitution could be based on principles of ancient Saxon practice, and this would include a governor elected by the people.30 But this was not to be, as the final Pennsylvania Constitution was like the majority of state constitutions in having the head of the executive branch chosen not by the people but rather by the legislature. John Adams and the Massachusetts Constitution of 1780 Because the Massachusetts Constitution included a popularly selected governor with a veto power, scholars have long treated it as a significant step toward the creation of the presidency. Nelson, for example, writes that it was “undoubtedly the ratification of the Massachusetts Constitution that marked the end of the wilderness years for patriot Royalism.”31 Commentators have also described the constitution as a triumph for its author, John Adams, who had long argued for a senate as well as an executive veto. But as important as Adams was in drafting the Massachusetts Cconstitution, and in imbuing its governor with the veto, he was less important in making the governor popularly elected. Biographers of John Adams have consistently argued that Adams’s support for a strong executive, in addition to his focus on the enduring problem of aristocracy, separated him from his contemporaries. In what will surely be considered the leading study of Adams’s thought, Richard Alan Ryerson has recently written that Adams went further than Hamilton or Washington in wanting to give the president more power than he had been granted in 1787.32 This is because Adams, going back to the 1770s, believed that the executive should be “a fully coequal member of a tripartite legislative power” by way of an absolute veto.33 To no small extent, Adams’s promotion of the executive was related to his fixation on aristocracy. His underlying assumption was that a good constitution must mix the three orders existing in every society:

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monarchy, aristocracy, and democracy. Without a powerful executive, aristocrats would overwhelm the democrats. Because aristocrats can use their wealth to wield power in elections and in the legislative process, the people need the executive to limit the power of aristocrats. Thus, as Ryerson puts it, “the people (the Many) will be the happy and productive foundation of a republic whenever they can look to a strong executive to defend their interests against the aristocracy and have secure control of their own legislative house.”34 As Ryerson shows, this explains why Adams was sometimes criticized for being sympathetic to monarchy: because he believed all republics were necessarily mixtures of these three forms, he allowed limited monarchies to be classified as republics.35 Because his principal concern was a “balanced constitution,” and because he believed that the rule of the One was necessary to maintain a balanced constitution, he did not move with Americans as they became more committed to popular government. In Adams’s conception of constitutional balance, execution was not the same thing as representation. This can be seen in his 1776 Thoughts on Government, which was written as a model constitution for the states to adopt after independence and included criticism of unicameral legislatures. Assuming that the legislature would have to delegate executive power to a separate body, he predicted that unicameral legislatures would find themselves in zero-sum contests—he called them “wars”—with the executive that would end only with the domination of one by the other. Bicameralism would fix this because it would be based on the balance of the orders in society: “To avoid these dangers let a [distinct] Assembly be constituted, as a mediator between the two extreme branches of the legislature, that which represents the people and that which is vested with the executive power.”36 Adams had in mind his senate, of course, which in his view would represent the “property of the Commn Wealth,”37 but it is clear that he separated the executive and representative functions. The two orders had to be there, but they needed a third to keep the balance. All this presupposes that the orders are clear and distinct.38 It also presupposes that the departments of government represent distinct classes, not classless functions of government.39 More than insisting on a third branch to keep the lower and upper houses in order, Adams’s 1780 constitution took the next step to secure the independence of the executive. In the vast majority of states legislative selection was the rule, but the Massachusetts Constitution instead called for the governor to be selected by voters. According to the 1780 constitution, “those persons qualified to vote for Senators and Representatives” would

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assemble in town meetings to annually vote for governor on the first Monday of April. The governor would be the winner “in the case of an election by a majority of all the votes returned.”40 As Nelson points out, the framers of the Massachusetts Constitution of 1780 offered a ringing endorsement of the claim of executive representation. In a preamble to the document, signed by James Bowdoin, they declared, “The Governor is emphatically the Representative of the whole People, being chosen not by one Town or County, but by the People at large. We have therefore thought it safest to rest this Power in his hands.”41 This statement suggests that even in 1780, a full two decades before Thomas Jefferson and his party would make similar claims on behalf of their Revolution of 1800, constitutional designers in Massachusetts recognized the representative potential of the executive. This potential rested on the different natures of the electoral constituencies for the governor and for the two legislative chambers. But it also assumed that the governor’s wider or “whole” constituency made the governor’s claim to representation qualitatively better than that in either the Massachusetts Senate or House. This logic was supported by the voters of Wells, a small town in presentday Maine, who worried that members of the legislature would “be disposed to act upon the private narrow Views and Interests of their particular Constituents.” The governor, by comparison, was “the sole Representative of the whole Commonwealth,” the “Center of Union,” and the “Guardian of the Constitution and of the Rights and Interests of the whole State.” So if and when a legislature would be “partial,” they would “always have a Representative in the Person of the Governor.”42 Nelson reads the concern of the people of Wells as having to do with their remote station, which was similar to that of the colonies during the imperial debate.43 There is truth in this, as they noted that they would be disadvantaged “by Reason of our distance” and by the fact that interests “near the Capital” are always better represented. But their anxiety about adequate representation in the legislature also reflected their belief that there was and would be unequal representation. Moreover, it suggested a critique of legislative power itself. Not only was legislative power insufficient because it could not, as Locke wrote, remain always in being, it was insufficient in part because it was necessarily partial or at least could not be as impartial as the executive. In fact, the Massachusetts Constitution of 1780 called for proportional representation in the house and senate, and the proportions for representation were highly contested in the constitutional convention. This had

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been a source of contention in 1778, when the drafting committee’s report provided for proportionate representation of towns in the lower house. The controversy had to do with towns that were too small to earn one representative in the house: the 1778 committee rejected giving each town a minimum of one representative. The 1780 convention at first rejected a call to give each town one vote on February 3 but then changed its mind on February 27.44 For the 1780 constitution, Adams had proposed that these small towns would be allowed to join with a larger town, which was a proposal Madison would reuse during the Convention of 1787, but the small towns wanted to be guaranteed at least one representative.45 Eventually, there was a compromise that grandfathered in small towns already represented by one representative. As the citizens of Wells noted, districts would have to grow in order to keep pace with population growth and in order to keep the number of representatives below a certain number. And with larger districts, unequal representation would grow, giving some districts the advantage over others. Their solution for this was not growing the size of the legislature or changing the basis of representation in the senate, but rather empowering the governor.46 It is important to notice that even though Adams was responsible for much of the 1780 constitution, he did not have much to do with this step toward popular election of the executive.47 After all, his 1776 Thoughts on Government had called for a joint legislative ballot, not popular election. Rather than coming from Adams, popular selection of the governor was a feature of the proposed 1778 constitution, which is known today because it had been rejected. Voters in the towns rejected it on the grounds it had not been created by a convention specially delegated for that purpose, and this rejection was a major innovation toward the doctrine that constitutions must be made by special conventions. But it seems to have been innovative in a second way: under the 1778 constitution, qualified voters of the towns would annually vote for governor and lieutenant governor on the first Wednesday of May. Further, the “persons” who receive “the greatest number of votes for those offices respectively, provided it be a majority of the whole number, shall be by the two Houses declared Governor and Lieutenant Governor.”48 This change, however, had little to do with Adams, whose attention at this point had turned to his diplomatic duties in Europe. Indeed, Ryerson writes, “it is hard to escape the conclusion that between 1776 and 1778 John Adams was even less engaged, intellectually or emotionally, than Massachusetts established political leadership in confronting the challenge of making a

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new constitution for the state.”49 To the extent he was interested, it was in the executive veto.50 In fact, in his work on what would become the 1780 constitution, Adams appears to have subtly made the election less popular by changing the rules for the contingency election. In the event no person received a majority, the 1778 version would have directed that the senate and house “proceed by joint ballot” to choose a winner from the top three.51 But under the 1780 Constitution, where no candidate received a majority, the house would nominate two of the top four candidates, and then the senate would choose from those two.52 By opening the initial field to four candidates, and then by giving the senate the final say, Adams appears to have nudged the 1780 constitution away from popular selection at least with respect to the contingency election. If not Adams, who then should be credited with the innovation in Massachusetts? That distinction belongs to the committee within the constitutional convention, which itself was comprised of the existing house and the newly established executive council, that drafted the constitution of 1778. This committee was established in June 1777 and comprised seventeen members, one from each of the twelve districts and five at-large members.53 One committee member, James Warren, reported to John Adams early in the deliberations that the “Connecticut Form”—the Charter of 1662—was their model by consensus but added that settling on a principle of representation for the towns would be more difficult.54 After six months, it produced a report that it regarded as tentative. Instead of debating the entire report, the wider convention chose speed and submitted the report to the towns for approval, and the selection of the executive—unlike representation in the lower house and the executive veto—did not seem to merit enough debate to be recorded.55 From the returns of the towns, popular selection of the governor seemed to be noncontroversial.56 For example, the famed response from Essex, often called the Essex Result, objected to the unequal representation in the legislature but passed over the provision for popular selection of the governor.57 Whatever the views of the individual members of this committee, one thing is clear: balancing the claims of large and small towns complicated their own understanding of bicameralism and separation of powers. According to committee member James Warren, agreeing on the basis of representation had been their “greatest difficulty.”58 But this was probably not a surprise, as the brand new constitution of New York, established in the spring of 1777, was likely on their mind.

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The New York Constitution of 1777 As important as Massachusetts was, it was the New York Constitution that is most frequently credited with being the major breakthrough in American thinking about the executive. As Charles Thach put it in his pioneering 1922 study of the creation of the presidency, “there was no need” for the members of the 1787 Convention “to cross the Atlantic to find a working model of the American presidency.” Rather, “it was the New York’s governorship” that served as the model. In Thach’s analysis, the New York Constitution “afforded the only American example of government by a constitution actually controlling the departments of government and at the same time a completely independent and very energetic and active chief magistrate.”59 Unlike the other post-1776 constitutions, which consistently relied on legislative selection, the New York Constitution called for popular selection of the governor. The governor also enjoyed a three-year term instead of the more typical one-year term. The governor was the “commander in chief” and was responsible for diplomatic relations with other states. Although the New York governor did not have the power of appointment or veto, it did have “more authority than royal governors.”60 Thach and others have explained the innovations of the New York Constitution by pointing to two matters of context. First, it was drafted during the military exigency of British invasion. The process was interrupted and secondary in importance to military matters. Its founders were thus attuned to the security needs of republican government, explaining, perhaps, the greater powers given to the governor. Second, it was influenced by conservatives, who steered the constitution away from the radical excesses of the Pennsylvania constitution and the dominant legislative models common in the other states.61 The committee proposing the constitution was composed of fourteen men and included some radicals who preferred the Pennsylvania Constitution’s unicameral legislature as a model.62 But the final product—with its bicameral legislature, property requirements, and powerful executive—is often described as a victory for the committee’s conservatives such as Gouverneur Morris, men who knew “the propriety of Swimming with the stream” but who were also skilled enough to stem the democratic current through constitutional design.63 Thach points to “the fact that the individuals most influential in the construction of the constitution”—Morris, John Jay, and Robert Livingston—“were, and remained, leading conservatives” as the reason for the turn toward executive strength.64

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But the popular selection of the governor was not exactly a conservative idea, as it had its radical supporters. This committee finished its work in March and proposed a draft of the constitution for the provincial convention. Discussion of the proposal began on March 12 and concluded in adoption on April 20. The final vote was thirty-two to one, but according to the scholar most responsible for our knowledge of the convention, “less than one third of the entire Convention was in attendance.”65 The convention’s records, found in the Journal of the Provincial Convention, are sparse in terms of the debates. The Journal is mostly limited to proposals and votes, and from these records it appears that members spent the mornings addressing logistical and financial matters involving the war effort, leaving the afternoons for discussion of the proposed constitution. Scholars are divided as to whether Jay, a small group, or the convention as a whole most deserves the title as author of the constitution.66 Jay’s first biographer, his son William Jay, credited Jay with being the principal author of a first draft, claiming to have seen the document in his father’s handwriting, but scholars have not been able to locate this copy. According to Donald S. Lutz, “John Jay is generally credited with having actually written the document, with considerable help from Gouverneur Morris and Robert Livingston.” Lutz adds that Duane, Yates, and Duer were “prominent in the proceedings and influential in the outcome.”67 But it is hard to demonstrate that credit to Jay alone is warranted. The first scholar of the convention, Charles Lincoln, concluded that there were two committee drafts, “A” from December 1776, and “B” from February 1777. In his view, these drafts combined with the later debate recorded in the Journal show that Jay, Morris, and Livingston “were, more than all others, responsible for the instrument as a whole.”68 In the most extensive study to date, Bernard Mason constructed four drafts: in addition to Lincoln’s A and B, there was C, which was a fragment that preceded B, and there was Jay’s clean draft, which was lost but which Mason reconstructed from his reading of the debates.69 Given that Jay’s clean draft was lost and seemed to be the culmination of three prior drafts, the editor of the Jay papers concluded that Jay’s role was “significant, but the precise nature of his role remains elusive.”70 Further, there is the problem that the final product “represented a compromise between the more conservative members of the committee and more radical Whigs like Robert Yates of Albany and Henry Wisner and Charles Dewitt of Ulster.”71 Finally, it is evident that Jay differed on several issues with allies such as

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Morris, particularly regarding the makeup of senatorial districts and the process for appointing judicial clerks, and he was not happy that he lost on these issues.72 Interestingly, Jay’s role suggests some linkage between the Massachusetts Constitution and the earlier New York Constitution, and that linkage is John Adams. As we have seen, Adams’s first plan of government eventually took the form of a 1776 pamphlet, Thoughts on Government, which Adams intended to influence the formation of state constitutions. According to the editor of the John Jay papers, Jay took a copy of Thoughts on Government with him when he left Philadelphia to participate in the Provincial Congress of New York. According to James Duane, Adams’s work became the “Model and foundation” for Jay’s draft of the New York Constitution.73 Later, Adams wrote that he believed his work was used as a model.74 The committee’s drafts departed from Adams’s 1776 work by providing for popular selection of the governor. Specifically, they read, “a wise and discreet Freeholder of this State shall be by Ballot elected Governor by the Freeholders.” From the shape of the recorded debates, it is tempting to conclude that there was some consensus about selecting the governor, or at least a consensus that more important debates needed to be had about the substance of the governor’s powers, the composition of the executive council, and, most controversially, the appointment power.75 Other important items that seem to have dominated the debate include Morris’s proposal to abolish slavery and Jay’s proposal to exclude Catholics from religious toleration.76 But the apparent consensus regarding popular selection of the governor cannot be read as evidence that New Yorkers were ready to endorse the idea that the governor would represent the people of New York.77 In addition to the four drafts identified by Mason, the members of the convention circulated alternative “radical” and “conservative” drafts, and newspaper editorialists offered their suggestions. Curiously, both the radical and conservative proposed drafts called for a governor chosen by joint ballot in the legislature, but the newspaper essayists called for election of the governor by all voters.78 More broadly, there is reason to believe that the delegates disagreed about the degree to which elections should be popular. This disagreement emerged in the context of a debate about the method of voting. The question was between voice voting and secret ballot, and this question divided Morris and Jay. Jay preferred secret ballot and prevailed, but, according to one historian, “Morris fought Jay’s proposal to the end, registering more dissenting votes over secret ballots than any other issue

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in the course of the debate.”79 Because it is likely that both Jay and Morris believed that the result would either limit or expand the popular vote, it is safe to assume that Jay and Morris were not in agreement about how democratic the constitution ought to be.80 More telling, not only did the New York Constitution stipulate a property qualification for voting, it also stipulated different property requirements for voting for different offices. At the proposal of Morris, only voters who “possessed a freehold of twenty pounds” could vote for members of the lower house.81 But to be eligible to vote for members of the upper chamber and for the governor, New Yorkers would need a freehold valued at one hundred pounds, five times that required for voting for members of the lower house. This ran counter to calls from newspaper essayists, who preferred that all voters be allowed to choose the governor.82 It was also a victory for Western farmers and a defeat for city dwellers, as everyone knew that the mechanics in New York City were the target of this requirement.83 According to Allan Nevins, this higher property requirement limited the vote to “hardly 10 percent of the male population of New York City.”84 Morris also proposed, unsuccessfully, that the higher level of freeholders choose the state’s treasurer instead of appointment by the legislature.85 Morris’s proposal for selecting the treasurer thus reveals the danger of considering popular selection apart from property requirements. Rather than being the only variable, executive independence from the legislature was entangled in the question of which voters—the few or the many—would be electing executive officials. These questions were intermingled with debates over the appointment power. The New York Constitution provided that all officers for which there was no constitutional provision would be appointed by the governor with the advice and consent of a special council. Hamilton would later single out this council in Federalist No. 70 as an example of the lack of accountability that comes with plurality in the executive.86 But what often escapes notice is that this was more than a question of executive power, simply, in the minds of New Yorkers. Because the council was comprised mostly of senators, it necessarily touched upon the complicated compromise that had been achieved with respect to geographical representation and the senate. Specifically, the selection of the council members would be done with an eye to balancing the districts: “The Assembly shall, once in every year, openly nominate and appoint one of the Senators from each great district.”87 These districts were created, no doubt, to accommodate competing demands for representation.

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The New York Constitution grouped the counties into four geographical districts (southern, middle, western, and eastern) and assigned each district a different number of senators.88 Broadly, this corresponded with the proportional system for representation in the assembly, and the convention explicitly rejected proposals to continue the compromise as a fixed proportion into the future.89 Instead, it linked representation in the future to a fluid proportion based on the census.90 It is also worth pointing out that Jay’s disagreement with Morris and Livingston over judicial clerks was at least partly related to the question of “the Division of the State into Districts.”91 All of this reveals that New Yorkers in 1777 calculated the respective gains and losses of geographical representation even as they negotiated questions of executive power. New York’s infamous council of appointments, then, was a step away from unity in the executive, but, perhaps more important, it was also a step away from proportionality of representation because it made the districts equal—each having one vote—on the council. This might explain why Morris proposed to remove “consent” from advise and consent so that the “governor may appoint as he pleases against the advice of the Council, and appeal to the people.”92 Had Morris won, this would have been a dramatic step toward linking executive power to popular selection, but it also would have been a step away from the principle of geographical equality of representation that undergirded the executive council. That is, it would have been a step toward linking executive unity with accountability, but, more importantly, it also would have been a gain for those from the more densely populated parts of the state.93 As would have been obvious to all, Morris’s proposal would have incentivized accountability to wealthy voters in more urban areas. The question of the appointment power continued to vex the constitution’s designers even after the convention agreed on a final version. On April 26, several days after the constitution was adopted, Robert Livingston and Gouverneur Morris wrote Jay to note their concerns over the process for appointing officers, for the appointment and supervision of judicial clerks, and for the division of the state into electoral districts for the senate. From this letter, it appears that Morris and Livingston had other concerns with the constitution but were in an “awkward situation” because of the high number of less friendly “reconsiderations” proposed by others.94 Jay responded in detail about the deliberations regarding appointments and the question of electoral districts. He added a curious aside about the governor: “The difficulty of getting any governor at all, you know, has long been an

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apprehension of little influence on my mind, and always appeared to be founded less in fact than in a design of quickening the pace of the House.”95 Did Jay mean that Morris or Livingston had concerns about popular selection of the governor, concerns that Jay believed were misplaced? And did Jay mean that popular selection was chosen because it could pass more quickly than other better options? It is impossible to know, but it is clear that Morris, Jay, and Livingston did not agree among themselves about the basis of executive representation. It is also clear that Alexander Hamilton was not a fan of the final version’s provision for popular selection. On May 7, Hamilton acknowledged receipt of a letter containing a copy of the new constitution, sent by the New York Committee on Correspondence. He replied with the general praise that the new constitution was “more judicious and digested than any thing of the kind.” But he went on to concede, “It appears to me to have some faults, which I could wish not exist.” He did not say what he had in mind, because the deed was already done and giving advice at this stage would be “both useless and presumptuous.”96 But Hamilton could not resist the temptation to tell Morris what he really thought, and he was given the opportunity when Morris replied with a confession as to what he thought to be the constitution’s faults. According to Morris, all such human works would have flaws, but this one even more so because “of Men perhaps not the best qualified for such Undertakings.” In particular, he thought it was “deficient for the want of Vigor in the executive,” “unstable from the very nature of popular elective Governments,” and “dilatory from the Complexity of the Legislature.” While the second was “unavoidable,” the first was to be blamed on the fact that “the spirit which now reigns in America” was “suspiciously Cautious.” The third, the “complex” or mixed legislature, was necessary because a simple one would become too powerful.97 In reply, Hamilton said that he “partly agree[d] and partly disagree[d]” with Morris’s analysis of the “deficiencies” of New York’s new constitution. Where he agreed was that there was “a want of vigor in the executive.” The problem in his view was the provision for a popular selection of the governor. Finding the right person “requires the deliberate wisdom of a select assembly” and therefore the choice of the executive “cannot be safely lodged with the people at large.” But also Hamilton objected to Morris’s second point, that popular government itself was necessarily unstable. Rather than blaming popular government itself, he instead believed that a “strict examination” of the historical evidence would show that the problem was

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not the popular principle but “it’s being compounded with other principles and from its being made to operate in an improper channel.” The problem is when the powers of government “are vested wholly or partly in the collective body of the people” rather than in “select persons, chosen really and not nominally by the people.” After adding that the senate was too likely to “degenerate” into a “purely aristocratical” body, he concluded by praising the constitution as “far the best that we have yet seen.”98 From these comments it is clear that Hamilton wanted popular government to be led and mediated by a “select” group of individuals. In 1775, in the context of making the case against Parliament’s authority over the colonies, Hamilton had argued that a free Parliament would likely be a “more intolerable and excessive species of despotism than an absolute monarchy.” There were two reasons for this unorthodox assertion. One was that the king’s tenure was permanent and Parliament’s temporary. The incentive for the king was therefore more likely to be aimed at the overall good of the empire. Parliament’s temporary tenure made its perspective more nearsighted and its ambition more dangerous. The second reason was that the king’s interest was tied to the whole rather than to a part of the realm: “He is under no temptation to purchase the favor of one part of his dominions, at the expense of another, but it is his interest to treat them all upon the same footing.”99 Here, in the context of the king, Hamilton seemed to endorse the later claims made by his partisan opponents, claims that he and his party would reject in the 1790s. Further, as Eric Nelson points out at least twice, Hamilton clearly stated in the 1788 New York ratifying convention, “The President of the United States will be himself the representative of the people.”100 But it is not clear that Hamilton had the same idea as later presidents, such as Andrew Jackson, who would claim that elections confer a mandate on the president. In the passage that Nelson cites, the immediate context shows that Hamilton had in mind the function of protecting rights, not being a voice of the majority. “From that competition that ever subsists between the branches of government, the President will be induced to protect their rights whenever they are invaded by either branch.” So the point about representation was made in the service of limiting government, not expanding democracy. Moreover, the larger context of Hamilton’s statement in the ratifying convention quoted above reveals that Hamilton was seeking to assure potential opponents of the Constitution that the proportions for the House would be adjusted to keep pace with population. Part of the concern of these

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potential opponents was surely driven by Anti-Federalist arguments about the aristocratic nature of representation under the Constitution. Under this view, the House was already too small to actually resemble the constituents being represented. But the real point Hamilton was making was that “it will be the interest of the large states to increase the representation.” After all, “the contending interests of the states” was that which “led them to establish the representation as it now stands.” So the point about the president representing the people could also be read not only as a statement that the president would protect the rights of the people but also as an assurance that the president would be amenable to increasing the power of the more populous states because the president would himself have been selected by this same constituency. If potential opponents were concerned that New York’s power would be diluted over time, then Hamilton’s remark about the president representing the people would have been a reassurance.101 The thrust of Hamilton’s logic at this time was more conventionally aimed at separating and limiting power, not enabling it by gathering it under the mantle of the majority or “the whole.” In fact, in his case against the British Parliament, he argued that the problem with Parliament was that it was too representative: because there are no “checks” “upon the representatives of Great Britain” “they have no right to govern us.”102 In 1777, after New York formed its constitution, Hamilton “threw himself” into study about executive power.103 In his wide-ranging reflections recorded in his “Pay Book,” Hamilton disputed the notion drawn from Machiavelli that because the prince’s first object was preservation, the prince should always prefer to gain power rather than give it away. To support this conclusion, Hamilton quoted Plutarch’s analysis that Lycurgus’s most important innovation was creating a senate as a “ballast” between monarchy and democracy. As will be discussed in the next chapter, Hamilton’s thinking on the executive was always connected to his thinking on the Senate.104 Unlike later theorists of presidential representation, he was not interested in strengthening the electoral foundations of executive authority even though he was interested in creating a strong executive that would counter the tendency toward disintegration common in federal republics.105 Rather, he believed a surer and safer power could be erected by a longer tenure that would wed the executive’s ambition to the national interest.

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The Convention of 1787 The standard accounts of the creation of the presidency typically look to James Wilson and Roger Sherman to personify the contest between the democratic and elite models of the presidency. There is good for reason for this. On June 1, only the fourth day of debate, Wilson and Sherman offered fundamentally opposed visions of the presidency. The exchange happened when the committee turned to the portion of the Virginia Plan recommending a “national Executive” to be chosen by Congress for a fixed term and to exercise the “executive powers” of the Confederation Congress. Charles Pinckney immediately said he was for a “vigorous Executive” but worried that they were creating an “elective” monarchy—which he said was the “worst kind” of monarchy—because the powers of Congress included the powers of war and peace. The next person to speak was Wilson, but he avoided Pinckney’s concerns and instead proposed that the “Executive consist of a single person.” This proposal clearly changed the mood, as Madison records that there was a “considerable pause” in the room, broken only by Franklin’s urging members to speak their minds.106 It is here where Sherman and Wilson offered their respective visions of the presidency. Sherman argued that the executive would merely be “an institution for carrying the will of Congress into effect.” So rather than exercising an independent will, the executive would be a kind of agent of the legislative power. This was appropriate, Sherman argued, because the legislature was “the depositary of the supreme will of the Society.”107 Because the will of society was embodied in the legislature, the legislature was supreme and should retain the liberty to change the number, composition, and term of the executive. As Eric Nelson notes, this statement connected Sherman to a long line of defenders of parliamentary authority, for “it is difficult to imagine a more orthodox statement of whig constitutionalism.”108 Whereas Madison would later famously write in Federalist No. 51 that the combination of the executive and legislative was the “very definition of tyranny,” Sherman instead declared that “an independence of the Executive on the supreme Legislature” was the “very essence of tyranny.”109 Responding to Sherman, Wilson made his case for a different vision of executive power. With the qualification that he was “almost unwilling” to propose it, because he was worried it “might appear chimerical,” Wilson proclaimed that “at least in theory he was in favor for an election by the people.” More than that, “experience, particularly in New York & Massachusetts, shewed that the election of the first magistrate by the people at large,

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was both a convenient & successful mode.” On its face, this would appear to show that the tension between popular selection and dependence on the Congress was present in the very beginning and that it was understood as bearing on the question about the extent to which the president would be representative of the people. For Wilson, popular selection would create presidential representation, but, for Sherman, only Congress could claim to represent the people.110 It is worth pausing here to notice that this exchange shows that Sherman and Wilson were arguing about more than how the president would represent the people. That is, it is not the case the one conceived of the president as a delegate and the other as a trustee. From the convention debates alone, it would be hard to determine if James Wilson, or Gouverneur Morris, believed that the president would be representing public opinion or something closer to the national interest.111 It is perhaps relevant that Wilson would later argue in his Lectures on Law that the original practice in England was an elective monarchy. Like the Pennsylvania radical with whom he must have had many other disagreements about constitutional design, Wilson found in Saxon history evidence that “all the kings of the Saxon race were elected to their kingly office.”112 In his view, electing the executive was the natural way to do it, but the Electoral College perfected popular election. Each elector must vote for two persons, without distinguishing which of the two he wishes to be the president. The precise operation of his vote is not know to himself at the time when gives it. By this regulation, simple but sagacious, cabal and intrigue, could they even be admitted, would be under the necessity of acting blindfolded at the election. The sinister plans, formed separately in every part, might and often would be defeated by the joint and unforeseen effect of the whole. For it is the unforeseen effect of the whole, which finally must determine, or furnish materials for finally determining, the election of the president.113

It would be hard to construct a plebiscitary presidency on the basis of many blind votes, so it seems that Wilson was more concerned about the president as a representative of the “whole” rather than the president as representative of public opinion. But the debate at the convention was a different one, and that debate hinged on whether the president would represent a national electoral constituency at all. Sherman argued that the president should not, because the president need not be independent.

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The bigger problem, however, with the standard debate between the elitist and democratic readings of the convention debates in 1787 is that both sides miss a revealing concession that Madison included in Federalist No. 37. In that essay, Madison conceded that the Constitution was imperfect and listed five difficulties faced by the members of the convention. Given what we know about the convention, is not surprising that one of the five was the “interfering pretensions of the larger and smaller States.” But what is more surprising is what Madison says about it. Rather than describing the compromise, and then explaining why that necessary compromise was unsatisfactory in his view, Madison instead went on to reveal that “features of the Constitution” show that the compromise introduced additional problems into the negotiations: “It is extremely probable, also, that after ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence.”114 In other words, the contest between the small and large states did not end with the Connecticut Compromise. Rather, that compromise made the House and the Senate the institutional homes for bargaining over the various powers of Congress. Gouverneur Morris had made this very point on the convention floor in the first recorded comment in the convention the day after that Great Compromise. Specifically, Morris urged delegates to consider the powers of government “in the abstract,” because “he feared” that a “reference” “either mental or expressed” would “mix itself” with the prior day’s vote for equality in the Senate. Madison records that Morris’s motion was not seconded, but Madison strangely went out of his way to explain that the silence was probably due to the worry on the part of Morris’s large state allies that such a motion would “inflame the jealousies of the smaller States.”115 What Morris’s fear and Madison’s concession add up to is the likelihood that debates over presidential selection were caught up with the rival ambitions of the large and small states. This means that from the perspective of the large states, any proposal that included the Senate in choosing the president would be flawed by its being skewed toward the small states. Likewise, for the small states, any proposal that featured the House in choosing the president would be unacceptable because of its favoring the larger states. Popular selection of the president almost certainly raised the same problems “either mental or expressed.” For the small states, popular

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selection of the president was just another name for selection by the most populous states. For large slave states like Virginia, popular selection alone would not give them the comparative advantage they enjoyed in the House, where the three-fifths compromise increased their voting power.116 Thus clarified by Madison’s description of a fresh struggle, it is easy to see that if there was indeed a choice between an elitist presidency and a popular presidency, between a president who would be insulated from the people and a president who would represent the people, that choice was muddled by the more immediate fight between small states and large states. This is to say that demagoguery was not that much of concern for the large states, or, at the very least, that demagoguery was not the only concern.117 The convention debates show that Madison’s and Morris’s concern that delegates would be counting votes was well-founded. Consider Madison. He supported Wilson’s call for popular selection of the president, even calling the choice “fittest in itself,” only on July 19, three days after the Compromise. On the next day, July 20, he worried that if some proportionate scheme were used to assign electors, then increases over time would eventually make “all or nearly all the states equal.”118 Likewise, during the debates on presidential selection, several delegates explicitly referred to the contest between the large and small states.119 In an exchange with Sherman on August 24, Nathaniel Gorham admonished his fellow New Englander that “it was wrong to be considering at every turn whom the Senate would represent,” because “the public good was the true object to be kept in view.”120 Gorham’s impatience was surely related to Sherman’s trying to renegotiate the Connecticut Compromise with every new question before the convention. In fact, Sherman’s support for legislative selection of the president actually declined during the period when the convention seemed to support a plan that would apportion electors in a similar way to that of the House. Sherman argued against joint legislative selection explicitly on the grounds that it would dilute the “negative” the small states had achieved in the Senate by way of the Connecticut Compromise.121 Moreover, before delegates would ultimately decide to move the contingency election from the Senate to the House, with the proviso that each state would have one vote, Sherman also fought to preserve the degree of latitude that the state delegations would have. On September 5, he let his colleagues know that he “would sooner give up the plan” than lower the number of candidates below five, and he said that he would prefer “seven or thirteen.”122 In response, Madison sometimes replied to Sherman in

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kind, noting for the convention when the large states would be adversely affected by a proposal under consideration.123 It is worth noting that according to his biographer, Sherman had tried to strengthen the executive in Connecticut in a set of 1784 legal reforms he proposed. In the longest section of his proposed code, “An act concerning the Supreme executive power of government in this state,” Sherman sought to formalize the practice of the wartime Council of Safety by giving the governor and council “the power to Superintend” the “execution of the laws which concern the public weal, especially such as relate to the revenue and collection of Taxes and debts due to the state.” This would include the power to issue orders to subordinate officers, as well as the power to appoint and remove.124 Sherman also left in place the existing provision of election of the governor by the “freemen of this state.”125 What then explains Sherman’s position in the convention? Collier writes that Sherman’s “intent, and his ultimate accomplishment, was to protect the states, rather than to keep the executive dependent on the legislature.”126 This picture of Sherman reorients the contest between Wilson and Sherman away from the question of whether the president would be strong or weak, independent or not.127 It also captures the concerns of Madison and Morris, who worried that the contest between the small and large states had mingled itself with the discussions regarding separation of powers. If it is correct to conclude, as did Sherman’s biographer, that the Electoral College “seems to be as much or more Sherman’s creation than anyone else’s,” then that would imply that the Electoral College was driven by Sherman’s goal to maintain as much as possible equality of representation for the small states. Just as Sherman adjusted, so did the delegates from the large states. According to David Robertson’s analysis, “most” of Madison’s initial coalition of large and growing states favored a joint ballot, thus giving larger states more say in choosing the president.128 Madison’s concession of a “fresh struggle” in the convention indicates that the popular versus elitist contest has to be considered along the second dimension of the small state and large state contest. But what of the original exchange between Sherman and Wilson about the independence of the president? After all, this exchange took place on June 1, well before the compromise between the large and small states on July 16. It is true that this debate was about the independence of the executive, but it is also relevant that it was bookended by debates about representation in Congress. On May 31, the first day of debate after the proposal of the Virginia Plan, Roger Sherman objected to the plan’s proposal for the

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lower house to be selected “by the people of the several states.” Preferring selection by the state legislatures instead of popular selection, Sherman argued that “the people” “should have as little to do as may be about the government” because “they want information and are constantly liable to be misled.” Elbridge Gerry agreed, and, pointing to Shays’ Rebellion, said that the “evils we experience flow from the excess of democracy.” In response, George Mason and James Wilson argued for popular selection on the grounds that the members of the lower house “ought to know and sympathize with every part of the community” and that popular selection would impart the “confidence of the people” presumed by the republican form. Madison agreed with the defenders of popular selection of the lower house, adding that he was generally in favor of “refining” “by successive filtrations”—an argument he would later make in Federalist No. 10—but added here that “it might be pushed too far.” Pierce Butler responded in defense of the Mason and Sherman position on the grounds that popular selection was impracticable.129 On June 2, Wilson proposed a motion that further reveals what was on the delegate’s mind. After having been encouraged on the previous day by George Mason to “digest” his idea on popular selection of the president, Wilson now proposed a complex system to select the president by some way other than by Congress. Specifically, the states would be divided into districts, and the “persons qualified to vote in each district for members of the first branch of the national Legislature” would choose electors who would then in turn choose the president. This would solve the problem of dependence on the legislature, but Wilson’s explanation reveals that he—and surely his audience—had more in mind. According to Madison’s summary, Wilson’s argument assumed that the virtue of this plan was that it would offer “an election without the intervention of the States” in addition to producing “more confidence among the people in the first magistrate, than in an election by the legislature.” As Slonim points out, Wilson’s proposal prompted a response from John Dickinson of Delaware, who offered what Madison described as a “discourse of some length,” defending the states as the primary units of analysis in the United States. In the British Government itself the weight of the Executive arises from the attachments which the Crown draws to itself, & not merely from the force of its prerogatives. In place of these attachments we must look out for something else. One source of stability is the double

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branch of the Legislature. The division of the Country into distinct States formed the other principal source of stability. This division ought therefore to be maintained, and considerable powers to be left with the States. This was the ground of his consolation for the future fate of his Country. Without this, and in case of a consolidation of the States into one great Republic, we might read its fate in the history of the smaller ones.130

Dickinson’s concern was that Wilson’s scheme for presidential representation would dilute the role of the small states and tend toward consolidation. Dickinson was not shy about the logical conclusion of his concerns, for he proposed an impeachment process that would include the state legislatures. Even though this proposal went nowhere (Madison and Wilson objected on the grounds that it wrongly presumed “an equality of agency in the small with the great states”), Dickinson proved more successful with his other proposal, “that each state would retain an equal voice at least in one branch of the National Legislature.”131 So by June 2, only the fifth day of debate, the debate about whether the president should be chosen by elites in Congress or by the people at large had already become entangled with the debate about whether the representation more generally would be based on population or on state equality. Wilson’s proposal to go beyond “the intervention of the states” only showed how central the states were in figuring out how to elect the president.132 This confirms that the contours of the debate between small states and large states took place in the very first days of the convention. More than that, it also reveals that the debate between the large and small states immediately took the form of debates about the nature of choosing representatives in the House. Defenders of proportional representation tended to speak of the desired popular basis of the House, while defenders of equality of representation tended to emphasize the elite character of the representatives and the insufficiency of the people to elect those representatives.133 Once debate turned to the presidency, this language continued, and the stakes were surely clear to anyone who was paying attention. But this would not have been a surprise, because Americans had already encountered this problem in forming their state constitutions. As the examples of New York and Massachusetts show, the question of representation was bound with the question of executive independence, but independence was loaded with the baggage of geographic representation.

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Madison’s confession in Federalist No. 37 that the Connecticut Compromise created a “fresh struggle” between the large and small states provides a much needed corrective to our tendency to read the invention of the president as a contest between presidentialists on the one hand and legislative supremacists on the other, but also to our tendency to read it as a contest between elite and democratic projects for presidential selection. In fact, from Madison’s 1787 letter to Washington, discussed at the beginning of the chapter, we see that the intransigence of the small states was not the first problem, at least in Madison’s mind. Rather, Madison believed that the primary problem was that the large states needed to be bribed in order to give away their power, and the substance of that bribe was a scheme of representation that would allow them to dominate. Creating the executive would have to wait until that scheme was in place. As he probably knew from the history of the New York Constitution, creating an independent executive was not an abstract question simply. Presidentialism and Representation When Americans moved in the 1780s to embrace “complex” separation of power systems, they deliberately rejected “simple” constitutions that would more easily locate a sovereign people. In order to make separation of powers work in practice, they needed to create barriers against the legislative branch, which they had learned was the most dangerous branch. It is here where the American executive was born, and so this move to separation of powers was also a move toward a “presidential” system, that is, toward a system of executive independence. By the time of the New York and Massachusetts constitutions, Americans had come to the conclusion that independence required some alterative to legislative selection as a way to choose the executive. Popular election emerged as the least bad option to secure independence. But independence of the executive was mired in the practical problems of representation that had long frustrated constitutional designers in the context of a bicameral legislative branch. For example, in Morris’s response to Hamilton, Morris showed that the move to a complex constitution called attention to the intermingling of two political problems, the “want of vigor in the executive” and the “instability of popular governments.” Bicameralism encouraged two different formulas for representation, formulas that would necessarily constitutionalize two different constituencies. These constituencies could be based on class, but they would also likely be based

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on geographic divisions of authority. Bicameralism thus encouraged a rivalry between two theories of representation, and the executive was inevitably seen by each side as a way to gain an advantage or settle the matter altogether. Without a claim to a royal lineage, the new American executive would have to be selected in some way, and this selection in turn would pit these two constituencies against each other. This is the underappreciated lesson of the New York council on appointments, a lesson that Madison had learned before he drafted the Virginia Plan.

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2 Jefferson’s Federalists, Jackson’s Whigs, and Lincoln’s Democrats

The presidency was not one of the major points of debate between Federalists and Anti-Federalists. In fact, one of the most important Anti-Federalists praised the Electoral College as “properly secured.”1 The most controversial constitutional provision for the presidency was probably the absence of a term limit.2 Jefferson listed it among his three objections to the Constitution in his 1787 letter to Madison, the others being the provision providing for suspension of habeas corpus and the absence of a declaration of rights. Of the nearly two hundred amendments proposed in the state ratifying convention, there were only a handful on the presidency that did not have to do with a term limit or with a general affirmation of separation of powers. But if the presidency was relatively noncontroversial during ratification, it quickly emerged as a leading source of division. Americans learned that the presidency was especially important in matters of foreign policy, and as foreign policy became more controversial, control of the presidency grew in importance. France and England were in the middle of what can be regarded as a one hundred years’ war that was sometimes cold and sometimes hot. When it became hot again in 1793, the United States had to decide which side it would take. Would it side with France, which was a new republic that had looked to the United States for inspiration during its own revolution? Or would it side with England, which was its ancient enemy but also its most valuable commercial partner? Washington answered these questions with a policy of neutrality, but even neutrality had partisan consequences. Because the United States had signed a mutual defense treaty with France during the American Revolution, and because France had come to the aid of the United States, the side that favored France believed with good reason that neutrality was actually pro-English.3 Washington’s proclamation of neutrality gave occasion for other questions about the presidency. First among these had to with the constitutional question of declaring neutrality. The Constitution is clear about how the

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country gets a treaty: the president negotiates it, but it has to be approved by two-thirds of the Senate. But the Constitution says nothing about declaring neutrality. Likewise, the Constitution says nothing about ending a treaty: must a president seek the Senate’s advice and consent to terminate one, or can the president do it alone? Because of the mutual defense treaty with France, Washington’s declaring neutrality brought these lurking questions to the forefront of partisan debate. Taking the name Pacificus, Hamilton wrote a muscular defense of the proclamation, arguing that it was in the country’s interest and that the president had full constitutional authority to do so. The president had full authority because treaty making is naturally an executive power and because Article II gives the president “the executive power.” This was a broader grant than the power given to the legislature in Article I, and the implication, for Hamilton, was that exceptions to the general grant of executive authority to the president should be read strictly. Even though the president must share the treaty power with the Senate, and the war power with Congress as a whole, the president was under no such obligation when declaring that the country was at peace. In response, Madison took up the name Helvidius to dispute Hamilton’s constitutional argument. Citing Hamilton’s own argument in The Federalist, he wrote that the treaty power was more likely a legislative power than an executive one. More broadly, the principle of the Constitution was that the president alone could not be trusted be with the powers of war and peace because presidential ambition was too closely connected to the glories of war. Finding no constitutional basis for Hamilton’s argument, Madison charged Hamilton with attempting to graft monarchical practice onto the American presidency, and from this point on the powers of the president were interwoven into partisan debate.4 In addition to the emergence of the presidency as the focal point of partisan organization, the other innovation of the 1790s was the emergence of the argument that public opinion was a legitimate source of authority. This chapter examines the development of the theory of presidential representation between 1800 and 1864. In particular, it considers opposition to the first three reconstructive presidents, Jefferson, Jackson, and Lincoln.5 Not only was each of these the successful leader of an insurgency against a decaying political order, each also went further than prior presidents in governing by executive power and in pushing the argument for executive power in new directions. While many books have been written on the presidencies of Jefferson, Jackson, and Lincoln, little has been written on the commonalities of

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their opponents. We know a lot about the push toward executive power; the concern here is with the equally constitutive pull against it. After looking at the early discussions of the relationship between power and public opinion in the 1790s, this chapter turns to the views of the Federalists, Whigs, and Republicans. Hamilton’s Account in The Federalist Although scholars who write about executive power frequently look to The Federalist to assess the original meaning of the grants of power in Article II, they tend not to emphasize Publius’s presentation of the relationship between executive power and tenure of office. This is perplexing, because much of the Publius’s attention is devoted to explaining how the Constitution would check the power of the federal government by “so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each in their proper places.”6 That is, from the perspective of The Federalist, the key to understanding executive power lies not so much in demarcating “precise limits” on paper —indeed, this is impossible because of the “unavoidable inaccuracy” coming from words7 —but rather in giving “each department” “a will of its own.”8 In other words, constitutional powers —or “means”—have to be understood with respective to “motives.”9 With respect to the presidency, then, it is significant that of the four ingredients of “energy,” only one is “competent powers.”10 The other three all have to do with the more complex work of will formation. One of those three is duration of office, the subject of a good deal of text in The Federalist. Part of duration is eligibility for reelection, which is the subject of Federalist No. 72. In that essay, Hamilton offers five arguments against a term limit. Two of the five make the point that a term limit would undermine the president’s incentive to “good behavior.” One problem is inactivity. What president would undertake difficult projects if he knew that he would be deprived of the chance to finish the job? The other is the wrong kind of activity. What man would not be tempted to resort to corrupt measures to enhance his future private life?11 To be sure, these arguments have been commented upon by many scholars of the presidency, but what is often lost is how they work with the argument for unity given in Federalist No. 70. There, Hamilton argued that unity in the executive was actually conducive to republican principles because it worked with accountability. With a single executive, it would be clear who deserves to be blamed or credited.12

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Earlier, in No. 68, Hamilton explained that one benefit of the procedures for presidential selection is that the president would be “independent for his continuance in the office on all but the people themselves.”13 While other interpretations are possible, it appears that one can read Hamilton’s argument to mean that a key part of presidential power has to do with eligibility for reelection, with reelection depending not so much on an elite body separate from the electorate but rather depending on something like “the people themselves.” What is less debatable is that the prospect of reelection provides the incentive for not only the “negative merit of not doing harm” but also the “positive merit of doing good.”14 With respect to Hamilton’s presentation, it is doubtful that Hamilton believed presidential elections were designed to be the “popular” affairs they are today, but a reasonable reading of Hamilton’s account would be that the prospect of reelection was meant to enhance, as well as check, presidential power. Whether Hamilton intended it or not, his presentation in The Federalist leaves open the door to the possibility that the presidential elections would become repositories for, or perhaps even engines for, something like national public opinion. The prospect of reelection is the central force of the president’s will formation, and the deciding body here would be the Electoral College. The Electoral College would be simultaneously an agent of the popular will and a check upon it. It had to be an agent of the popular will in order to be truly independent from Congress, yet it could not be reducible to the popular will because, at the very least, no institution could ever be. This is to say that the president would at some level have to look to the popular will if the president was going to indeed possess a will of his or her own. Thus energy in the executive was shown to be compatible with republican principles. It is not compatible in any intuitive sense, because, as James Madison put it in Federalist No. 39, republican principles require the rule of the many while energy required the rule of one. But it was compatible insofar as it made it possible for the many to have energetic rule in a way that could remain accountable to the many. But this does not explain what accountability requires or how it is to be instantiated in politics. It was this question that would emerge in the divide between Jefferson and Hamilton, between Republicans and Federalists. Public Opinion as Sovereign The clearest example of emergence of public opinion as a source of authority can be found in James Madison’s National Gazette essays written in

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1791 and 1792. In those essays, Madison made a departure from his efforts to create and then ratify the constitution of 1787. Now, instead of writing about the dangers of a majority faction, or the tyranny of legislative majorities, Madison focused his efforts on making the majority more powerful.15 In an essay entitled “Consolidation” published on December 5, 1791, Madison wrote that the way to protect against a consolidation of the states into one general government was to encourage a consolidation of the “interests and affections” among the people. The object of this consolidation of opinion was to make every man a sentinel over liberty and especially over lines of the “various authorities established by our complicated system.”16 Two weeks later, Madison continued this line of argument with the essay “Public Opinion.” He opened the essay with the blunt assertion that “Public opinion sets bounds to every government, and is the real sovereign in every free one.” In this statement, Madison unequivocally moved beyond his famous handwringing in the 1780s about the proper and authoritative way to establish consent to a fundamental constitution without sacrificing it to unstable majorities. He now clearly argued that any constitution that establishes rule that deviates from public opinion is a constitution that deviates from the authority of the sovereign. This is precisely what Madison thought was happening under the Washington administration. But true to his later reputation, Madison sought to generalize the problem. As he put it, the danger to the United States was that public opinion could be easily counterfeited because of the size of the country. Because “each individual” is “insignificant” in “his own eyes,” it was relatively easy for a small cabal to rule illegitimately. The solution to this problem was supporting whatever “facilitates a general intercourse of sentiments.” In particular, this included “good roads, domestic commerce, a free press, a circulation of newspapers through the entire body of the people, and Representatives going from, and returning among part of them.”17 To be sure, Madison’s object remained the protection of rights and the preservation of limited government. Now that the Constitution had been ratified, the goal was “that the public opinion in the United States should be enlightened,” and this enlightenment would bring with it an attachment to the Constitution as the “legitimate authority of the people.” This meant that the Constitution was still supreme, but it also meant that constitutional government required attention to public opinion because constitutional government could not work if the people did not conceive of themselves as the defenders of their own constitution.18 Madison went even further in the

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essay “Spirit of Governments,” where he classified three kinds of governments “according to their predominant spirit and principles.” The first was a government based on force, and the second was one motivated by private interest. The third was the model for the United States, “deriving its energy from the will of the society and operating by the reason of its measures.” This was the object of enlightenment, as it was the “government for which philosophy has been searching, and humanity been sighing, from the most remote ages.”19 Jefferson had already been making similar arguments, but this seems to have been a shift for Madison. In his important address to the citizens of Albemarle County upon his return from France in 1790, Jefferson argued that “the will of the majority” was the “only sure guardian of the rights of man.” More important, he called the will of the majority “the Natural law of every society.”20 Madison, however, had gone out of his way in The Federalist to defend checks on the will of the majority. Famously, in the tenth Federalist essay, Madison labeled majority “faction” as the biggest threat to republican government, and by a faction he explained that he meant a group opposed to rights or to “the permanent and aggregate interests of the community.” This necessarily meant that the will of the majority was itself suspect, because, like an individual, it would not be impartial when called to be a judge in its own cause. Throughout The Federalist, Madison and his coauthors warned against legislative power and explained the way that bicameralism, judicial review, and the president’s veto, among other “auxiliary precautions,” would preserve liberty by weakening legislative majorities.21 Partly as a result of these essays, the Constitution has been called undemocratic and too unresponsive to the will of the people.22 To be fair, there is some indication that Madison was concerned about public opinion before his partisan turn against Washington. One important example is his explanation for supporting the Bill of Rights after he had originally argued that a bill of rights was unnecessary. As he explained to Jefferson, a declaration of rights could be useful as an educative document. If the declared rights could “acquire by degrees the character of fundamental maxims,” and “as they become incorporated with the national sentiment,” then they would “counteract the impulses of interest and passion.”23 He made this point again in 1791, in his essay “Public Opinion,” pointing to the Bill of Rights as one of the salutary ways in which government may “influence” public opinion.24 Another example is his argument during the 1789 House debate on the

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removal power. In a debate about whether the Constitution gave the president the power to remove a department head, or whether that power was shared with the Senate or remained to be delegated by Congress, Madison argued on behalf on the president’s position.25 He grounded this argument on the principle of “responsibility.” As he put it, the Constitution created a “chain of dependence” between the president and “the community.”26 This chain included the officers at every grade, making them responsible to the president and the president responsible to the people. As he saw it, the principle of responsibility—or accountability—was the foundational principle necessary to solve this constitutional puzzle. It was probably no accident that Hamilton had recommended a different solution in The Federalist, namely, that the Senate’s advice and consent be required to remove executive officials.27 As Madison saw it, Hamilton’s solution would veer too much toward stability and would undermine the republican basis of the Constitution.28 Moreover, Madison defended his position, that the president had the power, by pointing to the national and popular basis of presidential selection, stating that the president “is to be appointed at present by the suffrages of three millions of people, and in all human probability in a few years’ time by double that number.”29 Both of these events reveal that there is some risk in using The Federalist to draw a caricature of Madison because even before his break with Hamilton and before his decision to join with Jefferson to create an opposition party, Madison was attentive to public opinion as a positive force.30 Whether this represented a sharp turn or a natural development in Madison’s thinking, it was central to the new opposition’s understanding of itself. The Jay Treaty With Madison fashioning the Republican Party as the party of public opinion, it was probably inevitable that the partisan question of public opinion would become entangled with partisanship over the presidency, and it was the Jay Treaty that brought this into the open. As recent scholarship has shown, opponents of the Jay Treaty argued not only against the terms of the treaty itself but also against the vision of the presidency offered by Washington in signing the treaty over their opposition. When Washington repeatedly replied to critics that his was bound to follow the Constitution only, his critics heard—correctly—that Washington was reminding them that his reading of the Constitution meant a very limited role for public opinion. Voting would be honored on election day, but after that the president

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and the Senate would judge for themselves the merits of any treaty with England. This struck Washington’s critics as unjustifiably aloof, for in their view, the president instead should be more mindful of his sovereign, the public. Thus when newspaper writers from both parties debated the proper comportment and demeanor of the president, they were in fact debating whether the president should be representative. According to historian Nathaniel C. Green, the critics were diverse but “remarkably consistent” in their understanding of the presidency: “The president’s essential job was to exemplify a political system in which the government engaged with the people, all of them, all of the time.”31 Federalists, for their part, did not agree with this conception of the presidency. As Green shows, they argued instead that good politics requires a good citizenry, and a good citizenry was one that was obedient. More directly, the president’s job was to not represent any constituency but rather to use his judgment and follow the dictates of conscience. As Ralph Ketcham put it in the context of Washington, “the executive had to be even more above party [than Congress], keeping his eye on the virtue, honor, and justice of the nation.”32 It is true, as Todd Estes shows, that Federalists did eventually mobilize public support, which required them to emulate some of the organizational tactics of their opponents. But the key difference is that their hearts were not in it, and they recognized that Jefferson and his party would eventually win a politics based on these methods.33 Jefferson’s election in 1800 would confirm Federalist fears, and just as important, it brought the question of presidential representation into clear focus. The Election of 1800 Jefferson’s First Inaugural is justly famous for proclaiming “We are all Republicans” and “we are all Federalists,” but most of the speech was an assertion of Jeffersonian principles that Federalists resisted.34 The rhetorical objective of the speech culminated in its fourth paragraph, which listed what Jefferson deemed “the essential principles of our Government.” This included a list of his party’s talking points, such as support of the state governments “in all their rights,” a “reliance” on the militia rather than a standing army, “encouragement of agriculture,” “freedom of the press,” and “economy in the public expense.” As Federalist critics noted, this was the first list of its kind, for neither Washington nor Adams had used the occasion to offer a list of principles. Jefferson called his list of principles the “creed of our political faith” and the “text of civic instruction.” He recommended the

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principles as the “touchstone by which to try the services of those we trust.” As Federalist critics also noted, the list revealed that Jefferson was arguing that the election had somehow demonstrated the truth of these principles. He said that “these principles form the bright constellation” that had guided the country not only through “revolution” but also through “reformation.”35 Rather than primarily an address about what unified the country, Jefferson’s First Inaugural was more an address explaining what the Republican Party believed. In this, Jefferson was following the lead of Madison’s essays in the National Gazette. Madison had argued in “Spirit of Government” that republican governments must derive their energy from the will of society. Jefferson expanded on this point in the famous second paragraph by addressing the concerns of those “honest men” who “fear that a republican government can not be strong, that this government is not strong enough.” As he put it, this was a “theoretic and visionary fear,” because rather than lacking the “energy to preserve itself,” he believed the United States was in fact “the strongest government on earth.” It was strongest because it was the “only one where every man, and the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern.” This certainty grew out of the fact that there had been an actual electoral “contest of opinion,” a contest that was “now decided by the voice of the nation.”36 Above all else, Jefferson cast his election as a victory for limited government and a defeat for the Federalist tendency to read the Constitution as giving the national government powers beyond those delegated by the people. The most famous example was the Bank of the United States, which had been established in spite of Jefferson’s opposition. In that 1791 debate, Washington sided with Hamilton, who had argued that the power to incorporate a bank was implied by the Constitution.37 Part of Hamilton’s argument relied on broad readings of specific clauses, but the heart of it was an argument about the nature of government. In Hamilton’s view, all good and effective governments necessarily have the authority to do certain things, and creating a national bank was one of those things. Because the Constitution was aimed at creating good and effective government, it should not be read as forbidding essential powers unless it was explicitly clear.38 Jefferson gave Washington different advice. Unlike Hamilton, who began from examining the essential functions of a good government, Jefferson began from the premise that the government only had power that was delegated by the people. He located this principle in the Tenth Amendment, calling it the “fundamental” principle of the Constitution. Moreover, unlike Hamilton, he

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believed that it mattered that the Convention of 1787 had explicitly rejected giving Congress the power to incorporate a bank.39 He knew this because Madison told him, and Madison was the one who had proposed the power in the first place.40 Because Hamilton and Washington knew the power had been rejected, it was strange that they would read the Constitution to mean that the power was somehow implied. Madison pointed to this debate in his essays for the National Gazette. In an essay whose title asked, “The Union, Who Are Its Real Friends?,” Madison characterized Federalists as “those who study, by arbitrary interpretations and insidious precedents, to pervert the limited government of the Union, into a government of unlimited discretion, contrary to the will and subversive of the authority of the people.” The Republicans, by contrast were “friends to the limited and republican system of government, the means provided by that authority, for the attainment of that end.”41 Madison thus cast the Republican Party as the party of limited government and the Federalist Party as the party of unlimited discretion. Because strict construction was central to the identity of Jefferson’s political coalition, Jefferson’s presidency has long been a puzzle. Jefferson’s most important accomplishment was the Louisiana Purchase, and, yet by Jefferson’s own admission, this required an “act beyond the Constitution.”42 By Jefferson’s reading of the Constitution, there was no power to acquire and incorporate territory so large that it would it transform the nature of Union by doubling its size. In addition to Louisiana, Jefferson seemed to expand the power of the president by using the removal power more frequently and for explicitly partisan reasons. Finally, the Embargo Act of 1807 exceeded the scope of national authority exercised by previous administrations. It seemed to Jefferson’s opponents, as it has to later historians, that Jefferson had violated his own principles. Or as Henry Adams would later put it, “If the Federalist differed from the Republican only in the shade more or less of any power to be given the Executive,—it was hard to see how any President could be more Federalist than Jefferson himself.”43 But there were differences in Jefferson’s approach to using executive power. In the case of the Louisiana Purchase, Jefferson conspicuously resisted using a broad construction of the Constitution to find authority for the purchase. To one senator who recommended such constructions, Jefferson argued that because “our peculiar security is in a written constitution” they should not make it “a blank paper by construction.” He argued that when presented with two constructions, one narrow and safe and the other broad and dangerous, we should always prefer the narrow and safe construction.44

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Accordingly, Jefferson rejected the advice of Albert Gallatin and others who advised him that the power for the purchase could be assembled from the power to make treaties and the procedures to incorporate new states and instead insisted on amendment to the Constitution. While Jefferson eventually gave up on this amendment when it became clear that he would not have the required two-thirds majority in the Senate, Jefferson never defended the constitutionality of the purchase. In the absence of a constitutional amendment, Jefferson preferred silence instead of construing the Constitution toward a doctrine of implied powers.45 There was another difference. In addition to refraining from the broad constitutional arguments associated with Alexander Hamilton and the Washington administration, Jefferson instead argued that executive administration should be responsible to the will of the majority. Historians have shown the ways in Jefferson concerned himself with the way people thought about him as president. Having criticized Washington for clothing the presidency in the “rags of royalty,” Jefferson tried to end old traditions and establish new, more republican, ones. He ended the weekly levees, where the president would formally receive guests, took on simple attire that lacked the military decorations worn by his predecessors, and kept his birthday a secret. And, yet, as Robert McDonald has written, he was adored by supporters who composed songs about him and purchased his likeness to hang in their homes. They did this, not to declare allegiance to a monarch, but rather as a “celebration of themselves.”46 This celebration presumed, however, that there was a consensus that the will of the majority was something that could be discerned. The problem with Jefferson’s theory of the presidency was not only that Constitution did not unequivocally support the idea that the president represented a national majority, but that it was equally possible that the Constitution invited the alternative reading that the president was meant to be chosen by elites as a way to check the power of a national majority. Jefferson’s complicated election in 1800 revealed that that the two parties disagreed not only about how to read the Constitution but also about how and whether the president was meant to represent the people. Reforming Presidential Selection Jefferson’s election in 1800 was the first and perhaps most successful change of power in American political history. Many years later, Jefferson would famously label his victory a revolution, “as real a revolution in the

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principles of our government as that of 1776 was in its form.”47 To be sure, Jefferson’s election was no landslide. Jefferson won seventy-three Electoral College votes, and Adams received sixty-five. As critics of Jefferson would later point out, Jefferson’s margin was small enough to be within the number of votes given to southern states for enslaved men, women and children.48 But the more immediate problem was that Jefferson and Aaron Burr received the same number of votes. This was due to a lack of foresight among the Framers and a lack of organization on the part of Jefferson’s party. Under the Constitution of 1787, members of the Electoral College could cast two ballots and the person receiving a majority of the whole number of electors, not the number of ballots, would become president. The reason why each elector would vote for two persons for president had to do with a calculation about the way electors would normally vote. In order to meet the concern that electors would simply vote for someone from their own state, the men at the Convention gave the electors two votes but with the stipulation that one person voted for could not reside in the same state as the elector. The person with the most votes would be president, and the person who came in second would be vice president. In fact, part of the reason why the vice presidency was created was in order to ensure that electors would take seriously their job to vote for two people. By making the runner-up worth something, the rules would actually incentivize better voting for both candidates. The expectation was that electors would choose a leading local favorite son, and, with their second choice, they would choose someone with a national reputation. A consensus would emerge around these persons receiving these second votes, and one of them would become president. The problem with this expectation is that it did not anticipate the extent to which political parties would organize around a national slate of candidates for president. Part of this miscalculation can be explained by the strange omission of political parties from the Constitution. The Constitution is famously silent on political parties, so much so that scholars have frequently written that the Framers wrote a “constitution against parties.”49 They believed that parties were necessarily bad because they arose out of factious behavior that divided the body politic. At the individual level, parties corrupted judgment and independence of thought, aiming instead for slavish unity of thought. So the Framers wrote a Constitution that they thought had solved the problem of political parties. Or more precisely, they thought they had solved the problem of national political parties, especially in terms of presidential selection. Because the body choosing the president

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was not the legislature, but instead would form temporarily for the purposes of the election, it would be unlikely that parties would be able to organize with respect to the electors. But this turned out much differently. Jefferson and Madison created an opposition party in Washington’s first term, and they took steps to make it a national party by traveling to the Northeast to organized disaffected groups and by creating an opposition newspaper. By 1796, there were two parties, and these parties organized around a common candidate for the presidency. In 1800, Jefferson’s party won, but it made a crucial mistake. The Republicans took control of both chambers of Congress, impressively gaining over twenty seats in the House to secure a two-thirds majority. Likewise, they won the presidency with Jefferson and Burr coming in ahead of Adams and Charles Cotesworth Pinckney. Their mistake was that they had failed to ensure that one member of the Electoral College cast his Burr vote aside, and, as a result, both Jefferson and Burr received the same number of Electoral College votes. With Jefferson and Burr tied, the decision between the two went to the House, which voted by state delegation. Jefferson eventually won the contest, but what happened in the meantime revealed that the two parties conceived of the very presidency in radically different ways. From the perspective of Republicans, Jefferson was obviously the intended winner and therefore the rightful winner. From the perspective of Federalists, there was no legal way to establish intent and thus no way to distinguish Burr from Jefferson. If anything, Jefferson enjoyed the illegitimate advantage of the three-fifth clause, so it was more likely that Adams had more support anyway.50 In addition to slavery, there was another major difference. As Yale law professor Bruce Ackerman puts it, the contested election made Republicans reach for arguments based in plebiscitary democracy, while Federalists resisted these with legalistic reference to the rules of the game.51 Republicans tried to resolve this awkward tie by arguing that their electors clearly intended Jefferson to be president. But the lame-duck Congress was controlled by Federalists, and many Federalists saw Burr as the more attractive option because he was a New Yorker and was therefore less of a regional candidate, at least from their perspective, than Jefferson. Importantly, Federalists justified their dalliance with Burr by reminding Republicans that there was no such thing as “intent” from the perspective of the Constitution. Indeed, Burr had as much formal claim to the office as did Jefferson. At bottom, the Republican counterargument

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presupposed that Jefferson was the candidate backed by the will of the people, but Federalists argued that there was no such recognition of the will of the people in the Constitution itself. The crisis of 1800, then, set the stage for a dramatic change in 1804. Meanwhile, as Ackerman shows, Federalists concocted a scheme to make someone other than Jefferson or Burr president. One path was to use the Succession Act of 1792, which would give the presidency to the Senate’s president pro tempore in the event that the office was unfilled. Ackerman has called attention to an essay written by “Horatius” arguing for the Congress and president to pass a new law to break the deadlock in the House. The law would award the presidency to some other “officer of the United States,” and, by Ackerman’s reckoning this officer would clearly have been Secretary of State John Marshall. More than that, Ackerman shows that Marshall himself was the likely author of the Horatius essay.52 And Marshall was not the only important Federalist thinking creatively. To Elbridge Gerry, the sitting president John Adams wrote, “I know no more danger of a political convulsion if a President, pro tempore, of the Senate, or a Secretary of State, or Speaker of the House, should be made President by Congress than if Mr. Jefferson or Mr. Burr is declared as such. The President would be as legal in one case as in either of the others, and the people as well satisfied.”53 Thus, when Adams called the Senate to meet for a special session on March 4, even though there was chance there would not be an inauguration, both sides knew that this was part of a larger Federalist scheme.54 Once Jefferson won, he and his party knew that they needed to put these arguments to rest, and so they ushered in the Twelfth Amendment in time for the election of 1804. The Twelfth Amendment required that electors designate whom they intended for president and for vice president. This would avoid the problem revealed by the election of 1800, when Jefferson and Burr received the same number of Electoral College votes. The debate over the Twelfth Amendment quickly confirmed that there was more at stake than the rather slim chance that Republicans would repeat the mistake they had made in 1800 and confer the same number of votes on two candidates. Indeed, the crux of the debate was not the designation principle but rather the number of candidates who would be eligible in the contingency election. Republicans wanted to lower the number from five to two, on the idea that the original number included candidates who in practice had become the intended vice presidents on their tickets. Because the designating principle

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removed these aspiring vice presidents from consideration, the overall number needed to be reduced by half. Federalists wanted to retain the number five. Because they perceived that they had become the minority party, their goal was to preserve as much flexibility as possible for the House in the contingency election to increase their chances of influencing the selection of the president. Interestingly, they appealed to Republicans from small states in hopes of resurrecting the cleavage between large states and small states that had dominated the Convention of 1787.55 More than these considerations born of electoral calculations, the two sides saw that what was at stake was actually the character of the presidency. That battle was whether the president should represent a national majority or not. Republicans were quick to defend the amendment as ensuring that the eventual victor reflected as closely as possible the original results of the Electoral College. At the very least, it would limit the range of discretion available to the House. In their view, the House should have very little discretion in departing from the will of the majority. For the Federalists, the House should have a great deal of discretion because determining the will of the majority was dangerous, if not impossible. In short, the debate over the Twelfth Amendment forced early Americans to wrestle with presidential representation under the Constitution. There is no better example of confusion over the original design than the Senate speech of Pierce Butler, who was a South Carolina Republican but an opponent of the Twelfth Amendment. Not only had Butler been a member of the Convention of 1787, he had also been a member of the Committee on Postponed Matters that had created the Electoral College in the closing weeks of the Convention. He used that experience to speak as an authority on the original design of the Electoral College and to charge his own party with departing from the logic animating presidential selection. In his recollection, the members of the Committee on Postponed Matters conceived of the Electoral College as a kind of nominating board, not as the body that would choose the president. It would choose five good candidates, and then the House would choose the president from that list of five. The key was that it did not matter whom the House chose, because any of the five nominating candidates would be equally good. But by lowering the number of candidates from five to two or three, the supporters of the Twelfth Amendment were assuming that the top vote getters were somehow superior to the bottom vote getters in the Electoral College. In Butler’s view, this was an innovation that would totally transform presidential selection under the Constitution.56

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It is impossible to know if Butler’s rendering of the discussions on the Committee on Postponed Matters are accurate. We do not have records of its deliberations beyond what was reported to the larger convention floor. In support of Butler’s point, it is true that James Wilson and others referred to the contingency election in the House as the “eventual election,” a term Madison would later repeat in Federalist No. 39.57 It is also true that Madison used the language of “nomination” to describe the Electoral College, but that was in the context of his worry that a proposal would undermine the Electoral College’s ability to make a “definite choice.”58 Contra Butler’s recollection, Morris clearly believed that the Electoral College would normally result in a majority: It is probable that a majority of the votes will fall on the same man. As each elector is to give two votes, more than 1/4 will give a majority. Besides as one vote is to be given to a man out of the State, and as this vote will not be thrown away, 1/2 the votes will fall on characters eminent & generally known. Again if the President shall have given satisfaction, the votes will turn on him of course, and a majority of them will reappoint him, without resort to the Senate: If he should be disliked, all disliking him, would take care to unite their votes so as to ensure his being supplanted.59

There were likely others who agreed with Morris, because Mason quipped that those who think there is no danger of there not being a majority for the same person in the first instance ought to “give up the point” on where and how to have to the contingency election “to those who think otherwise.”60 But it is notable, nonetheless, that James Wilson later used language in his lectures on law that would seem to corroborate Butler’s account. As was shown in the previous chapter, Wilson characterized individual electors as “blindfolded” and the final result as “unforeseen.” Wilson’s point, to be sure, was to show how difficult it would be to for a foreign power to corrupt the process of choosing the president. But his emphasis on each Electoral College member’s lack of awareness of “the precise operation of his vote” even to himself would seem to confirm, at the very least, Butler’s resistance to the notion that the process could be used to determine with certainty anything about the intentions behind the vote. Butler surely knew that, for Wilson, the beauty of the Electoral College was that it operated by “the unforeseen effect of the whole.” The ensuing debates do show that there was negotiation among the

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Convention delegates in 1787 about the number of candidates in the contingency election. Roger Sherman used the language of nomination in this context, arguing that the compromise (which at the time would have placed contingency election in the Senate) would give the large states the advantage in nominating the candidates and the small states the advantage in choosing the winner. He wanted to make the number of eligible candidates as high as seven or thirteen, while Mason and Gerry wanted to go as low as three.61 But everyone knew these debates were another skirmish in the battle between the large and small states. In the 1803 debate over the Twelfth Amendment, the debate over the number of eligible candidates revealed that a new battle was happening. From the perspective of Republicans, the goal of the Twelfth Amendment was not only to ensure that presidents and vice presidents were designated so as to avoid confusion. They saw the amendment as an opportunity to constitutionalize their emerging vision of the president as a representative of the popular will. In the House, James Clopton (R-VA) argued that for an election to be proper, the “person intended” for an office must be the person “who actually obtains it.”62 In the Senate, John Taylor (R-VA) explained that the goal of the amendment was “condensing public sentiment,” and William Cocke (R-TN) made the similar argument that the amendment would bring the presidential election “closer to the people.”63 Cocke even admitted that he preferred a “government of the people” more than he was for a “government of checks and balances.”64 Federalists, predictably, viewed this is as a dangerous innovation. William Plumer borrowed from Madison’s argument in Federalist No. 49 to argue that it was “important that the Constitution should be stable and permanent,” because “a constitution frequently changed, cannot command the esteem or veneration of any people.”65 In their view, the problem with the Twelfth Amendment was that it constitutionalized the misguided notion that “one man” could represent the national will. In the House, Benjamin Huger complained that Republicans were defending the amendment based on an “abstract” argument about the “will of the people,” an argument about the social contract that he believed had no concrete application to the US Constitution.66 He worried that the new Republican coalition had forgotten the “principles” “upon which or national compact was originally formed” because of their belief that the fate of the republic “depends so entirely on the election of any one man.”67 Connecticut senator James Hillhouse, in particular, warned against “idol worship” and argued that the amendment

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was dangerous in that it would allow the people to think that there was “only one man” who was fit to be president. In fact, the opposite had long been the presumption in republican theory. In “some ancient republics,” he noted, ostracism and banishment was the solution for men who were so “popular as to be beyond the reach of competition.”68 But the Constitution of 1787 had come up with a better solution to these men “whose popularity made them dangerous to the liberties of the Republic”: “Our Constitution, more wise and just, has provided a more safe and effectual remedy: no man can become too popular; for, if there is a portion of the people who are disposed to be infatuated, the Constitution provides there shall be two candidates; and those who are not infatuated can choose a man of equal talents for the station.”69 The beauty of original constitutional design, he argued, was that it allowed some mystery in choosing the president. This mystery moderated the dangerous pressure of mere popularity. Likewise, Timothy Pickering (F-MA) said that Republicans were transforming the Constitution into a “simple democracy” based “for the sake of one man.”70 More than making the principled case against the amendment, Federalists also looked to revive the rivalry between large states and small states. Like Roger Sherman in the convention, they perceived that any step that made the contingency election in the House less likely was a dilution of the power of the small states. But on top of that, the Louisiana Treaty, which they had just approved, would surely dilute the power of the then existing states, especially those in New England. In the House, Roger Griswold (F-CT) made it clear for anyone who had not yet grasped it that the designation principle was bad for the small states because the small states stood to gain whenever there was a contingency election.71 In the Senate, John Quincy Adams (F-MA) made the point with the most force, challenging the party of states rights to find a “champion” to defend the rights of the small states.72 In his view, the original design of the Constitution combined two principles, the “federative” principle and the “popular” principle, and yet the amendment would tilt the Constitution too far toward the popular one.73 Jonathan Dayton (F-NJ) said he worried that the amendment would deliver the small states “bound hand and foot” to be dominated by the four or five largest states.74 He went so far as to say that the Republicans were “bluffing,” just as the large states had in the Convention.75 Federalists outside of Congress also opposed the amendment. The state legislatures of Connecticut and Delaware rejected the Twelfth Amendment; in New Hampshire, the governor vetoed the measure. Massachusetts did

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Resolutions Stating Reasons for Delaware’s Rejection of the Twelfth Amendment 1. Because at all times innovations of the constitution are dangerous, but more especially when the changes are dictated by party spirit, are designed for temporary purposes, and calculated to accomplish personal views. 2. Because as representatives of a small state, we are sensible that in the nature of things, every change in the constitution will be in the favor of the large states, who will never be disposed to allow, and will always have the means to prevent a variation favorable to the interests of the small states. 3. Because in fact the amendment does reduce the power and weight of the small states, in the case provided by the constitution, for the choice of President by the House of Representatives, by limiting the selection to three instead of five candidates, having the greatest number of electoral votes. 4. Because the present mode of election gives to the small states, a controul and weight in the election for President and Vice-President, which are destroyed by the contemplated amendment. 5. Because it is the true and permanent interest of a free people, among whom the relations of majority and minority must ever be fluctuating, to prevent the just weight and respectability of the minority by every proper provision, not impeaching the principle that the majority ought to govern; and we consider the present mode of election as calculated to repress the natural intolerance of a majority, and to secure some consideration and forbearance in relation to the minority. 6. Because we view the existing provision in the constitution as among the wisest of its regulations. History furnishes many examples of nations and particularly of republics, in their delirious devotion to individuals being ready to sacrifice their liberties and dearest rights to the personal aggrandizement of their idol. The existing regulation furnishes some check to this human infirmity, by the occasional power given to a few to negative the will of the majority, as to one man, leaving them every other qualified citizen in the country for the range of their selection. 7. Because we are not satisfied, that the said amendment has constitutionally passed the two houses of congress; the constitution requiring the concurrence of two-thirds of both houses, which in a case of such magnitude, and of designed precaution, must be considered as two-thirds of the entire number composing the two houses respectively, whereas it appears, that the said amendment is not supported by the concurrence of two-thirds of the whole number of either house. Source: Journal of the House of Representatives of the State of Delaware (copies provided by the Delaware Public Archives)

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not ratify the Twelfth Amendment until 1961. The records for some of these debates are hard to find, and to my knowledge, the debates at the state level have yet to be studied. But Delaware, in particular, offers clear evidence that opposition to the Twelfth Amendment was similar to the opposition in the Senate. From these objections, we can see that Delaware perceived that the amendment would be disadvantageous to small states like Delaware but also that it would dangerously empower the majority to rule by way of one man. Importantly, the sixth article asserts that the Constitution allows a minority to block a majority, which in this context must mean that the contingency election in the House was meant to be a filtering device that would prevent the popular choice from becoming president. The Hartford Convention Even after the amendment was ratified and became part of the Constitution, some Federalists continued attempts to undo it. Broadly, the administrations of Thomas Jefferson and James Madison had transformed New England Federalism from the party of national power to the party of the prerogatives of the states. The Louisiana Purchase was one reason for the change. It signaled that the United States would grow more western and more southern. Combined with the three-fifths slave bonus, this westward and southward expansion doomed the Federalist Party to permanent minority status. The Embargo of 1807 was another reason. Along with its later iterations during the War of 1812, it cut off New England from trade and wreaked havoc on the New England economy, leaving it in a “deplorable condition” according to Noah Webster.76 As New England’s political and economic situation worsened, Federalist politics was divided between radicals and moderates on the question of whether union was in New England’s ultimate interests. At the most extreme end, some Federalists considered secession or, later, a separate peace with Great Britain. The moderates, however, advocated a political solution within the constitutional framework, and modeling themselves after Virginia and Kentucky in 1798, recommended constitutional amendments to protect New England. The contest between these two groups eventually culminated in the Hartford Convention of 1814–1815, and according to the leading account that gathering was a clear victory for moderates. Instead of a radical call for secession, the Convention’s final report was more a “statesmanlike declaration of New England grievances.”77 Even Gouverneur Morris supported secession of some kind, and urged Federalists to repudiate the debts from

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the War of 1812.78 According to Theodore Roosevelt’s biography, Morris “strongly advocated secession,” declaring that “Union” was only a means to the end of “freedom.” He encouraged Timothy Pickering to lead the Hartford Convention toward the creation of a New England Confederacy, and he was bitterly disappointed by its moderate outcome.79 Whereas the Virginia and Kentucky Resolutions of 1798 had argued for a particular way to construe the Constitution, the Hartford Convention went so far as to recommend specific amendments to the Constitution such as the removal of the three-fifth bonus for slave states, a supermajority requirement for the incorporation of new states, a supermajority requirement for offensive war, and a limit on Congress’s power to issue embargoes. But what has not received sufficient attention is that the nature of presidential power and presidential representation was also part of the conversation. Given that they had suffered for more than twelve years under Jefferson and Madison, it is not surprising that the Hartford Federalists also targeted executive power. In their official convention report, the Hartford delegates described the president as the mere “organ” of Congress and argued that the president’s power over the militia was subject to limitation by “state authorities.” Importantly, the Hartford delegates attempted to limit the powers of the president by reshaping the rules of presidential selection. This was because they perceived that presidential power was not a question of law simply, but that under the Republican way it would also derive from opinion. The office of President has charms and attractions which operate as powerful incentives to this passion. The first and most natural exertion of a vast patronage is directed towards the security of a new election. The interest of the country, the welfare of the people, even honest fame and respect for the opinion of posterity, are secondary considerations. All the engines of intrigue, all the means of corruption, are likely to be employed for this object. A President, whose political career is limited to a single election, may find no other interest than will be promoted by making it glorious to himself, and beneficial to his country. But the hope of re-election is prolifick of temptations, under which these magnanimous motives are deprived of their principal force.80

More than limiting the powers of the president, these critics of presidential power sought to reshape the very design of the presidency by creating a oneterm limit and by creating a geographical balance in terms of eligibility for

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office. Following Madison’s famous argument in The Federalist that the key to separation of powers was giving each department a “will of its own,” the Hartford Federalists perceived the potential representational character of the president’s will and wanted to quash it. In their attention to the relationship between presidential power and presidential selection, the Hartford Federalists were continuing a strand that had already existed within Federalist thinking. It was no accident that Timothy Pickering, who was one of the hard-liners who did not attend the Hartford Convention, wanted the Hartford Federalists to undo the Twelfth Amendment.81 One of the most vocal hard-liners who did attend Hartford was Connecticut senator James Hillhouse. Earlier, in 1808, he had published a list of proposed amendments to the Constitution. One would have removed the vice presidency and another would have required the president to get Congress’s approval to remove executive officers. Another would dramatically change presidential election by making it less popular and thus more favorable to the small states. Under his proposal, only senators at the end of their terms would be eligible for president, and the winner determined by lottery: “The senator who shall draw the colored ball shall be president.” In explaining the rationale behind his proposal, Hillhouse pointed to the fact that the president was both strong and popularly elected: “Placing in the hands of the Chief Magistrate who depends on popular election, prerogatives and powers in many respects equal, in some exceeding in practice, those exercised by the King of Great Britain, is one of the errors of the Constitution.” So in his mind, one of the two had to go. Either the presidency must be stripped of its power (especially the removal power) or “some other mode devised, than a popular election” of the president. A strong president and a popularly elected president were necessarily “incompatible.” 82 What is important to notice in Hillhouse’s calling presidential elections “popular” is that Jefferson’s opponents had long perceived that the theory of presidential representation would work against their policy objectives. The problem with popular elections was that it was bad for Federalists as the minority party. But popular elections for the presidency were also bad for the rule of law. In their view, the Constitution created a powerful presidency only because the president would not be a popular officer. Once the president could draw strength from claims to representing a national majority, the president’s already considerable formal powers would be too enhanced.

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Jackson’s Whigs In 1830, over two decades after he proposed amendments to change the presidency, Hillhouse dusted off his proposals and had them republished as another pamphlet. Because he was no longer in Congress, he explained, he could not formally propose them. But even though he was no longer a senator battling Jefferson, Hillhouse saw the same problem. No amendment would be “so effectual as the adoption of some mode of appointing a president, which shall render it impossible for a candidate to bring the prerogatives of the office to his aid in an election.” Hillhouse had in mind Andrew Jackson, who must have confirmed Hillhouse’s worst fears.83 The presidency of Andrew Jackson provoked the deepest and most sustained critique of executive power in American history. From his very first days in office, Jackson’s expansion of executive power provoked opposition. This was particularly true in the case of removals. Like Jefferson, Jackson used the removal power to punish and reward partisans, and like Jefferson, Jackson defended his increased use of removals with an appeal to presidential representation. But Jackson’s arguments were more openly partisan, as were those of his opponents, because partisanship was in the process of becoming accepted. Jackson was the first president to publicly argue for presidential power over congressional power.84 He was also the first president to ground executive power in politics and in the Constitution, and thus was the first president to combine Jeffersonian and Hamiltonian foundations for the executive office. But much of the Whig critique of presidential representation was given before the Whigs called themselves Whigs and even before Andrew Jackson was elected president. In fact, the controversy surrounding John Quincy Adams’s election in 1824 provided the impetus for politicians to recast and articulate their own understanding of the presidency. Just as the election controversy of 1800 provided Jeffersonians with the opportunity to change presidential selection, 1824 forced partisans on both sides to rethink the two foundations of presidential power. Changing the Electoral College Even more than was the case in 1800, the crisis of 1824 prompted calls to amend the Constitution. This movement took over congressional debate in 1826, when the Nineteenth Congress considered what one critic counted to be at least twenty-one proposals to amend the Constitution. As was the case in the Twelfth Amendment, the arguments for the district

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system complicated the arguments for changing the rules regarding the contingency election in the House. But by 1826, parties were on their way to becoming accepted, and the debate concerning the district system reflects a good deal of that process. Generally, supporters of Jackson wanted to amend the Constitution in two ways. First, they wanted to create a uniform system of choosing electors nationwide, with the district system replacing winner-take-all in the states. Second, they wanted to remove the House as the eventual decider in the event that no candidate had an Electoral College majority. Some members of Congress wanted to go further by abolishing the Electoral College altogether and having the president chosen instead by a direct popular vote (usually with the person receiving a plurality the winner).85 Another plan would have rendered members of the House ineligible for executive office whenever the House was called upon to select the president, and yet another would have given the second choice to the people but return the choice to the House in the case that the second vote was inconclusive.86 The opponents to the reform attempted to turn back these efforts by offering a dizzying array of amendments of their own. One called for the end of the three-fifths clause, which afforded the slave states a bonus in the view of nonslave states. Another called for the direct election of senators.87 Finally, one representative proposed an amendment to limit further amendments, arguing that such proposals wasted valuable time.88 In the Senate, Dickerson of Pennsylvania proposed yet another amendment for a term limit for president, which was approved by twenty-five of twenty-nine senators present.89 As an aside, it is notable that two future presidents offered amendments. Pennsylvania representative James Buchanan, who was then sorting out his transition from the Pennsylvania “amalgamators” to the Jacksonian Democrats, offered a plan to split the difference between the two sides, and return to what he saw as the “original” Constitution.90 His proposal would restore the original rules for electing the president, and thus abolish the Twelfth Amendment, but would also send the contingency election back to the states. Tennessee representative and future president James K. Polk was less moderate. His amendment would impose electoral districts, abolish the Electoral College, and return any contingency elections to the people. In his view, it was essential that presidential selection be reformed, because it was a question that implicated the “sovereignty” of the “majority.”91 As he put it, “this is a Government based on the will of the People,” but presidential selection had deviated from this principle. The Electoral College and the

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House were unnecessary because “the people require no such agency” in stating their preference for president.92 For the young Polk, the Constitution’s rules for selecting the president unnecessarily stood in the way of what its designers had intended for executive power. Instead, in his view, constitutional function should trump constitutional text. Advocates of reform generally agreed that the contingency election should not take place in the House because the House would likely be corrupted by the president on such occasions. The logic for this argument was simple: the House was a preexisting body, and the original idea behind the Electoral College was to avoid corruption by giving the choice of the president to some body that was not already in existence. With the growth of patronage, the president would be able to win reelection or handpick his successor by promising members of the House attractive jobs in the executive branch. For the reformers, the corrupt bargain between John Quincy Adams and Henry Clay was evidence that the House needed to be removed from presidential selection. This charge against the House opened questions larger than whether that body had acted corruptly in 1824, for it required those for and against reform to articulate who should be selecting the president. If not a “preexisting body,” then who? Opponents to the amendment answered this question in several ways. The first was to appeal, like their Federalist counterparts two decades earlier, to the federal principle. In their view, the key feature of the House’s participation in the contingency election was that the states returned to their status of equality by state delegation. Stevenson of Virginia noted on March 2 that he would never “consent to make any amendment which should diminish or repair the relative rights and powers of the States, secured by the compact.”93 Massachusetts representative and Adams supporter Edward Everett went further on March 9, arguing that the Constitution authorized no power to amend the Constitution in a way that would fundamentally change the terms of the original “compact” of the states. For Everett, this was more than a historical claim: “In fact I can conceive no maxim in politics more dangerous or more false, than that a written compact of Government can be construed to look forward to its own worthlessness; that it can be supposed to be within the competence of a body of political functionaries, assembled under a written Constitution, to take a single step on the assumption that the Constitution, which is their life and soul, without which they have no political existence, has failed in the exercise of its most important functions. The proposition carries political suicide in its very terms.”94 This

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doctrine had all the more force, for, in Everett’s view, the Constitution of 1787 was less a constitution aimed at some abstract view of justice than it was a compromise between different parties.95 Under this argument, presidential selection under the Constitution had to account for the portion of sovereignty still held by the states by way of that compromise. This appeal to the role of the states was meant to be the alternative to the amendment’s appeal to the role of the people. In one sense, this was another iteration of the contest between large and small states, which was seemingly resolved by the Connecticut Compromise, but according to James Madison in Federalist No. 37 actually led to a “fresh struggle” in the rest of the convention.96 Stevenson pointed to Madison’s argument in Federalist No. 39, in addition to 1787 speeches by James Wilson and Benjamin Franklin, to argue that the Constitution intended presidential selection as having “at least as many federal as national features,” but that the amendment would undermine a large portion of the federal part of that design.97 As Representatives Henry Storrs (NY) and Dutee Pearce (RI) noted in 1826, the Twelfth Amendment was bad for the small states. Calling that amendment a “suicidal act,” Pearce quoted from the 1804 speech by Connecticut governor Griswold.98 It was a suicidal pact because small states were losing their populations to the large states, and the House’s role in the contingency election preserved the small states’ status as equals. These claims were obviously self-serving but they touched upon a growing dispute about the meaning of representation and its connection to the presidency. For Everett, an important reason why the House was included in the process was that there was a different kind of representation between an executive officer and a member of Congress. Unlike a representative, who must attend to “local peculiarities and interests,” the president “is not a Representative of any part of the people, not even of those who choose him.”99 This is because the president’s function was to carry out the laws passed by actual representatives and to carry them out without considering whether he is representing any part or any whole. In a slightly different line of reasoning, Thomas Mitchell of South Carolina, who was a Jackson supporter and yet agreed with Everett that the Constitution was a compact aimed at a compromise between sovereigns, argued that selecting a president required the mediation of representatives.100 This was because, for Mitchell, there can be no public will without representation: “How can a majority be united in favor of any one candidate, by electors at such vast distances, without the possibility of concert or without the operation of

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the intervening body, by which their views might be previously collected, digested, and ascertained?”101 In his view, an election was “the common will, arising out of the common understanding of electors.” But this common will required deliberation by representatives to exist. Mitchell compared it to the House’s selecting a speaker: given that individual members would not yet know the other members, it would be impossible for that chamber to make the selection before members actually arrived in Washington and met in an assembly. In his view, the common will was equally scattered in the case of the presidents, and to fix that problem, “you must bring the electors, somehow or another, in contact.”102 Everett, in particular, pushed this argument to its logical extension and anticipated the Whig critique of Jackson, even while John Quincy Adams had not yet reached the middle of his term. As Everett put it, the central problem was that the reformers wanted to ground the power of the presidency in the argument that the president was to be “responsible” to the people and that they believed that “this responsibility is to grow out of a popular choice.”103 In his view, this formulation would dangerously unfetter the executive from constitutional restraint, a point that was confirmed by a verbal slip by the reformer, who quoted the Vesting Clause of Article II to say “all executive power” is given to the president instead of “the executive power.”104 In Everett’s view, and in remarkable anticipation of debates about the Vesting Clause in the next decade and well into to the twenty-first century, this misquotation of the Constitution confirmed that the reformers intended to give the president the executive powers held by “any country” anywhere rather than limit the president to those powers in the Constitution. For Everett, the combination of the two foundations of executive power resulted in an unrepublican third way, monarchy. Jackson’s Assertion of Authority and the Whig Response Jackson linked his expansion of executive power to his theory of presidential representation from the very beginning of his time in office. In his first annual message to Congress, Jackson called for a direct election of the president and abolishment of the Electoral College. In his view, “to the people belongs the right of electing their Chief Magistrate.” As he read the Constitution, “it was never designed that their choice should in any case be defeated, either by the intervention of electoral colleges or by the agency confided, under certain contingencies, to the House of Representatives.” Rather, it was constitutional design and good practice that “as few impediments

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as possible should exist to the free operation of the public will,” and thus it was necessary to amend presidential selection so a secure “a fair expression of the will of the majority.”105 Jackson would soon add to this notion of the presidency by removing more executive officials and issuing more vetoes than his predecessors. As he defended these assertions of executive authority, he married a broad reading of Article II with the argument that the president could and should represent an electoral majority.106 Jackson’s appeal to two foundations of executive power prompted a response from the Whigs concerning the proper role and scope of executive power under the Constitution. The response from the Whigs forced Jackson to articulate an even more vigorous understanding of presidential representation, which the Whigs in turn rejected and attempted to dismantle in part by changing the president’s relationship to the executive branch and the president’s eligibility for reelection. To be sure, the controversy over removals and over Jackson’s understanding of presidential power was eventually entangled with the controversy over control of the Second Bank of the United States. As the leading Jackson historian writes, Jackson saw the bank controversy as an opportunity “to buttress presidential power with mass support.” As a result, the election of 1832 “was the first time in American history that a major issue was taken directly to the electorate for decision.”107 When Andrew Jackson won reelection in 1832, he declared that the election settled the policy controversy of the Second Bank of the United States. But the debate between Jackson and his opponents was bigger than the bank. As the historian Michael Holt has shown, Jackson’s use of executive power provided a unity of purpose to what would otherwise have been a loose coalition of politicians opposed to Jackson.108 In the House, Jackson’s supporters succeeded in limiting debate concerning Jackson’s control over the bank and Jackson’s broader claims of representation. But a few critics were able to give extensive speeches. One was by Tristam Burgess, an opponent of Jackson from Rhode Island. Like Clay and other Whigs in the Senate, Burgess noted that the Jackson’s claim for control over the bank amounted to a contest between the president and Congress over implied powers. For Burgess, the Constitution anticipated such conflicts and resolved them in the favor of Congress by limiting the Vesting Clause in Article II to “the” rather than “all” executive power. This was by design, since “a Congress might do all the legislative service of the people; a President could not do all their executive services; and, therefore, all their legislative powers were vested in Congress; and for the same reason, the, but not all the, executive powers

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were vested in a President.”109 Another was Pinckney of South Carolina, who had been associated with South Carolina’s arguments for nullification. In his view, the question ultimately would decide whether the president would “only” execute the laws or whether he would make them too.110 In the Senate, Jackson’s opponents complained bitterly about what they saw as his attempts to transform the presidency into an elective monarchy, because, as Daniel Walker Howe put it, the “Whig fear of the presidency contained within it a fear of democracy.”111 It is important to see, then, that they did not concede Jackson’s claim that the president represents the people. Indeed, it is likely that the Senate’s censure of Jackson (the first and only censure of a president) was not only about Jackson’s firing of Treasury Secretary Duane, but also about Jackson’s claims regarding the source of his power. In his response to the Senate’s censure, Jackson protested the censure as an extraconstitutional device (the Constitution presumes impeachment or nothing), but he also contrasted the president’s basis of representation with that of the Senate. “The members of that body [Senate] represent not the people, but the States,” and the “President is the direct representative of the American people.” On the Senate floor, in response to Jackson’s message protesting the resolution of censure, Clay said he was “surprised and alarmed at the new source of executive power.” In place of the traditional understanding that the Constitution and laws were the “sole source” of presidential authority, Jackson also rested his actions on the authority of elections. Besides being new, this authority was shaky at best since it rested on ambiguous campaign statements being translated into formal parts of the law.112 Like Clay, Daniel Webster argued that the Constitution of 1787 envisioned something else. According to Remini, Jackson’s protest message infuriated Webster, and Webster arranged to deliver his response only after spending several weeks in diligent preparation. In his speech, Webster went out of his way to dispute Jackson’s theory of presidential representation. As he saw it, Jackson’s protest hinged on an “airy and unreal responsibility to the public.” This could not be, because “there is, there can be, no substantial responsibility . . . but to the law.” Likewise, Jackson’s claim “that the President is the direct representative of the American people” would transform the Constitution by making the president the supreme “master” of the government. This is because if any department were actually the sole representation of all the people then that department would be supreme in its approximation of the sovereign people of the United States.113 Later, in

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an 1837 speech blaming Jackson’s policies for the financial panic that year: “Certainly this is not constitutional language. Certainly, the Constitution nowhere calls the President the universal representative of the people. The constitutional representatives of the people are in the House of Representatives, exercising powers of legislation.”114 It is tempting, of course, to dismiss the Whig theory of the presidency as window dressing for partisan calculation. But that explanation is not wholly sufficient, because opposition to Jackson came from within Democratic ranks. One example is Henry Wise from Virginia, one of the several members of Congress who was in the process of switching parties (from Democrat to Whig) because of Jackson. He was against Jackson’s bank policy, but he also objected to the expansiveness of Jackson’s arguments. After Jackson’s Protest Message, Wise introduced resolutions in the House that would have affirmed Congress’s constitutional primacy over control of the public money.115 In response to criticism from other supporters of Jackson, Wise emphasized that he supported Jackson even though he also believed that Jackson’s arguments undermined the authority of the House. Wise acknowledged that he had “spoken for” and “written for” Jackson, and, more generally, that “every feeling of his heart, every prejudice of his mind, was in favor of that individual.”116 His loyalty to Jackson notwithstanding, he objected to Jackson’s assertion of control over the deposits as well as the reasoning he gave for it in the Protest Message. Further, Wise said he “had always thought that it was the duty of that House to maintain with watchful jealousy, and strictly to maintain, its own constitutional powers.”117 Another important example is Richard Henry Wilde, from Georgia, who was an old Crawford Republican and was elected as a supporter of Jackson four times from 1827 to 1834. Wilde objected to the majority’s tactics, noting that they were “careful not to put their argument in the shape of a distinct proposition to be voted for by the people’s representatives, under their responsibility to the people.”118 But more than making a comment about the majority’s procedural decisions, Wilde went on to directly confront Jackson’s message to his cabinet and annual message: “The intimation given is, that such decision is for ‘the people,’ not the representatives of the people. And in what way are the people to decide? Is it by another election of President?”119 Wilde noted that Jackson’s argument undermined the representative function of his own chamber, but he also noticed the incoherence at the heart of the heart of presidential selection—are presidential elections the only way to decide policies?

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These arguments by Everett in 1826, and the ones by Webster and Clay in the 1830s, found their way to the young Lincoln in 1848. It is well known that, as a Whig, Lincoln opposed the war with Mexico on its merits and that he objected to the argument that the president can initiate a war without congressional approval.120 But, as noted by Ellis and Kirk, Lincoln also disagreed with the broader understanding of executive power associated with Democratic Party since Andrew Jackson. Lincoln’s critique of the Jacksonian theory of representation rested on two grounds. First, Lincoln rejected the premise that party platforms provided meaning with respect to particular policies, calling that argument a “pernicious deception.” The problem with the theory is that it treats all policy questions as equal. In particular, any given platform likely has a new policy position that is “forced upon” a “large portion” of the party and then treated as if had received as much support from the party as did the other longstanding planks in the platform. Because a good number of the majority party have to “shut their eyes and gulp the whole,” and because the minority party also disagrees with the position, the victorious president often finds himself representing what would actually be the minority view of the new policy.121 Second, Lincoln rejected the deeper assumption that “the President is as much the representative of the people as is Congress.” In his view, this assumption was simply implausible because no president can “know the wants of the people as well as the three hundred other men coming from the various localities of the nation.” If it were otherwise, the framers of the Constitution would not have created a congress in the first place. Consequently, to elevate the president’s veto power into an equal power of legislation, and to base that elevation on an argument about the president’s equality with respect to representation, would be to take legislation from “those who understand with minuteness the interest of the people,” and then “give it to one who does not and cannot so well understand it.”122 Meanwhile, Jackson’s protégé, James K. Polk, embraced the argument from presidential representation to further wed the Democratic Party to Jackson’s conception of executive power. In his fourth and final annual message, delivered in 1848, Polk took the opportunity to justify his use of the veto power on the grounds that the president is representative. In response to Whig critics, who argued that the veto “assails the representative principle and the capacity of the people to govern,” Polk argued that the Constitution gave the president the power to veto precisely because the president embodied the representative principle. This is because “the

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people, by the Constitution, have commanded the President, as much as they have commanded the legislative branch of the Government, to execute their will.” So when the president vetoes a bill, the president is executing the will of the people “as much as the Congress that passed it.” But more than seeking mere parity with Congress, Polk followed Jackson’s logic in asserting the president as the representative of a better will. “The President represents in the executive department the whole people of the United States, as each member of the legislative department represents portions of them.” Further, “In the exercise of the power of the veto the President is responsible not only to an enlightened public opinion, but to the people of the whole Union, who elected him, as the representatives in the legislative branches are responsible to the people of particular States or districts, who compose their particular constituencies.” Like Jackson, Polk saw the president as more than Congress’s equal in terms of representation because the president represents the whole rather than the part.123 But Polk extended the argument to further undercut congressional claims to representation. He pointed out that a variety of procedural tricks could enable a minority of representatives to pass a law, including a situation where a small number of members above the necessary quorum could pass a law that would not meet the approval of a majority of members. More broadly, in the history of Congress, “not a single law has been passed since the adoption of the Constitution upon which all the members elected to both houses have been present and voted.” Instead, the most important legislation is often “carried by a close vote in thin Houses.” Moreover, much of the important work is postponed to the end of a session, when they are “disposed of in haste” “by Houses but little exceeding the number necessary to form a quorum.” By this logic, the problem was not only that Congress could not represent the whole, but also that Congress had by its own actions over time demonstrated that it has very little interest in trying to do so. In this back and forth exchange between Lincoln and Polk, we can see that their differences were not simply about slavery and Mexico. Rather, the two also disagreed about the basis of presidential power. Continuing in the Whig tradition and anticipating twentieth-century political scientists, Lincoln agued that presidential representation was either incoherent or impossible. Meanwhile, Polk defended presidential representation with arguments that had become central to the identity of the Democratic Party. Lincoln’s victory and turn to executive power would complicate this ideological sorting, but it would not replace it.

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Lincoln’s Democrats It is tempting to conclude that the Whig critique of presidential representation met its defeat during the presidency of Abraham Lincoln. As a newly elected president, Lincoln seemed to reject his Whiggish upbringing and instead to point explicitly to his party’s platform as a source of authority both for declaring victory in the constitutional controversy at hand and for promising restraint.124 Later, in the glow of reelection, Lincoln declared in his annual message of 1864 that “some deference” should “be paid to the will of the majority, simply because it is the will of the majority.” According to Richard J. Ellis and Stephen Kirk, the election of 1864 is critical, then, because it was the first time that both parties “openly construed presidential elections as expressions of public purpose on matters of public policy and viewed elections as a grant of power from the people to the president.”125 After Lincoln, they write, the issue appeared settled. What is striking, however, is that Lincoln and his allies did not discard vigorous legal arguments for executive power, nor did they wholly embrace Jacksonian claims that the people conferred power on the president. Indeed, it is noteworthy that Lincoln’s 1864 claim of a mandate was on behalf of Congressional recommending the Thirteenth Amendment, not on behalf of Lincoln’s use of executive power. Likewise, Lincoln’s opponents were similarly entangled, and did not try, as did the Federalists and the Whigs, to further limit Lincoln’s appeal to opinion by denying its legitimacy. As the party of Jackson, Democrats could not argue that public opinion was not a foundation for presidential power, and yet, as the party closest to the Whig appeal to law and stability, the Republicans could not quite assert the president as the oracle of the national will. Party control of the White House made for more complicated arguments, but it did not resolve the debate or alter its terms. The enduring tension is best reflected in the evolution of the Democratic Party platform, which from 1844 to 1856 had included a plank defending the president’s “qualified veto power,” a plank that disappeared in 1860. As we will see, these engrained tensions are also perceptible in the debates over civil liberties occasioned by Lincoln’s suspension of habeas corpus and in the debate over the Second Confiscation Act. Lincoln’s dilemma can be seen in his defense of his suspension of habeas corpus. In his famous special message of July 4, 1861, he relied on a constitutional argument, not on an appeal to public opinion. Lincoln’s lawyers continued this line of approach, but, as Benjamin Kleinerman has noted, they also carved a place for executive discretion by arguing that the actions in

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question were best left to the executive branch, and in so doing attempted to leap over legal arguments made by judges.126 Attorney General Edward Bates argued that the critical point was that the suspension of habeas corpus was a “political” act, and therefore not a “judicial” one. But what is important to see is that Bates did not emphasize the “political” nature of the act in order to appeal public opinion as a source of authority. Rather, he grounded this distinction upon a legal argument about Article II. Besides, the whole subject-matter is political and not judicial. The insurrection itself is purely political. Its object is to destroy the political government of this nation and to establish another political government upon its ruins. And the President, as the chief civil magistrate of the nation, and the most active department in the government, is eminently and exclusively political in all his principal functions. As the political chief of the nation, the Constitution charges him with its preservation, protection, and defense, and requires him to take care that the laws be faithfully executed.127

Even though Bates called the president the “political chief of the nation,” completely absent is any claim that, as Jackson and Taney had previously argued, the president is the “direct representative” of the people. In other words, Bates never explained what it meant to be the political chief of the nation as opposed to the officer sworn to execute the laws. Bates curiously crafted his argument based on the function of the executive without explaining the basis for that function. In response, Chief Justice Roger Taney faced similar problems. In Ex parte Merryman, Taney argued that the text and history of the Constitution revealed that the power to suspend habeas corpus was limited and was delegated to Congress alone. As to history, Taney quoted statements from Thomas Jefferson, John Marshall, and Joseph Story all suggesting that they agreed with this point. As to the text, Taney emphasized the placement of the Suspension Clause in Article I and concluded that this indicated it was a legislative power. It is an open question whether Taney’s opposition to Lincoln was the cause of a related change from Jacksonian defender of presidential power to juridical caretaker of separation of powers.128 But what is noticeable is that Taney did not appeal to the argument of Jackson’s protest message, when as attorney general, he had cowritten the argument that included the claim that the president was the “direct representative of the American people,” a claim that was used to justify Jackson’s power to

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remove the treasury secretary. Instead of reading the presidential election as a source of authority, Taney now read the procedures for presidential selection as an indication that the Constitution carefully limited presidential power: “The short term for which he is elected, and the narrow limits to which his power is confined, show the jealousy and apprehension of future danger which the framers of the constitution felt in relation to that department of the government.”129 This confusion over the potential sources of Lincoln’s authority can also be found within the charges from Lincoln’s Copperhead opponents. Sometimes called “Peace Democrats,” these were conservative Democrats in the North who opposed the war.130 In particular, Lincoln’s deprivation of civil liberties provided the Copperheads with a convenient handle, especially for Copperhead leader Clement Vallandigham, by providing concrete examples of the cost of war beyond the battlefield. If Vallandigham’s opposition was unrelenting, his criticism of executive power was problematized by the tension between the law and opinion, between his opposition to Lincoln and his Democratic embrace of the Jacksonian executive. In an 1861 speech on “Executive Usurpation,” Vallandigham noted that Lincoln had crossed a line that even Jackson had not transgressed. As opposed to Jackson, who secured authority from Congress to blockade the port of Charleston, Lincoln usurped Congress’s power to blockade, a power Congress had “but a few weeks before, refused to exercise.”131 Pointing to Daniel Webster’s insistence that the power to blockade is a power of Congress, and casting himself in the tradition of that “great expounder of the Constitution,” Vallandigham gleefully reminded Republicans that Jackson “did not dare” to issue a blockade without Congress, but “our Jackson today, the little Jackson at the other end of the avenue, and the mimic Jacksons around him, do blockade, not only Charleston harbor, but the whole Southern coast, three thousand miles in extent, by a single stroke of the pen.”132 Interestingly, Vallandigham followed in the Whig tradition in another way. Like Webster and other critics of the merger between presidential removal powers and the spoils system, he was concerned that the president’s removal power resulted in a marriage between “power and patronage” and had made the president closer to an elective king.133 What has not been noticed is that Vallandigham, like earlier Federalists and Whigs, sought to restore constitutional equilibrium by recasting presidential selection. In February, 1861, Vallandigham proposed an amendment to the Constitution that would in his view solve the crisis caused by what he

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was calling the “revolution of 1861”.134 Like Hartford Federalists, and like John C. Calhoun, his reform was aimed to prevent conflating a majority will with regional conflict, and it would solve this problem by making it impossible “to elect a President by the votes of a mere dominant and majority section.” His amendment would require that a “concurrent majority of the electors, or States, or Senators, as the case may require, of each section, shall be necessary to the choice of President and Vice-President.” Further, it would reduce the power of the president by limiting presidential tenure to a single six-year term. Likewise, in Illinois, Peace Democrats attempted to change the state constitution by proposing a new one that would “strip the governor of his military powers and cut his four year term in half.”135 To be sure, slavery both contributed to and complicated this argument. In 1855, Vallandigham had explicitly rejected appealing to the Hartford Federalists as an early example of critics of executive power, choosing instead to link them to what he called the “abolition movement.” In his view, abolitionism was like expansive claims of executive power in that both constituted a “formal assault upon the compromises of the Constitution.” Rather than being principled defenders of civil liberties, the Hartford Federalists thus constituted a “treasonous assembly.”136 But the key point is that Vallandigham and those like him always held out hope that their party would win at the polls. Even in 1864, Vallandigham recorded that his first political memory was the election of 1840, an election that scholars have marked as a critical date in the modernization of presidential campaigns.137 A Democrat his entire political life, Vallandigham did not know how to reconcile his belief in the Jacksonian theory of representation with the use of executive power by Lincoln. In a recent book, Jennifer L. Weber has shown that the Copperheads staked much of their opposition on what they saw as the likelihood of military defeat for the North: “For the most part, the influence of the antiwar wing of the Democratic Party rose and fell in inverse relation to the armies’ failures and successes.”138 According to Weber, Vallandigham and the Copperheads believed that Vallandigham would win the Ohio governorship in 1863, an expectation based on their assumption that soldiers would vote against Lincoln. But, in Weber’s analysis, this assumption was “wildly out of touch” with soldier sentiment.139 Reflecting this reliance on the people, Vallandigham explicitly relied on the approval of the people to decide when he would as a representative defer to Lincoln’s judgment. So, with respect to “men and money,” he would allow Lincoln to “take all the men and money he should demand” and

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then “hold him to a strict accountability before the people for the results.” But with respect to the suspension of habeas corpus and other assaults on civil liberties, he would “continue to rebuke and denounce them to the end” and noted that the people had “rebuked them, too.”140 In December 1860 he acknowledged the consequences of his party’s electoral defeat: “We are in a minority indeed, today, at the ballot box; and we bow quietly now to the popular will thus expressed.”141 This latter point was made by other Democrats outside the Copperhead sect. At an 1863 meeting meant to rally support for the Union, Andrew Johnson made the case against secession precisely by appealing to the Democratic Party’s traditional reliance on electoral victories. In his view, his fellow Southern Democrats had abdicated the great tradition of their party, because the “true policy” of the Democratic Party was to favor opposition over secession: “Because Mr. Lincoln beat us, and was elected under the forms of law, he was entitled to come into power and try his policy, and if the country prospered we ought to submit to it like men.”142 Another opportunity for examination of executive power came in the debate over the Confiscation Act of 1862, which, among other provisions seizing Confederate property, freed enslaved persons in areas occupied by the Union army. Lincoln signed the bill but was concerned that the measure would alienate border states. There were also constitutional questions. As Kleinerman has shown, the debate in Congress was not only about whether or not Congress should violate the Constitution by seizing Confederate slaves. Rather, that question was intertwined with the question of who should violate the Constitution by seizing the enslaved. That is, the opponents of the Confiscation Act included those who opposed the policy itself and those who agreed with the measure but who thought that it should be undertaken by the president and not Congress. Crucial to this latter argument was the distinction between the respective functions of Congress and the president. For defenders of Congress’s power, the argument was that Congress could use the Necessary and Proper Clause and the war power to deviate from the constitutional protection of slavery. For defenders of the president’s power, the act would intrude on presidential powers under constitutional design. As Kleinerman summarizes this latter position, the idea was that Congress cannot both make law and exercise discretion, if that discretion might take Congress outside law and the Constitution. But the president could, because such extralegal action is the function of the president, both

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under the design of the Constitution of 1787 and under the broader doctrine of constitutionalism.143 These debates about the relative functions of three departments inevitably included debates about representation.144 But it was the Republicans who were most willing to voice skepticism over claims to presidential representation. Republican senator Lyman Trumbull, for example, disputed the argument that the courts had the ultimate authority over the question. In his view, the Constitution “vested the war power . . . not in the President, but in Congress.” This is to say that in addition to the specific clauses such as the power to declare war and to make rules concerning captures, the Constitution “has vested it also with the discretion of determining what means are necessary and proper to enable it to carry into effect these granted powers.” Consequently, the courts had no authority to review wartime actions by the president that were authorized by Congress. Importantly, Trumbull went on to ground this assertion in a theory of institutional representation under original constitutional design: “It does not belong to the courts to determine how a war shall be prosecuted, or what shall be done with the persons or property of the enemy. Those are questions depending on political considerations, which may continually vary, and to be judged of by the sovereign power, which in this country is this people, who speak through their Representatives in Congress so far as war matters are concerned.”145 Others, like Charles Sumner, made similar points later in the debate.146 But what is important is that, as Kleinerman shows, defenders of the presidential position pointed explicitly to Congress’s representativeness as a reason why Congress should not wield the power. Kleinerman thus points to Browning as a model of the Lincolnian approach to executive power: according to this view, “as a majoritarian branch Congress is likely to exercise war power in a way that pleases majorities and oppresses minorities rather than in a way connected to actual wartime necessities.”147 So, under this view, the very fact that Congress is more representative of the people is that which precisely makes Congress incompetent to act extraconstitutionally on their behalf. Vallandigham, by contrast, had an easier argument with respect to confiscation: because “legislative tyranny is no more tolerable than executive tyranny,” neither Congress nor the president possessed the power to violate the Constitution.148

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Presidential Representation from Washington to Lincoln As Ellis and Kirk argue, the Whigs were “modern” in that they anticipated political scientists’ critique of contemporary discussions of mandates.149 Like contemporary political scientists, Whigs argued that it was implausible that a majority on a certain policy could be discerned from an election. But, according to Ellis and Kirk, Whigs eventually lost on this question, as the election of 1864 was the first in which both sides conceded that the election settled a policy debate for the country. Or, as Ellis put it in his recent textbook on the presidency, because the Whigs could not articulate a coherent alternative to Jacksonian democracy, the question moved from whether the president works for the people to the way the president relates to the people.150 So Jackson eventually won and the Whigs eventually lost. This chapter provides a different account. By the time of Lincoln’s reelection, the only thing that was settled about presidential representation was that there still seemed to be a party for it and a party against it. Or, more specifically, the Democratic Party, as the party of Jefferson and Jackson, was more comfortable with the idea, at least as long it was practiced in a way that was compatible with states’ rights and a strict reading of the Constitution. Meanwhile, the Republican Party, as the party of Lincoln and heirs to the parties of Hamilton and Clay and Webster, could not embrace the celebration of public opinion as a source of authority and therefore were reluctant supporters of presidential claims to a popular mandate. It is true that Republicans had grown accustomed to party platforms being used as a way to settle the meaning of elections, but as the example of Lincoln shows, they did not go as far as Jackson in interpreting election results as a mandate for presidential action. This is not to say that Lincoln refused to use the powers of the presidency. On the contrary, he suspended habeas corpus and emancipated enslaved persons in the Confederacy. But Lincoln resisted the arguments of Jefferson and Jackson, refusing to ground his authority on popular appeals. Instead, Lincoln employed lawyerly arguments that stand out for their cautious line drawing and consistency, arguments that suggest Lincoln was attentive to the concerns about demagoguery and lawlessness that he spoke of in his 1838 Lyceum address. This address, about the perpetuation of political institutions, demonstrates a Whiggish concern with law’s relationship to the stability of the political order. Under this view, the people’s attachment to the political order requires respect for the law, not obedience to prevailing public opinion or the dictates of individual conscience. As president, Lincoln

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always framed his arguments about executive power around the Constitution, not the public’s support. As Kleinerman shows, this is why Lincoln resisted attempts by Republicans in Congress to liberate the enslaved. The problem, as he saw it, was that Congress, unlike the president, was too close to the people to be trusted with this power. Meanwhile, the heirs of Jefferson and Jackson continued to be the party of presidential representation and a strict construction of the Constitution. This meant that the Democratic Party was the party of a strong president presiding over a weak national government that respected the rights of the states. Around the turn of the century, this would change, and it would affect the argument for presidential representation.

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3 The Progressives and Presidential Representation

In 1937, a committee created by Franklin Delano Roosevelt and headed by political scientist Louis Brownlow proposed sweeping changes to the executive branch, changes that committee members believed were made necessary by the new demands of modern politics. Roosevelt had been elected twice, and he had campaigned on the premise that new conditions required new methods of government. Thus the country needed a New Deal arranged around a new principle, or at least a New Deal delivered by a newly empowered national government and executive branch. Whatever the case, with its sweeping changes, the New Deal required more of the president, and this meant that the presidency would have to be equipped to deal with modern political life. In the Brownlow Committee’s view, the “Presidency unites at least three important functions”: “leader of a party,” “head of the Nation in the ceremonial sense of the term,” and “Chief Executive and administrator.” As a result, the committee recommended that the president be given help. The committee recommended an expansion of the White House staff; an expansion of the managerial agencies of government; the extension of the merit system; an overhaul of the executive branch, with one hundred agencies being reorganized under a few large departments; and a revision of fiscal recordkeeping between Congress and the president. These recommendations supposed that something had changed in the country and that the presidency would have to reflect to that change. “There is but one grand purpose, namely, to make democracy work today in the National Government; that is, to make our Government an up-to-date, efficient, and effective instrument for carrying out the will of the Nation.” To become modern, the president and the government needed “thoroughly modern tools of management.”1 But more than that, the Brownlow Committee argued that this new president would be the legitimate organ of these new powers. This legitimacy grew out of something that already existed, namely, the president’s electoral

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position with constitutional structure. As they put it, “The President is indeed the one and only national officer representative of the entire Nation.”2 Over two decades earlier, the Progressive intellectual Herbert Croly published his 1914 book Progressive Democracy. Croly offered a new theory of government in the United States that included a new vision for executive power. In his view, the country was in need of efficiency and leadership, so the presidency needed to be reconstituted in a way that would organize the majority will around a coherent agenda. This meant that the executive would use public opinion rather than the party’s organizational machine as the foundation for power. This in turn assumed that the executive “will himself have in some measure created this majority,” a majority “under his banner.” But he will not be “ruler” of a permanent electoral coalition; rather he would be a “temporary popular leader.”3 That is, the executive would “become essentially a representative agency,” and more than simply carrying out the law, the executive would have to become “primarily a law-giver.”4 This new executive was necessary because history had demonstrated that the legislative branch was incapable of progressive reform. A big part of the problem was the two-party system. In Croly’s view, the parties had first come about for a legitimate purpose, that is, to democratize a political order that was not democratic. They had gone some way in doing that, but they had outlived their purpose and had now become an obstacle because they had been captured by special interests and, more fundamentally, because they exacerbated the localism that pervaded American politics. The decentralized nature of the party system stood in the way of national power, and thus stood in the way of effective government, effective government that was needed to bring about the next step in progressive democracy. Thus the country needed a new presidency, a presidency that could move beyond parties to directly lead the American people.5 Croly’s vision for the presidency nicely illustrates the hopes of the larger Progressive movement at the beginning of the twentieth century. For the first time, intellectuals offered a frontal assault on the Constitution, arguing that it was too concerned with limited government to meet the demands of modernity.6 The Constitution needed to be discarded or at least radically changed, and one key place to start was the presidency. At its core, the Progressive presidency would be representative, and it would have the power and resources to enact the majority will into meaningful policy that would get beyond politics.7

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By most accounts of American political history, there is a line connecting the plans of Croly and the proposals of the Brownlow Committee. Each was part and parcel of a larger change to the philosophic foundations of the presidency. This change was part of the transformation in the nation itself—as a leading scholar of the period puts it, “a shift from a decentralized republic to mass democracy” that “worshipped at the court of public opinion.”8 This transformation both required and came about because of a change in the presidency, encapsulated by the term, ubiquitous in textbooks today, “the modern presidency.” According to the common story, this modern presidency was the culmination of several decades of recommendations to transform the presidency, recommendations that had their origins in the writings of Progressive intellectuals. So, by this story, the modern presidency had arrived by the time of FDR’s second term. It fundamentally changed the presidency, and with it the American constitutional order. While much of this story is accurate, we have already seen that there is a problem with the claim of newness that plays a big part in this narrative. The party of Jefferson and Jackson had longed claimed that the president was uniquely representative, so it would be inaccurate to credit or blame the Progressives with this intellectual innovation. To be sure, it could be said in defense of the common narrative that the main part of the novelty was that the Progressives included this claim with a frontal assault on the Constitution. Because the party of Jefferson and Jackson was also the party of a strict construction of the Constitution, their claim about presidential representation was meant not to transform the Constitution but rather to preserve it against transformation. Because the Progressives were not interested in constitutional maintenance, but rather in transformation, their use of the representative presidency was different from that of their nineteenth-century predecessors. But even this restatement of the common story of American political history leaves two questions unanswered. The first is whether the Progressives, unlike the party of Jefferson and Jackson, were able not only to win elections but also to win this argument. That is, did the Progressives convince others that the presidency was representative, or, more specifically, did they convince people outside the party of Jefferson and Jackson of this claim? The second question has to do with the extent to which Progressives saw the representative presidency as an innovation within the constitutional structure. That is, did they have a coherent notion of presidential representation that would force them to reject the Constitution altogether, or did

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some of them believe that the Constitution itself created a president who represents the people? Herbert Croly It is important to note that Hebert Croly’s vision for the executive grew out of his complaints with the American polity more broadly. It is true that by the time Croly was writing, there was already a movement advocating constitutional innovation. This reformist call for direct democracy grew out of the antimonopoly sentiments of the 1880s, but Switzerland became the model for change when, in 1886, the British jurist A. V. Dicey published an article in the Nation, offering data on the Swiss use of the initiative and referendum. As a result, American reformers traveled to Switzerland to see what could be learned from the Swiss. Especially important were James W. Sullivan and William McCracken, both of whom were supporters of Henry George’s redistributionist reform proposals. Sullivan visited Switzerland in 1888, then published an article in 1898 in the New York Times, and eventually published the 1892 book Direct Legislation by the Citizenship through the Initiative and Referendum, which sold a staggering fifteen thousand copies. McCracken was an American who lived in Switzerland and wrote a series of articles extolling the Swiss model in the 1890s. With the help of key endorsements from labor, this reform movement was able to grow from a small circle of intellectuals and achieve demonstrable political successes. In 1896, William Jennings Bryan endorsed the initiative and recall, and in 1898, South Dakota became the first state to encode them into law. The movement for direct democracy grew out of left-leaning populists and was then embraced by Progressives.9 In his 1909 Promise of American Life, Croly went further by arguing that the nation had to take another step in the development to fulfill its democracy, and in order to do this it must actually become a nation. “The people have collectively become more of a democracy in proportion as they have become more of a nation.”10 The obstacles to this true nationhood were limited government and federalism. In a chapter that would later inform Franklin D. Roosevelt’s 1932 Commonwealth Club Address, Croly traced the problem to the victory of Jefferson over Hamilton. Although both Jefferson and Hamilton “perverted the national idea,” “Hamilton’s political philosophy was much more clearly thought out than that of Jefferson,” because Hamilton had realized that liberty was not to be protected by declaring rights but rather “only by an energetic and clear-sighted central government.”11 The victory

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of Jefferson over Hamilton was good for the doctrine of equality, but it was bad for nationhood and therefore democracy because it celebrated individualism over national achievement. “The responsibilities of the government were negative; those of the individual were positive.”12 For Croly, Jefferson’s political victory was in fact an intellectual victory, and this victory in turn set the course for the private organization of industrial power, encouraged by “the failure of the Federal government to protect the public interest in a matter over which the state governments had no effective control.”13 It was clear that the problem was not only the Jeffersonian turn but also the Constitution itself. Anticipating Charles Beard’s 1913 book An Economic Interpretation of the Constitution of the United States, Croly argued that “the interest that lay behind” the Federalists was that of “well-to-do citizens” who most of all wanted to create a government that would protect their own property. Thus the Constitution was designed to be a negative document about security rather than a positive one about growth. It “was the expression not only of a political faith, but also of political fears.”14 As a result, the national growth had remained stunted by limited government and especially by the distribution of power to the states and localities. In particular, Americans had “not readjusted their political ideas to the teaching of their political and economic experience.”15 Croly recommended as a first step a constitutional amendment that would do away with the “distinction between domestic and inter-state commerce.”16 He also recommended a reorganization of separation of powers, at least at the state level, that would be aimed at empowering the executive branch. In particular, he recommended that the governor have the power to introduce legislation, and in the event of defeat in the legislative chamber, “it would be his right to appeal to the people.”17 The plebiscite would go hand in hand with a transformation of the Commerce Clause. Croly added more detail in his 1914 book Progressive Democracy. He endorsed a plan for the Oregon Constitution, providing an unusually rich account of his thinking on institutional design. The governor and the members of the single-chamber legislature would be elected on the same day to a four-year term. All would be subject to recall. The governor would have “complete executive power” and would have the power to propose legislation, vote, and participate in legislative debates, but he would not have the veto. Only the governor would be able to propose appropriation bills, and legislators would be limited to proposing reductions but not increases. Thus the governor would be held accountable to public opinion for any “extravagances” in the state’s budget.

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With respect to representation, the governor and legislature would have different constituencies. The legislative chamber would have sixty seats. There would be proportional representation across legislative districts, with the least populous district having two representatives and the most populous having eighteen. But voters across the state would not be bound to cast their vote within their district, and proportional representation would be the rule. The representative who received one-sixtieth of the total vote would be guaranteed a seat. The idea was that minorities—such as labor unions—could find representation by crossing district lines: “If the labor unionists could command one-twelfth of the votes, they could elect one-twelfth of the assemblymen.” Croly saw this proportional scheme not as providing representation to underrepresented classes or groups but rather as representing “phases of public opinion.”18 The legislature would thus represent the “minor” phases of public opinion, while the executive would represent the major or “dominant phase of popular opinion,” the majority.19 There would be balance between divided legislators representing differing phases of opinion and the executive representing a more “general” constituency.20 Croly was well aware that this was would require a radical departure from traditional American constitutional practice, but he was confident that public opinion had moved in his direction. In particular, “a remarkable change has taken place in the position that the executive occupies in the public mind.” His evidence was that wherever progressive reform had already been successful, the focus had turned to the governor of the state. These executives, though often “accused with usurpation of power,” have demonstrated after successful elections that they had the better sense of where public opinion was heading. By contrast, governors who rejected the new reforms and “remain scrupulously loyal to the old separation of powers are considered weak and poor-spirited.” He conceded that the Oregon plan entailed the “aggrandizement of executive power” at the cost of separation of powers, but he concluded it was an aggrandizement required by modern conditions and desired by the people themselves.21 Croly’s vision of the executive rested on two interrelated parts. The first was that the executive would have to serve as the unifying agent of public opinion. This was necessary because of the problems endemic to legislative power: “All American legislative bodies, Congress included, have proved wholly incapable of saving themselves from the enervating and disintegrating effect of excessive indulgence in special legislation.”22 Because

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legislatures were hopelessly responsive to the narrow demands of specials interests, and because ordinary voters could not themselves make themselves coherent enough to prevail over special interests, democracy would need some external force to public opinion to bring it into being. This means that leadership is required for public opinion to take shape in the first place. Indeed, this means not only that the presidency would be representative but also that the presidency would be constitutive. It would be the “vehicle through which the prevailing national will gets itself expressed and the dominant public opinion comes to self-consciousness.”23 Second, Croly believed that his progressive democracy would require a separation between politics and administration. If the executive would become primarily a lawgiver, the executive would have to rely on others to administer the law. Specifically, he would need “the assistance of a permanent body of officials” to carry out the law. These officials would be “experts” whose tenure would carry over and across the terms of the executive. While the executive and legislative would enjoy a more “precarious” tenure of office, because they would be tasked primarily with “arousing, formulating, and focusing public opinion,” the “body of expert administrative officials” would have a different task that could not fit the traditional tripartite division of authority under American constitutionalism. This was because this body of experts would exercise a power that would be “in part executive, in part legislative, and in part judicial.” But it would exercise these powers apart from the departments normally associated with them: “It legislates, but without being or dispensing with a legislature. It administers, but without being or dispensing with an executive. It adjudicates, but without any power of attaching final construction to the law.”24 Croly acknowledged the concern that he was advocating a fourth branch of government, but he believed that this body of experts could be separate from politics and yet remain sufficiently democratic. One assurance was that bureaucratic tyranny was more of a European problem. Unlike their European counterparts, American officials would not exercise a coercive power. Rather, administrative “aggrandizement will be kept within certain limits, determined by the more fundamental necessity of keeping public opinion alert and acquiescent.” This means that these administrative experts would, like the executive, have some connection to public opinion as their role would not be “disciplinary” but rather closer to “enlightenment and upbuilding.” Croly’s expert would be “more of a counselor and instructor than a probation officer.”25

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Another safeguard would be the executive’s power to remove. Croly assured that “most progressives” want the executive to have the power to appoint and remove “upper grades of the civil service in much the same way that the owner of a private business would have over his employees.” But this was not the same understanding undergirding Jacksonian defenses of the removal power throughout the nineteenth century. Rather, Croly explained that progressives wanted to “liberate the power of appointment from partisan abuses which have resulted from the custom of confirmation by the senate.” More broadly, the animating principle would be “a relatively prolonged official tenure” for a “body of expert administrative officials.” This body would “not be removed with every alteration in the executive,” but should be “continued in office” to carry out the policies of each administration.26 So it was “essential” that the executive have the power to remove in order to prevent abuse, but it was also important that the executive generally “refrain from exercising” that power in order to get “loyal and efficient service.”27 Woodrow Wilson In 1908, Woodrow Wilson was in his seventh year as president of Princeton University, and he published his second book, Constitutional Government in the United States. At first glance, it was nothing less than a direct assault on the central assumptions held by the men who wrote and ratified the Constitution. As Wilson put it, the Constitution was “constructed upon the Whig theory of political dynamics.” Even though they were not aware of it themselves, the Framers of the Constitution aimed to “balance” the three departments “off against one another by a series of checks and counterpoises.” In this, they had relied on a political science that was in fact an “unconscious copy of the Newtonian theory of the universe.” Their system of balances and counterbalances was simply an effort to build a system that “Newton might readily have recognized as suggestive of the mechanism of the heavens.”28 The problem with this unconscious emulation of Newton is that the Newtonian model was not apt for political life. Because government is “a living thing,” and “not a machine,” it should be modeled on organic life rather than on the universe. Thus the Americans built a Whig constitution because they had been influenced by the wrong scientist. Instead of Newton, Darwin was the better model. Instead of balance and counterbalance, living organisms instead rely on the “intimate, almost instinctive, coordination of the organs of life and action.” So too with governments: in place of dividing

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and separating the functions of governmental authority, it made more sense to encourage “cooperation” and “a community of purpose.” Because governments were more like living things than they were like inanimate objects, the Whig constitution was foreign to political life.29 Wilson’s attack on separation of powers required that he offer a new account of the presidency. In fact, it was the presidency itself that, for Wilson, demonstrated that inadequacy of the Whig theory of government. Whereas Whig theory required a president who was merely a “legal executive,” whose power was only negative, history demonstrated that some presidents were able to not only lead the nation but also transform it. Thus the history of the United States can be read in shorthand as a history of the men who have been president. Although some were better leaders than others, and although some were temperamentally or philosophically more inclined to lead than others, the overarching trajectory was one toward presidential leadership. This is because in spite of the Whig preoccupation with Newtonian balance, Americans have “grown more and more inclined from generation to generation to look to the President as the unifying force in our complex system.”30 Wilson did not, however, argue that all must be made new. In fact, Wilson went to some effort to blunt the impact of his argument about the political development of the presidency over time. He did this by at once saying the Constitution was Newtonian and that it “contains no theories.” That is, even though the men who wrote the Constitution operated under a particular scientific horizon, they were also “practical statesmen” who had the good sense to create a “workable government.”31 So it turns out that the crucial difference need not be between a Newtonian and a Darwinian conception of life, or even between a mechanical and a biological understanding of politics. The real difference could in fact reside in the distinction between formal or theoretical provisions and practical ones. It is true, as Benjamin Kleinerman notes, that Wilson also seemed to argue that Alexander Hamilton was the outlier who, unlike the Whigs, wanted to make government “cooperative” and “harmonious” instead of checked and counterbalanced.32 By this reading, Wilson seems to fault the men of 1787 for following their Whig inclinations instead of the good sense of Hamilton, but the deeper point is that Wilson perceived in the Constitution itself a preference for the practical over the theoretical. According to Wilson, this Constitution imagines itself as a “vehicle of life” more than “a mere lawyer’s document.” For example, rather than providing members of the Electoral College with the opportunity to “meet as one body,” they instead required they meet “in their

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respective states.” This requirement made it virtually certain that presidential electors would not “exercise a real choice” and would instead emerge as a part of a partisan process. Thus these practical men, the Framers of the Constitution of 1787, “forced” the role of party leader upon the president.33 In addition to presuming the president would lead a partisan coalition, Wilson believed the inner design of the Constitution promotes the president as “the political leader of the nation.” As Wilson put it, the Constitution favors the president by forcing him into an “extraordinary isolation” that is in fact a position of privilege: “In him are centered both opinion and party.” Because “the nation as a whole has chosen him,” and because it chooses no other, “his is the only national voice in affairs.” Thus by necessity the president cannot represent a part or a constituency; instead, he represents the “whole people.” As a result, the president is necessarily the agent of change, or more specifically, the agent of practical development. If the Constitution is a vehicle of life, the president must be its driver.34 While it is true that some individual presidents may in fact subscribe to the Whig theory, the deeper truth is that the Constitution itself invites other presidents to transcend that theory and find new power in public opinion. Wilson’s sections on the presidency in Constitutional Government are thus more puzzling than most of the scholarship has recognized. Pointing to Wilson’s candid recommendation that the Newtonian Constitution of 1787 be replaced by a Darwinian one more fitting for the twentieth century, scholars emphasize Wilson’s “transformation” of the presidency. Wilson’s call for popular leadership on the part of the president is thus cast an alternative to the presidency of 1787, a presidency that would execute the law by acting separate from, and sometimes even against, the temporary movements in public opinion.35 Thus the modern, democratic presidency is the central strategy in the assault in the Constitution. But what is less often appreciated is that Wilson also provides a reading of the Constitution that leads to the same ends. Because presidential selection was not in fact turned over to presidential electors, and because the president would be the single officer to be chosen by a national constituency, the Constitution itself invited presidential leadership. As that national constituency was broadened by several generations of expansions of suffrage, it was logical that the president would come to be regarded by all parties as the representative of the whole people.36 It is perhaps for this reason that Wilson cast his own election as a continuation of rather than a break from the past in his First Inaugural. He began that address in the tradition of Jefferson, stating in the first paragraph that

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the speech’s objective was to explain the significance of the transfer of power from one party to another: “What does the change mean? That is the question that is uppermost in our minds today. That is the question I am going to try to answer, in order, if I may, to interpret the occasion.” Like Jefferson, Wilson went on to connect his victory to specific policy implications including the tariff, a banking and currency system, the relation of industry to labor and to natural resources, agriculture, and internal improvements. But rather than emphasizing his election as mandating a radical change, Wilson instead spoke the language of restoration. He used the word three times, explaining that the task before the country was to “restore, not to destroy.” Although he did not mention the Constitution, he praised the “great system of government, which has stood through a long age as in many respects a model for those who seek to set liberty upon foundations that will endure against fortuitous change, against storm and accident.” Moreover, he reminded listeners that among “the things we ought to do” and “not to leave others undone” was the “old-fashioned, never-to-be-neglected, fundamental safeguarding of property and of individual right.” Thus his economic reforms would not be left to “the cool process of mere science,” and could not be treated “as if we had a clean sheet of paper to write upon,” but rather would “deal with our economic system as it is and as it may be modified.”37 This conservative language matched up with campaign language he used to contrast himself with Roosevelt, who was not as committed to the country’s traditional commitment to limited government as was Wilson. For example, on September 9, Wilson argued that progress came from resistance to authority, not from government power: “The history of liberty is the history of the limitation of governmental power, not the increase of it.”38 When given the choice about whether to emphasize continuity or discontinuity, Wilson chose the former. This confusion at the heart of Wilson’s analysis can actually be found in the earlier work of Wilson’s friend Henry Jones Ford, who was perhaps the first political scientist to examine the representative nature of the presidency. Ford taught at Johns Hopkins and Penn and was then recruited to Princeton by Wilson. In his 1898 book, The Rise and Growth of American Politics: A Sketch of Constitutional Development, Ford devoted a whole chapter to “The Presidency as a Representative Institution.” According to Ford, the Whigs were the last national party to try to govern under the assumption that the people were represented by Congress rather than by the president. Ford pointed to William Henry Harrison’s inaugural address in 1841, where Harrison

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argued that the president’s legislative power was no greater than that of ordinary citizen. Even the power to recommend measures to Congress was “common with every other citizen.” This is because, according to Harrison, the Constitution supposes that no president, who must reside at the nation’s capital city, could know the “wants and wishes” of the people more than “their own immediate representatives.” Ford pointed out that Harrison’s vision of the presidency was meant to counter that of Andrew Jackson, who instead argued that the president was more responsible to the people than the Senate was. According to Ford, Jackson won this debate from the perspective of historical development: “When Harrison died, his doctrine died with him.”39 In a chapter called “The Transformation of the Constitution,” Ford celebrated this development for its connection to the furtherance of American democracy. Unlike in England, where royal prerogative was made “subservient to the national will, through the agency of Parliament,” in America the “democratic movement” “seized prerogative by the immediate act of the people.” Thus, in America, “democratic progress found in the President its most convenient instrument.” Once the Electoral College was pushed aside by a de facto popular vote, the President “became the elect of the people, the organ of the will of the nation.” While it is true that the president still “lacks the proper organs” to perfect its new nature, the fact of development is that “the presidential office has been transformed into a representative institution.”40 Moreover, this transformation had given the office a “much firmer foundation” than it had under the Constitution of 1787 and had “invigorated all its functions.”41 More fundamentally, Ford seems to have lacked the disdain for the constitutional presidency that is most often ascribed to the Progressives.42 In his analysis of Grover Cleveland’s administration, Ford praised Cleveland for his efforts to resist the Senate’s attempts to “invade executive authority and seize the appointing power, instead of seeking to enforce executive responsibility.” As Cleveland put it, it the president was responsible to the people, not to the Senate. Ford agreed, adding that making executive appointments more public would bring the country closer to a “sound constitutional system” by grounding executive power on responsibility. This is because the “phrase ‘the people’ is an abstraction which has no force save as it when receives concrete form in appropriate institutions.”43 But more than believing it made good constitutional design in the service of good democratic theory, Ford also believed that Cleveland’s position was

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right on the Constitution: “The Federalist—that matchless collection of constitutional essays written by Hamilton, Madison, and Jay—laid down the doctrine that ‘against the enterprising ambition’ of the legislative department ‘the people ought to indulge all their jealousy and exhaust all their precautions.’”44 It is true that Ford also believed that the Constitution had not wholly succeeded when judged by its own objective, in no small part because the party of Jefferson had used the doctrine of strict construction to hobble it, but the more significant point is that Ford saw in Cleveland and in the “makers of the Constitution themselves” the sound principles of constitutional design.45 His biography of Alexander Hamilton concluded with the sentence that Hamilton was “among the greatest statesman the world has produced.”46 By 1909, Ford’s view seems to have shifted to one of pessimism with respect to separation of powers. Noting that “Darwinism is in the air” and that historical evidence suggested that monarchies would outlast republics, Ford argued in a series of lectures at Columbia that presidential representation would provide the “agency of national sovereignty” that republics had traditionally lacked. Fundamentally, people would “much rather indulge the passions and appetites of one ruler than of many rulers.” In the United States, Congress had demonstrated that it could not produce economic policy that was good for the nation, and more deeply, it had demonstrated that it would not and could not fix this problem because “Congress lacks the power of self-amendment.” His proposal was to empower the president to “coordinate income and expenditure,” that is, to control the purse as well as the sword. Again, Ford did not argue that this would require a complete overhaul of the American system. Rather, he dated the potential constitutional transformation of the American system to Polk’s presidency: “We may even fix the exact time when the movement in this direction obtained constitutional definition. It was promulgated by President Polk in his message of December 5, 1848, in which he pointed out that ‘the President represents in the executive department the whole people of the United States, as each member of the legislative department represents portions of them.’”47 Once the Whigs were pushed aside, the path toward a true presidency, one actually anticipated by the Constitution itself, was opened. Given Ford’s scholarly interest in Democratic presidents, it is not surprising that Ford wrote a book on his friend Wilson, connecting Wilson’s scholarship on the presidency to Wilson’s practice of presidential power. What is interesting is not that Ford noted Wilson’s reliance on the

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representative nature of the presidency, but rather that Ford now treated this as a constraint on Wilson’s power rather than a source for it. “Woodrow Wilson regards his office as one of such power and responsibility that inaction on public issues would be culpable, but he shows himself to be constantly mindful of the fact that the power is not an individual prerogative but is derived from the representative value of the office.” As Ford saw it, Wilson recognized that “legislation is the special province of Congress,” so the president’s initiative was limited to proposing legislation “in the exercise of his recognized function as the party leader.” To be sure, if Congress was enfeebled by a “distraction of sentiment or vacillation of purpose,” Wilson was “quite willing and able to appeal to public opinion.” But Ford’s point was that Wilson’s leadership was cautious rather than transformative. Like an “elephant crossing a bridge,” Wilson moved “forcefully” but “cautiously.”48 Still, Ford concluded with the prediction that Wilson would change the presidency by forcing future presidents to work more directly with Congress. This was a good development for Ford, because in his view the “great defect of the Constitution is the opportunity it affords for avoidance of responsibility.” Specifically, separation of powers allows the president to pass the responsibility for legislation to Congress, while at the same time allowing Congress to similarly pass responsibility to the president. The solution was “closer relations” between Congress and the president, which meant that the president had a “duty to take an active part in shaping the details of legislation, in promoting action, and in enforcing party discipline.” By this standard, Ford gave Wilson high marks. He acted with the utmost “constitutional propriety” and left the office “permanently affected.” These two things, propriety and change, were compatible for Ford because Ford saw the Constitution as a work in progress. Having not yet been “fully democratized,” the Constitution had “yet to attain its final form.”49 It does not appear that Wilson shared Ford’s notions about the relationship between public opinion and power. Ford’s book included an appendix, consisting of Wilson’s letter to A. Mitchell Palmer, who was a representative from Pennsylvania who had asked Wilson his opinion of amending the Constitution to create a two-term limit on the presidency.50 Wilson responded that he was not in favor of a term limit. Wilson’s treatment of Palmer’s question on the term limit grew out of a larger understanding of the relationship between presidential power and presidential accountability, and this understanding pointed in a somewhat different direction than Ford’s

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did. In language that would anticipate commentary at midcentury, Wilson recited the various roles that were expected of the president: He is expected by the nation to be the leader of his party as well as the chief executive officer of the Government, and the country will take no excuses from him. He must play the part and play it successfully, or lose the country’s confidence. He must be Prime Minister, as much concerned with the guidance of legislation as with the just and orderly execution of law; and he is the spokesman of the nation in everything, even the most momentous and delicate dealings of the Government with foreign nations.

The complexity and importance of these roles meant, for Wilson, that the president needed to be more accountable to the people, not less. “Why in such circumstances should he be responsible to no one for four long years?” Wilson suggested that the president needed to be held to account by way of an actual election, perhaps every two years like members of the House. But perhaps more important was nonelectoral responsibility: “Sooner or later, it would seem, he must be answerable to opinion in a somewhat more informal and intimate fashion.” This would “inevitably” be “worked out,” but it might include some accountability mechanism to the House, the cabinet, or the people. More immediately, Wilson believed that the direct primary would enhance this responsibility: “There ought to never be another nominating convention,” because “the nominations should be made directly by the people at the polls.”51 The key is that Wilson saw reelection not merely as a moment of democratic accountability but also as an opportunity to accumulate power. From his experience under a term limit in New Jersey, the result of a term limit was that opponents to the governor “cynically” and “with complacence” simply “waited for the inevitable end of the term to take their chances with his successor.”52 With this evidence, Wilson concluded that the people would “more likely be cheated than served by further limitations of the President’s eligibility.” Because a president gained power by way of election, a president with a term limit would see “his fighting power in their behalf” “immensely weakened.” For Wilson, it came down to the very simple principle that “no one will fear a President except those whom he make fear the elections.”53 The prospect of reelection would make presidents powerful if they could figure out how to win elections.

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Theodore Roosevelt Theodore Roosevelt’s praise of a strong executive is well known. There is no better statement of Roosevelt’s vision of the executive than the famous passage from his Autobiography. There, he wrote that the key to “getting the right spirit in my Administration” was embracing an expansive notion of his own authority. Specifically, he credited his “insistence upon the theory that the executive was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional powers.” In these few words, Roosevelt reversed the principle of constitutional government, proclaimed in Federalist No. 84 and going all the way back to John Locke, that all powers not delegated are reserved. To be sure, there had always been some debate about whether this delegation could be implicit or had to be explicit. Indeed, the exchange between the Anti-Federalist Brutus and the authors of The Federalist turned on this very question, and later this debate continued to be the central question of the nineteenth century, second, perhaps, only to the debate over slavery. Roosevelt, however, leapt over this long-standing constitutional standoff and reversed the logic. Instead of finding implicit authority in delegated power, the presidency would instead have every power that was not forbidden. This is because “every executive officer” was a “steward of the people bound actively and affirmatively to do all he could for the people.” By starting from the premise that he could do all that was not forbidden, Roosevelt believed he had acted on behalf of the public good and had “greatly broaden[ed] the use of executive power.” Even if the legal theory of the Constitution implies a limited role for the presidency, the fact remains that the president is regarded as the “leader both of his party and of the nation.”54 It is worth noting that Roosevelt’s argument here resembled one published in 1912 in the Outlook by a member of Roosevelt’s inner circle, James R. Garfield. Garfield was the son of the twentieth president, and he had served as secretary of the interior during Roosevelt’s administration. According to the younger Garfield, Taft had erred by allying himself “with the reactionary element of his party,” men who opposed conservation, tariff reform, and corporate regulation. It was this backward turn by Taft that explained the Republican Party’s loss of Congress in 1910. With respect to the presidency, and in language that anticipated Roosevelt’s Autobiography, Garfield argued that the difference between Taft and Roosevelt came down to “two theories of executive action.” One theory holds that the president “will do what he is required by law to do, no more.” The other holds that the president “will do

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whatever may be necessary for the public welfare unless he finds some prohibition on his action.” The first theory was preferred by “the big interests,” while the second was “that of the people and of the Constitution” and for “promoting the general welfare.” It is worth pausing to note that Garfield saw this second view not as a challenge to the Constitution but rather as a fulfillment of it. Again, this move was made possible by a prior claim about presidential representation. Because “the President is the direct representative of all the people,” the president must be “alert to the needs of the public and ever ready to champion public causes.”55 It is also important to notice that Roosevelt’s understanding of executive power had shifted over time. In a 1900 essay, written only a little over a year before he would become president, Roosevelt criticized reformers as “demagogic agitators” who, like William Jennings Bryan, had pitted the public against “honest corporations.” He urged a middle course between violating the Eighth Commandment through “corruption” and the Ninth through “demagogy.”56 Six years earlier, in an essay for the Atlantic Monthly advising young men what do upon graduating from college, Roosevelt cautioned against confidence in abstract and bookish learning and recommended practical political experience “face to face with foes of every rank.” He singled out Plato’s Republic as especially useless, but he also mocked the more recent fad of British-style “responsible” parliamentary government. He dismissed parliamentary government as “entirely incompatible with our own governmental institutions,” and he dismissed “the people who wrote about it” as having “wasted their time.” Instead, he recommended The Federalist “as the greatest book of the kind that has ever been written” and the “ideal to be set before the student of politics and the practical politician.” It was great because its authors “knew by actual work and association what practical politics meant.”57 A more illustrative example of Roosevelt’s change of heart is the treatment of Andrew Jackson in his 1886 biography of Thomas Hart Benton. He ridiculed Benton for his position during the controversy over the election of 1824. In the debate between supporters of John Quincy Adams and supporters of Jackson, Benton saw a struggle between the “theory of the Constitution and the democratic principle,” and argued that the democratic principle had to win. Jackson won a plurality of the Electoral College vote, so therefore the House should make Jackson president. Roosevelt wrote that Benton’s logic was “ridiculous,” because the democratic principle had “nothing more to do with the matter than the law of gravitation.” The Constitution did not

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stipulate that the House was bound to select the leading vote getter, and so therefore the House was free to select Adams.58 More than that, Roosevelt criticized Benton for failing to see the vices of Jackson voters. In 1828, they had removed the ruling coalition from office, a coalition filled with men “who had served the country and all its citizens well.” They did this because they saw Jackson as “one of themselves” and his victory as the “complete overthrow of the classes in power,” and in order to justify their revolution they made false charges of “aristocratic corruption.”59 Roosevelt belittled Jackson’s success as growing out of the support of “the poorest and least educated classes of voters” and the self-interest of local politicians who benefited from the spoils system. Opposition to the Bank of the United States stemmed in part from “ignorant prejudice” and was an “absurdity” because “the matter of constitutionality had already been decided by the Supreme Court.”60 Roosevelt faulted Benton for believing in the “moral perfection of the average voter” and for assuming that the “will of the majority [was] always right.”61 It is clear, then, that Roosevelt underwent at least one change of conviction during his presidency. In Jean Yarbrough’s estimation, this change came after Roosevelt’s reelection in 1904. Before then, he believed that “mob violence, spurred by anarchists, socialists, and Bryanites” was the likely danger to the republic. But in his second term, he “concluded that the plutocrats now posed the greater threat.”62 In truth, these criticisms of Jackson and demagoguery have to be balanced by others from Roosevelt that suggest that Roosevelt came to his later understanding of the presidency much sooner. In his 1884 biography of Gouverneur Morris, Roosevelt praised his fellow New Yorker for giving America its strong presidency. “His views as to the power and functions of the national executive were in the main sound, and he succeeded in having most of them embodied in the Constitution.”63 In particular, Morris “was wonderfully clear-sighted and cool-headed” because “he did not let the memory of the wrong-doing of the royal governors blind him.” Unlike “the demagogues of today,” Morris perceived that the power of the royal governors was not the problem, but rather it was “in the source from which that power came.”64 More than that, the young Roosevelt used common Jacksonian language to praise Morris’s insistence on giving the president the power to appoint: “He inclined to regard the President in the light of a tribune chosen by the people to watch over the legislature; and giving him the appointing power, he believed, would force him to make good use of it, owing to his sense of responsibility to the people at large, who would be directly affected by its

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exercise, and who could and would hold him accountable for its abuse.”65 So Morris was to be praised not only because he had led the charge to create a strong governor in New York and then a strong presidency in the United States but also because he saw better than his contemporaries the truth that the executive must be a tribune for the people. It was this truth that Morris’s party failed to learn, according to Roosevelt: “Hamilton and the Federalists fell from power because they could not learn the one great truth taught by Jefferson,—that in America a statesman should trust the people, and should endeavor to secure to each man all possible individual liberty, confident that he will use it aright.”66 It seems, then, that the young Roosevelt was not entirely opposed to “the lesson taught by Jefferson” and that the presidency created by Morris would be one way for some future president to instantiate Jefferson’s principle. Even if the potential shift during Roosevelt’s presidency is complicated by these earlier writings, it is true that scholars have perceived a second shift. This one came in 1912, when Roosevelt had to position himself against Taft for the Republican nomination and then, more importantly, against Robert La Follette to secure the Progressive nomination for president. While he was president, Roosevelt’s appeal to public opinion had arguably been qualified by his dislike for radical solutions that he associated with William Jennings Bryan. In 1912, however, Roosevelt had to worry about his reformist flank. So in a speech before the Ohio Constitutional Convention at Columbus, Roosevelt endorsed the direct primary, the initiative, the referendum, the direct election of senators, and the judicial recall. The judicial recall was his biggest move.67 Roosevelt’s endorsement occurred in the middle of a larger debate within the Republican Party about the judicial recall and about direct democracy more generally. In 1911, Taft vetoed enabling legislation for admitting Arizona and New Mexico as states, writing that it “seems to me so pernicious in its effect, so destructive of independence in the judiciary, so likely to subject the rights of individuals to the possible tyranny of a temporary majority.”68 In his speech at Columbus, Roosevelt explained that he believed “in pure democracy” and was “emphatically a believer in constitutionalism.” The way he reconciled this was interpreting “government of checks and balances” as operating “among the several different kinds of representatives of the people.” This means not only that the people retain their power but also that all three departments— even the executive and judicial—are representatives of the people. But to bring this about, the constitutional framework would have to be revised

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to provide more direct democracy and less mediation by representatives. Roosevelt confessed that he had not always been for judicial recall, but he said it should be available as “last resort” as a matter of “expediency” and “common sense” and would depend on local conditions. These conditions would depend on whether judges achieved the “desired result.”69 According to Sidney M. Milkis, the Columbus speech established Roosevelt rather than La Follette as “the radical alternative to the staid politics of Taft.”70 Roosevelt’s turn was likely inspired by the intellectual cofounder of the New Republic, Herbert Croly. Croly’s 1909 book Promise of American Life offered some of the intellectual content for Roosevelt’s more radical turn. Roosevelt acquired copies from friends in April 1910 and likely saw himself in its pages, for according to Jean Yarbrough, it was a “masterpiece of flattery” of the former president.71 Another reform had immediate impact in the 1912 election. This was the direct primary, which allowed party members rather than party leadership to select the party’s nominees. At Ohio, Roosevelt explained that the primary was necessary as an end run around the convention system, which he said was “often used by adroit politicians as a method of thwarting the popular will.”72 Immediately after Roosevelt’s call, several states changed their laws to institute primaries. After a narrow loss in Massachusetts and a narrow win in Maryland, Roosevelt trounced Taft in the primaries. The critical blow was defeating Taft in Ohio, Taft’s home state. Across all the primaries, Roosevelt garnered 1,164,765 votes to Taft’s 768,202. Thanks to these victories, Roosevelt almost won the nomination. He entered the convention with more than twice the number of delegates Taft had, but Taft controlled the convention leadership. The party saw to it that the contested delegations, many from the South, were seated in Taft’s favor.73 Even if Roosevelt did come to embrace Croly’s wholesale rejection of constitutional design, it is not the case that this brought him closer to Wilson. As Milkis has shown, the architect of Wilson’s New Freedom was not Croly but rather Louis Brandeis, and both Brandeis and Wilson were willing to accommodate more traditional features of limited government, especially the division of power between state and national authority.74 Or, as Lewis Gould put it, Wilson’s party “still believed that Jeffersonian precepts regarding small, limited, and inexpensive government were valid,” and “Wilson did not wish to go as far in the direction of the New Nationalism” or in “the activism Roosevelt embraced.”75 What this traditionalism within Wilson’s party reveals is that the question

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of federalism endured as a crosscutting cleavage among those who might have otherwise agreed about the presidency. Thanks in part to the efforts of those like Croly to dismantle the two parties as a way to dismantle local rule, the question of political parties had become entangled with the question of federalism. This meant that even among Progressives, it was possible to agree on presidential representation and disagree on whether state and local government was good for democracy. Or, more accurately, because it was possible to disagree on the question of local government, it was impossible to agree on presidential representation. But this was not a new development. Going back to the state constitutions, and then continuing through the Convention of 1787 and then the ratification of the Twelfth Amendment in 1804, the question of representation in the executive branch was so difficult because it combined the two principles, separation of powers and federalism, and pitted them against each other. While claims of presidential representation potentially strike at the powers of Congress by claiming the president has a constituency that can be represented, they also raise questions about the status of the states by claiming that that constituency is the “whole people” that deserves priority over and against the individual states. In addition to the enduring question concerning the status of the states in the union, the lack of consensus among Progressive intellectuals had another source. Instead of reading the constitutional presidency as a relic that had to be abandoned, Wilson and Ford saw the changes in the presidency as growing out of constitutional design, and thus, like their Jeffersonian and Jacksonian predecessors, they found in the Constitution itself the logic and justification for the claim the president is the best representative of the popular will. Croly and to some extent the late Roosevelt believed instead that the Constitution stood in the way of both true democracy and true nationhood. Whereas Wilson saw presidential representation as part of a necessary restoration of the Constitution, Croly saw it as a essential means in getting rid of the Constitution and creating a new and improved United States. The Republican Response In addition to the problem of division among Progressives, the common story about the emergence of presidential representation is flawed in its failure to ask whether the Progressives actually succeeded in convincing their opponents of their vision for the presidency. Given that there has been

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recent scholarship attempting to recover constitutional conservatism in the early twentieth century and disentangle it from defenses of big business and economic inequality, it is well past time to revisit this part of American political development.76 Roosevelt’s successor, William Howard Taft, famously rejected Roosevelt’s understanding of presidential power. In his 1916 book Our Chief Magistrate and His Powers, Taft argued that the president’s authority had to be “fairly and reasonably traced” to some specific delegation of power. This means that that burden is on the president, not on the limitation of power. More fundamentally, “there is no undefined residuum of power which he can exercise because it seems to be in the public interest.” Even though the Taft conceded that the language of Article II was “general,” he believed that presidential action must be “justified and vindicated by affirmative constitutional or statutory language, or it does not exist.” The “mainspring” of Roosevelt’s view is that it holds that “the Executive is charged with responsibility for the welfare of all the people in a general way, that he is to play the part of a Universal Providence and to set all things right.” The problem, for Taft, is that Roosevelt recommended execution without law and without limits.77 The difference between the two Republican presidents can be seen in Roosevelt’s handling of the anthracite coal strike of 1902. Roosevelt was eventually able to influence the contending parties to come to an agreement and end the strike, but in his Autobiography he explained what he would have done had the strike continued. At the request of the Pennsylvania governor, he would have placed the state militia “under the command of some first rate general.” This general would “dispossess the operators and run the mines” until the arbitration commission could issue a report to Roosevelt. Roosevelt even claimed to have taken steps toward this contingency plan: he selected such a general, Major General Schofield, and explained to him that if he “had to make use of him it would be because the crisis was only less serious than that of a Civil War, that the action taken would be practically a war measure.” Roosevelt also recorded that he ordered Schofield to “act in a purely military capacity under me as commander-in-chief, paying no heed to any authority, judicial or otherwise, except mine.”78 Taft pointed to this very explanation in his Our Chief Magistrate and His Powers. In his view, what Roosevelt actually did was permissible, but what he said he would have done was not. Using the military to settle the strike would have been “a little startling in a constitutional republic.” Even though Roosevelt claimed to stand on a “higher law,” and even though his intentions were good, “no one

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who looks at it from the standpoint of a government law could regard it as anything but lawless.”79 The split between Taft and Roosevelt is so unusual that it demands explanation, and a variety of explanations have tried to account for what happened. Much of the scholarship on this question turns on whether the reformers were right in their assessment that there were problems that needed to be fixed. That is, one explanation is that Taft was simply too conservative, too behind the times, and that Roosevelt’s reformist platform better captured the public mood.80 One complication with this explanation is Taft’s record. According to one recent account, “by every standard of progressive regulation, Taft appears to have exceeded the record set by his predecessors.”81 By this view, Taft objected to Roosevelt’s extralegal methods, not his ends.82 Another argues that Taft’s failure as president had little to do with his ideas and more to do with his leadership style, which grew out of his commitment to party loyalty and political experience.83 It is clear, at the very minimum, that Taft believed Roosevelt was a threat to the constitutional order and especially to the rights of property. Earlier, Taft had rooted against William Jennings Bryan in the Democratic nomination contest, because he thought Bryan’s populism was a threat to the social order and the rights of property. “With the conservative element of the Democratic party in control . . . we may have campaigns like those of the past, between Cleveland and Harrison, when, while the issues were important, it was known that the guaranties of the social order and the rights of property would be sacredly observed under either.”84 Likewise, after Roosevelt’s turn, Taft regarded his former mentor as “the greatest menace to our institutions that we have had in a long time.”85 Even before Roosevelt’s campaign to regain the Republican nomination, and even as early as Taft’s first weeks in office, Taft may have turned against Roosevelt to make his own way as president. Taft did not retain Roosevelt’s cabinet, and from his correspondence during the transition it appears that Taft aimed to reign in the excesses of Roosevelt’s reliance on executive power. Thus Taft would look to legislative authorization rather than unilateral action.86 It is also clear that Taft’s opposition to Roosevelt was connected to a fundamental difference about the available constitutional means, specifically, whether the president represents the people. Milkis argues that collision between Taft and Roosevelt should not be read simply as a the “last stand by Old Guard Republicans who allied closely with big business.” Rather, Taft disagreed with Roosevelt about the “meaning of responsible constitutional

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government,” and this disagreement had to do with the presidency. Specifically, for Milkis, whereas Taft looked to the law, Roosevelt “believed the law had to be subjected to the court of public opinion and that as agent of the people the president could seize power where the Constitution was silent.”87 In his Our Chief Magistrate and His Powers, Taft wrote that the real threat of executive power comes not from a president who acts in the “absence of popular support.” Rather, the real threat to constitutional government is a president whose “popularity is such that he can be sure of the support of the electorate and therefore of Congress, and when the majority in the legislative halls respond with alacrity and sycophancy to his will.”88 But as his contemporaries pointed out, Taft’s position on presidential representation was confusing. Henry Jones Ford explained what he believed to be Taft’s “loss of popularity” by pointing to a “defect in his representative function.” To make his point, Ford quoted from the Newark Evening News, whose editorial page faulted Taft for his reticence in action: Mr. Taft says himself that the President is the one representative of the entire people under our form of government. But he will not take a step for their interests without definite mandate by law. Is there some move Mr. Taft can make for the people? He does not ask, “Is there any law that prohibits me from making this move?” He does ask, “Is there any law that definitely orders me to make this move?” If there is not, he does not do it. And yet he is the one representative of the whole people, their trustee.89

So by this view, the problem was not only that Taft was too conservative or too deferential to the law to be an effective president, the problem was that Taft did nothing even as he proclaimed himself representative of the people. Part of the confusion was that Taft embraced the idea of presidential representation as way to argue for respect for the office and to assert a baseline for national unity. Taft began his fourth annual message, for example, by asserting that every American should care about the standing of the United States in the world. This meant, for Taft, that the country should have a clear foreign policy, and with it, a posture of unanimity with respect to the rest of the world. To this end, every “thoughtful citizen” should agree that “no department of national polity offers greater opportunity for promoting the interests of the whole people on the one hand, or greater chance on the other of permanent national injury, than that which deals with the foreign relations of the United States.”90 More pointedly, in his message accompanying

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his veto of Congress’s joint resolution for statehood for Arizona, Taft explained that the judges were unlike executives and legislators in that judges were not meant to be representative of popular majorities, suggesting that presidents and governors were representative in a way similar to members of the legislative branch.91 Later, in his Barbour-Page lectures, delivered in 1915 at the University of Virginia, Taft urged Americans to show “respect” to the president, “because it was the American people who chose him, and for the time being he is the personal embodiment and representative of their dignity and majesty.”92 Making matters more complicated is that as chief justice, Taft would write the most ringing endorsement of presidential representation in his majority opinion in the 1926 Supreme Court case Myers v. United States. The case had to do with Woodrow Wilson’s firing postmaster Frank Myers before the end of Myers’s term. In 1876, Congress had passed a law requiring the Senate’s advice and consent prior to the removal of several classes of postmasters. In a lengthy opinion, Taft and the majority overturned the 1876 law on the grounds that it violated the president’s power to remove under the Constitution. Taft argued that the debate in Congress in 1789 established this construction of the Constitution, a construction that was continued by later practice. More than that, “the President is a representative of the people just as the members of the Senate and of the House are, and it may be, at some times, on some subjects, that the President elected by all the people is rather more representative of them all than are the members of either body of the Legislature, whose constituencies are local, and not countrywide.”93 Pointing to James Madison’s speeches in the House in 1789, Taft argued both that the Vesting Clause granted the president the power to remove and that this power was required by the president’s representative function, a representative function that arose from constitutional structure. Taft offered more clarity in a series of lectures he delivered when he was Kent Professor of Law at Yale, published in 1913. Organized around the theme of popular government, the lectures began by noting the break with the past imagined by the new reforms. A “student of constitutional history” twenty years before would now “[suffer] dizzying sensations for want of a stable ground upon which to stand.” Not only were the “views” of the Framers discarded as “outworn,” the very men were “themselves severely arraigned because of their alleged class feeling as land owners and creditors.” These unsettling attacks on the Constitution of 1787 were made in service of democracy, under the theory that the way to fix democracy was to “infuse more

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democracy into our existing democracy.” But Taft reassured his audience that the new views would not win out over time, and so it was his duty to teach the true meaning of the Constitution.94 As Taft saw it, the Framers established a popular government under the representative system. Because it is impossible for the people to have knowledge of the details of the government, especially in modern political life with the increase in the “variety of the functions of government,” it is necessary for people to choose representatives to act on their behalf. This is also true for the execution of the laws, which in practice requires a “specialized knowledge” and “a vast number of agents.” Because fifteen million people cannot supervise the several hundred thousands of agents, the Constitution gives that power to the president, “who representing all the people, does the best he can to secure good appointees.” But in the very next paragraph Taft makes it clear that he has in mind a particular notion of representation. While an officer should be bound to the promises his party made during an election, on those occasions where the issue had not been discussed or where the details had changed from the way in which they were discussed, “the representative is to act on his own best judgment, even though it may differ from that of many of his constituents.” Pointing explicitly to Edmund Burke’s speech at Bristol, Taft argued that the representative’s allegiance is to the whole nation and not to the state or district. He is to act according to “conscience” rather than as a “mouthpiece of his constituents.”95 Thus when Taft said the president was representative, he did not mean that the president should be the mouthpiece for public opinion. All of this meant that for Taft the problem with the new reforms was that they undermined representative government conceived a particular way. In a passage over fifty pages long, Taft argued that the initiative and referendum were part of a “new philosophy” that intended to undermine representative government. The effect on the legislative power would be “to minimize its power, to take away its courage and independence of action, to destroy its sense of responsibility and to hold it as unworthy of confidence.” But more fundamentally, the initiative and referendum would eliminate “all distinction between a constitution as fundamental law, and statues enacted for the disposition of current matters.”96 If the initiative and referendum were an attack on representative government in the form of legislation, the direct primary was an attack on representative government in the form of party leadership. In particular, it is “usual and necessary to have a declaration

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of party principles so that the whole electorate may know what may be expected if the party succeeds in electing its candidates and controls the legislature and the executive.” The direct primary changes this by favoring candidates who are “self-seeking” and ambitious and who need not abide by the decisions reached by the party after consultation and compromise. “Conference and discussion lead to wise results, and conference and discussion and deliberation with reference to party policies are not possible at polls.” Although Taft conceded that conventions at the local level were too often dominated by machines and that direct election might work in small communities, he believed that conventions were the best expressions of the party’s preference at the state level. “This is because the delegates can better inform themselves as to the qualifications of the party candidates then can the people at large.” At bottom, the problem with the direct primary was that it made “voting of all the people” rather than popular government itself the end and thus had forgotten about the necessity of representation born through deliberation and judgment.97 It is important to note that Taft noticed the connection between the reforms aimed at direct democracy and the Progressive aspiration to dilute the importance of the states. As he put it, there was a “New Nationalist School” proposing “new remedies through the national government” on the theory of “the failure or unfitness of the States to discharge their proper and exclusive duties under the Constitution.” This school, Taft believed, was “closely associated” with the school “trying to enforce new doctrines as to the direct rule of the people.” Its members were “impatient” with arguments that “anything has to depend on the action of forty-eight states” and instead prefer “national ‘hair-trigger’ legislation.” In this impatience Taft found hope, because it was a reminder that the state governments still existed and thus the “weakening of constitutional guarantees now going on in some States may be halted by the conservatism of other States.” It was “essential,” therefore, that the “State governments be maintained in all the fullness that they were intended to have by the framers of the Constitution.”98 Thus even as Taft wanted the president and his foreign policy to benefit from the claim of presidential representation, he was careful in his lectures at the University of Virginia to note that representation did not confer additional powers upon the president. In this, Taft distinguished his view from those of “a class of people that think that the government ought to do everything, ought to regulate everybody and everything—that is, to regulate other people, not themselves—and these political philosophers

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visit the President with responsibility for everything that is done and that is not done.” But this expectation, that the president must solve economic inequality for example, runs counter to the provisions of the Constitution. “While the President’s powers are broad, he cannot do everything. The lines of his jurisdiction are as fixed as a written constitution can make them.”99 Taft was not the only Republican who believed that Roosevelt and the Progressives had gone too far. In fact, it was Taft’s constitutionalism, or rather Roosevelt’s attack on the Constitution, that made Taft an attractive candidate to a considerable number of Republicans. Many agreed with Charles Dewey Hilles’s estimation that “Roosevelt’s movement” was “the most horrible attack on constitutional government with which we have been confronted.”100 Lewis Gould writes, “The political effect of the Columbus speech was to interrupt that momentum that Roosevelt had built up since the start of 1912 and administer a jolt of energy to the Taft campaign.” Further, “Conservatives who flirted with Roosevelt or professed neutrality now flocked to the president.”101 Or as Henry Cabot Lodge put it, Roosevelt’s speech “had turned Taft from a man into a principle.”102 Lodge was a close friend of Roosevelt, but Roosevelt’s sharp turn toward direct democracy was too much for the Massachusetts Republican. In a 1911 essay published in the North American Review, Lodge ridiculed proposals aimed at “emasculating the representative system through the compulsory initiative and referendum and by breaking down the courts through the recall.”103 Lodge, who held a PhD in history from Harvard, mocked the idea that these reforms were “progressive,” pointing to the fact that “direct legislation by popular vote was familiar, painfully familiar, to Greece and Rome.” It was representation, “the great contribution of the English speaking race to the science and practice of government,” that was more modern and more innovative.104 The key contribution of representation is that it did not result in the rule of one man, the “strong man” or “man on horseback,” rule that in fact could not coexist with political liberty. In addition to defending representation, Lodge pointed to a problem with claims based on “the people.” Because the people could never be the whole people, and instead were likely to be “not more than a fifth or a sixth part,” it made more sense to think of voters as something less than the whole people. While direct democracy was an appeal to voters, representative democracy actually had the better sense of the whole.105 In a 1909 toast of Taft delivered at the Chamber of Commerce in New York, commerce secretary and founder of the United States Chamber of

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Commerce Charles Nagel explained that in the “highly representative system of government” designed by the founders, the “President of the United States stands out as the most representative figure, for he alone, among the co-ordinate branches of the government, owes his office to the entire people.”106 But Nagel did not see this as a basis for presidential discretion. In particular, Nagle explained that the power to recommend legislation to Congress was not to be confused with the requirement to execute the law: “Under no circumstances shall he go beyond the law which has been placed in his hands.” More than that, Nagel argued that “every demand to anticipate authority is nothing more nor less than a denial of popular government and a concession to one-man power.”107 Nagel was not a doctrinaire conservative, and he vacillated between defending the Constitution and departing from it. For example, he later defended the League of Nations against those isolationists on the Right who looked to the Constitution and to Washington’s Farewell Address to defend neutrality in the context of what would become World War I. In Nagel’s view, the Constitution could and should be “flexible” over time: “The popular demand for the general survival of the nation has always triumphed over any particular interpretation of the Constitution.” Pointing to the occupation of the Philippines and to conscription during World War I, Nagle concluded that the Constitution could not be an obstacle to the League of Nations if the people concluded that the best interest of the United States was to join the League.108 Yet he also argued against changes aimed at direct democracy. In a 1911 commencement address at Brown University, Nagel took aim at the constitution proposed by Arizona. While Nagel conceded that the direct primary might be beneficial for the election of senators because state legislatures would be relieved of the work of finding candidates, he did not think it was appropriate for every office. In particular, he thought it would “destroy the advantage of publicity and responsibility” by enlarging “the opportunity of the political manager.” More directly, he opposed the initiative because it presumed that legislatures needed to be more responsive to pubic opinion, when in his view the real problem was that legislatures were already too responsive to “spasmodic popular feeling.” Likewise, the referendum would “invite chaos and turmoil without end.” Finally, the recall would “discourage competent men” from choosing to serve in office. Rather than amending the Constitution to fix the nation’s problem, Nagel instead recommend “more reflection on our own conduct” and a “sustained patriotism.” In his view the problem was that in 1911 the country lacked the

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quality of leadership and the character of the people that it had in the first years of the republic.109 There were consequences, in Nagel’s view, for executive power. In a 1914 speech to the Colorado Bar Association, entitled “The Growth of Our Law,” Nagel argued that the number and scope of the laws in the United States were not only bad for representative government but also bad for the rule of law in the way they aggrandized the executive. Because the “art of expressing fundamental principles has been lost,” the laws instead “desire to regulate the conduct into the last recesses or privacy” and to institute a “reign of detail.” At the same time, these laws are justified by a new revolutionary spirit of “phrase-making and resolution-breathing.” As a result, “we are coming to a greater and greater dependence on executive power,” a dependence born from the ambitions of the “man who wins our confidence by telling us that the people are all wise.” The problem is that even though demagoguery is an old problem, the growth of the law creates a new condition because “the multiplicity of the laws necessarily increases executive discretion and power.” Because the president is “the only true representative of collective popular will,” he gets to decide which laws “are vitalized by public support.” That is, the growth of the law, combined with the representative function of the presidency, offers too much room for executive discretion. That Nagel did not fully endorse the idea that the president is the only representative of the national will is evident from the comparison with Taft. Taft’s “political mistake,” he wrote, was that “he insisted on conducting himself like a constitutional president, elected by a free people, under a representative form of government.” The difference between Taft and Wilson, it would seem, would be that Taft subordinated executive discretion to representative government, which is to say that Taft did not reduce representative government to presidential representation.110 Nagel’s examination of presidential representation thus bordered on incoherence and opportunism. At the very minimum, it walked a fine line between viewing the president as the protector of “the guarantees of the Constitution” and as “his party’s platform promises.” On one side, in “times of agitation and unprecedented growth the demand upon executive power is always great.” Because “every prosperous country has its problems,” and because people tend to prefer “the short cut” over hard work, the president offers a way for reformers to bypass the messiness of deliberation in Congress.111 But on the other side, there was the mandate Taft and his party received at the election. Taft’s “election was had by force of the candidate’s

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convictions published and sent abroad so that the entire people might make the decision upon their judgment; and when made might accept their decision as their own.” For elections to make any sense, and for representative government to have any true form, “sustained and tolerant support must be given to the policies upon which that decision was made, and to the man who stands today as the representative of those policies.” These positions included policies on the protective tariff, foreign commerce, the Philippines, and others.112 In making this point, Nagel was following Taft’s celebration of party rule, which was in itself something of an acknowledgement of the Jeffersonian and Jacksonian position on elections. As they put it, parties gave shape to public opinion by framing the issues at stake in an election, and, accordingly, the party that won at the election could be said to have won on the issues they enunciated. Federalists and Whigs resisted this argument, but as was argued in chapter 2, Lincoln’s Republicans accepted this argument to make the case that the elections of 1860 and 1864 had settled the question first of slavery in the territories and then slavery itself. Taft and his supporters carried on in this tradition, but like Lincoln they did not follow the argument to its ultimate Jacksonian conclusion that the elected president becomes the embodiment of the popular will. Rather, they believed that the party leadership played a crucial and independent role in this complex version of representation. This intellectual move was most exemplified in another critic of the reforms and Taft supporter, Roosevelt’s secretary of state, friend, and fellow New Yorker, Elihu Root. It was Root who, as convention chair at the 1912 Republican National Convention, ruled in favor of Taft in a dispute with Roosevelt over convention delegates, a ruling that essentially secured Taft as the Republican nominee.113 While Root believed that some economic and political reforms were needed, he was a staunch defender of inherited political institutions, including the Republican Party. In a 1907 series of lectures delivered at Yale, Root expressed anxiety about whether “democracies will be willing to continue” exercising power by way of “old methods of government” by legislatures and courts or instead follow the logic of the initiative and referendum to “substitute direct action for representative government.”114 But he was not opposed to reform as such, and his turn against Roosevelt did not have to happen. In 1907, Root acknowledged the truth in the criticism that parties had become vote-swapping cartels for various factions, making

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legislation next to impossible and rendering public service in administration more a matter of patronage than one of duty to country.115 According to William Schambra, Root shared Hamilton’s preference for a strong national government and an expansive reading of national authority, and, conceding that industrialization was a new threat to individual liberty, he did not agree with the Lochner court’s efforts to curb the regulatory powers of government.116 Moreover, he saw public opinion as a potentially positive driver of reform, and he conceded that modern life raised new questions about “the division of new wealth.” While some of these questions reflected the older debates about fairness and economic justice, it was also proper that “popular government” had been “awakened” by a “public opinion gradually crystallizing into laws adapted to meet the new conditions.” Importantly, these new laws did not reflect a discovery of new principles, but instead were “merely the adaption of the same old principles of law with which our fathers were familiar.”117 In fact, Root praised the “widespread pressure for direct primaries” as evidence that party members wanted “to secure a real expression of their will in the selection of candidates.”118 Later, in a private letter written in 1920, Root confided that he believed representation would improve in quality if the candidates “were more directly responsible to the voters and less responsible to the managers of the political machinery.”119 But he believed these reforms should be considered to be experimental, and, as one scholar has put it, the key is that Root “insisted that reforms must bolster, not bypass, established representative institutions and the system of checks and balances.”120 Root also believed that the new reforms threatened the institutions of representative government, which include political parties. Thus Root explained his role as convention chairman in 1912 by offering a ringing defense of party loyalty. For a party to function, there must be “willingness of the members of the party to subordinate their varying individual opinions” on matters where they disagree so that they “may act in unison on the great questions wherein they agree.” This means that the party members must be willing to put aside their disappointment when their candidate loses and instead declare their loyalty to the “party itself.” Without this underlying agreement among members, “party association is a rope of sand.” More broadly, Root defended party itself. “Without organized parties, having these qualities of coherence and loyalty, free popular government becomes a confused and continual conflict between vast multitude of individual opinions, individual interests, individual attractions and repulsions, from

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which effective government can emerge only by answering to the universal law of necessary organization and again forming parties.”121 Root coupled this praise of party with a defense of the Constitution and American institutions more generally. “We shall not apologize for American institutions. We cherish with gratitude and reverence the memory of the great men who devised the American constitutional system.”122 But this respect for American institutions also went hand in hand with respect for the features of limited government. One was the set of limits on the national government designed to preserve “local self-government” and federalism. Because the country is “so large and the conditions of life so varied,” it would be “intolerable” to have the “local and domestic affairs” in one community dictated “by majorities made up in States thousands of miles away.” Another was the set of limits on the Congress and the president. Because even patriotic or well-intentioned acts can open the door to the “self-seeking and ambitious,” it was necessary to be careful that no officer use “the powers confided to another department” even if the use of that power “would be beneficial to the public.” Free government required limited government, and limited government required federalism and the separation of powers.123 Root also had in mind Roosevelt’s calls for the judicial recall. He promised not to degrade the “great courts in which Marshall, and Story, and Harlan sat.” Because the judiciary was “the keystone of this balanced and stable structure of government,” federal judges “will not be punished for honest decisions” and “their judgments will be respected and obeyed.”124 Root next defended his argument for limited government over unlimited but beneficial government by referring to the Bill of Rights as a “covenant” among all Americans “from generation to generation.” It is telling that it was in this context that Root referred to the “whole body of the people.” The whole of the American people acts not in its selection of a president but rather in its unwavering commitment to the Bill of Rights. This commitment represents a covenant between “power and weakness,” as a recognition that limited government protects the most fundamental rights, including the right of conscience, in obedience to the “eternal law of justice.”125 It is interesting that when Root later used the phrase “representative of the people,” he did so when speaking of the government in its collective sense and in comparison to German autocracy.126 Representation happened when the people became unified under constitutional rule itself, not by way of advocacy through one institution of government. Root extended this line of thinking in series of lectures in 1913, which

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were then published as a book, Experiments in Government and the Essentials of the Constitution.127 In the preface, he explained that the lectures were intended as observations on the new “period of examination” of the government undertaken by the American people. Specifically, “essential principles” of the Constitution of 1787 were now “questioned and denied.”128 Root went on to explicitly argue that Americans should “reject every proposal which involves the idea that the people can rule merely by voting, or merely by voting and having one man or group of men to execute their will.” With respect to the executive, no reform based on plebiscitary theory of execution could work, because “free government is impossible except through prescribed and established governmental institutions,” institutions that are themselves comprised of “many separate human agents, each doing his part in obedience to law.”129 Root also separated reforms that he did not like from those to which he remained neutral. As he put it, direct nominations, party enrollments, instructions to delegates, presidential preference primaries, and independent nominations were all voluntary actions by private individuals and thus outside normal governmental activity. “They may be inconvenient or distasteful to some of us, but no one need be seriously disturbed by the idea that they threaten our system of government.”130 But this was the case for another group of reforms, which included the initiative, the compulsory referendum, the recall, and popular review of judicial decisions. The initiative and referendum were objectionable for Root because they undermined the principle of representation, which he believed was an invention of the “Anglo Saxon race.”131 Likewise, the recall of judges and the popular review of judicial decisions will make judges “afraid to render unpopular decisions.” This would transform the constitutional order because the order rests on the presumption, reflecting the other contribution of Anglo Saxons, that rights “are not disposable by any majority” but instead are fixed by nature. In Root’s estimation, this liberation of majoritarian sentiment “would be a reversion to the system of the ancient republics where the state was everything and the individual nothing except as part of the state.”132 There was a connection, for Root, between the call for these reforms and calls to empower the executive. Both betrayed “impatience with the slow methods of true progress in popular government.” Root pointed to the Latin American countries whose dictatorships grew out of plebiscitary notions of representation and whose constitutions included emergency provisions that allowed for constitutional provisions to be suspended during necessity. As

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he put it, “We are familiar with their result. The guarantees of liberty and justice and order have been forgotten: the government is dictatorship and the popular will is expressed only by revolution.”133 Another prominent critic was Nicholas Murray Butler. Like Woodrow Wilson, he held a PhD and was the president of an Ivy League institution, Columbia University in New York. The Americans he most respected were not men like Jefferson and Madison who were part of a tradition in states rights and limited government, but rather Washington, Hamilton, Marshall, Webster, and Lincoln, all men who could be called nationalists and who held a broad reading of the Constitution. Of these five, Butler counted Hamilton as “perhaps the most remarkable” and “on par with the greatest European statesman of his time.”134 Like many Progressives, Butler was trained in German thought, as his PhD was in philosophy and his specialty was German philosophy. Like Wilson, Butler was involved in promoting peace abroad, and with Jane Addams he was awarded a Nobel Prize in 1931. But Butler was a Republican, and he was a fierce critic of direct democracy.135 In 1907, Butler delivered a lecture on “True and False Democracy” at the University of California. At first glance, Butler gave what seemed like the standard Progressive account of the presidency. Taking issue with the view that Congress was the sole representative of the people, Butler argued, “If our American political experience proves anything, it proves that the executive branch of the government is the most efficient representative and spokesman that the popular will has.” In his view, Abraham Lincoln’s leadership during the Civil War, Grover Cleveland’s “struggle for a sound monetary system,” and Theodore Roosevelt’s “battle against privilege and greed” were all examples of this. But more than being expressed by the president in a way similar to being represented by Congress, “in a very real sense the popular will in the United States has no other representative, for political purposes, than the President.” This is because “the President of the United States is chosen by the whole people with a view to his personality, his temperament, his private convictions, and his political principles.” Because “the people know who he is and all about him,” the elected president “owes no responsibility to Congress, but to the people of the United States alone.” When he exercises power “he exercises it in the people’s name and in the people’s sight.” This is not the case for “individual representatives in state and national legislatures who are almost uniformly residents of the districts for which they are elected.” Members of Congress have lost their “truly representative capacity,” as predicted by the “political axiom

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that large constituencies make independent representatives and that small constituencies make tools and ciphers.”136 While there is a great deal of similarity to language that Woodrow Wilson would use the next year in Constitutional Government, Butler’s distinction between those who were “truly representative” and those who were merely “ciphers” reveals that his version of presidential representation was in fact much different than Wilson’s. For starters, it is clear that Butler has something more like a trustee theory of representation in mind. Pointing directly to Burke’s famous speech at Bristol, in which, Butler wrote, he “expressed perfectly the real duty of a representative,” Butler argued, “A real representative of the people is not their unreflecting mouthpiece or their truckling servant, altering his course to meet each shifting breeze of opinion or puff of passion. He is rather a spokesman for their conscience, their insight, and their judgment as his own deepest and sincerest convictions reveal them to him.”137 Thus when Butler spoke of presidential representation, he had in mind a distinction between leadership and demagoguery, a distinction he drew in the preface to the publication of his lectures. In his view, the one appeals to the “higher nature” of the people, while the other appeals to the “lower nature” of the same individuals, thus transforming the people into a “mob.”138 These different conceptions of the people corresponded to a second distinction, this one between government and administration. While the people are entitled to a democratic process of government, they are not so entitled to a democratic administration. Rather, because administration “is merely the transaction of the people’s business,” “a democracy is as well entitled as a monarchy to have its business well and promptly done.” Or, more directly, “The people determine,” but “the people’s agent executes.”139 In this, Butler came close to endorsing Croly’s mantra that politics had to be separated from administration and that the best way for this to occur would be to create boards of experts who could administer the law without being accountable to electoral politics. But it is also worth noting that Butler’s view of representation intertwined itself with his call for the separation of administration from politics, suggesting that representation can occur in each of the three departments. Indeed, Butler wrote that even the Supreme Court was representative. Each of three departments “immediately represents the people in its own way and in its own sphere, and the sphere is and should remain inviolate.” Butler went out of his way to reject “the curious notion has been spread abroad that the legislative agency, the members of which are chosen at short intervals and by small constituencies,

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more fully and directly represents the people than does either the executive or the judicial branch of the government.” In fact, it was not the legislature but rather the presidency and the courts that were most representative. “It is primarily the President and the Supreme Court who speak for the people’s mature mind and who express, in spoken and written word, in administrative act and in judicial decision, the highest will of the whole people.” It could not be the members of Congress, who, by virtue of their being tied to specific districts, could not be anything other than delegates advocating for narrow interests. Because true representation required leadership that was closer to education than advocacy, and in fact would sometimes require resisting popular demands, the members of the Supreme Court, like the president, could represent the people’s highest will.140 Likewise, in a 1912 book, Why Should We Change Our Form of Government?, Butler took issue with those who were proposing a transformation of the constitutional order. Pointing to Madison’s distinction between a pure democracy and republic in Federalist No. 10, Butler rejected proposals to “appeal over the heads of the people’s chosen representatives to the people themselves.”141 He praised the “representative republic” created by the Constitution, the making of which was a “stupendous achievement of men who through reading, through reflection, through insight, and through practical experience, had fully grasped the significance of the huge task to which they devoted themselves, and who accomplished that task in a way that has excited the admiration of the civilized world.”142 And by representation, Butler made it clear that he had in mind Burke’s notion of the representative as the trustee, not as the delegate: “When we choose a member of the House of Representatives, he is not a member of the first district of New York, or of Pennsylvania, or of Ohio, or of Missouri, but he is a member of the Congress of the United States.”143 More fundamentally, Butler saw direct democracy as a threat to rights. Pointing to the initiative, referendum, and judicial recall, Butler argued that the logic of direct democracy presupposed that “nothing in this world is fixed, or definite, or a matter of principle.” By denying that anything is fixed or certain, the reformers could not see that “out of the thousand or two thousand years of political life and activity of the western world” certain “principles” emerged that required “some political guaranties” were necessary for “human welfare.” In other words, the experience of the West had taught the necessity of a doctrine of rights as a limitation on governmental authority. Pointing to passages from Aristotle and Thucydides, Butler argued

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that the problem with democracy was that it, like other forms of government, was often not willing to accept limits on its own authority.144 Harvard president Abbott Lawrence Lowell provided yet another approach to the reforms by recommending more scientific study about their effects. In his 1906 address as president of the American Political Science Association, Lowell urged political scientists to undertake the hard work of the scientific study of American politics and pointed to the direct primary as an example of a “burning” public question that had been ignored by political science: “When legislators inquire concerning it our political students, while fertile with suggestion about the way it ought to work, are almost dumb about its effect in practice.”145 More than a critique of the state of the discipline, Lowell’s point was surely meant to also check the ambition of reformers who were calling for a transformation of American politics. Lowell had been doing this since 1889, when, in his Essays on Government, he criticized disciples of Walter Bagehot for impractically trying to graft parliamentary devices, such as having the cabinet be responsible to the legislative branch, onto American practice without thinking through their actual consequences.146 Lowell was no doubt a scholar who most of all wanted to lead a revolution on the study of politics, but he was also a kind of conservative. In the Essays, he wrote that he preferred the standard of utility over “the exploded doctrine of the natural rights of man.”147 But he praised separation of powers for providing restraint on political power. As he put it, no “organized public body can have a sense of its own omnipotence,” so it is imperative that there is “no single body of representatives which has absolute authority to express the popular will.”148 By dividing power not only among the three branches but also among the states, the Constitution ensures that the people are not “constantly in the habit of organizing and passing laws directly.” This makes “self-restraint as easy and unconscious as possible.”149 But part and parcel of this separation was the development that the president “is as truly representative of the sovereign people as Congress itself.” By this, however, he did not mean what Jackson meant, that the president had a “sort of monopoly of the privilege of representing the masses.” Rather, he meant that the true counterbalancing of legislative and executive departments required that each represent the people even if they do it in different ways.150 In his 1913 book, Public Opinion and Popular Government, Lowell combined this theoretical and empirical analysis to argue for a deeper appreciation of Congress as a representative body. He squarely addressed the question of

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whether a representative is a delegate or a trustee, by arguing that a representative was both. This could be seen in the likelihood that “nowhere would a representative declare himself free to disregard altogether the national welfare if it conflicted with that of his constituents, or the welfare of his constituents if contrary to that of the nation.” That is, the biggest problem with the claim that members of Congress represented narrow constituencies exclusively was that members of Congress would never say that about themselves. In actual political life, representatives pursue policies they believe are good for both the whole and the part.151 Likewise, taking issue with Croly’s Promise of American Life, Lowell pointed out that those who live under the rule of party bosses see the boss as “the centre of a great charitable institution which ministers to their wants, relieves their distress, and distributes among them the favors of a bountiful public providence.” That is, Lowell believed that Croly’s attack on the party boss did not account fully enough for the actual political conditions, which, in this case, suggest that rule of the boss was in many cases improvement over what came before it.152 With some admirable clarity in terms of foresight, Lowell also reminded reformers that the problem with direct primaries was that they increased the costs of candidacy and favored the candidate who is “prepared to spend money freely.”153 To the extent that Lowell offered a solution, it was his call for a greater reliance on “experts” in politics. Because modern life demands men who are “thoroughly familiar” with complex subjects, America must “overcome its prejudice against permanent expert officials as undemocratic.”154 Even if Lowell did not buy into Progressive notions of representation, he did seem to accept their proposition that more administrative expertise could solve some of the country’s governmental problems. Taft’s veto of statehood for Arizona reveals that a substantial number of members of Congress shared these concerns. After the veto, both chambers of Congress had a substantial debate about whether to override Taft’s veto or to force Arizona to remove the provision for the judicial recall. The debate over Taft’s veto was serious and extensive, occupying almost fifty pages in the Congressional Record. Supporters of Taft did not limit their speeches to critiques of judicial recall. Instead they defended constitutions as agents of necessary stability, and they included reforms such as the direct primary, referendum, and initiative as other examples of what they believed to be the gathering threat to constitutional government. Many of those who argued for overriding Taft’s veto defended the provision for the judicial recall, but

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a substantial number also argued for Arizona’s right to make its own constitution, while others objected to Taft’s expansive use of the veto power. Given these additional reasons for disagreeing with Taft, it is impressive that those arguing for the override lost. Arizona was granted statehood, but only after Taft signed legislation that stipulated that Arizona drop the judicial recall from their constitution.155 A Victory for Presidential Representation? Taft’s supporters were powerful enough to secure him the nomination but not persuasive enough to win the election of 1912. Taft finished a disappointing third, behind Wilson, who won, and behind Roosevelt, who ran as a third party candidate. Taft received only eight Electoral College votes and less than a quarter of the popular vote. Not only that, Socialist Eugene Debs garnered a surprising 6 percent of the popular vote. The election, then, can fairly be called a repudiation of Taft and his stand-pat coalition of Republicans. Perhaps unsurprisingly, European intellectuals began to speak the language of presidential representation when writing about the United Sates. In December 1912, A. Maurice Low argued in Harper’s Weekly that the constitutional order had changed and the president was now the “dominant figure.” Low was a British journalist and a member of the American Political Science Association. As was often the case, there was a European connection: he was born in England and attended college in Austria. Like Wilson, he discerned a change in the presidency that grew out of constitutional design. Even though separation of powers still exists as “something more than a theory” in that the powers are distributed among three departments, “so far as the public is concerned the President has swamped the legislature.” The president, not Congress, is “held responsible” for legislation. This change came about because of the Constitution itself. Whereas “a Senator represents not the nation, but the State,” and a representative “not even the State, but a district,” the “whole country votes for the President.” As a result, “the power of the President has enormously increased in recent years.” In addition to administering the law, the president “is also the leader of his party,” and, since he represents the “majority sentiment of the country,” he is also responsible for leading a “legislative program.”156 In 1921, the former German ambassador to the United States Johann Heinrich von Bernstorff warned Germans against assuming too quickly that the politics of the United States was “run by hard and fast formulas.”

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Specifically, whereas German democracy assumes that power “ought to rest in the hands of a parliament directly elected by the people,” American democracy presumes that “Congress is not the only representative of the people.” This is because the Constitution entrusts “sovereign authority to several powers, independent of each other.” Moreover, Americans “regard their President as direct representative of the people.” This is especially evident during controversies between Congress and the president, when “the citizens more frequently side with the President, and force Congress to yield to his views.” So, over time, the Americans have created a system resembling a “revocable autocracy, combining the advantages of a monarchy with those of a republic.” But this does mean the president leads public opinion. Rather he is “executor of the people’s will,” and when he departs from their will he loses his authority.157 Bernstorff’s analysis was similar to that given by a University of Berlin professor, M. J. Bonn. Bonn, who had worked under Bernstorff in the United States, wrote that it was political differences rather than material or racial differences between the United States and Germany that was essential to understanding American participation with the Allies during the war. As he put it, American opposition to Germany that grew out of America’s feeling threatened by German expansion was simply a manifestation of American opposition to any nation that threatens democracy. That is, Bonn explained that the Americans believed a threat to democracy was in fact a threat to American institutions, and, as a result, they believed that the German interest in efficiency and militarism “is possible in a country ruled by a monarch.” Thus Americans are willing to give up efficiency in order to secure individual liberty. This point was important enough, but Bonn went on to make another about American political institutions. Echoing Wilson, he observed that the president was the “choice of the American people,” “far more so than the Senate or House of Representatives.” Whereas the Senate represents “individual states” and representatives represent “particular electoral districts,” the president “represents the whole nation, both minority and majority.” This means that the Americans support the president in foreign affairs even when they do not agree with his particular policies. “To subordinate one’s self to the President, therefore, is not bowing to a despot, but merely helping the man whom you have selected for a job to put it through.”158 But the election of 1912 should not be read as an endorsement of a new vision of the presidency and a repudiation of the presidency that came before. At the very minimum, Progressives failed to bring many of their Republican

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counterparts to endorse their view of the presidency. Even while they were able to bring about substantial reforms with respect to women’s suffrage and the direct election of senators at the national level, and with respect to the initiative and referendum at the state level, they were less successful in convincing their opponents to embrace visions of presidential representation that made the president the agent for the popular will. In this, not much had changed. Indeed, Republicans returned to dominating presidential elections in the 1920s, and, at least until 1968, direct primaries became mostly symbolic rather than binding. At a deeper level, the Progressives were conflicted among themselves about what presidential representation meant in the context of the Constitution. While some believed that the Founders’ presidency had to be overcome, others believed instead that the presidency they wanted was latent in the one the Founders had created.159 Part of this had to do with lingering differences over the nature of the union—was it a compact among the states or an embodiment of we the people? Complicating this historical context was the difficulty of the claim itself. How could the president in fact represent so many people? For example, in 1920, while other European intellectuals were circulating Progressive claims about presidential representation, the Austrian jurist Hans Kelsen explicitly rejected it on the grounds that the scale is simply too large. “Where there is only one elected individual for millions of voters, the idea of popular representation must lose every last pretense of legitimacy.” Whereas “a many-membered parliament” can have the interaction of “all popular parties” and find its way to “something like a will of the people,” it was inconceivable that a single executive could come as close. The problem is that “the president cannot be controlled by a populace too massive to take action.”160 Even more telling, there were those like Henry Jones Ford who could not find satisfaction in the development of the office that had occurred under Wilson. Indeed, his assessment of presidential representation in his 1924 book Representative Government was not wholly positive. Ford now pointed to presidential representation as a species of divided representation. Unlike “throughout the British empire,” where “it is a settled principle that the popularly elected assembly is to be regarded as the sole expression of the will of the people,” the American system divides representation between two legislative chambers. This makes representation “liable to be confused, distracted and impaired.” But more than dividing it between two chambers, the American system further divides representation by giving some of it to

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the president: “The most striking instance of such divided representation is supplied by the United States, in which the presidency promptly took rank as a representative institution as soon as it got fairly upon the basis of popular election.” The consequences of this development were not beneficial. Citing John Stuart Mill, Ford argued that the best men in a large country would have done something to disqualify themselves from office. Moreover, Ford argued that the presidential representation increased the likelihood of election fraud and made campaigns more expensive. Finally, he dismissed the “unsubstantial argument” that these costs were worth it because the presidential election was a “valuable education process.” Ford believed that instead of enlightening voters, the presidential elections, with their “insincere rigmaroles” and “braggart generalities,” actually worked to “darken the understanding” of most voters.161 Ford concluded that the American system, with its divided authority, was not workable and would have to be replaced with something more adept to meet modern conditions. He likened it to the Roman principate, in that it was suggestive of a movement toward a greater concentration of power in the future. His proposed solution was to make the government more accountable, because the “true distinction between despotism and constitutional government” was accountability, not the absence or presence of limits on governmental power. Thus Ford seemed to endorse some sort of executive that would be more energetic and more accountable. But he also seemed to presume that “some type of elective assembly will figure in any regular scheme of government.” Ford did not explain how to have both and how to avoid the perils of divided representation, but the point here is that his analysis does not fit the cookie cutter version of the Progressive turn to presidential representation.162 Rather it is more suggestive of an idea that was contested and that remained in flux. Unsurprisingly, Elihu Root was also anxious about the state of executive power. As World War I was drawing to a close, Root called for Congress to revoke the wartime powers it had delegated to Wilson. Root believed that that the “unprecedented” grants of authority to the president added up to a “dictatorship,” but he conceded that this dictatorship was created with the approval of the people. Now that there was peace, however, these delegations “should be brought to an end.” It would be difficult because the laws themselves had created new conditions, and these conditions would in turn be seen by some as justification for continuing the power.163 After all, “it is not in human nature to relinquish readily power once possessed.”

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But he believed there were at least two good reasons for the hard work. One was that freedom is a “habit” that has to be used before it degenerates. The other was that limited government is better for business.164 Although Ford and Root likely did not agree on who should be president, both were concerned about the presidency after Wilson. In particular, they feared that that something was amiss with respect to the way the executive was accountable to the voting public. Over the next several decades, intellectuals would return to the problem of executive accountability in the context of the prospect of a new world war abroad and in the context of a seemingly unbeatable American president at home. Constitutional dictatorship would become the new venue for debate about presidential representation.

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4 The National Security Constitution and Presidential Representation at Midcentury

In 1956, the political scientist Clinton Rossiter wrote in his book The American Presidency that the presidency that Dwight Eisenhower won in 1952 was a “visibly different office” than the one Herbert Hoover had lost only twenty years earlier in 1932.1 This claim was part of another claim. Rossiter also wrote that “modern” presidents occupied a different office than the one the Founders created in 1787. After listing five constitutional functions of the president, he identified five functions that had been added to the job description of modern presidents. Among those five was what he called the duty to be the “Voice of the People.”2 Pointing to the examples of Andrew Jackson and Woodrow Wilson, Rossiter explained that the president had become the “leading formulator and expounder of public opinion in the United States. While he acts as political leader of some, he serves as moral spokesman for all.”3 Further, “the President is the American people’s one authentic trumpet, and he has no higher duty than to give it a clear and certain sound.”4 In some ways, Rossiter’s 1956 book on the presidency was a continuation of a book he had published in 1948. In that book, Constitutional Dictatorship: Crisis Government in the Modern Democracies, Rossiter engaged in comparative constitutional analysis to argue that modern democracies required some version of the ancient Roman solution for the problem of emergency. The Roman model provided a temporary grant of power to a dictator when such powers were necessary to save the state.5 In Rossiter’s view, the successful modern democracies had found ways to follow the Roman example, demonstrating that constitutional government requires legalized departures from the Constitution. Pointing to successes in Great Britain and in the United States and to the failure of the Weimer Republic in Germany, Rossiter boiled down his recommendation of constitutional dictatorship to two key proposals for the United States. First, the president’s “inherent” powers are of

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“indefinite vastness” and must be left “intact and untrammeled.” Second, because the decision to be a dictator must never be left in the hands of the dictator, Congress’s institutional ability to investigate and control must be “streamlined and strengthened.”6 In this, Rossiter the scholar was extending the argument of the famous intellectual Walter Lippmann, who was probably the most important journalist of the twentieth century. In the early days of the New Deal, Lippmann used his column Today and Tomorrow to unequivocally call for special emergency powers to be given to the president. He also called for reforms in Congress that would use cloture to end debate. In his view, concentrating power in the president would relieve the president of the pressures arising from “patronage, pork subsidies and bonuses” and raise “a standard around which a national public opinion can rally.” This would “cure those very weaknesses of democracy which in the a long and severe crisis become finally intolerable.”7 In a letter to Felix Frankfurter, who was still a law professor and informal advisor to FDR, he explained, “My plea for concentration of authority for Roosevelt was not made until I had been satisfied as to the essential wisdom with which he would use such authority.” When Frankfurter disagreed about the merits of “arousing public opinion,” Lippmann chided, “Aren’t you a little bit in the position of desiring the end but being hesitant to will the means?”8 A few months later, Lippmann wrote, “I did not for a moment question the legal powers of the President. I have no doubt that he had the power to do everything he has done.”9 Lippmann continued his efforts to convince his readers that Congress and the president needed to find a new practical arrangement to meet the necessities of financial emergency and, later, war. Anticipating Rossiter’s argument in Constitutional Dictatorship, he often argued that special delegations of emergency power did not mean that the president would become dictator because Congress could always repeal those laws once the emergency passed. In 1941, in the context of supporting Lend-Lease he corrected what he believed to be a misreading of history: “Dictatorship does not evolve out of strong, coherent, decisive government; it is the result of a reaction against a government so weak that it cannot act effectively at home or abroad.” In the American context of separation of powers, “a sound relation will exist only when Congress takes the view that the way to exercise its functions is not to deprive the President of power but to increase the power of Congress to hold him accountable.”10 But Congress and the president lacked an institutional path “for coordination and cooperation.” Part of the problem is

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that Congress did not have a “regular and reliable” way to keep its leaders “informed about foreign affairs.”11 But a deeper problem was the difference between the president and members of Congress. In Lippmann’s view in 1943, “the votes of this Congress have not represented the real views of the American nation.” The source of this problem was “no mystery”: the “ordinary elected representative hears from pressure groups.” For Lippmann, the short-term solution to this structural problem was “presidential leadership” and a greater delegation of power to the president. Like the Progressives, Lippmann argued that presidential leadership is “indispensable” in a republic because only the president can represent the people: “The President is the man who speaks for the great but ordinarily silent majority, and only when he is leading that majority is the ordinary congressman able to point to the real majority and say no to the pressure groups.” Because members of Congress can resist pressure groups by pointing to the national will as embodied by the president, “a congressman who is deeply concerned with the national interest will always desire strong leadership by the President.”12 This is not to say that Lippmann advocated writing a blank check to the president. He insisted that presidents needed to represent more than their party. They “drift into trouble,” he wrote in a 1938 opinion editorial anticipating Rossiter’s distinction between head of party and head of nation, “because they are never quite sure whether they are primarily the chief magistrate of the Republic or leaders of their party.” They too frequently fail to see that acting as a head of a faction makes it difficult to lead Congress.13 Moreover, presidents would need to abide by some institutional contrivance that would help maintain constitutional limits on the executive. Lippmann explained to a correspondent that he “devoted practically every article I wrote to insisting on the establishment of a thorough-going non-partisan working arrangement between Congress and the president.” This arrangement would “do away with the unlimited personal discretion on the President’s part.”14 Harry Truman There is little doubt that Harry Truman agreed with the idea that the president was the “moral spokesperson” for the American people and with Rossiter’s recommendation that the president’s vast inherent powers be left intact so that the president could adequately deal with emergencies. Truman, after all, is remembered for his assertion of presidential responsibility, “the buck stops here,” and for his reliance on inherent executive powers

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to wage the Korean War and to seize the steel mills. Truman connected these points—that the president’s inherent powers were related to the president’s electoral accountability—in his Memoirs. Pointing to Lincoln’s famous question, whether a republic must be either too strong for liberty or too weak for survival, Truman wrote, “My answer to this question is I am convinced that government can be both free and strong.” This is because only a strong government can secure liberties. Unlike Lincoln, who stopped short of grounding the constitutional source of this strength with the claim that the president’s power derives from his being representative, Truman eagerly embraced that standard line of the party of Jefferson and Jackson. As he put it, “the essence of government in a democracy is that it will be responsible, and to me that means that the responsibilities of government be accepted and carried out—until the voters transfer them to the hands of someone else—whose duty it then becomes to act in the best interest of the nation as he sees it.”15 It is clear that Truman had in mind a muscular notion of presidential responsibility. “The President, who is commander in chief and who represents the interest of all the people, must be able to act at all times to meet any sudden threat to the nation’s security.” Thus, for Truman, the fact that that the president represented all the people was inseparable from the fact the president was commander in chief. In response to Truman’s seizure of the steel mills, the Supreme Court famously limited the application of Truman’s theory, but it provided some support for its logic, at least with respect to the claim that the president represents the whole people. A majority of justices agreed that Truman did not have power under the Constitution or under a specific statute to nationalize steel production, but one justice reflected on changes that Rossiter would later write add up to a modern presidency. In his influential concurring opinion, Justice Robert Jackson famously described three categories of presidential power: whether the president was acting with Congress, whether the president was acting alone, or whether the president was acting against Congress. Importantly, Justice Jackson based his reasoning in part on the changes that have occurred to the presidency, because “the Constitution does not disclose the measure of the actual controls wielded by the modern presidential office.” He listed three examples of those changes. One was the “vast accretion” of federal power at the expense of the states, and another was party organization. But the third was the change in the president’s “influence on public opinion.” Like Truman, Jackson noticed that the president’s representative function was inextricably connected to the president’s power.16

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Jackson made this point to reach a different conclusion than Truman. In Jackson’s view, the changes in the president were reason for Congress to be more protective of its own powers. Unlike Rossiter, Lippmann, and Truman, then, Jackson urged Congress to act to prevent “its own power from slipping through its fingers.” But like Truman, Lippmann, and Rossiter, Jackson elevated the president’s electoral position into one of presidential representation. The question is which view of the new presidency, if any, was more representative of opinion outside the White House. Did members of Congress likewise believe that the presidency had changed, and if so, did they think that these changes were legitimate? Was there a modern presidency and what did it have to do with representation? Congress at Midcentury If Americans created a modern presidency in the twentieth century, it would seem that the Eightieth Congress would have known about it. The elections of 1946 had resulted in Republican Congress, the first since FDR. Republicans gained twelve seats in the Senate and fifty-five seats in the House to take control of Congress. Thanks to Harry Truman, this Congress is remembered as the “do-nothing Congress,” the Congress that Truman used to as a foil to win an improbable reelection campaign. This caricature, the Congress that does nothing, was so effective because it reinforced the presidential claim going back to Jackson that only presidents can be responsible to the electorate.17 Because the Congress as a whole cannot be held responsible, the buck always stops with the president. But the truth is that the Eightieth Congress did pass important legislation, offering a particularly good opportunity to gauge Congress’s understanding of the presidency in the middle of the twentieth century. In the first half of 1947, Congress accomplished three major reforms. In March, both houses approved what became the Twenty-Second Amendment, limiting the president to two terms. In April, Congress affirmed the Truman Doctrine, approving Truman’s request for aid to Greece and Turkey. And on July 26, Congress passed the National Security Act, which created the modern national security apparatus. In December it approved an interim aid package that would eventually become the $5 billion appropriation in support of the Marshall Plan. Because of the apparent linkage between the National Security Act and the Truman Doctrine, it is becoming more common for scholars to label both Truman and this Congress as collaborators in a new understanding of presidential power.

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Commentators have long noted Truman’s justification of presidential power, particularly in sending troops to Korea and in seizing the steel mills, as evidence of a change in understandings of acceptable use of executive power.18 More recently, scholars have included Congress as a willing participant. The law professor Stephen M. Griffin argues that Truman and his advisors desired to construct a “new constitutional order” to be adequate to the new foreign policy imperatives of the Cold War. Even though Congress did not square up to directly face the implications of Truman’s plan, it would be a mistake, he writes, “to assume that Congress played no role in fashioning the Cold War constitutional order.” In getting Congress to go along with their “justly celebrated measures,” Truman and his inner circle “were in fact operating as latter-day framers, for they were on the road to an amendment-like constitutional change of historic proportions.”19 The political theorist Mariah Zeisberg reaches a similar conclusion in her recent award-winning study of war powers under the Constitution. In her assessment, Congress went along with Truman’s creation of a new framework for presidential war powers. It went along by increasing military capacity, both by appropriating “billions of dollars for the most sophisticated military in the world” and by centralizing control of the military in the executive branch with the National Security Act of 1947.20 It went along by creating new international institutions, such as the United Nations and the North Atlantic Treaty Organization, that would diminish congressional authority with their new emphasis on collective security.21 Both scholars cite Yale law professor Harold Koh’s seminal National Security Constitution to make this claim. According to Koh, the National Security Act is especially important as a founding document. In his characterization, the writers of the law deliberately altered the way that foreign policy decisions were made in order to accommodate the new foreign policy of containment. “After substantial deliberations, the legislative and executive branches produced a new framework statute to reshape the national security decision-making structure for the postwar years.”22 This new framework, this new national security constitution, rested on two key pillars, according to Koh. First, the new foreign policy system would be managed by “a strong plebiscitary president with the support of a bureaucratic institutional presidency.” Second, the system would be “flexible enough” to work in times of war and peace and thus fit the new reality of the Cold War.23 Koh’s thesis is worthy of emphasis. As he puts it, the American people—and the president and Congress in particular—arrived at a national

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consensus after World War II. This was a consensus about ends and means. The end was freedom from totalitarianism, and the means was military preeminence by the United States. The necessary precondition for the preeminence was a new “plebiscitary” presidency unfettered by constitutional restraints with respect to the powers of war and peace. Although Truman’s overreach during the Korean War might have revealed some fault lines in that consensus, the deeper point is that that there was a fundamental transformation of the presidency and that Congress at midcentury was responsible for it. Crucial to this act of constitutional creation was either the legitimization of the “plebiscitary presidency” or the invention of it.24 According to Koh, even though there was no formal amendment of the Constitution’s war power provisions, the National Security Constitution had been created. It is not unusual for scholars to talk about the creation of a new constitutional order created by a new consensus rather than a formal amendment to the Constitution.25 What is unusual is that in this case there was a national consensus about something else that did result in an actual amendment to the Constitution. The Congress that created Koh’s National Security Constitution by passing the National Security Act is the very Congress that successfully amended the Constitution to limit presidential tenure to two terms. Both the National Security Act and the Twenty-Second Amendment were passed in the spring of 1947. The simultaneity of the two actions by Congress cries out for explanation. If Koh is correct that these men were founders of a new constitutional order, one with a plebiscitary president at its helm, did these founders understand the Twenty-Second Amendment to be a part of their constitutional project? It is possible, of course, that partisanship is the simplest and best way to understand these events. But in order to reach that conclusion, we would have to entertain the possibility that the partisanship explanation could coexist with another explanation. Perhaps some members viewed the two events as linked: in exchange for getting a more muscular control of the war power, the president would be limited to two terms. Or perhaps some members simply expected different results from the policies they created. This attention to expected outcomes then leads to more difficult but nonetheless answerable questions. Did members of the Eightieth Congress see themselves as changing the Constitution to make it more modern, or did they see their actions as restoring the Constitution? Did they believe that the presidency under the original Constitution was ill-equipped for the second half of the twentieth century?

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Republican Accommodation of a New Foreign Policy: The National Security Act The National Security of 1947 was passed under the widely shared belief the United States intelligence had failed to anticipate Pearl Harbor and that the United States needed an institutional framework to meet the new foreign policy imperatives of the Cold War. The law accomplished three major reforms. First, it unified the Departments of War and Navy into one department, the Department of Defense, in order to streamline command and control of the US military. Second, it created the National Security Council to provide the president with the advice and oversight that World War II had proven was necessary. Third, it established the Central Intelligence Agency. But the three reforms were not of equal priority. Judged by the attention given to it, the most important was the unification of the army and the navy under one executive department.26 This was obviously high-stakes bureaucratic politics, and it occupies most of the text in the authoritative account of the law, Douglas Stuart’s book, Creating the National Security State: A History of the Law That Transformed America. By the same standard, the least important part was the CIA. In 1947, the idea was that the CIA would be the “eyes and ears” of the National Security Council. It was only later that the CIA “broke out of that restrictive role and began to establish its own institutional identity.”27 Next in importance was the National Security Council. According to the record Truman left in his Memoirs, he was very concerned that the proposals for the council were aimed at derogating from the president’s constitutional authority. “Under our system the responsibility rests on one man—the president. To change it we would have to change the Constitution, and I think we are doing very well under our Constitution.”28 Stuart points out FDR had similar concerns about a grand “Czar or Poobah or Akhoon of Swats”: “You cannot, under the Constitution, set up a second President of United States. In other words, the Constitution states one man is responsible. Now, that man can delegate, surely, but in the delegation he does not delegate away any part of that responsibility from the ultimate responsibility that rests on him.”29 From Stuart’s account, it is clear that Truman’s concerns were probably well founded. They were shared by Secretary of State George Marshall and Bureau of the Budget director Donald Stone. Perhaps more important, supporters of the reform argued that foreign policy was too important to leave to the control of the president. A version of the proposed reform would have centralized control in the chairman of the National Security Council: “He

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is the font from which unifying decisions will flow. His responsibilities are clear, his duties are clear, and his powers are clear. From him stems a simple and definite line of authority to integrate and supervise the whole national security system.”30 Truman’s resistance thus led to a compromise that Stuart calls “short and vague,” so vague that “no one really understood what had been agreed upon” in the final language.31 In their popular textbook on the presidency, Sidney M. Milkis and Michael Nelson write that legislators had hoped that the NSC would help “tame” presidents, but Truman quickly “domesticated” the council.32 Judging from the debates in Congress, however, it would be hard to find evidence for Harold Koh’s contention that Congress delegated its power to a plebiscitary president when it passed the National Security Act. Very little of the debate had to do with presidential power at all, and none of it had to do with a “plebiscitary” presidency. The vast majority of the debate centered around unification of the army and navy into one department. In the Senate and House, supporters argued that unification would improve coordination and thus prevent another Pearl Harbor.33 Supporters added that unification would reduce waste and thus offer substantial savings.34 Much of the debate had to do with whether the army or navy was getting the better deal, where the marine corps would fit, and whether the navy would retain its control over air power. With respect to the National Security Council, some critics worried that the new department head—eventually called secretary of defense—would undermine the president’s power as commander in chief or Congress’s power over the purse.35 These concerns were always met by the response first, that the there was nothing in the legislation that suggested that and, second, that the Constitution had safeguards against a military takeover.36 No member of the House or Senate argued that events required a change in constitutional structure or that the constitutional structure had been rendered inadequate by the demands of the new foreign policy. In fact, every argument was premised on the idea that constitutional continuity, not change, was preferred. The Twenty-Second Amendment The received wisdom on the Twenty-Second Amendment is that it was little more than a partisan shot at FDR. Because Republicans could not beat FDR at the voting booths, they beat him after he was dead by amending the Constitution in a way that would forever cast—or so they thought—a disapproving eye on FDR’s decision to seek a third and a fourth term. Historian

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Forrest McDonald’s The American Presidency: An Intellectual History offers all of two sentences on the amendment, one concluding the amendment was a “posthumous slap at Roosevelt” and the other noting the self-contradictory state of public opinion about it in 1959.37 As David E. Kyvig notes in his history of the amendment process, “Every Republican who cast a ballot in either house of Congress approved the measure,” and the “additional votes needed to secure the two-thirds margin for acceptance came overwhelmingly from conservative, anti-New Deal, southern Democrats.”38 According to Nelson and Milkis’s textbook, “debate on the Twenty-second Amendment painted a thin gloss of constitutional philosophy over a highly partisan issue.”39 To further demonstrate the partisan nature of the vote, the received wisdom also notes that there was very little debate in Congress. In early January 1947, on the very first day of the Congress where Republicans controlled the House, there was a proposal for the term limit amendment. Only one month later, on February 6, that proposal was put to a vote in the House, with only two hours of debate.40 About a month after that, the amendment was approved in the Senate. In the Judiciary Committee of both the House and the Senate, there was no outside testimony, at least according to Kyvig.41 Scholars have described this process as a “rush to expedite”42 and as moving with “unusual expediency.”43 Milkis and Nelson point out that members of Congress gave “little, if any” consideration to the “Constitutional Convention’s carefully considered decision to place no restrictions on presidential eligibility.”44 It is true that the standard account is somewhat more complicated. The clearest problem is that the case for presidential term limits did not begin with FDR’s opponents. As nearly every textbook on the presidency mentions, Thomas Jefferson was for a presidential term limit from the moment he first read the Constitution.45 Jefferson’s concern was not unusual, for presidents up to FDR abided by the example set by Washington and Jefferson—an example that Jefferson claimed for himself as “my” principle.46 Further, according to one count in 1952, there had been “no less than 270 resolutions to limit presidential eligibility for reelection” introduced in Congress from 1789 to 1947.47 Even Harry Truman’s position on the question was complicated: he seemed to endorse term limits shortly after he assumed office, and he later chose to not seek a third term (he was grandfathered in), though in 1959 he did join the chorus of critics of the Twenty-Second Amendment.48 These mitigating factors add up to the broader problem implied by the quotation from Clinton Rossiter at the beginning of this chapter. That problem is that

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the proponents of the amendment talked a lot about executive tyranny. Or, as Rossiter put it, “this fear of presidential dictatorship was and still remains the surface logic of the Twenty-second Amendment.”49 It is perhaps no surprise then that this standard account has been subjected to revisionist scrutiny. In a recent book-length study of presidential term limits throughout American political history, political scientist Michael Korzi concludes that the amendment is best understood as “justifiable—if controversial—statesmanship.” Unlike those accounts that emphasize the lack of deliberation in Congress, Korzi calls it a “high level debate.”50 Moreover, Republican supporters of the amendment were not doing “anything new.” Rather, Republicans were continuing a long conversation in the history of American political thought, and they were adhering to the party’s long-standing suspicion of a plebiscitary presidency and preference for what Korzi describes as the alternative “constitutional” and “Whig” models.51 In what follows, a review of the debates will confirm Korzi’s view that Republicans expressed anxiety about executive power. But what is most surprising is that Democrats did not make the case for a new or a modern presidency. Rather, Democrats and Republicans cast their arguments as conforming to the original design of the Constitution. Debate in the House In the House, Adolph Sabath (D-IL) laid out what would be the main points of opposition to the amendment. One problem was procedural. In his recollection, this was the first time an important measure was limited to two hours of debate. Another problem was that it was going against the will of the people, since an “overwhelming majority of the American people” were “opposed to this amendment.” Further, the amendment moved “backward,” because, unlike any prior amendment, it would limit the power of the majority. Finally, the amendment was motivated by hatred of FDR and was thus a “pitiful victory over a great man now sleeping on the banks of the Hudson.”52 Other opponents to the amendment continued Sabath’s argument that the amendment was antidemocratic. Ewing Thomason (D-TX) argued that the real principle behind the amendment—what he cleverly labeled the “genuine Republican doctrine”—was to “help save the people from themselves.” In his view, the problem with that doctrine was that the people had already spoken on the subject, in both 1940 and 1944 when they reelected FDR to his third and fourth terms.53 John McCormack (D-MA) argued that

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the Constitution was designed to limit Congress, not the people. On top of that, he also argued that the change would make the Constitution too “rigid” and might cause problems in the middle of a war. The problem is that the rigidity would inevitably invite the people and the president to act “extraconstitutionally” when the time came to keep the right man in office. In his view, this is why Jefferson wisely preserved the distinction between custom and “rigid” amendment and left the Constitution flexible on this issue.54 Supporters of the amendment were quick to deny partisanship on their part and to proclaim that there had been full and fair deliberation on the subject. James Dolliver (R-IA) said the debate had been carried out at a “high level.”55 Earl Michener (R-MI) asserted, “We have had a real live debate,” and said that every matter had been covered “as fully” as if they had debated five days.56 In a direct rebuttal of later scholarship that would state that no outside experts testified before Congress, Raymond Springer (R-IN) reported that his subcommittee had heard from sixteen to eighteen experts on the question.57 Another member noted that the term limit was part of the Democratic Platform of 1896.58 George Gillie (R-IN) pointed to a Senate resolution against a third term for Calvin Coolidge, a resolution he said passed 56–26, with Democrats voting “in a body” for it.59 Supporters argued that the amendment was necessary as a way to retain what had always been an important check on executive power. In their view, there was a clearly established custom in favor of the two-term limit. They pointed again and again to the examples of Washington and Jefferson and to those who were persuaded by a bipartisan consensus to not seek a third term. In their view, now that the custom had been broken, it was necessary to formalize it into law.60 One opponent, Joseph Bryson (D-SC) met this argument by saying that this custom had been rejected in by the “will of the people” in 1940 and again in 1944. Bryson added that the will of the people should be their guide, noting that “parliamentary governments have preserved their democracy with indefinite tenure for their prime ministers.”61 But the more frequent response from opponents was that custom actually supported their position, in that part of the custom was to not amend the Constitution on the subject.62 But supporters did not rest their case on custom alone. In their view, the amendment was necessary not only because of continuity but also because of change. That change was the growth of power of the president. Louis Graham (R-PA) put this point succinctly when he conjured James Madison as a commentator on the present: “Had Mr. Madison lived within the last

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two decades he would have reversed that statement. Now we have come face to face with the situation where we have seen the evil of perpetuation of centralization of government, of control through great bureaucracies, appointments of courts and control of our foreign relations, all due to the built-up, accumulated potency and power of one man remaining too long in public office.”63 Part of this problem was surely control of offices and patronage. Graham stated that of 231 federal judges appointed since 1932, only 17 were Republican.64 But it was more than that. For John Robsion (R-KY), the problem was that FDR was “an ambitious man. He insisted on having control of not only the executive branch of government but control of Congress and control over the courts. He created hundreds and hundreds of bureaus, commissions, and agencies.”65 Indeed, these very offices might have corrupted the will of the people, as, in Robsion’s estimation, FDR probably would not have been elected in 1940 and 1944 had he not been able to distribute these offices. Chauncey Reed (R-IL) argued that the amendment was in the spirit of democracy because “the president is perhaps the most powerful individual in the world.”66 Reed’s point brings up an important point about the connection between presidential power and democracy. In their own conception of their arguments, supporters believed that the issue went to the heart of “political theory.” According to Joseph O’Hara (R-MN) and others such as Robsion, the question was whether the doctrine of the “indispensable man” is “compatible with republican government.” This argument was thus meant to directly counter the argument against “rigidity” made by the amendment’s opponents, but it also used the language employed by the Federalist opponents of the Twelfth Amendment who, in 1804, similarly argued that the Constitution rejected the idea of the “indispensable man.”67 Federalist critics of Jefferson anticipated the point made by Republicans that if some emergency ever requires one man, and one particular man only, then “both democracy and a republican form of government are a failure.”68 Dolliver added the obvious point that since 1914, there had been a worldwide trend toward dictatorship, and then said that the amendment would provide an example toward which other nations might aspire. But it is important to note that, unlike Federalists, Republicans did not make arguments directly attacking the theory of presidential representation. Nor did they explicitly endorse it. The closest attack came from Graham, who complained of the “lack of emphasis” on the difference in the “mode of election,” pointing out that the “relative number of voters was considerably

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less than it is today.”69 The closest endorsement came from Leo Allen, who reminded his colleagues that the president can be selected by the Electoral College “even without the popular vote.”70 Whenever opponents argued against the amendment on the grounds that it undemocratically limited the power of the people, supporters responded that there was nothing undemocratic about proposing an amendment for popular approval. Opponents sometimes responded that ratification by the state legislatures would be insufficiently democratic, but, in part because the alternative (state conventions) is not clearly more democratic, this argument usually went unanswered and was regarded by supporters as mostly a delay tactic.71 The question of presidential representation did come up more directly in the arguments by a third set of members who supported amending the Constitution but in a different way. This group wanted a single six-year term. According to Emanuel Celler (D-NY), this alternative was preferred by a number of members on the Judiciary Committee. This committee believed that six years would be better than eight years for the president’s health, but it was also preferable for politics more generally.72 In their view, and in direct opposition to the logic presented in The Federalist, the prospect of reelection provided improper incentives for the president when making appointments and choosing policies.73 Everett Dirksen (R-IL) expanded on this argument, explaining that the problem was that patronage had changed the constitutional order, a problem perceived by Andrew Jackson but not by Thomas Jefferson.74 Finally, some of these members pointed out that every election “sets the demagogues at work hunting issues and inventing party slogans,” so a six-year term would limit the opportunities for demagoguery.75 It is telling that the argument connecting reelection to the dangers of demagoguery came from a small group who did not fit in the two main factions and who did not alter the course of the debate. Their position, like that of the Whigs a hundred years before them, can be read as an attempt to limit the influence of presidents arising from the claim of representation. But they did not represent mainstream Republicans and Democrats in the House, who mostly stuck to the script of preserving the constitutional status quo. Debate in the Senate The Senate voted on March 12, which was the very day on which Truman offered his special message to Congress outlining the Truman Doctrine. Because the Senate began debate on March 5, it is evident that senators spent more time than did the House debating the amendment.76 With a few

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exceptions, Senate debate followed similar lines of argument. The Senate had more discussion about how to count a vice president who becomes president midterm, a proposal to abolish the Electoral College, and a proposal to limit the terms of all federal officers. 77 Another major difference was the emphasis placed on the method of ratification. Opponents preferred state conventions because they were more difficult, while supporters preferred state legislatures. Opponents supported their arguments with the claim that state conventions were more democratic, that is, would be more authentic representations of the people’s will. As was the case in the House, both sides made the case for continuity, not change. Supporters based most of their arguments for the amendment on custom, and recited again and again the examples from Washington and Jefferson onward. Opponents responded that custom was on their side, as Washington and Jefferson and Jackson left open the possibility of a third term if they were needed to meet unforeseen events. This pattern was briefly put aside by Leverett Saltonstall (R-MA) on Friday, March 7. In response to Joseph Hill’s (D-AL) claim that custom was on the side of leaving the choice in the hands of the people and that the amendment “would place the wisdom of the people in a strait-jacket,” Saltonstall pointed to the “many changes” that had taken place in the last thirty years. These changes, both abroad and at home, amounted to a “greater concentration of power in Government.” Wondering whether some of the examples listed by the other side were out of date, Saltonstall argued that “the last 30 years” were more pertinent “than anything that happened during the previous 200 years.” When opponents to the amendment pointed out that power was even more concentrated in the monarchies of two hundred years before, Saltonstall returned to his more comfortable argument that the Founders objected to one person ruling for a long period of time.78 At least two other supporters of the amendment argued that the new times required new measures. On the very first day of Senate debate, John Overton (D-LA) argued that the problem was not simply that power corrupts but rather that the growing centralization of the government had made the president more powerful. Thus, “it was more urgent now than it was at the time Washington declined a third term.” Absent such a change, “we are likely to drift toward an undemocratic form of government.” Alexander Wiley (RWI) agreed, adding that the shrinking power of the states had made what he called a “fuehrer”-style dictatorship more possible.79 On what turned out to be the last day of the debate, there was an

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opportunity for the debate to take a new turn. Claude Pepper (D-FL) argued that the election of 1944 was “referendum” by the American people and was therefore “authoritative beyond any cavil or question.” Whereas other Democrats had looked to the elections of 1940 and 1944 as settling the question of eligibility for reelection, Pepper came close to making a broader Jeffersonian argument about prerogative and the appeal to the people. In great detail he recounted the questionable legality of FDR’s acts leading up to World War II, calling them heroic. Pepper went on to say that no other newly elected president would have had the experience and the courage to recommend and secure passage of Lend-Lease or to devote the money toward research on developing the atomic bomb. That is, Pepper’s point was that eligibility for reelection was important because part of FDR’s heroism before World War II could be traced to his having already served two terms in office. Pepper thus made a different point from the one he at first implied, namely, that FDR’s heroic and extraconstitutional actions had been ratified by the people by way of the election. Instead of arguing that the term limit would remove the opportunity for after the fact authorization, he argued that experience in office was a precondition for heroic leadership.80 A term limit would thus foreclose the possibility of such courage in the White House. What is conspicuously missing is any argument that the Constitution was inadequate to modern problems and the modern presidency was the solution. Some Republican supporters of the amendment did argue that the Constitution needed to be amended because of the new danger of executive tyranny. But their arguments were typically aimed at restoring the Constitution, not replacing it. Even though Democrats had controlled the White House for fifteen years, Democratic opponents to the amendment did not make the claim that the presidential power was the solution to modern problems. Instead, they argued that their position was closest to the original understanding of the Constitution. Moderates and New Conservatism If we move beyond the legislation of 1947, and beyond the ambitions of Truman and his inner circle, another place to look for understanding views of the presidency during this time would be the moderate Republicans who came to power in the 1940s. Recent studies of Congress in this period have emphasized the emergence of moderates in the 1940s. According to the historian Nancy Beck Young, “By 1944, an informal coalition of center left moderates and conservatives that made pragmatic choices about liberalism

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and state power reclaimed control of American politics to a degree unseen since William Howard Taft was president.” In her analysis, it was this “moderate alliance with conservatives” and not the “often-maligned conservative coalition” that was more important during the postwar years.81 As for these conservatives, the historian John W. Malsberger has shown that the Republicans entering the Senate from 1938 onward were more moderate than the obstructionist Republicans elected before 1938. These “new” conservatives disproportionally represented states on the East and West Coasts, and thus they were more likely than their counterparts from middle America to see that the interest of their constituents was interwoven with involvement abroad. They included Republicans Irving Ives from New York, H. Alexander Smith from New Jersey, George Aiken and Ralph Flanders from Vermont, and Leverett Saltonstall from Massachusetts. Malsberger includes new conservative Democrats Clyde Hoey from North Carolina, Burnet Maybank from South Carolina, and Spessard Holland from Florida. In addition, being more internationalist, these senators had made their peace with “an enlarged role for the state.” As a result, these newer members of the Senate sought to modernize conservativism.82 In particular, they were more willing to follow Truman on foreign policy than they were on domestic policy. They joined hardline conservatives on anti-FDR votes on Taft-Hartley and the Twenty-Second Amendment, yet joined internationalists on votes regarding NATO, aid to Greece and Turkey, the National Security Act, and the Marshall Plan. If historians such as Young and Malsberger are correct, it was these creators of “modern” or moderate Republicanism who held the key in policymaking during the postwar years. As Malsberger puts it, the election of Dwight Eisenhower in 1952 was the “culmination” and not the beginning of the shift toward modern conservatism, a conservatism that was making peace with a new status quo. According to this argument, this status quo included a new vision of the role of the United States and new understanding of the “proper role for the Executive branch within the federal government.”83 Indeed, in the Eightieth Congress, it was the votes of these new moderates that mattered. On the aid package to Greece and Turkey, thirty-five Republicans joined thirty-two Democrats to pass the bill in the Senate. On the Marshall Plan, the new Republicans generally supported the bill, focusing their criticisms on limiting costs, not on opposition to international involvement.84 Given that such a staggering amount of bipartisan compromise was achieved in foreign policy, it would

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make sense to assume that these new Republicans had a new vision of the presidency. But did they? Judging from roll call analysis by Malsberger, it appears they did not. Malsberger grouped senators into fourteen broad policy dimensions. He then classified each senator into one of three groups according to how frequently that senator voted with the president. His evidence shows that the newly elected Republicans were moderates, falling between core supporters of FDR and Truman and hardline oppositionists. From Malsberger’s classification, this moderate middle of “medium support” included thirteen Republicans and five Democrats.85 This was the group that made Truman’s foreign policy possible.86 Although Malsberger does not comment on the question of the modern presidency, it is evident from his data that this moderate group was not so moderate on the question of executive power. The key group included eight senators who consistently voted against Truman on questions of executive power: Taft (OH), Thye (MN), Flanders (VT), Ives (NY), Langer (ND), Lodge (MA), Smith (NJ), and Cooper (TN).87 But Malsberger also found that seven of these eight were moderates on foreign policy, neither supporting nor opposing Truman all the time.88 If Malsberger’s analysis of roll call votes can be trusted, then it appears that Republican senators who were generally moderate with respect to supporting Truman and generally moderate with respect to foreign policy were not moderate at all with respect to executive power. Rather, they consistently voted with the more hardline or “obstructionist” conservatives on executive power. Leadership: Arthur H. Vandenberg In thinking about the Republican turn toward moderation, no single member of Congress comes more immediately to mind than the Republican chair of the Senate Foreign Relations Committee, Michigan senator Arthur H. Vandenberg. Vandenberg was known as the indispensable Republican with respect to Truman’s internationalism. He supported the Truman Doctrine, the Marshall Plan, and NATO. In Truman’s memoirs, the president concluded that without Vandenberg’s “brilliant, intelligent leadership,” along with that of Vandenberg’s counterpart in the House, “we could never have achieved an bipartisan policy in the conduct of foreign affairs.”89 Secretary of State Dean Acheson agreed in his own memoirs that Vandenberg’s part in ratifying the Truman Doctrine was “invaluable,” noting that the Michigan senator was “born to lead a reluctant opposition into support of

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governmental proposals that he came to believe were in the national interest.”90 Noting that the Eightieth Congress represented “a significant shift in the government’s center of gravity,” Life magazine declared that the “eyes of the world were now on men like Senator Arthur H. Vandenberg, the G.O.P.’s dean of foreign affairs.”91 This praise came no doubt because Vandenberg was perceived as a principled man who grew less obstructionist to Democratic presidents over time. Vandenberg vigorously opposed the New Deal during FDR’s first term but quickly read the 1936 elections to mean that Republicans would have “to chart a more liberal and less obstructionist course.”92 In a 1940 article for the American Mercury titled “The New Deal Must Be Salvaged,” he argued that “new problems demand new answers.” These answers were not Republican ones but rather ones that he credited to FDR: “Eight years of the New Deal have launched certain social concepts, which, in their objectives, cannot and should not be reversed.”93 Even more famous was Vandenberg’s turn on foreign policy. Before World War II, Vandenberg favored neutrality and led the opposition to FDR’s efforts toward involvement, especially Lend-Lease, yet, in a major speech in January 1945, a speech described today on the Senate website as the speech heard around the world, Vandenberg declared that isolationism was no longer possible because of the threats to national security.94 With respect to the aid package to Greece and Turkey, central pillars in the Truman Doctrine, Vandenberg’s energetic support was essential. Truman biographer Alonzo Hamby wrote that Vandenberg functioned “almost as an emissary of the administration”: he “brought along a majority of Senate Republicans and neutralized the UN argument by sponsoring an amendment that gave the United Nations a symbolic role.”95 In one of his last letters, Vandenberg acknowledged a conversion experience, from “nationalist” to “internationalist.”96 For many, Vandenberg’s ability to change principles was the sine qua non of his leadership style and successes. Acheson called it the “stratagem” that made him an effective leader. According to Acheson, Vandenberg would undertake a public change of heart in the matter of a “political transubstantiation” but always leave some principled explanation for the switch with what Acheson labeled the “Vandenberg amendment.”97 After the Michigan senator’s death in 1951, the public intellectual Walter Lippmann praised this characteristic of Vandenberg in a letter to his son: when we are forced to change our minds because of a “collision with the brutal facts and being

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run over by them,—as in Pearl Harbor,” it helps, Lippmann wrote, to follow a leader who has changed his own mind, “doing it with style and dash, and in a mood to shame the devils of his own weakness.”98 Judging by the titles of the two major biographies of Vandenberg, his career is best understood by the words “evolution” and “conversion.”99 Vandenberg’s speeches and writings would thus seem to be likely places to find evidence for a conversion with respect to executive power. This is precisely what Mariah Zeisberg suggests. In her account, Vandenberg was persuaded that the new foreign policy required a change in the “constitutional allocation of war authority,” a position he had rejected earlier, in 1944, at Dumbarton Oaks. But pointing to a passage from his 1945 Senate speech rejecting isolationism, Zeisberg concludes that Vandenberg came to believe that such a reallocation was in fact required by the new security situation. Thus his support for the UN and NATO was premised on the idea that “collective security” at the international level took precedence over outmoded constitutional requirements with respect to Congress and the war power.100 It is worth mentioning in this context that Vandenberg had long been an admirer of Alexander Hamilton. After an intellectual flirtation with Theodore Roosevelt as a young man (he eventually chose party loyalty and William Howard Taft in 1912), he later found in Hamilton two pillars of constitutional stability. Those two pillars were neutrality and the checks and balances. In the 1920s, Vandenberg published three books praising Hamilton and applying Hamiltonian principles to current problems. He praised Hamilton’s Pacificus essays for their principled defense of neutrality, which he called “political isolation” on behalf of America. It was not that Hamilton and Washington “loved France less or favored England,” but rather that “they loved America more.”101 Likewise, pointing to Hamilton’s argument that gratitude should not be the basis of foreign policy, Vandenberg concluded, “Thus was the great doctrine of Nationalism made articulate.” With respect to his own opposition to the League of Nations, he pointed to Federalist No. 63 to argue that the Senate saved the people from themselves.102 It appears that Vandenberg’s admiration of Hamilton went deeper than a desire to trace a line from Washington’s Neutrality Proclamation to his own opposition to the League of Nations. He praised Hamilton for creating a “centralized government,” free from “interference by the states.”103 He also loathed Jefferson, noting with approval Theodore’s Roosevelt’s statement that the popularity of Jefferson was a discredit to the country. In Vandenberg’s view, Jefferson’s administration was too partisan and too weak to

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pursue neutrality even when Jefferson said he wanted it. “Jefferson vacillated and extemporized. He wanted neutrality, but hesitated to command it. He surrendered to conditions, rather than surmount[ing] them.” Comparing Jefferson to Machiavelli’s “irresolute prince,” Vandenberg concluded that Jefferson pursued neutrality of weakness, “escaping mischief, only to encounter greater ones.”104 But Vandenberg’s love of Hamilton and acquaintance with Machiavelli did not acclimate him to broad readings of executive authority under the Constitution. In fact, Vandenberg frequently criticized FDR on grounds that the president was violating the Constitution by executive fiat. In 1935 and 1936, Vandenberg took to the radio to criticize FDR and praise the Supreme Court. Taking aim at FDR (and perhaps without his knowledge at FDR’s cousin Theodore), he proclaimed, “The Constitution is something more than a paper napkin at an economic picnic.”105 Later, when he had made his peace with some of the economic policies of the New Deal, he still objected to FDR’s expansion of executive power. In his 1940 call to conservatives in the American Mercury to salvage the New Deal, he repeated his criticism of the court-packing plan and the bemoaned the “general tendency to make rubber of the Constitution.” He also objected to FDR’s reliance on unilateral actions, what he called “the correlating appetite in the Great White Father to run everything by executive decree.”106 Even though Vandenberg famously changed his mind about internationalism, there is very little evidence that he changed his mind about executive power. As we have seen, Zeisberg reaches a different conclusion. She points to Vandenberg’s concession that the “commander in chief should have instant power to act,” adding that there should be “no more need to refer any such action back to Congress than that Congress should expect to pass upon battle plans today.” But the full context of Vandenberg’s statement reveals that he was not talking about presidential power in the new context of the Cold War. America has this same self-interest in permanently, conclusively, and effectively disarming Germany and Japan. It is simply unthinkable that America, or any other member of the United Nations, would allow this Axis calamity to reproduce itself again. Whether we Americans do or do not agree upon all the powers that shall reside in an ultimate international council to call upon us for joint military action in behalf of collective security, surely we can agree that we do not ever want

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an instant’s hesitation or doubt about our military cooperation in the peremptory use of force, if needed, to keep Germany and Japan demilitarized. Such a crisis would be the lengthened shadow of the present war. It would be a direct epilogue to the present war. It should be handled as this present war is handled. There should be no more need to refer any such action back to Congress than that Congress should expect to pass upon battle plans today. The commander in chief should have instant power to act, and he should act. I know of no reason why a hard and fast treaty between the major allies should not be signed today to achieve this dependable end. We need not await the determination of our other postwar relationships. This problem this menace-stands apart by itself. Regardless of what our later decision may be in respect to the power that shall be delegated to the president to join our military force with others in a new peace league-no matter what limitations may commend themselves to our ultimate judgments in this regard, I am sure we can agree that there should be no limitations when it comes to keeping the Axis out of piracy for keeps. I respectfully urge that we meet this problem now.

What is critical is that Vandenberg is talking about collective security in the context of the ongoing project of “disarming Germany and Japan,” not the broader Cold War. This is why he phrases the question of congressional approval as going back to Congress. Congress had already declared war on Japan and Germany. In fact, Vandenberg explicitly refers to “our later decision” to join a “new peace league” as distinct from the current question of winning the war against the Axis powers. So the point is that the president would not need congressional approval in the older context of Japan and Germany. The new foreign policy, however, would continue the older constitutional relationship between Congress and the president. Later, Vandenberg consistently insisted that international treaties preserve Congress’s authority under the Constitution over the war power. With respect to the aid package to Greece and Turkey, Vandenberg’s support was premised on his recommendation to Truman that he take his case to Congress for approval. In his remarks on that message before Congress, Vandenberg clearly stated his support: “The President’s message faces facts and so must Congress.” He also argued that support for the president was necessary to prevent “dangerous” misunderstanding abroad. But he also said that Congress had to “evolve a total policy” to face the departure from

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prior policies.107 In a private letter, he connected what he saw as the necessity for congressional support of Truman with his displeasure of Truman’s letting “crises” develop without seeking congressional participation.108 Vandenberg’s position on NATO similarly preserved congressional process. The report of the Senate Foreign Relations Committee explicitly stated that the participation of the United States in NATO must be “by constitutional process,” and, in a private letter explaining his understanding of the treaty, Vandenberg wrote that “Congress reserves to itself complete freedom of action” with respect to any NATO action and that the Senate would have to give its consent to the addition of any new members.109 It is not the case, however, that Vandenberg joined hard-core traditionalists on the question of the war power during the so-called Great Debate on Korea. In fact, he separated his own position from that of Nebraska senator Kenneth S. Wherry in a letter to Wherry. He told the Republican senator that he doubted the practicality of limiting war by limiting the president’s power. This is because “the President is the only officer (military or civil) who can release the atom bomb,” so it would be better for Congress and the president to “voluntarily agree by legislation on the general basis of our reciprocal support” without solving the question of the “President’s constitutional prerogative.”110 To Massachusetts senator Henry Cabot Lodge Jr., he recommended a Senate resolution that would recognize that the president’s prerogative had “governed” procedure for the last 150 years in spite of ongoing debate and would sustain the “exclusive prerogative to declare war.” Specifically, the path forward would have two steps. First, the president would have to seek “advance congressional approval for the deployment of American troops abroad whenever long range planning is not incompatible with our public interest for national security.” Second, the president would have to “immediately notify Congress whenever a national emergency requires the summary use of his personal responsibility.”111 It is true that Vandenberg was looking for a practical arrangement to make the war power work, but the point is that Vandenberg’s efforts most resembled later attempts to rein in the war power, not the attempts to loosen them. What is striking is that Vandenberg did not argue that the new facts of the Cold War required a new understanding of the presidency in the constitutional order. Nor did he embrace presidential claims to represent the people.

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Walter Lippmann Vandenberg was not only the only person willing to embrace internationalism and warn against executive power. In fact, Vandenberg conspired with Walter Lippmann to defeat Truman’s appropriations request in 1949. Vandenberg objected to the discretionary authority the bill would have provided the president in peacetime. In his view, Truman’s request would concentrate more “peace-time” power than in any other “White House in the history of the United States” and would make Truman “the top warlord on earth.” Walter Lippmann agreed. In a letter to the Michigan senator, Lippmann called Truman’s request a “shocking example of utter disrespect for our constitutional traditions and for the very process of law.” More than that, Lippmann urged Vandenberg to use his unique position to provide Truman with “a stern lecture” on “the need for a return to recognized standards of conduct in dealing with Congress and the people.” Indeed, Lippmann wrote, “I should think that such a reproof might be made by you, and as a matter of fact only by you.” Lippmann replied the following day that the Senate had “killed the ‘war lord bill’ which would have made the President the top military dictator of all time.”112 In the senator from Michigan, Lippmann had found his new preferred solution for the problem of delegating power to the president. By then, Lippmann had qualified his calls for some institutional solution to collaboration between the Congress and the president, at least with respect to getting information about the military, and instead recommended that the Senate seek information “informally and privately.” If the Senate “tried to formalize the matter, the contact will become spasmodic and at arm’s length.” The way to get more information was through “off-the-record” contact between “trusted responsible Senators” and the executive branch.113 Thus Vandenberg’s ability to seek pragmatic and yet principled compromise offered an attractive model in Lippmann’s estimation. As a result, the influential journalist groomed Vandenberg—and not someone else who was an advocate for a plebiscitary presidency—as the person to defeat Truman. But that was not all. A few years later, after Vandenberg had died, Lippmann lamented the loss of the “moderating effect of Vandenberg, with his passionate Constitutionalism.” The absence of the Michigan senator was especially bad because “neither Truman nor Taft has shown a proper respect and loyalty where the Constitution was meant to be supreme.” He agreed with Taft that Truman violated the Constitution in sending the military to Korea without seeking authorization from Congress, but, pointing to attempts to

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install a congressional veto on the recognition of foreign governments, he found it “deplorable” that “Senator Taft should pass over in complete silence the unprecedented usurpations by Congress of the President’s powers in the conduct of foreign affairs.”114 Later, during the Eisenhower administration, Lippmann argued in his The Public Philosophy that the key difference between modern and “primitive” societies was the differentiation between the legislative and executive functions. The “health” of modern systems therefore depended on the both the legislative and executive functions remaining in their proper sphere.115 Lippmann need not have become an admirer of Vandenberg’s passionate constitutionalism. As we have seen, in previous decades Lippmann was clear in his calls to transform separation of powers by delegating power to the president. In that respect, his message remained the same. From the 1920s to the 1950s, he consistently argued that Americans needed a strong president. As he put in in 1955, “under a weak President our system does not work well.”116 Likewise, in 1956, he wrote in his column, “A weakness in the presidency, a vacancy in the presidential office, threaten that balance between the Congress and the executive which is the inner principle of the Constitution.”117 But this appeal to the “inner principle of the Constitution” was a change of emphasis from his earlier calls, especially under FDR, for emergency delegations of power on the basis of necessity. This change, this movement toward the Constitution, surely shows more trust in the statesmanship of men like FDR and Vandenberg than in men like Truman. But it also suggests either a partisan or a constitutional turn against, and not an acceptance of, the modern presidency unmoored from its constitutional origins. If Americans at midcentury had come to accept the modern presidency as a necessary innovation on the Constitution, their public philosopher, like their Congress, had moved in the wrong direction.

5 Reformed Democrats and Unitarian Republicans

The Republican Party of Arthur H. Vandenberg would change over the next several decades by becoming more socially conservative, more committed to tax cuts, and more committed to the idea of an American military presence abroad. A good deal of this change can be understood with reference to the turn in the Democratic Party after 1968. Because of Vietnam, many in the Democratic Party became disenchanted with internationalism, and the party drifted toward a pacifism that was suspicious of military involvement around the world. At the same time, a considerable portion of Democrats either identified with or accepted the menu of countercultural lifestyles advocated by the New Left. Combined, perhaps, with civil rights and the increase in the national authority of the government that came with it, this countercultural movement changed the party system by changing what it meant to be a Democrat or a Republican. Republicans were becoming socially conservative, and Democrats socially liberal. Views of the presidency were also in flux. After a string of successes in the Electoral College, Republicans came to favor broad readings of the president’s authority under the Constitution even as they pursued narrow readings of the national government’s power with respect to the states. Democrats came to view presidential power with suspicion, even as they advocated for increased regulatory power of the national government. This was something of an ideological realignment, as the party of Jefferson and Jackson no longer believed in states’ rights and no longer believed in a strong presidency. But even before the popular image of a strong president was changed from FDR or LBJ to Reagan, the presidency was transformed in another way by the politics of 1968. In the aftermath of controversy over the nomination of Hubert Humphrey, Democrats created a special commission to make recommendations on the delegate selection process. This commission, the McGovern-Fraser Commission, would eventually transform the presidency

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by bringing the nomination of the two major contenders closer to the preference of individual voters rather than of party leaders. The McGovern-Fraser Commission The McGovern-Fraser Commission was conceived in the Democratic Party’s turmoil of 1968. Its birth is therefore incoherent without reference to the candidates for office in that contest. But by the time the commission issued its reforms, its identity could no longer be reducible to the events of 1968. Instead, the commission transformed the Democratic Party’s way of nominating its presidential candidate by regularizing delegate selection and by tilting the selection process toward direct primaries that would be binding. In so doing, it created a “new politics” that was ideological and national in scope. Because the commission’s rules changed the nomination process, it could be said without overstatement that the commission transformed the presidency. It weakened the parties by creating a candidate-centered nomination system in which less-qualified candidates would be able to compete with more-experienced candidates.1 Further, by some accounts, these reforms further democratized presidential selection and as a result made the claim of presidential representation even more plausible for presidents.2 Because primary winners could claim a mandate from party members directly, and because the nominees who emerged from this process were ones who won on their ability to get more votes than other contenders, the mandate conferred on the nominees was considerably more popular than it had even been in the past. The McGovern-Fraser Commission was formally titled the Commission on Party Structure and Delegate Selection to the Democratic National Committee. Tasked with the mandate to recommend reforms aimed at providing all party members with “a full, meaningful, and timely opportunity to participate” in the selection of the party’s nominee, it published its recommendations as a sixty-three-page pamphlet, Mandate for Reform.3 The commission’s report found that the 1968 convention limited full, meaningful, and timely participation in several ways. At least twenty states had inadequate rules for selecting convention delegates and thus left the “entire process to the discretion of a handful of patty leaders.” More than a third of the total of delegates were selected before the calendar year of 1968, that is, even before the candidates were known. Minorities were thwarted by winner-take-all requirements. Some states had secret caucuses, and others

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imposed prohibitive fees on candidates and delegates. Finally, representation of “blacks, women and youth at the Convention were substantially below the proportion of each group in the population.”4 While the commission was clear that its recommendations were meant “to serve no ideology and no geographic segment” of the party, its guidelines for future nominations unabashedly endorsed the ideology of “more participation and open processes.”5 Among other things, the guidelines abolished the unit rule, required the delegates to be selected in the same calendar year as the convention, prohibited state party committees from selecting more than 10 percent of the state’s delegates, and required “affirmative steps” toward making delegates proportional to the populations of “minority groups, young people and women.”6 More broadly, the reforms were aimed at creating settled and standing rules, increasing participation, and building a broad base of support for the party. As the commission put it, these guidelines were “designed to open the door to all Democrats who seek a voice in their Party’s most important decision: the choice of its presidential nominee.”7 It is curious that the commission did not justify its guidelines by pointing to changes that had occurred either to the presidency or within American society. Rather, the reform was necessary because the party had not been living up to its own tradition: “From the days of Jefferson and Jackson, the Democratic Party has been committed to the broad participation of rank-and-file members in all of its major decision-making.” So, though the nomination of the presidential candidate might be its most important decision, it was not a fundamentally different one in the kind of representation it required. Rather than creating a new presidency or responding to a transformed one, the reforms were necessary as one more step in fulfilling the party’s longstanding commitment to “fair play and opportunity.”8 Thus the commission was concerned only with “the opportunity to participate, rather than the actual level of participation.”9 The Crisis of 1968 That Hubert Humphrey was nominated at all confounds our current assumptions about what it means to win a major party’s nomination. Of the votes cast in primaries, Humphrey came in fourth. To be sure, two of the candidates ahead of him were not available: the incumbent president Lyndon Johnson had chosen not to run for reelection after winning narrowly in New Hampshire, and Robert Kennedy was assassinated after winning

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the California primary. But the leader among all four was Eugene McCarthy, who received 38.7 percent of the combined vote. Humphrey won only 2.2 percent. Humphrey’s total looks even smaller once compared to the antiwar vote total: adding McCarthy to Kennedy would yield almost 70 percent of the total primary vote.10 Humphrey’s low standing in terms of primary delegates was exacerbated by demographic differences between his delegates and the delegates for other candidates. Humphrey’s nonprimary delegates were “white, male, middle-aged, or older party regulars,” while McCarthy’s and Kennedy’s primary delegates were “academics, peace-activists, feminists, and other party outsiders.”11 Even before Humphrey was nominated at Chicago there were concerns about the process, and these concerns were serious enough to lead to the forming of a commission. This commission was the Hughes Commission, named after the governor of Iowa, Harold E. Hughes. The commission grew out of the Democratic state nominating convention in Connecticut. The convention had selected nine McCarthy supporters and thirty-five others who were likely Humphrey supporters. This was itself a concession to the McCarthy supporters, who under the unit rule might not have been counted at all.12 But this concession did not go far enough. The nine McCarthy supporters believed this proportion did not reflect sentiment in their state, so they decided to form a commission that would investigate party rules. They secured financial backing to hire staff and a commitment from a publishing house. After several misfires, they reached an agreement with Hughes to chair the commission and recruited other commissioners outside Connecticut. The staff began to research the rules in the various states, while commissioners agreed on a strategy to build contact within the membership of the rules committee at the upcoming national convention.13 They targeted the rules committee as an access to a public platform because only 10 percent of the committee was necessary to bring a minority report to a vote before the full convention and therefore on live television.14 The Hughes Commission met only one time, in August of 1968, but it was able to find consensus enough to issue an eighty-five-page report, The Democratic Choice. The report traced a history of presidential selection, arguing that the Founders created the Electoral College to “convene distinguished leaders” to deliberate about who should be president. This system was quickly replaced with one more attuned to bargaining, the convention system. In the twentieth century, new developments, including the advent of direct primaries, the growing importance of television, the emergence

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of independent “issue” voters, and the rise of “black power,” came to a head in 1968 and revealed that the convention system, and even the two-party system itself, was in peril of being cast aside.15 Thus the parties needed to reorganize the convention system because there was a crisis: “The demands for democracy at political conventions and elsewhere in the process of government will be heard.”16 Among other things, the commission called for the end to the unit rule, insisted on a reckoning with racial discrimination within the Democratic Party, and recommended measures that would provide “meaningful access” to the nomination process. These measures included requirements about proportionality and timeliness.17 The foundation for these arguments was mostly grievance about the results of 1968, but it also included somewhat conflicting views about the presidency. In the view of the Hughes Commission, if the party did not undertake these reforms, it would be swept aside by a future in which every individual owned a computer and national plebiscites could be taken with ease. After all, even though the Framers were “suspicious” of “direct popular participation,” “presidential politics in the United States has persistently tended toward ever more direct democracy since the Constitution was ratified.” With the “sharp acceleration” in direct democracy in the twentieth century, the parties had to adapt or die. Interestingly, the authors of The Democratic Choice believed that the death of the parties would be bad for the “public interest of the nation,” as the two-party system was a “powerful force for stability.” Likewise, the authors rejected the call to replace the nominating convention with a national primary. The logical conclusion, therefore, was to make the parties, and therefore their conventions, more compatible with direct democracy without being replaced by it.18 Supporters of McCarthy staked their last hopes on a challenge at the convention’s various committees, especially the rules committee. On the rules committee, McCarthy supporters issued a minority report calling for a ban on the unit rule. Importantly, they linked the controversy over the unit rule to larger questions about “participation” in the nomination process. By linking the question of the unit rule to a larger question about participatory democracy, they hoped that they could force the party to accept more innovations down the road. Because Humphrey supporters were focused on securing the nomination for Humphrey, they were less interested in fights about party rules, much less about fights over whether there should be a commission to study party rules. With control of the nomination, they would have control of the Democratic National Committee (DNC), and

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with control of the DNC, they could control any future study.19 Thus even though Humphrey fought to ensure that his delegates would win any credential challenges, he did not instruct his delegates to resist rule changes. As a result, the rules question became noncontroversial, and, according to Michael Nelson’s recent study of the election of 1968, the successful vote to abolish the unit rule went virtually unnoticed by major media.20 There was a little more drama behind the scenes. In his leading study of the reform, Byron Shafer writes that James C. Wright, a congressman from Texas and future speaker of the House, was aware of the recommendations of the Hughes Commission. Perceiving that the logic of the recommendations would potentially lead to the disqualifying of enough Humphrey delegates to turn control of the rules committee over to McCarthy’s supporters, Wright prepared a memo aimed at solidifying support among Humphrey supporters on the rules committee. His papers reveal that he prepared notes, categorizing committee members according to whether they supported Humphrey or McCarthy or were unattached.21 His memo, which Shafer calls the first explicit counterargument to the reform efforts, labeled the reformists as a “self-appointed group” proposing “radical changes” to the process, changes that would alter the outcome of the nomination itself.22 Likewise, in another memo prepared for rules committee chair and Illinois governor Samuel H. Shapiro, Wright argued that the minority’s proposal for delegates to vote their “conscience” was too vague and would open itself to too many disputes.23 Supporters of Humphrey remained uninterested in having a large-scale fight over reform, but as the convention’s business of nominating a candidate and deciding on a platform grew more heated, this lack of interest worked to the advantage of the reformers. Because the winning coalition was most interested in securing party unity for the upcoming general election, they were also interested in finding some nonthreatening way to make the minority happy. This apathy, combined with some arm twisting and charm by Hughes inside the convention and with the confusion both inside and outside the convention, added up to a successful vote for the rules committee minority report. Hughes and his fellow travelers demanded two things. First, they called for a ban on the so-called unit rule, which was a winner-take-all custom in eleven southern and border states. The winner-take-all feature centralized power in the hands of the state party leadership by giving its leaders bargaining power undiluted by the diversity of factions within the state.

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Importantly, Humphrey decided it was best to take the wind out of reformist sails before the convention by writing Hughes to say that he would agree to end the unit rule. And so the rules committee recommended its termination. Second, they wanted all delegates to be selected in a process “open to public participation” that happened “within the calendar year of the convention.” This second reform, plus a stipulation that the unit rule be banned from all stages of the delegate selection process, was included in the rules committee minority report.24 This victory was a major step linking the Hughes Commission to the eventual McGovern-Fraser Commission.25 In October, Humphrey issued a press release calling for a Rule Study Commission, explaining that he was “particularly interested in developing recommendations which will maximize democracy in the nomination process.” Whether or not Humphrey’s heart was in reform, it is likely that Humphrey hoped this overture would be enough to bring McCarthy supporters back to the fold.26 With Humphrey’s endorsement, the new commission was born. South Dakota senator George McGovern was chosen to lead the commission, probably because as an insurgent candidate for the nomination who ultimately supported Humphrey, he was seen as a compromise between the McCarthy and Humphrey camps. When McGovern left the commission in 1971 to run again for president, Minnesota representative Donald Fraser was chosen as chair.27 From its inception, the composition of the McGovern-Fraser Commission was tilted toward the reformist wing of the party. Indeed, Shafer shows that the distinction between volunteers and organized groups represented the most important cleavage on the question of reform. Notably underrepresented were known stakeholders advocating for the various organized groups making up the Democratic coalition. As commission member and later secretary of state Warren Christopher put it, “I myself had relatively radical expectations for what the commission would produce. I think, in answer to your question, that I was much further over toward the side of expecting recommendations for radical change out of this Commission than expecting moderation. After all, the commission ran the gamut from ‘A’ to ‘B,’ not from ‘A’ to ‘Z.’”28 Perhaps even more important, McGovern used his power to appoint staff as a way to reassure reformers that the commission would in fact be committed to reform. According to Shafer’s calculations, 100 percent of the staff were full-blown reformers.29 The reformist bias also characterized the commission’s executive committee. Not only was the commission created to be disproportionately predisposed toward reform, its members were also

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unlike those of the Hughes Commission in that the members of the new commission were less interested in policy reforms but instead were devoted to reforming the party “as an end in itself.”30 The momentum toward reform grew once organized labor withdrew from the commission. Sensing that the deck was stacked, I. W. Abel, who was president of the United Steelworkers of America, withdrew from the commission, thus leaving the reformers even freer to pursue their objectives without opposition from within the commission itself.31 An example of this predisposition toward reform was a subcommittee’s recommendation to permit delegates to be awarded only for candidate primaries and participatory conventions. Like the Hughes Commission, it ruled out three other possibilities—delegate primaries, party caucuses, and committee selections—and would have disqualified 60 percent of the delegates from 1968. It is also worth noting that, unlike the Hughes Commission, it considered participatory conventions to be sufficiently participatory.32 A second crucial development was that the commission staff took control over the work of drafting the commission’s report. The main drivers were Eli Segal and Anne Wexler, both supporters of McCarthy in 1968 and then McGovern in 1972. Segal and Wexler and the other staff members were all alike in that each had entered politics on the side of an insurgency from the outside and each had been defeated in the past by party regulars. In this sense, Shafer says reform was “social,” not “intellectual.” Remarkably, commissioners never took the time to question the impact of the staff’s preferred reforms on the party. That is, the commissioners never questioned the decision to recommend measures that would locate the power to choose the nominee in the process of participation rather than in the hands of the party itself.33 What is most striking about the report, then, is how little opposition it actually generated within the commission. On the committee, with organized labor mostly absent, George Mitchell became the main spokesperson for the opposition. Committee staff worried that Mitchell and Will Davis, a lawyer from Texas, would author a minority report. But according to Shafer, Mitchell was not comfortable in the role of opponent, and, more importantly, his opposition was centered mostly on the authority of the commission. He believed that mandating proportional representation and demographic quotas was outside their authority. But as for the other reforms, he thought they were mostly sensible and fair. Further, once fellow Mainer Edmund Muskie became a credible candidate for the nomination in 1972, he chose

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to avoid conflict with reformist elements in the party in order to improve Muskie’s chances.34 According to Austin Ranney, the question of quotas did spark considerable internal division. Ranney was one of the two political scientists on the commission, and in 1973 Ranney gave the Jefferson Memorial Lectures at Berkeley, accepting “Nelson Polsby’s suggestion” to discuss the McGovernFraser reforms in a larger “account of the theory and practice of party reform throughout American history.”35 Employing Berkeley political theorist Hanna Fenichel Pitkin’s taxonomy, Ranney explained that the commission’s members held different understandings of, and goals for, representation. Of the twenty-eight members, he calculated that “most” favored “preferential proportional representation”; that is, they believed that each delegation should reflect the proportions of support for candidates in that state. But about half of the twenty-eight also wanted what Ranney called “proportional demographic representation,” meaning they wanted delegates to present the mirror image of the demographic groups in the population. But the other half opposed this notion on the grounds that quotas based on “biological requirements” would stand in the way of reforms aimed at proportionality of preference.36 Thus Ranney cast the internal debate as one between what Pitkin called descriptive representation and an accountability theory of representation.37 Quotas and descriptive representation won by a narrow majority, and as a result the commission created a “hodgepodge of representative inconsistencies.” Not only were the elderly, the poor, and labor unions left out, the prior principle of proportional preference had been undercut. Ironically, it was Ranney himself who had first proposed the quota, but he quickly changed his mind and then regretted opening this “Pandora’s box” and considered it one of his greatest failures as a political actor.38 Opposition to the Commission’s Proposals Perhaps the strangest part of the reform is that serious political opposition never materialized from outside the commission. Commission members expected a backlash from the parties in the states, especially in the South, and in states with ties to the AFL-CIO, which had mostly boycotted the reform commissions from the start. The problem for the Southern Democrats, however, was that they could not offer a coherent rationale in the new language of issue politics when what they wanted was to retain a historically powerful place at the bargaining table. As for labor, Chicago mayor Richard Daley attempted to put together his own slate of delegates in 1972

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as if the reforms did not exist, but the party refused to seat the delegates, a decision that was ultimately sustained by the Supreme Court in 1975 in Cousins v. Wigoda.39 AFL-CIO president Owen Meany did attempt to articulate a principled case against reform, but others such as Walter Reuther of the United Automobile Workers (UAW) saw the reform movement as the path to his preferred social reforms. Moreover, the UAW’s representative on the commission, Bill Dodds, supported the commission’s conclusions.40 So the backlash never really came. Instead, by the time of the next convention in 1972, the DNC ruled that forty-five states were compliant with the reforms.41 What explains this astonishing success? Shafer explains the ease of the change as having to do with the immediate context of the elections of 1970, which at the state level was a rout for reformist Democrats. Twenty-one states elected new governors. Fourteen of these changed from Republican to Democratic hands; three replaced Democrats with Democrats. These seventeen new Democratic governors were born in the heat of partisan reform, and owed their existence to new voluntary coalitions that had helped them unseat more traditional candidates. All were thus likely to be allies of, or at least sympathetic to, efforts to implement the reforms in the states.42 Political scientist William J. Crotty points to this mystery in his book on the reforms: “Yet, for all their [labor’s] power and the intensity of its opposition, they failed to keep the McGovern-Fraser Commission from realigning each of the state party processes, an extraordinarily difficult job without federated labor’s enmity. Why?” His answer is that labor was blindsided, and its “arrogance” and “total inability to understand what the reforms were about were all contributing factors to its humiliation.”43 In a recent account, historian Sam Rosenfield likewise concludes that opponents had no set alternative around which they could rally and that the status quo was, unfairly or not, more easily associated with Vietnam and racial discrimination. Further, there were reasons having to do with changes in leadership: Lawrence O’Brien replaced Fred Harris as DNC chair, and O’Brien proved more effective than Harris at pushing reform once O’Brien was assured by the party’s legal counsel Joseph Califano that the new guidelines “should be respected by the state parties.”44 Overall, Rosenfield concludes, the reformers were “pushing against an open door” because the opposition was really a hodge-podge of “sleepy state and local party organizations” that were in long-term organizational decline.45 This is not to say, however, that there were no important skeptics among intellectuals. One was Ben Wattenberg, a centrist who had teamed with

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Richard Scammon to publish The Real Majority in 1970. Subscribing to the dictum that demography is destiny, Scammon and Wattenberg argued that the Democratic Party needed to build a coalition where the majority of voters actually existed, and this majority was “the unyoung, the unpoor, and the unblack.” Arguably, it was Nixon, not the Democratic Party, who most took the book’s argument to heart. Wattenberg later chaired the Coalition for a Democratic Majority (CDM), a group of centrist and conservative Democrats who believed that the party had become too liberal for mainstream America, and it was the CDM that “provided the most thoughtful and fully documented attack on the reform guidelines.”46 In 1972, the CDM argued in direct mail that the reforms grew out of a “New Politics,” “a politics new in its contempt for the very people and institutions on which the Democratic Party has built its electoral strength.” Specifically, the CDM charged the reformists with abandoning labor and, more broadly, the “greatness of America” itself.47 This critique called attention to the fact that the reforms would create winners and losers and in so doing forced Democrats to think through some of the foundations for the reforms. Why should some groups be protected by quotas and not others? Was participation itself better than winning? Did it matter that delegates represent or not represent normal or mainstream Democrats?48 Wattenberg did not embrace the reforms in part because he believed that the existing system was working. In The Real Majority, Scammon and Wattenberg concluded, contrary to “much subsequent comment and testimony” after Humphrey’s nomination in 1968, that the no-primary system “has, in fact, been a rather good barometer of party sentiment over the years.” Even though they conceded that it was “hard to say exactly how and why it ends up being responsive it is,” they nonetheless were confident that the process succeeded in awarding the nomination to the right candidate: with the exception of Goldwater in 1964, “in convention after convention, the choice the delegates ultimately make is the choice of the tens of millions of party voters.” After all, Humphrey was closer to “the middle of the Democratic party” than either Kennedy or McCarthy and thus led in the polls.49 Another critic and CDM member was Jeanne Kirkpatrick. In her booklength study of the 1972 nominating conventions, Kirkpatrick concluded that the purpose of the McGovern-Fraser reforms was “much more concerned with participation than with representation.” Drawing on the intellectual history of representation, she pointed out that “representing the rank and file” is the not the same thing as ensuring that rank and file take

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part in the nomination process. This confusion, in her view, resulted in the postreform Democratic Party being less representative than the party had been prereform. Because the middle-class participant in the participatory model is more likely than a party boss to believe that the entire party is identical to him or her, that participant is therefore more likely to remain oblivious to the views and needs of those who are in fact not like him or her at all. Thus the reform actually made the nominating convention less representative of the rank and file.50 As McGovern’s presidential campaign faced what was revealing itself to be a devastating loss in 1972, there was one final push against the reforms. Anti-McGovern Democrats who lined up behind Washington senator Henry “Scoop” Jackson united to install the Texas conservative Robert Strauss as DNC chair to moderate the party. Some of the idea, at least for Al Barkan of the Committee on Political Education (COPE), was to undo the reforms. But they were disappointed when Strauss as well as the Coalition for a Democratic Majority focused their attention on the quota system, not on the new procures regarding delegate selection. Thus instead of a continuing dispute about whether to have smoke filled rooms, both sides now sought a compromise on the question of quotas being the best way to increase participation from women, minorities, and young people.51 The Object of the Reforms While there is a good deal of consensus that the effect of the reforms was to change the presidency and undermine the parties, it is less clear that this was the intent of the men and women who created and then implemented the reforms. It is clear that everyone understood that the reforms created winners and losers. Most explicitly, the winners were those who stood to benefit from quotas for delegates regarding sex, race, and age. In addition to the quotas, the changes to the process were devastating for labor and opened a rift between affluent liberals and less-affluent whites that would plague the Democratic Party for decades. As Miroff puts it, “by opening up the nomination process to new forces, the McGovern reforms closed down the backroom venues in which organized labor had been dominant.”52 More broadly, according to Shafer, the reforms were a victory for “amateurs” and a defeat for “professionals” in a contest between parties based on volunteers and parties based on paid public or party officials.53 The new amateurs had been attracted to personalities like McCarthy, Kennedy, and McGovern, and in 1970 “were concentrated in upper New England, the Southeast, the

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upper Midwest, the Rocky Mountains, and the Far West.” The more reliable, more permanent, organized state parties relied on the “tangible, divisible rewards” of patronage and “were concentrated in the middle-Atlantic, near midwestern, border and south-central states, although a few were scattered elsewhere.”54 The victory of the reforms thus “implied a move by the national party toward the volunteer, rather than the organized, mode of party politics.”55 States where amateurs dominated, such as Minnesota, Wisconsin, and Oregon, moved more quickly than states such as Texas, New York, and Connecticut where organized patronage systems were more dominant.56 This division was historically contingent and regional, but the success of the reforms also suggested, as Rosenfield puts it, a move toward a national and ideological party. In a 1969 letter to McGovern, commission member and political scientist Samuel Beer revealed as much. The new activists, he wrote, “see themselves not so much as a faction within a state party as part of a nation-wide combination, and therefore want a system which will register their strength in the nation as a whole. . . . Our politics, in short, is becoming more ‘nationalized’ and the nomination system should reflect this fact.”57 Beer’s letter suggests that the stakes were clear: as Rosenfield puts it, the new reforms not only promised more openness and participation but also presumed to create a new majoritarian party. This majoritarianism would combine traditional New Deal constituencies with newer ones, such as the minorities, the young, and the poor. This meant that the new party would be both national in scope and issue oriented in character. The losers in this new arrangement would be those groups whose success depended more on “pragmatic and decentralized bargaining” than on national issue politics.58 More generally, the reforms replaced a process in which elites bargained among themselves with one in which there would be a clear winner in a national series of statewide electoral contests. As difficult as it would be to overstate the importance of these reforms, it is also important to notice that the impact was different from and even greater than the expectations of those who created them. While it is clear that a considerable number of commissioners wanted more deliberation and participation, it is not the case that they wanted more primaries or a different kind of presidency. According to Eli Segal, the goal was making existing primaries more transparent and fair, not more frequent.59 Likewise, Ranney wrote in 1978 that there was near unanimity among members of the commission—indeed, “about the only matter on which we approached unanimity”—on the question of primaries: “We did not want a national

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presidential primary or any great increase in the number of state primaries.” In fact, Ranney explained that the members thought the reforms would actually decrease the reliance on primaries: “Indeed, we hoped to prevent any such development by reforming the delegate-selection rules so that the party’s non-primary processes would be open and fair, participation in them would greatly increase, and consequently the demand for more primaries would fade away. And most of us were confident that our guidelines would accomplish all these ends.” This turned out to be spectacularly wrong, and, as Ranney put it, “Boy we got a rude shock.” As state governments took measures to act in compliance with the commission’s guidelines, there was a “sudden proliferation of presidential primaries.”60 Ranney’s comment is remarkable, for it shows that the founders of the modern nomination system did not mean to give us the system we have. This point is all the more compelling in light of the fact that around the same time Congress considered and decided against creating a national primary. Paths Not Taken: Direct Election and a National Primary What is sometime lost in discussions of these reforms of the nomination process is that they took place in the context of two high-profile failures to reform presidential selection. One was in 1970, when a Senate filibuster ended a proposal that would have proposed an amendment to the Constitution replacing the Electoral College with a direct election of the president. The other was in 1972, when the Senate held hearings on creating a national primary by congressional statute. Reform was in the air not only because of Humphrey’s nomination in 1968. The other problem, at least from the perspective of the two parties, was that the segregationist populist George Wallace had won 46 electoral votes in 1968. Because Nixon won with 301 electoral votes, and Kennedy had garnered 303 in 1960, it was not inconceivable to imagine that Wallace’s margin was large enough to sway a close election. Making matters worse, Wallace had claimed that he would direct his electors to choose among the winners, and one elector who was pledged to Nixon actually voted for Wallace. Combined with the specter of the “faithless elector,” the Wallace candidacy revealed that a regional candidate could wreak havoc on the process of electing the president. In a special message to Congress, Nixon recommended changing the Constitution, explaining that early Americans had done so in 1804 when the

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election of 1800 revealed certain defects in the system. They were now in a similar position, as the election of 1968 had “spotlighted” other defects in the process. Nixon explained that he favored the proportional plan on the grounds that it was most likely to be ratified by three-fourths of the states. This practical consideration was a quiet acknowledgment that “many citizens,” “especially in our smaller states and their legislature,” believe that the Constitution creates a “union of states” rather than a union of people. Nixon also explained that he would support any change so long as it moved the system closer to approximating the popular vote, did away with individual electors, and went no lower than 40 percent plurality requirement.61 In September 1969, the House approved an amendment to the Constitution by an overwhelming and bipartisan vote. By a 338–70 vote, the House recommended an amendment that would create a national popular vote for president, with 40 percent as the minimum plurality required and a runoff in the event no person received 40 percent. Generally, proponents of the change pointed to the threat to the two-party system demonstrated by Wallace, but several also made the larger point that direct election of the president was the more just process. It was more just because it was more democratic. In its recommendation of the amendment, a majority of the House Judiciary Committee explained that the change would “eliminate the possibility of electors repudiating the will of the people” and would “remove an artificial, intermediate step in determining the peoples’ choice of a national leader.” One member of the committee, Republican William W. McCulloch of Ohio, argued, “Anyone who subscribes to the neutral principles that government should be representative, that every vote should count, that individual voting power should be equal, that winners should be declared winners and losers should be declared losers must also subscribe to the direct election proposal.” Republican Howard Baker of Tennessee said the Electoral College was “more than a harmless anachronism” because it was a “dangerous impediment to the voice of the people.”62 Sensing that momentum was on the side of reform, opponents clustered around two counterproposals, the district plan and Nixon’s preferred proportional plan. Under the district plan, electoral votes would be awarded to the candidate with the plurality in each congressional district, and the candidate who won a plurality of the state’s vote would receive the two extra votes. Under the proportional plan, a candidate would receive the same proportion of electoral votes as he or she won in the popular vote in that state. Both plans differed from the national direct vote in retaining the centrality

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of state borders. Contests would still be won and lost in particular states. Just as important, both alternatives would presumably retain the bonus given to the small states under the compromise in the Convention of 1787. Conservative members from the South and Midwest favored the district plan. Finally, although the final vote suggested a substantial margin in favor of direct election, an earlier vote reveals the potential margin was narrower. A last minute vote to send the bill back to the Judiciary Committee was defeated 162–246. One hundred Republicans, or just over one-half of the party’s caucus, voted to send the measure back to committee. Opponents to the amendment were not united, but a major theme of their opposition had to do with philosophic differences about the nature of the Constitution. A large part of the concern had to do with federalism. Most important, small states would lose the comparative advantage they received from the two extra votes, and Congress would be given more control over elections and qualifications for voting.63 If the objections to changing the Electoral College grew out of concerns held by small states that they would lose some of their influence, it is perhaps appropriate that the amendment died in the Senate when a majority could not overcome a filibuster. The chief spokesperson for the reform was the Illinois Democrat Birch Bayh, who argued that the reform was necessary to express the “national will.” Bayh had been stymied on the Senate Judiciary Committee by Strom Thurmond of South Carolina as well as by the committee’s chair, the Democrat James Eastland of Mississippi, and the ranking Republican, Roman Hruska of Nebraska. When Bayh was able to break the deadlock by threatening to block the nomination of a Supreme Court justice, the Judiciary Committee recommended the amendment. The committee’s minority argued that the amendment would, among other things, undermine the role of the states in the electoral process and “radicalize” public opinion in a way that would be harmful to minorities. During debate, Nebraska’s other Republican senator, Carl Curtis, explained that the change would bring his state from having 0.92 percent of the national electoral vote to having 0.73 percent of the national popular vote, adding that he was “not authorized to reduce the voting power of my state by 20 percent.” The votes on cloture reveal that small states were evenly divided on the amendment, and southern states were strongly opposed.64 It is worth noting as an aside that opponents were not only southerners and John Birch types. In the hearings before the House Judiciary Committee, Yale law professor Alexander Bickel testified that a direct national vote would

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bring about the end of the two-party system. He advised fixing the more immediate problem of faithless electors instead of scrapping the Electoral College. Also, representatives from the National Cotton Council and the American Farm Bureau Federation spoke against direct election.65 In the Senate’s hearings, journalist Theodore H. White called the proposed reform a “direct invitation to chaos” because of the likely fraud that would result. Richard Goodwin, who had worked as a speechwriter for John and Robert Kennedy as well as LBJ, testified that the reform would increase the power of the large states at the expense of the small ones and would jeopardize the two-party system.66 Between the passage of the House’s recommendation of the amendment and the Senate’s filibuster of it, Nixon weighed in again, this time to endorse the House plan. This was something of a reversal. During the hearings before the House Judiciary Committee, Nixon’s attorney general, John N. Mitchell, had urged the House to concentrate on “mechanical changes” rather than direct election. These changes would be aimed at the more immediate problem of a small third-party candidate casting himself as the broker in an election where no candidate received an Electoral College majority. One such mechanical change could be a runoff between the two top candidates.67 But in light of the House’s action, combined with the urgent need for reform, “contrary views are now a luxury.” So Nixon recommended, unsuccessfully, that the Senate pass the House’s version.68 During debates on direct election of the president, several supporters argued that they also wished to nationalize the nomination process. In June 1972 the Senate Judiciary Subcommittee on Constitutional Amendments held hearings on a bill to establish a national primary. Cosponsored by Senators George Aiken (R-VT) and Mike Mansfield (D-MT), the bill would have taken the form of an amendment to the Constitution. This was not the first attempt. In 1913, Woodrow Wilson pushed the idea, but in 1915 he dropped his proposal for a national primary after a senate committee held that it would require a constitutional amendment.69 This time, Aiken’s bill would create a “national presidential primary to be held in August,” with nominees being “chosen by a direct popular vote.” Also testifying in favor of the proposal was Richard Scammon, who explained that there were “only two basic reasons for objecting” to the plan: “One is that you don’t trust the people to select their own nominees; the other is that the current system happens to favor your own particular objective.” In his view, “neither is valid.”70 Others did, however, offer alternatives, and some opposed. Robert

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Packwood (R-OR) preferred regional primaries as a way to avoid the “pitfalls of a single national primary.” Thomas Eagleton (D-MO) wanted to keep the state primaries but restrict them to the single month of July, whereas Representative Morris Udall (D-AZ) wanted to create a uniform process where each state followed the same rules and candidates would have to enter all of the primaries—or none—offered on one of the three allowed dates nationwide. Neil Peirce, the former political editor of Congressional Quarterly, warned that “the single-shot national primary” would put too much “emphasis on television” and make it more likely that candidates from the “extreme wings of their party” would secure the nomination. It would also abandon the safety precaution of “bargaining” at the national convention. Perhaps most interesting was the testimony of Representative Donald Fraser, cochair of the McGovern-Fraser Commission. In his view, a national primary could be defended only if it were preceded by a national convention. This would allow the “party machinery” to vet candidates before they were selected by the “public machinery.”71 Outside of Congress, political scientists Nelson W. Polsby and Aaron B. Wildavsky worried that a “national primary might lead to the appearance of extremist candidates and demagogues who, unrestrained by allegiance to any permanent party organization, would have little to lose by stirring up mass hatreds or making absurd promises.”72 Their concern was predicated on their objection to the direct primary per se as much as it was to a national primary.73 Republicans and Nomination Reform Philip Klinkner points out that Republicans were similar to Democrats in that neither party interpreted its defeat in 1964 and 1968 as a clear rejection of its preferred policy positions. Instead, as is revealed by the reforms to the nominating process, Democrats explained their loss on procedural problems and then nominated a liberal antiwar candidate in 1972. Republicans, for their part, did not see respond to 1964 by avoiding conservative candidates. Nor did they reform their nominating procedures. Rather, they changed their organization by restructuring the Republican National Committee (RNC), coordinating with the state party committees, fundraising, and recruiting candidates. Like the rental car company Avis, whose mantra was “We’re number two, so we try harder,” the Republicans believed that they had to out-organize the Democrats because the Democrats were the majority party.74 The strategy worked. By 1992, Republicans had won the White House

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three times in a row. Combined with Nixon’s two victories, the Reagan-Bush era signaled that Republicans had figured out a way to unite to defeat FDR’s New Deal coalition, but it also signified what seems to have become the new normal since 1968, divided government. With Democrats controlling Congress and Republicans controlling the presidency, partisanship took an institutional turn as the Republican Party became the party of a strong presidency. Within the Republican Party, a new theory of executive power would emerge, and this new theory would test the Republican Party’s long-standing reluctance to embrace the Jacksonian claim that the president represents the people. A decade after McGovern-Fraser, political scientists concluded that the Republican Party was still “unreformed.” Its delegate apportionment formula was still weighted toward the Electoral College, and it did not have required demographic quotas.75 Part of the explanation surely has to do with the fact that Republicans had already banned the unit rule and proxy voting, and their nomination process was already governed by formal rules, so there was less opportunity for the cycle of controversy and reform that characterized the Democratic side. Moreover, the Republican state parties historically enjoyed more authority, making the national party more confederal in nature and less authoritative than the Democratic Party.76 In the beginning there was a moment when the Republicans under RNC chair Rogers Morton might have cooperated with Harris and the Democrats to create a bipartisan reform recommendation, but this eventually fell apart because of mutual suspicions held by the two parties.77 Some moderate Republicans, unhappy with the result in 1964 and with Nixon’s conservative tilt after 1968, looked to have their own version of McGovern-Fraser in order to bring the party back in their direction. Whereas conservatives believed that nominating more candidates like Goldwater would result in victory, a moderate faction, operating in the tradition of Dewey and Eisenhower, instead believed that conservative nominees would lead to Republican losses and that the only hope for the party lay in being more moderate than the Democrats. 78 These moderates had long believed that their interests were not served by the delegate selection process. Most problematic were the bonus delegates awarded to states who elected Republicans for certain offices. Alongside the formula that distributed delegates on the basis of Electoral College delegates, this bonus provision diluted the voting power of the large states. With small, Republican states enjoying an advantage in delegates, the nomination process was tilted toward candidates

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who were more conservative than would be the case if larger states had more say. At the 1972 convention, reformist Republicans rallied behind a proposal by Representative William Steiger to change the allocation formula, but this efforts was eventually defeated by a vote 434–910 vote. Reformers did, however did extract a promise to have a committee study ways to open the process to women, minorities, young people, and the elderly. But this committee’s recommendations were eventually pushed aside by the party.79 The Ripon Society, founded in 1962 to organize moderate Republicans, tried to achieve this by legal action. Working from the logic that the formula and bonus violated the principle of one person one vote, the moderate Ripon Society challenged the Republican party in court. The Ripon Society won at first, when the District Court of Columbia ruled that the bonus was a violation of the Fourteenth Amendment, but the Republican National Committee ultimately won on appeal. In response to the lawsuits, conservatives argued that the moderates were trying to win in court what they could not accomplish in open negotiation with normal people. In this, the defenders of the old way were able to paint the reformist Republicans as having the same objective as the reformers of McGovern-Fraser, and, more than that, as having the same disdain for ordinary people.80 It is true, however, that Republicans did go along with the dramatic tilt toward direct primaries. Nelson Polsby explained that this was because in some states laws were changed “willy nilly.” These rules then created incentives that structure the process. Among these, most important were the “centralization of control over the certification of delegates” and the “separation of state conventions from delegate selection procedures.” Combined, these two incentives encouraged state leaders to create more primaries, while others, having to do with campaign finance, encouraged candidates to enter primaries.81 With respect to the process of awarding delegates by way of primaries, Republicans were mostly forced to go with the reformist flow. Democrats controlled most of the state legislatures, and they believed that “what was good for Democrats would be fine for Republicans too.” By the 1980s, “the unreformed Republican contests came to closely resemble the reformed Democratic ones.”82 Democrats and the Limits of Reform What this reveals is that momentum toward reform had its limits. As much as the movement for full and meaningful participation seemed to sweep away its opposition, the movement could not abolish the Electoral College,

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and it did not result in a national primary. This is because a substantial enough coalition remained whose members were more concerned about protecting the relative influence of their respective states than interested in creating a presidency that would rest on a undisputed national mandate from a majority or plurality of voters. As ripe as the conditions were, and they were probably even riper than they had been at any point since the election of 1824, the proponents of direct election of the president could not overcome the array of obstacles that had endured as part of the compromises baked into the Constitution of 1787. It is likely that more than self-interest on the part of small states that was to blame, for even among Democrats, concerns lingered about turning over the decision regarding nomination to individual members who necessarily lacked the credentials and discernment of party leaders. The landslide defeat of McGovern, who won only Massachusetts and Washington, DC, confirmed the fears of these Democrats who worried that the reforms would lead to Democratic defeats in the general election. To be fair, McGovern’s nomination cannot be wholly credited to primaries, for, according to Andrew E. Busch, McGovern actually received “fewer primary votes than Humphrey.” In Busch’s view, McGovern was hurt by the movement toward primaries more than he was helped by them.83 While that may be true, it is undeniable that the reformers believed the reforms would help candidates like McGovern: he ran from the Left, enjoyed support from amateurs and college students, and benefited from the momentum conferred by the media in the new system. It is also telling that he lacked support among key groups: he never received endorsements from major prereform players such as Chicago mayor Richard Daly and the AFL-CIO. In 1976, the nomination of Carter confirmed that McGovern’s strategy of winning early nominations to gain momentum in media coverage was the best strategy under the new rules, and this time the Democratic nominee actually won. But given Gerald Ford’s pardon of the disgraced former president, Nixon, it was likely that any Democratic nominee—whether selected by the old way or the new way—would have won. So the test would come in 1980. Although most party insiders stayed with the incumbent during the nomination contests of 1980, a considerable number instead endorsed Massachusetts senator and party icon Ted Kennedy.84 After Carter won more primaries and caucuses than Kennedy, Kennedy argued for an “open convention,” unbinding delegates from their pledged choice, partly on the basis that late-breaking events in Iran and Afghanistan had undercut the

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earlier primaries.85 This would have undone the spirit of the McGovernFraser reforms, which sought to remake the nomination process by normalizing it under standard rules. More importantly, it would have shifted the decision-making authority back to party elites, away from the Carter voters in primaries. In this, it was trying to put the cat back into the bag, but it also faced the problem, Kennedy notwithstanding, of there being a clear alternative to Carter who would emerge from the open convention.86 Carter was nominated and then defeated by Reagan, and in response, Democrats went back to the drawing board with respect to delegate selection. In 1982 a commission chaired by North Carolina governor Jim Hunt recommended that the party shorten the period in which primaries take place and then hold up to 30 percent of its delegates as unpledged. That is, these delegates would not be obligated to vote for a winner of their state’s primary or caucus but rather could use their own discretion to choose the party’s nominee. In the words of the commission report, the idea was “to return a measure of decision-making discretion to the national convention.” Part of their concern was the disproportionate influence wielded by early caucuses and primaries, but a large part was that the convention had become a “rubber stamp” and as a result “our party’s public officials have not participated in and thus have felt only a limited responsibility for our recent national conventions.”87 The commission’s recommendations were endorsed by the AFL-CIO and the Democratic State Chairs Association and opposed by Kennedy, who now perceived that the proposal would benefit his rival in 1984, Walter Mondale, and by feminist groups, who perceived that the change would threaten the quotas women enjoyed under McGovern-Fraser. Geraldine Ferraro, who would become Mondale’s running mate, negotiated a compromise that reduced the number to 14 percent.88 It is possible that the new system helped Mondale secure the nomination in 1984.89 With the possible exception of Mondale, it is true that superdelegates have not decided any contest, and conventions have become predictable affairs where the party presents a unified front. But the last two Democratic nomination contests, in 2008 and 2016, have revealed that superdelegates could prove to be decisive in a very close contest. As result, superdelegates have become controversial, precisely because they are antidemocratic. As Hunt himself explained in an opinion editorial in 2008, the idea was to help the party win by ensuring that there would be delegates who would choose the best candidates:

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In creating superdelegates, the Democratic Party recognized the expertise that its top holders of public office have gained by running for office themselves. They are experts at winning. They know the issues. They are in a unique position to evaluate presidential candidates. They have a well-honed instinct for how candidates will be received in their own states and districts. In short, they can help the Democratic Party pick a winner.

This defense of superdelegates came in February, during a nomination contest between Illinois senator Barack Obama and New York senator Hillary Clinton, in a context in which Clinton was relying on superdelegates to win the nomination against an insurgent candidate who had surprised everyone with a strong showing in early caucuses. What is notable is how candidly Hunt wrote of the need for “experts” who uniquely know the issues and who can “evaluate candidates” in way that that is different from and better than ordinary voters at caucuses and primaries. Hunt explicitly referenced the McGovern-Fraser reforms and the nomination of McGovern, arguing that Nixon’s landslide victory was a “backlash” against a nominee and a platform that “seemed out of step with mainstream Democratic leaders.” Because McGovern had been chosen by a process that included “few top Democratic elected officials or regular party leaders,” Democratic candidates throughout the nation suffered at the polls in 1972.90 In this defense of superdelegates, Hunt showed that even the Democratic Party was not entirely comfortable with the democratization of the nomination process that happened as a result of McGovern-Fraser. Rather than praising the reforms for creating a link between the nominee and millions of individual voters, or even for the step toward maximum participation, Hunt instead made the case for expert judgment. The New Unitary Executive and Presidential Representation One of the most important intellectual developments of the last several decades has been the Republican Party’s articulation of a new theory of the unitary executive. The central assumption of this theory is that the Vesting Clause of Article II of the Constitution should be read as a substantive grant of authority to the president. Because Article II vests “the executive power” in the president, while Article I vests only those “legislative powers herein granted” to Congress, it would seem that the Constitution granted the

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president all of the executive power. This is not a new argument, for Hamilton had used it to defend Washington against critics. Indeed, the hallmark of the unitarian argument is that it seeks authority from the Constitution itself, brushing aside other historical developments that would complicate some of its claims.91 But it is not quite accurate to see the recent Republican argument as a simple redeployment of Hamiltonian orthodoxy. Part of the problem with the unitarian argument is that it assumes that something called the executive power exists and can be identified with certainty. Constitutional theorists going back to Locke have struggled with identifying the executive power. Even though Locke recommended that the executive be given the powers of foreign policy, he called the powers of foreign policy “federative,” which is to say that they were neither precisely executive nor legislative. As was discussed in chapter 3, Madison and Hamilton disagreed about whether the treaty power was naturally executive or legislative, and both writers confessed in The Federalist that it was sometimes difficult to determine with precision the lines marking the partitions among the three departments of government. Indeed, as we have seen, it was Madison who first used the difference in the Vesting Clauses to make an argument for executive power. It is Madison’s defense of executive power in the contest of removals that reveals a deeper inconsistency in the unitarian argument. Like Madison, who pointed to the principle of responsibility, unitarians also defend executive power on the grounds of democratic accountability. Or, put differently, although their fundamental starting point is the formal vesting of authority in one president, their argument also sometimes relies on the normative claim that having one president in charge is more in line with democratic authority than alternative power-sharing relationships with Congress or a independent bureaucracy. In this, the unitarian argument at times attempts to appeal to the two rival notions of executive authority. Or, put differently, there are two strands in the unitarian argument, and these two strands are at odds with each other. There is no doubt that many of the intellectual steps in the theory were taken during the Nixon administration. As Yale political scientist Stephen Skowronek explains in an article on the unitary executive in the Harvard Law Review, Nixon turned to the formal resources of the presidency because “he was acting in a government otherwise controlled by his political enemies” and “because there was no cohesive national sentiment on which to base expansive claims to power.” So Nixon sought support in a “silent majority” and

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looked for ways to shift power to the president and White House Office away not only from Congress but also from the extensive reaches of the executive branch and the Executive Office of the President.92 Thus Nixon lashed out at what he called a “bureaucratic elite” that he said was threatening popular government itself, and in some cases refused to spend funds appropriated by Congress to execute certain laws.93 But the real flowering of the idea came to pass in the second term of the Reagan administration in the nearly simultaneous debates about the independent prosecutor statute and Iran Contra. In each case, Republicans constructed elaborate new arguments on behalf of executive power. In the case of the independent prosecutor, it was the power to remove executive branch officials. In Iran Contra, it was the power to control foreign policy, even in cases where Congress had attempted to direct it by statute. These arguments were no doubt meant to benefit the Republican president, but perhaps just as important was the ambition of the arguments. In fact, the Reagan administration recruited lawyers even before Reagan was elected and, then under Attorney General Edwin Meese, conducted seminars on separation of powers. The assumption at work was that the presidency had been hobbled by the reforms passed by Congress in response to Vietnam and Watergate. But they also partly relied on arguments from presidential representation. This can be illustrated by the scholarship of Steven G. Calabresi. Calabresi is now a law professor at Northwestern University and is perhaps the leading unitarian scholar with respect to the removal power. He was a cofounder of the Federalist Society while a law student at Yale. After clerking for Judge Robert Bork, he worked in the Reagan administration from 1985 to 1987 as a special assistant to Meese. In 1987 and 1988, he clerked for Justice Scalia on the Supreme Court. Given these positions, and given Calabresi’s scholarship, it would be hard to think of someone closer to the origins of the theory of the unitary executive.94 In a 1995 article in the Arkansas Law Review, Calabresi defended the unitary executive not only on textual grounds but also on normative grounds. Like the Jacksonians and Progressives, Calabresi pointed to the different electoral constituencies undergirding the president and Congress. Whereas Congress is torn by the regional pressures and narrow interests, the president instead represents a national constituency. Thus the unitary executive offers a solution to the “Redistributive Collective Action Problem” that plagues Congress.95 It would be tempting to conclude, then, that a signal of the modern

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presidency is that the Republican Party has embraced the tenets of progressivism. This is a prominent theme in the work of University of Virginia political scientist Sidney Milkis. As he frames it, much of the conservatism today employs rhetoric about protecting ordinary men and women against elites who are trying to transform the country against their will. Or, more specifically, the Reagan Revolution grew out of the embrace of direct democracy in the 1978 victory of Proposition 13 in California, a reform that was “eerily similar to those of Roosevelt.”96 Although there is a good deal of truth to this analysis, it does not capture the whole picture. While it is true that Republicans have been quick to frame their arguments as more democratic than those of their liberal opponents, it is not the case that they have completely adopted Jeffersonian appeals to the people. Closer examination reveals that accountability plays an important role in some but not all unitary arguments. Iran Contra and the Power to Control Foreign Policy In 1986, a Lebanese magazine broke the news that would become known as the Iran Contra affair. The United States had sold weapons to Iran and then used the money to provide aid to the Contras, a group of rebel fighters opposed to the socialist Sandinista regime in Nicaragua. In addition to the problem with selling arms to Iran, the deal appeared to be illegal on its face, as Congress, under a rider to a defense appropriations bill called the Boland Amendment, had specifically prohibited assistance to the Contras for the purposes of overthrowing the Sandinista regime. In 1987 Congress formed a joint committee and held hearings to investigate the arrangement and to determine which officials in the Reagan administration were responsible for violating the law. While the majority report did not go as far as to hold Reagan personally responsible, it excoriated lower officials for breaking the law and the administration for acting in secrecy. The minority report responded with a full-throated defense of executive power. Perhaps the individual most responsible for the minority report was Wyoming representative Dick Cheney. Cheney was clearly proud of the document, as he later pointed to it in a 2005 interview session with journalists accompanying him on a trip to the Middle East. Calling it an “obscure text,” he said the report—“actually authored by a guy working for me” —was “very good at laying out a robust view of the president’s prerogatives with respect to the conduct of especially foreign policy and national security matters.”97 In his 2011 memoir, he quoted from it, calling it the “more balanced”

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alternative to the “tendentious majority report” that aimed to aggrandize congressional power.98 Cheney believed that one ambition by Democrats was to use Iran Contra as a pretext to further rein in executive power, just as they did in the 1970s after Watergate. Accordingly, Cheney hired a scholar, Michael Malbin, to write the report with the mandate “to preserve the institution of the presidency.” Malbin, who was a journalist with a PhD from Cornell, had recently been working on questions of separation of powers, and he “spent his days reading the voluminous legislative histories of the National Security Act and war powers issues going back to 1789.”99 The work on the report probably brought Cheney closer to David Addington, who would later become perhaps his closest confidant. Addington, whom Cheney described as “bright, completely discreet, and with tremendous personal integrity,” was a lawyer who worked on the House Intelligence Committee during the investigation. Both Malbin and Addington had jobs under Cheney when Cheney was secretary of defense in the George H. W. Bush administration.100 Addington would become Cheney’s lawyer and eventually chief of staff during the George W. Bush administration. Addington also ran the political action committee for Cheney’s failed presidential campaign and was at Cheney’s side during the extended controversy over the 2000 election. According to Cheney’s memoir, Addington was frequently the steward of the most classified documents, worked closely with NSA director General Hayden to develop the wiretapping program, and held Cheney’s prewritten resignation letter in the event that the vice president ever became incapacitated.101 In addition to pointing to the Vesting Clause and the unitary nature of the office, congressional Republicans also based their case for a strong presidency on the argument from presidential representation. From their reading of Hamilton’s Federalist No. 70, there were actually two reasons for unity in executive—energy and accountability. Like the Jacksonians, and unlike their Republican and Whig predecessors, they argued, “The President is every bit as much of an elected representative of the people as is a member of Congress.” Further, “he and the Vice President are the only officials elected by the whole Nation.” This claim was meant to counter the argument, made by Reagan’s critics, that Reagan had “threatened democracy,” because it revealed the president as the most democratic institution. But it was also meant to be suggestive of reforms that would fix the conditions leading to Iran Contra. Even though both the Congress and the president

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represented the people, Congress is ill-fitted to decide questions of foreign policy. Foreign policy matters are best left to “case to case decisions,” not to “general rules” that grow out of “discussion and deliberation” among interested factions.102 Those conditions grew out of endemic problems in Congress, not the management style of the Reagan White House. Like Croly and other Progressives, the Republicans located the problem within the fractured nature of Congress. “When Congress is narrowly divided over highly emotional issues, it frequently ends up passing intentionally ambiguous laws or amendments that postpone the day of decision.” But “Congress has a hard time even conceiving of itself as contributing to the problem of democratic accountability.” This general problem is “exacerbated” by Congress’s bad habit of avoiding passing appropriation bills and instead relying on continuing resolutions. The remedy, then, would be to empower the president by giving him “an opportunity to address the major differences between himself and Congress cleanly, instead of combining them with unrelated subjects.” Because “matters of war and peace are too important to be held hostage to governmental decisions about funding Medicare or highways,” either Congress should give the president the power to issue a line item veto or it should submit individual appropriation bills to be signed or vetoed separately.103 The Independent Prosecutor and the Power to Remove Around the same time, a legal controversy had emerged surrounding Theodore Olson, an assistant attorney general working in the Office of Legal Counsel (OLC). In a dispute over the Environmental Protection Agency’s administration of Superfund legislation, the House Judiciary Committee issued subpoenas to Justice Department officials in order to determine if partisan considerations had influenced the way the Superfund legislation was being executed. Olson responded by recommending executive privilege, and, in turn, the House committee requested that the attorney general appoint an independent counsel under the Ethics in Government Act, a post-Watergate law that allowed Congress to recommend appointing a person to investigate potential wrongdoing in the executive branch. Under the law, which was designed to prevent another Saturday Night Massacre, the prosecutor could not be removed by the president. Olson refused to cooperate with the prosecutor, Alexia Morrison, and sued, arguing that the statute violated the Constitution by creating an executive officer who could not be removed by

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the president. The political standoff over environmental regulation had now become a constitutional question over the removal power. 104 A majority of the Supreme Court ruled against Olson, holding that the president could still perform his constitutional duties without having the power to fire an independent prosecutor, but Justice Antonin Scalia’s dissenting opinion would become a cornerstone of the emerging unitarian theory. Scalia pointed to the Vesting Clause to argue that not only was it a grant of authority, it was also a grant of exclusive authority to the president. Using an argument mocked by the Whigs in the 1830s, Scalia reasoned that the Vesting Clause’s granting of the executive power “does not mean some of the executive power, but all of the executive power.”105 More than relying on this reading of the Vesting Clause, Scalia offered a normative explanation for the decision by the Framers to give the executive power to one president instead of a plural executive counsel. That explanation had to do with uniformity and accountability. Instead of having several executives who would likely execute the law differently, the Constitution instead has one. This serves democratic theory because “it established a single Chief Executive accountable to the people” in a way that “blame can be assigned to someone who can be punished.”106 Relying explicitly on Hamilton’s argument in Federalist No. 70 that unity in the executive would be compatible with republican principles by creating a “due dependence on the people, and a due responsibility,” Scalia argued that “the President is directly dependent on the people, and since there is only one president, he is responsible.”107 Notably, Scalia used the phrase “unitary executive” twice in his opinion, making it the first modern Supreme Court opinion to do so. But it seems that Scalia was following others in his use of the term. According to John MacKenzie, the first use in a federal court opinion came from Judge Laurence Silberman’s majority opinion in the case leading up to Morrison v. Olson, In re Sealed, which ruled in favor of Olson and held the independent prosecutor law to be unconstitutional. Silberman quoted from Hamilton’s Federalist No. 70 even more liberally than Scalia, citing it eight times. Then, in his brief for the Supreme Court, Solicitor General Charles Fried quoted from Hamilton and used the term as well.108 It would be reasonable to conclude that Scalia’s ringing defense of the unitary executive was influenced by others who had been thinking about the subject. In his account of his time as Reagan’s solicitor general, Fried gave substantial attention to the legal reasoning behind his argument that the independent prosecutor law was unconstitutional. In a remarkably clear

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passage, Fried explains that “celebrations of executive power are not simply yearnings for efficiency.” Rather, the more important advantage is accountability. “Locke and Hamilton craved clarity. They saw in a muddle about power the threat of chaos, and so a threat to liberty. That is why it seems natural to pin the responsibility for management on one person.” Thus, in Fried’s account, one of the lines connecting the Framers to the founder of modern constitutionalism, the English philosopher John Locke, is the idea that liberty requires clarity about which officeholder to hold responsible. Or put in negative terms, “Where the focus of responsibility is diffused and blurred . . . the threat to liberty is great.”109 In Fried’s view, this requirement for clarity and responsibility was especially necessary in organizing the executive branch. In fact, Fried’s recollection was that the lawyers within the Reagan Justice Department arrived at the theory of the unitary executive during the preparations for their legal challenge to the independent prosecutor statute in Morrison v. Olson (1988). Or at least speaking for himself, Fried writes that he did not come into office “committed to this program of submitting the independent agencies to the President’s power.” Rather, he changed his mind—and “was convinced”—after attending “a number of workshops on the subject of separation of powers in the Department.” These workshops, which seem to have included “outside academic participation,” offered an example where “the Attorney General’s attraction to theoretical discussion had its effect.”110 Another part of this theoretical discussion likely had to do with the president’s power to interpret the Constitution. So for example, Attorney General Edwin Meese later explained in his memoir that the coequal status of the president under the Constitution meant that Congress could not use its powers to direct the president or the president’s subordinates. Just as Congress could not “directly forbid the President to veto a bill that it had passed,” Congress could not interfere with the president’s directions to executive branch officials. Because the executive is “an equal and coordinate branch of government, with its own inherent constitutional powers,” Congress simply may not prohibit the president or executive branch officials “from performing functions vested in the office by our fundamental law.”111 For example, it could not use its appropriations powers to limit Reagan’s authority over Oliver North. Others have made similar statements. In his account of his time in the OLC as “the attorney general’s lawyer,” Douglas Kmiec writes, “Meese felt

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strongly that the initial effort to interpret a law must be the President’s.” This is because “the President is the one held electorally accountable for the law’s implementation.”112 For this reason, accountability, Kmiec explains that he and others believed that the Justice Department needed to rein in the independent regulatory commissions, which Kmiec believed had “emerged in a more naive time” and could “claim no support from original understanding.”113 In one article about the contribution of lawyers to the making of law, Calabresi recollected that departmentalist theory “was very much in vogue in the Reagan administration.” By that theory, the president was “co-equal” to the Supreme Court in matters of constitutional interpretation, all employees of the executive branch were the “subordinates” to the president, and therefore all employees should abide by the president’s constitutional interpretation.114 Given the emphasis on accountability in Calabresi’s normative argument, it is worth noting that Fried also justified the Reagan Justice Department’s position on independent regulatory commissions by pointing to language in the report issued by FDR’s Brownlow Commission. As Fried’s quotation from the report put it, the independent commissions constituted a “headless ‘fourth branch’ of the Government, a haphazard deposit of irresponsible agencies and uncoordinated powers.” Further, the commissions undermined the accountability system under the Constitution by giving the commissions “power without responsibility” and the president “responsibility without power.” From this, Fried meant to find legitimacy in showing that the architects of Reagan’s legal strategy were not blazing their own trail but rather following in the footsteps of FDR.115 Even if Fried does point to FDR and the New Deal, the more important point is that Fried also qualified the argument from responsibility by distancing Reagan from Roosevelt and other democratic luminaries. As he puts it, the question of separation of powers can be put in the following form: “By what authority does the executive have a policy at all?” In a revealing passage, Fried explains that Reagan’s answer to that question did not follow the path laid by “Jefferson, Wilson, and Franklin Roosevelt,” who answered that question by reference to being the head of a party. Instead, Reagan separated his legal authority from his being a member of a party: “President Reagan was a master at using his position to speak directly to the nation, but he tried equally to accomplish his plans by using what he said were the prerogatives of his office—not by his authority as chief of his political party.” This is to say that, at least in Fried’s view, Reagan understood his authority

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as proceeding not from his position as the embodiment of public opinion but rather from the legal grants of authority under the Constitution.116 Or, as the authors of a recent book on the removal power put it, Reagan preserved “a distinction between his political role as the chief representative of the people and his constitutional duty to protect the office of the presidency.”117 Fried points to Iran Contra as the example demonstrating Reagan’s reliance on executive power rather than his popular mandate.118 Fried’s argument reveals the ambivalence at the heart of the unitarian theory. Even though the president’s unitary position is defensible on the grounds that the president is alone responsible for executing the law, Fried and his colleagues were not willing to rest the president’s executive power on a claim to a popular mandate. Interestingly, Fried provides an additional clue to his thinking on this problem in a chapter on loyalty, explaining how he reconciled his disagreements with Reagan with his duty to execute Reagan’s commands. Surprisingly, Fried turned to Burke’s famous statement on representation in the speech at Bristol to classify two kinds of loyalty. One conception treats loyalty as a kind of command from his boss or constituency, while the other treats loyalty as an interpretative activity and relies on the good sense of the officer in question. Thus interchanging a representative, who answers to a constituency, with an executive offer, who answers to a president, Fried revealed that his own view of representation was closer to Burke’s than it was to any “mandate” conception.119 As was argued in chapter 2, this ambivalence can be seen in Hamilton’s writing on the removal power. In Federalist No. 77, Hamilton actually wrote that the Senate’s consent would be “necessary to displace as well as to appoint.” Although most scholars have either overlooked this comment or dismissed it as a careless error on Hamilton’s part, Hamilton’s statement that the Senate would share the removal power with the president actually fits a larger concern that undergirds his presentation of the executive. In Federalist Nos. 72 and 77, Hamilton pointed out that a change of presidents might make the executive too unstable. So, in No. 72, Hamilton offers the absence of a term limit as a guard against instability under the logic that fewer presidents would lead to fewer removals of executive officials. In Federalist No. 77, the Senate’s consent was the safeguard against the “so violent or so general revolution in the officers of government” with the change of a president after an election. That is, even though Hamilton went to great length in Federalist No. 70 to show how unity in the executive would be good for republican responsibility, his larger argument also went to great length

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to show that there would not be too much responsibility. By connecting the Senate to the removal power, the administration of the laws would have the stability necessary for good government.120 This tension between stability and responsibility was at the heart of the difference between Madison and Hamilton, and it emerged even before their break over Hamilton’s plan for the national government to assume the state debts. In Federalist No. 37, Madison explained that one of the central problems faced by the delegates at the Constitutional Convention was balancing energy and stability against the principles of republican liberty, or responsibility. Whereas energy required the rule of the one for an adequate tenure, and stability required the rule of the few for a long tenure, republican principles required the rule of the many for a short tenure. Making matters worse, all governments required energy and stability, but the Americans also demanded republican responsibility. So the Constitution is especially complicated because in addition to separating powers that cannot always be clearly identified, it also has to balance different and competing principles. It is revealing, then, that during the first debate over the removal power, Madison argued, “No principle is more clearly laid down in the constitution than that of responsibility.”121 This was a departure from his own formulation in The Federalist that placed responsibility as one of three necessary features of any American constitution. It was also language that brought Madison closer to Jefferson and Jackson than to Hamilton.122 As for Hamilton, in his many opportunities to write about the removal power, he never unambiguously repudiated his statement in Federalist No. 77 that the Senate would have to participate. More importantly, he never appealed to the principle of responsibility in the context of the removal power. Indeed, this is language that Republicans embraced and Federalists avoided. George W. Bush and Unitarianism One irony of the Bush administration is that even though George W. Bush will be remembered as claiming too much executive power, his memoirs are remarkably silent on the question of executive power. At no point does Bush come close to Theodore Roosevelt’s claim in his own memoirs that the president had any power that was not forbidden by the Constitution. Likewise, at no point does Bush write that he believed the powers of the presidency were at stake. Rather, he even writes that he “was keenly aware that presidents had a history of overreaching during war,” pointing to John Adams’s signing of the Alien and Sedition Acts, Lincoln’s suspension of habeas corpus, and

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FDR’s internment of Japanese Americans. What is most notable about this list is that Bush included Lincoln, whose suspension of habeas corpus is usually praised by unitarians and other defenders of a strong executive.123 Similarly, even though Bush read Edmund Morris’s biography of Theodore Roosevelt in the weeks after September 11, Bush never emulated Roosevelt’s grandiose language with respect to executive power.124 There is no doubt, however, that Bush and his surrogates relied on an expansive reading of the president’s authority under the Constitution. While it is true that Bush sought and received authorization from Congress to invade Iraq when Congress passed the 2002 Authorization for the Use of Military Force, Bush frequently spoke as if the decision was his alone. His speeches leading up the invasion in 2003 frequently cited his being commander in chief and the constitutional oath he took to protect, as he put it, the American people.125 In 2005, he issued a signing statement explicitly invoking the language of the unitary executive to imply that he could choose to ignore Arizona senator John McCain’s antitorture amendment added to the appropriations bill Bush requested for his proposed “surge” in Iraq.126 But the person most responsible for pushing the argument of the unitary executive was Office of Legal Counsel attorney and Berkeley law professor John Yoo. According to Barton Gellman’s biography of Cheney, Yoo began giving legal advice on the afternoon of September 11.127 His opinions went further, perhaps, than any prior defender of the unitary executive, and, unlike Calabresi, Yoo did not ground executive authority on the normative principle of democratic accountability. His opinions instead relied on the formal power of the president, looking to the text of the Constitution, British practice before ratification, and Hamilton’s writings in The Federalist. In one especially original argument, offered in writing on September 20, Yoo argued that the president would not need to seek authority from Congress to initiate military hostilities because that power was already given to the president under the Constitution. Yoo brushed aside Congress’s power to declare war by pointing out that the “declare” need not be read as “authorize.” If the Framers wanted to mean authorize, they could have used language, “like advice and consent,” that they had used elsewhere in the document.128 In a later memo, Yoo defended “enhanced interrogation” both on the grounds that it was not torture and on the grounds that no law or treaty, even under the Geneva Convention, could trump the president’s authority under the Constitution.129 It is also worth pointing out that Yoo wrote in his own account that he

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took Alexander Hamilton “as my role model.” Just as Hamilton was, as Jefferson put it, “really a collosus unto himself” in defending Washington’s proclamation of neutrality, Yoo “decided” that he would speak and write “constantly to defend to the policies on the war on terrorism, even if the Bush administration would not.”130 Hamilton was a model for defending executive power during a time of crisis, but he was also a model for how to understand executive power. Specifically, Hamilton’s executive provided a reading of the Constitution that minimized the importance of responsibility and privileged the virtues of “unity, speed, and secrecy.” Like other neo-Hamiltonians, Yoo quoted liberally from Hamilton’s case for unity in Federalist No. 70.131 The importance of Yoo’s legal reasoning in the context of the Bush presidency can be seen in Jack Goldsmith’s 2007 book, The Terror Presidency: Law and Judgment inside the Bush Administration. Goldsmith is a Harvard law professor who was head of the Office of Legal Counsel in the George W. Bush administration, from 2003 to 2004, after Yoo left the office. His book provides an account of the administration’s legal strategy to the War on Terror, proclaimed in response to the attacks of September 11, 2001. While much of the account can be read as Goldsmith distancing himself from the legal memos written by Yoo, perhaps the most important part of the book is his account of the response by others inside the Bush Justice Department when he suggested Jefferson’s extraconstitutional prerogative as a potential method for Bush: “Gonzales and Addington looked at me as if I were crazy. I was not urging the President to break the law, I emphasized. I was simply letting his legal advisors know that there honorable precedents, going back to the founding of the nation, of defying legal restrictions in time of crisis.”132 Goldsmith specifically points to Jefferson, quoting the letter to John B. Colvin, as the example of this honorable tradition “that went back to the influential English philosopher John Locke, who believed that a leader’s first duty was to protect the country, not follow the law.” But this was not the end of the lesson drawn from Jefferson, for Goldsmith records that he said that there was “an important caveat”: “In order to prevent abuse, the leader who disregards the law should do so publicly, throwing himself on the mercy of Congress and the people so that they could decide whether the emergency was severe enough to warrant extralegal action.” The idea behind Jefferson’s theory of prerogative was that it was safer to keep it outside the Constitution because this would be more likely to make it routine than would expansive readings of the Constitution. But for the theory to work,

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the president would have to come clean in public, drawing attention to his extralegal action.133 According to Goldsmith, neither Attorney General Alberto Gonzalez, Cheney’s general counsel David Addington, nor “their respective clients” were interested in this continuing in this Jefferson tradition. Part of the problem was tactical: confessing in public risked showing one’s hand to the terrorists. Another part of the problem was the change of culture in the White House post-Nixon. “The post-Watergate hyper-legalization of warfare, and the attendant proliferation of criminal investigators, had become so ingrained and threatening that the very idea of acting extralegally was simply off the table, even in times of crisis. The President had do to what he had to do to protect the country. And the lawyers had to find some way to make what he did legal.”134 Part of Goldsmith’s point has to do with changes in the presidency and in American politics that he calls “lawfare.” In short, presidents today could not look to FDR, much less to Lincoln and Jefferson, as an model for executive prerogative because courts in the United States and abroad have become more willing to oversee and try in court executives who depart from standard legal process. As a result, presidents now rely on a team of lawyers whose job it was to make sure that the president had a legal defense for actions that in the past might have escaped scrutiny as being military in nature.135 But Goldsmith was also making a different point about the Bush presidency. In his view, the other explanation for the reluctance to follow the Jeffersonian model and appeal to the people for special authority had to do with a conviction on the part of Vice President Dick Cheney and others to recover the powers of the president that had been lost in the post-Watergate era. More specifically, it was Cheney and Addington, who was with Cheney in the White House bunker on September 11.136 Referring to Addington, Goldsmith writes: Both he and his boss Cheney seemed to care passionately about the Constitution as they understood it. That is why they fought so hard to return the presidency to what they viewed as its rightful constitutional place. It is why Cheney and the President told top aides at the outset of the first term that past presidents had “eroded” presidential power, and that they wanted to “to restore” it so that they could “hand off a much more powerful presidency” to their successors. After 9/11, Gonzales and Addington would invoke these words like a mantra

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when we deciding whether and how aggressive to be in the war on terrorism.137

According to Cheney’s biographer and editor in chief of the Weekly Standard Stephen H. Hayes, Cheney told Addington after Bush’s inauguration that Addington “had one job” and that job was to “restore the power of the presidency.” According to Hayes, Cheney wanted Addington “to be aggressive.”138 Yoo’s legal opinions were all the more effective because Addington managed their circulation, shielding them from potential critics.139 Cheney’s commitment to restoring executive power is well documented. It was the first piece of advice he gave to Reagan’s chief of staff Jim Baker, when the two met in after Reagan’s victory in 1980. Specifically, Cheney argued that getting “rid of the War Powers Act” and restoring “power & authority to the Executive Branch” was “the central theme we ought to push.”140 A few weeks later, Cheney disagreed sharply with Georgia representative Newt Gingrich during a discussion in December hosted by the American Enterprise Institute. Whereas Gingrich saw the problem as one of lost congressional prerogatives, Cheney instead argued that the “fundamental problem has been the extent to which we have restrained presidential authority over the last several years,” a problem Cheney predicted would become a threat to the nation during “times of great national peril.”141 In 1990, on Meet the Press, Cheney dismissed Congress as a “great debating society” that was ill-equipped to decide war and peace.142 In fact, in 1989, Cheney presented an academic paper at the American Enterprise Institute criticizing Congress’s efforts to curb the president’s authority. This was before Cheney was nominated to be George H. W. Bush’s secretary of defense. Drawing on Hamilton’s argument for unity in the executive in Federalist No. 70, Cheney contrasted Congress with the president to show that the Constitution did not create, as Corwin famously said, an “invitation to struggle” over foreign relations. Rather, “the powers are separated, and the levers of influence conferred, according to a consistent set of underlying principles.” By those principles, “Congress was intended to be a collective, deliberative body,” and the presidency was “was designed to be a one-person office to ensure that it would be ready for action.” The problem is that “ in recent years” Congress has tried to take over executive duties. More than a violation of the law, this in fact undermines the power of the government itself: “When Congress steps beyond its capacities, it takes traits that can be helpful to collective deliberation and turns them

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into a harmful blend of vacillation, credit claiming, blame avoidance, and indecision.” More broadly, Cheney argued that the Constitution protects liberty in two ways. One is ensuring that minority rights are protected against runaway legislative majorities. The other is creating a government strong enough to secure rights. Because of Congress’s virtues and vices—at its best, it encourages compromise, while “at its worst it is a collection of 535 individual, separately elected politicians, each of whom seeks to claim credit and avoid blame”—it is part of the first way to secure liberty. But when Congress attempts to exercise executive authority it undermines the second way that the Constitution protects rights by making the government too weak to actually make those liberties secure.143 So in other words, a key explanation for the character of Bush administration’s response to 9/11 was that it was part of a prior commitment to a strategic and principled imperative to increase the power of the executive. Arguably, there was a problem to be fixed, and that problem had to do with the legislative framework put into place after Vietnam and Watergate.144 But the real difference had to do with the solution to this problem. Recognizing the difference between legal arguments and arguments meant for the public, the Bush administration acted as if any request of congressional authorization would harm the executive because it opened the possibility that a judge down the road would rule that the congressional authorization was necessary as a condition for the executive action.145 So, for example, according to Bob Woodward’s account, there was resistance to Secretary of State Colin Powell’s recommendation to produce a “white paper” demonstrating to the international community that bin Laden and Al-Qaeda were responsible. Secretary of Defense Donald Rumsfeld argued that doing so would place the burden of proof on the United States and therefore tie its hands in the future when the evidence might not be so clear.146 Likewise, Attorney General John Ashcroft did initially pursue getting new authorizations from Congress, and, after failing, then argued that the Constitution had already conferred some of those powers on the president.147 By this logic, any argument that did not presume that the president had the power to protect the country was an argument that was too dangerous to be entertained. What is so fascinating about Goldsmith’s account is that it shows the logic in the modern Republican Party’s thinking about executive power that preceded September 11 and the presidency of George W. Bush. Going all the way back to Iran Contra, key Republicans had been rethinking what it means

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for the Constitution to vest executive power in a single president. Thus, the key intellectual move of Cheney’s Iran Contra Minority Report was not so much defending Reagan but rather charging Congress with infringing on the president’s authority under the Constitution. When it is placed alongside the nearly simultaneous attack on the independent prosecutor statute, the two events reveal how Republicans had seemed to finally make peace with something like a plebiscitary president with an independent source of popular authority. But Fried’s comment that Reagan conceived of his political authority as different from his constitutional authority reveals that Republicans had not entirely blended the two foundations of executive authority. Rather, it reveals a predisposition that predicted the stance taken during the Bush presidency, where highly formalized readings of the Constitution were given precedence over popular appeals to the people or negotiations with Congress. So the party of Lincoln and Taft did not come to embrace the methods of the party of Jefferson and Jackson after all. As Skowronek puts it, what makes the unitarian argument so different from prior attempts by Jacksonians and Progressives to increase presidential power is that the prior attempts corresponded with other measures to ensure that there were some constraints on the use of power. He writes, “When all extra-constitutional interventions are rendered superfluous, the expanded resources of the modern presidency are redeployed on behalf of the personal form of rule which the institutional innovations of all previous reformers were at pains to qualify.”148

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Conclusion Law and Opinion

In 2016, Republicans won the presidency without winning the popular vote. This was the second time in sixteen years, raising questions about how to get rid of the Electoral College. But there has been no grand debate in Congress, perhaps because Republicans controlled both chambers for two years, and, because of Hillary Clinton’s huge turnout in California, it is conceivable that Republicans will continue to benefit from the current system. This system need not be the Electoral College as we know it, for under the Constitution the state legislators may choose an infinite number of ways to assign their state’s electors. So the critical point is that the Electoral College counts votes by state, and that feature will likely endure because one party will always calculate that it has a better chance of winning states than it does of winning the whole nation. On top of that, there will always be ten to fifteen “battleground states” that benefit from the special attention to their state in the presidential election. But the Electoral College was not the only controversial part of presidential selection. On the Democratic side, the 2016 nomination contest was close, and, like the nomination of 2008, it focused attention on the fairness of superdelegates. Because of their antidemocratic or antireform nature, superdelegates remain unattractive as a strategy to win the nomination. Indeed, that strategy backfired on Clinton once it became apparent, in February 2008, that her path to victory over Barack Obama would have to rely on superdelegates to overcome Obama’s advantage in pledged delegates.1 But it did not backfire enough for her to avoid the strategy in her contest in 2016 with Vermont senator Bernie Sanders, who was more explicit than Obama in directly arguing against the legitimacy of superdelegates. As late as May 2016, superdelegates remained divided about what was required of them. Some Clinton supporters argued that their job was to support whichever candidate held the most delegates, meaning Clinton, while others argued that their job was to select the best candidate. So,

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for example, Michigan representative Sander M. Levin said that most of Clinton’s superdelegates supported her “because they think she’ll be the strongest president in these very challenging times.” Alternatively, Sanders supporters explained that if the contest was close then superdelegates should be bound by election results in their home states. As one put it, “I’m amazed that in some of these states the voters go 60 percent or 70 percent one way or the other and the superdelegates don’t flinch? I just can’t get over that.”2 In fact, according to an analysis by Bloomberg news, there were still 150 superdelegates who had yet to commit to either Sanders or Clinton by mid-May. This was enough at that time to effectively secure the nomination for Clinton, but many of these superdelegates believed that they should wait for future primaries and caucuses to decide. This was on its face a blow to Clinton and a deference to the grassroots voters, but it was also an act of discretion as the stance of neutrality necessarily required some to say that they would not necessarily be bound by the votes that had already happened in their home states.3 So their noncommittal was neither an act of deference to voters in their own states nor an act of expert judgment. In truth, the move to superdelegates grew out of the demands of democratic politics. Parties come about primarily in order to win elections, and only secondarily in order to increase participation. Winning requires skills that are unevenly distributed throughout the population, which is to say that winning requires turning over some of the decision-making process to experts who possess those skills. As Brookings fellow Elaine Kamarck recently argued in the New York Times, “activists often dominate the party primaries because they are more concerned with electability than with ideological purity.” Kamarck went on to argue for “interference” by the national party in state primaries, interference that was necessary to give the party its best chance to win elections.4 Another reason for the enduring nature of superdelegates is that removing any constituency with power is hard to do. As Kamarck explained in an interview during the heat of the 2016 contest, getting rid of the superdelegates may prove difficult in spite of these concerns that they are undemocratic. They’re not going to waste their time going to a convention if they don’t have a vote. After 2008, Obama people who had campaigned against superdelegates went to the DNC and asked that the number of superdelegates be reduced. Guess what: They weren’t. Why? Nobody was going to cut the governors, senators, House members or former

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presidents. Tell Bill Clinton and Jimmy Carter they can’t vote at the convention. And the people actually making these decisions are the members of the DNC. They weren’t going to throw themselves out.5

Later, during one meeting of a Democratic “unity” commission formed to address the controversy lingering from 2016, Kamarck explained that superdelegates were necessary to help prevent demagoguery to and ensure that Democrats could nominate a candidate that would not only be able to win but also to govern.6 Kamarck’s prediction that Democrats will continue to use superdelegates turned out to be only partially accurate, for in August 2018, Democrats voted to not count superdelegates on the first ballot. This is no doubt because superdelegates seem undemocratic, but also because it is not clear that party leaders have the best sense of which candidates are most electable. But she is nonetheless right to see a fundamental tension between the McGovern-Fraser Commission of 1971 and the Hunt Commission of 1982, or, perhaps, more accurately, her comments point to an ongoing confusion in the postreform Democratic Party. While the McGovern-Fraser Commission resulted in a process that brought the presidency closer to a plebiscitary system, the Hunt Commission, of which she was a member, attempted to moderate that by creating alternative stakeholders whose expert judgment would give them influence in the process. In many respects, the important point about the 2018 vote to end the use of superdelegates is that it met opposition and was not a foregone conclusion. Other supporters of superdelegates include law professor Peter Shane, who argues that the Democratic Party has an interest in protecting its “brand,” and Donna Brazile, who argues that superdelegates are good for minorities.7 This book has shown that this confusion over superdelegates is not an isolated event but is rather an enduring feature of our constitutional politics. Going back to the 1640s, Americans designed constitutions with an eye to associating different parts of the government with different constituencies. This meant that executives were not designed to merely execute the law. In Massachusetts and Connecticut, the governors were chosen by voters from the whole colony, while legislators represented towns. By the time Americans created state constitutions, they were initially wary of strong governors, and most states created constitutions where weak governors were chosen by the legislature. But this soon changed. In New York and Massachusetts, governors were given more power, and, more importantly, they were made independent of the legislature by being popularly elected.

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But selection by the people raised questions of constituency, in terms of both geography and economic class. In the New York Constitution of 1777, the governor was to be selected by voters who met higher property requirements than voters who elected members of the lower house. Likewise, the governor shared the appointment power with a council, and the members of this council were senators chosen by a carefully negotiated compromise over representation among the different regions of the states. In the Massachusetts Constitution of 1780, representatives from small towns looked to enhance the power of governor as way to counterbalance the advantage the large towns would receive because of the proportional representation in both legislative chambers. So by the time Americans wrote and ratified the Constitution of 1787, they already had significant experience in writing constitutions, constitutions with not only separation of powers systems but also separation of powers systems that negotiated the ambitions of rival geographic units. In this, the move to empower the national government at the cost of the states was not as much of an intellectual innovation as it is frequently described. Rather, it was a political breakthrough that required more of the same kind of work that they had already been doing. As Madison’s letter to Washington, written in April of 1787, so perfectly reveals, Madison realized that the new constitution would work only if “a majority of states, and those of the greatest influence” would see the transfer of power from the states to the national government “as favorable to them.” Madison’s plan thus hinged on proportional representation for the large states, plus something like a three-fifths compromise for southern states that had hopes of becoming large.8 When his plan broke down, because it overcalculated the number of states that would consider themselves large, the great compromise between the large and small states became the fulcrum on which other compromises were hashed. But the point is that this was not an unexpected development. Creating any presidency would require negotiation, a “fresh struggle” as Madison put it, among competing constituencies about who would benefit and by how much. In this negotiation, the Electoral College emerged not because it represented a victory of the elite consensus over underrepresented ordinary voters. Rather, it was more likely a way to preserve the delicate arrangements of the Connecticut Compromise as well as the deal that gave states with enslaved persons a way to count the enslaved toward their representational power. Thus, with a constituency that was different from either the House or the Senate, the president was wired to be more than the chief executive.

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The question of elites versus ordinary voters was lurking, however, and it emerged as soon as the two parties began to align on separate answers to the question of whether public opinion should be the legitimate foundation for rule. Jefferson and Madison made this, alongside states’ rights and a strict interpretation of the Constitution, a central pillar of their opposition party. While Hamilton and his colleagues did not respond with detailed critiques of public opinion in the same way that they defended, for example, Congress’s authority to incorporate a national bank, they nonetheless refrained from casting their party as the better representative of public opinion. In the view of the Federalists, Washington had correctly modeled a presidency whose power came from the Constitution, not from the intent of the people. So when the controversy over the election of 1800 caught both parties off guard with respect to organizing to win an election that would be decided by the House, it did not catch them off guard with respect to the principles at stake. The party of Jefferson grounded their claims on the intent of the people, while Federalists dismissed such claims as foreign to the Constitution and instead looked to the letter of the law for creative solutions to the standoff. In this context, the ratification of the Twelfth Amendment merely continued the debate that the election of Jefferson had placed before the country. Jefferson cast his victory in 1800 as a victory for a certain set of principles, explaining that he would execute the law in a way that honored those principles. For Federalists, this was a preposterous notion of what it meant to be chief executive. For Jefferson, this was the logical consequence of his seeing the “whole ground” in contradistinction to others in government who could only see the “parts.” In 1803 and 1804, the debate over the Twelfth Amendment turned on whether presidential selection should increase the likelihood that a national majority would select the president or instead whether members of the House, voting equally by state delegation, should be the decider. Jefferson and his party won, but just as important, the Federalists did not adjust their understanding of the presidency to match the new rule. Rather, they saw themselves as a regional party and pursued measures, unsuccessfully, to make the presidency less dominated by a national majority. Jackson radicalized most of Jefferson’s politics, especially the claim to presidential representation, by attaching it to the emerging idea that partisanship was legitimate in constitutional government. Whereas Jefferson claimed to exercise executive power to help bring about an end to

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partisanship, Jackson instead used the removal power and the veto power in ways that were explicitly partisan. Moreover, unlike Jefferson, Jackson’s party did not control the Senate, and so Jackson’s use of executive power put him into open conflict with Congress. The Whigs denounced Jackson’s claims of executive power, mocking those who read the Vesting Clause to give “all” executive power to the president. But they also did so in part by denouncing the claims regarding presidential representation that undergirded them. Going beyond their Federalist predecessors, and anticipating academic political science, they showed that such claims were incoherent in that they presumed a presidential election could add or subtract power from the president’s authority under the Constitution. As Daniel Webster put it, the only responsibility the president has is toward the law. More broadly, because there could be no such thing as a coherent and national public opinion, and because representation presumes deliberation among competing interests, Congress and not the presidency was the appropriate venue for representative government. Even before they became Whigs, and before Jackson was elected president, Jackson’s opponents blocked attempts to end the Electoral College and elect presidents by a direct vote. Lincoln’s victory in 1860, however, revealed the tensions within each side. The party of Jackson had been committed to presidential representation and states rights, while the Whigs had been committed to a broad reading of the powers of the national government and yet rejected presidential representation. Once they controlled the White House, Lincoln and his Republicans remained ambivalent about how to defend executive power. Lincoln pushed it even further than Jackson, and justifiably so, but his rhetoric did not approach the grandiosity of Jackson’s justifications of executive power. He could not defend, as Jackson surely would have, the suspension of habeas corpus or the emancipation of slaves on the basis of its approval by the people. Rather, Lincoln returned to hypercritical readings of his constitutionally prescribed oath of office to find sufficient formal authority for his unprecedented actions. Democrats, for their part, turned to the Constitution to protest what they saw as an assault on civil liberties, but they were torn, too, for they recognized that they were on the losing side of an electoral contest and thus could not claim the popular mandate they had enjoyed in the past. Republicans remained conflicted about the legitimate relationship between public opinion and representation during the Progressive Era. Progressives within the party clamored for direct democracy, seeing a moral

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imperative in reforms such as the initiative, referendum, judicial recall, and direct primary. Theodore Roosevelt connected the logic of these reforms to the presidency with his stewardship theory, namely that the president can do anything that is not forbidden. This was in some sense a logical extension of Hamilton’s broad reading of the Constitution, as it located sovereignty in the things that governments do rather than in a particular people who create governments for limited ends. But it was also a departure in that, like Jackson, Roosevelt located the president’s authority in the president’s duty not to execute the laws but to “serve the people.” As significant as this development was, Roosevelt and the Progressives did not clearly win the day. Traditional Republicans rallied to Taft, including Roosevelt friends and party leaders such as Elihu Root and Henry Cabot Lodge as well as intellectuals such as Nicholas Murray Butler and Abbott Lawrence Lowell. These men argued against the reforms aimed at direct democracy on the grounds, going back to The Federalist, that representative government was the surer protector of free government. More than that, they pointed to Edmund Burke’s understanding of representation to preserve a role for expert judgment and informed deliberation that rose above simple advocacy. In their view, Roosevelt’s vision of executive power was a threat to law and order and a recipe for demagoguery. Perhaps just as telling, Progressives in both parties gave conflicting accounts about the relationship between presidential representation and the Constitution. Some, like Herbert Croly, saw the Constitution as an impediment to the democracy that Americans had always wanted but never possessed. In his view, presidential representation was the only solution for the problems that plagued Congress, problems that included a parochial bias toward geographic constituencies as well as the undue influence of pressure groups. An empowered president was the best way for democracy to do an end run around the constitutional divisions of authority between state and nation. But others, like Woodrow Wilson, did not see it that way. In Wilson’s view, federalism was part and parcel of limited government. This pointed to a deeper contradiction in the thinking of Wilson and other Progressives. Even while Wilson criticized the Constitution for being based on an outmoded Newtonian theory of politics, he praised the Framers as practical men who designed a constitution to change with the times. Looking to the variety of opinions in the early republic about what the presidency was supposed to be, and raised in the tradition of Jefferson and Jackson, he saw the party system and presidential leadership as growing out of the Constitution itself.

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As a result, Wilson sometimes characterized the Progressive project as a restoration of the Constitution rather than a transformation of it. This ambivalence about presidential representation persisted into midcentury as Republicans tried to reconcile their anticommunism with their suspicion of executive power. Led by Arthur Vandenberg in the Senate, Republican moderates came to realize that anticommunism required internationalism and that the “neutrality” they advocated in the twenties and thirties was not possible in the post–World War II order. Working with Truman, Vandenberg and the moderates oversaw nothing less than a revolution in American foreign policy, a revolution that would catapult the United States into a new era of internationalism that would enhance the prestige and importance of the presidency. And yet Vandenberg and his allies did not conceive of their project as a departure from traditional forms of American constitutionalism. They did not, as Harold Koh and other scholars have argued, believe that this new system required a new plebiscitary presidency with enlarged powers. Rather, they believed, perhaps mistakenly, that they were creating a process that would maintain traditional norms, including Congress’s control of the war power, while committing the United States to a new internationalism abroad. At the same time that Congress passed the National Security Act and approved the Truman Doctrine, it passed the most consequential amendment for the presidency since 1804. By creating a term limit, Congress and the public guaranteed that even presidents who got reelected would become lame ducks and dramatically and perhaps thoughtlessly changed the structure of incentives for good behavior explained in The Federalist. Proponents went through the hassle of amending the Constitution, and yet neither they nor their opponents spoke of the change in terms of a modern presidency. Rather, both sides cast their respective positions as one of restoration, not change. So, even though they had lived under the presidency of FDR, and had likely witnessed the debates of the Progressive Era, these members of Congress did not talk about themselves as either inheritors or creators of a modern presidency. Unlike the debate over the Twelfth Amendment, the losers in the debate over the Twenty-Second Amendment did not see their loss as signaling a new and dangerous constitutional order. In one sense, the McGovern-Fraser reforms would seem to confirm the common narrative that the modern, plebiscitary presidency defeated the Founder’s constitutional presidency. Its reforms resulted in a process that by most accounts completely remade the nomination process by taking

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power away from party elites and giving to individual party members. Almost overnight, the nomination process came to favor candidates who ran on their promises to transform government rather than on their experience working from within it. But in another sense, the McGovern-Fraser reforms also reveal that these consequences were mostly unintended. The reformers talked mostly about participation and fairness and next to nothing about the kind of presidency they wanted, and they did not expect that the consequence of their reforms would be the proliferation of primaries. Meanwhile, a small but significant group warned about the consequences of removing the party leadership as a center of authority, a concern that was validated in 1982 when the party created superdelegates. A different problem characterizes the Republican turn to the unitary executive. The basic storyline would suggest that after Vietnam Vandenberg’s internationalists moved into the anticommunist space long occupied by Democrats, while, at the same time, Republican Electoral College victories in 1968 and 1972 made the modern presidency more attractive as an organizing concept. The immediate complication is that the unitarians in the Reagan and George W. Bush administrations argued for a return to the formal requirements of the Constitution itself. In their view, this required an abandonment of the changes—especially the administrative state created by the New Deal—that had happened over the course of American political development. This invocation of constitutional purity can perhaps be dismissed as a self-serving deception, masking the reality that the modern presidency was useful for Republican policy objectives. But the deeper point is that the unitarians remained divided about what the formal Constitution required. The language of the Vesting Clause unequivocally gave the executive power to the president. But that was not all. Constitutional structure, especially presidential selection, created a normative principle to justify this exclusive grant of authority. Because the president is accountable to the people, not to Congress, any attempt by Congress to relocate or diminish executive power would be an attack not only on separation of powers but also on the principle of accountability itself. In this, some unitarians recycled the arguments of Jackson and the Progressives touting the virtues of executive action and denigrating the vices associated with the legislative process. But, on closer inspection, the formal argument was more important than the argument from accountability. As Jack Goldsmith’s account of the Bush administration so clearly shows, Bush and his advisors emphasized the formal powers of the president because

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they believed that appeals to Congress or the people would in the long run undermine the president’s legal authority. Unlike Jefferson or Jackson or Theodore Roosevelt, Bush never called himself the agent of the public will. All this shows that the theory of presidential representation is marked not by simple development from a premodern to a modern presidency, or from a “constitutional” presidency to a “political” presidency, or from law to opinion. It is marked rather by enduring debate between law and opinion, between those who see the president as the wielder of the executive power and those who see the president as the embodiment of the public will. In the beginning, the presidency was connected to the question of public opinion because the presidency was linked to a national constituency, a linkage that would immediately become convenient for presidents to assert over and against Congress. Likewise, the president was given what seemed to be a comparative advantage by the Vesting Clauses of Articles I and II, and so the executive power offered another way to claim special power in relation to Congress. Both of these advantages complicate and threaten what would seem to be the simplest explanation for executive power, that some separate body must execute the laws. The argument from the Vesting Clause reveals that security is another function of the executive, while the argument from representation is an invitation for lawmaking. Both are part of our constitutional tradition, and both will likely endure as we continue our debates about not only the extent of the president’s power but also its sources.

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Introduction 1. Eric Nelson, The Royalist Revolution: Monarchy and the American Founding (Cambridge, MA: Harvard University Press, 2014); Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969). 2. James Ceaser, Presidential Selection: Theory and Development (Princeton, NJ: Princeton University Press, 1979); Jeffrey K. Tulis, The Rhetorical Presidency (Princeton, NJ: Princeton University Press, 1988). See also Theodore J. Lowi, The Personal President: Power Invested, Promise Unfulfilled (Ithaca, NY: Cornell University Press, 1985). 3. See Gary L. Gregg II, The Presidential Republic: Executive Representation and Deliberative Democracy (Lanham, MD: Roman and Littlefield, 1997); Thomas G. West, “Progressivism and the Transformation of American Government,” in The Progressive Revolution in Politics and Political Science: Transforming the American Regime, ed. John Marini and Ken Masugi (Lanham, MD: Rowman and Littlefield, 2005), 13–33. 4. To be sure, David Nichols argued that the Founders created the modern presidency. While his interpretation has not taken hold, it could be argued that Eric Nelson’s recent book provides some support. David K. Nichols, The Myth of the Modern Presidency (University Park: Pennsylvania State University Press, 1994).

5. Robert Jackson, concurring opinion in Youngstown Sheet & Tube v. Sawyer (1952) 243 US 654. 6. Or, to put it differently, and to redeploy James Ceaser’s call for examination of foundational arguments in American political development, there are two different foundations for executive power. James Ceaser, Nature and History in American Political Development (Cambridge, MA: Harvard University Press, 2006). See also Elvin Lim, The Lovers’ Quarrel: The Two Foundings and American Political Development (New York: Oxford University Press, 2014). 7. Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840 (Berkeley: University of California Press, 1969). 8. For a discussion of this literature, see Jeremy D. Bailey, “Jefferson’s Executive: More Responsible, More Unitary, and Less Stable,” in Extra-Legal Power and Legitimacy: Perspectives on Prerogative, ed. Clement Fatovic and Benjamin Kleinerman (Oxford: Oxford University Press), 117–137. For leading examples, see Harvey C. Mansfield Jr., Taming the Prince: The Ambivalence of Modern Executive Power (Baltimore: Johns Hopkins University Press, 1988); and Louis Fisher, Constitutional Conflicts between Congress and the President, 5th ed., rev. (Lawrence: University Press of Kansas, 2007). 9. Samuel Kernell, Going Public: New Strategies of Presidential Leadership.

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notes to pages 5–8 (Washington, DC: Congressional Quarterly Press, 1997); Brandice CanesWrone, Who Leads Whom?: Presidents, Policy, and the Public (Chicago: University of Chicago Press, 2005); George C. Edwards, On Deaf Ears: The Limits of the Bully Pulpit (New Haven, CT: Yale University Press, 2006); Patricia Heidotting Conley, Presidential Mandates: How Elections Shape the National Agenda (Chicago: University of Chicago Press, 2001); and Robert A. Dahl, “The Myth of the Presidential Mandate,” Political Science Quarterly 105, no. 3 (1990): 355–372. 10. One group of scholars finds that presidents are more centrist in the policies they promote, while another finds that they are more partisan. While students of the presidency have made tremendous headway in understanding presidential representation in partisan terms, there is still much work to be done. In a recent paper, Lawrence Jacobs (2013) surveyed the research on the linkage between the president and the public and concluded not only that the subject was still “undertilled” but also that its study would be enhanced by “cross-field” research, particularly but not exclusively with reference to political theory. Lawrence R. Jacobs, “The Public Presidency and Disciplinary Presumptions,” Presidential Studies Quarterly 43, no. 1 (2013): 16–34. For a review of the debate, see also Matthew Eshbaugh-Soha and Brandon J. Rottinghaus, “Presidential Position Taking and the Puzzle of Representation,” Presidential Studies Quarterly 43, no. 1 (2013): 1–15. 11. See the exchange between Richard Ellis and Marc J. Hetherington in Richard J. Ellis and Michael Nelson, eds., Debating the American Presidency: Conflicting Perspectives on the American

Executive, 2nd ed. (Washington, DC: CQ Press, 2010), 82–99. 12. B. Dan Wood, The Myth of Presidential Representation (New York: Cambridge University Press, 2009). 13. Douglas L. Kriner and Andrew Reeves, The Particularistic President: Executive Branch Politics and Political Inequality (New York: Cambridge University Press, 2015). “Laser beam” quotation can be found at page 2. 14. John Hudak, Presidential Pork: White House Influence over the Distribution of Federal Grants (Washington, DC: Brookings, 2014), 25–31. 15. William G. Howell and Terry M. Moe, Relic: How our Constitution Undermines Effective Government (New York: Basic, 2016), 99–107. 16. In the context of the American presidency, it has historically been the case that the term “demagogue” is most likely to be employed by conservatives who criticize Democratic presidents, not by liberals criticizing Republicans. That pattern was reversed, dramatically, in 2016, serving as a reminder that the criticism of presidential representation need not come only from conservatives lamenting the loss of what they see as a stabilizing check on democratic excesses. 17. Jeffrey Edward Green, The Eyes of the People: Democracy in the Age of Spectatorship (New York: Oxford University Press, 2010), 138, 160, and 209. 18. Nancy L. Rosenblum, On the Side of Angels: An Appreciation of Parties and Partisanship (Princeton, NJ: Princeton University Press, 2008), 41. 19. Nadia Urbinati, Democracy Disfigured: Opinion, Truth, and the People (Cambridge , MA: Harvard University Press, 2014) 4–8, 174. 20. Urbinati, Democracy Disfigured, 182.

notes to pages 8–13 21. See for example the essays in Sonia Alonso, John Keane, Wofgang Merkel, eds., with the collaboration of Maria Fotou, The Future of Representative Democracy (New York: Cambridge University Press, 2011). See also Benard Manin, The Principles of Representative Government (Cambridge: Cambridge University Press, 1997); and Jane Mansbridge, “Rethinking Representation,” American Political Science Review 97, no. 4 (2003): 515–528. 22. “Rhetorically, they consistently claim to put the nation or ‘Country First!’ At the same time, they consistently pursue policies directed at supporting the interests of the few, rather than the community of the whole.” Wood, Myth of Presidential Representation, 200. 23. Moe and Howell, Relic, 35–42. 24. Druckman and Jacobs make a similar point in their chapter in the subject in The Oxford Handbook of the American Presidency. They write that the Founders believed that the president would be “independent of public opinion” and would represent a unified country to the world (“for example, to welcome visiting heads of state”), but the “modern definition of presidential representativeness” means “the president’s responsiveness to public opinion.” James N. Druckman and Lawrence R. Jacobs, “Presidential Responsiveness to Public Opinion,” in The Oxford Handbook of the American Presidency, ed. George C. Edwards and William G. Howell (Oxford: Oxford University Press, 2009), 161–181. 25. Jeremy D. Bailey, Thomas Jefferson and Executive Power (New York: Cambridge University Press, 2007); Robert V. Remini, Andrew Jackson and the Bank War: A Study in the Growth of Presidential

Power (New York: Norton, 1967); Daniel Klinghard, The Nationalization of Political Parties, 1880–1896 (New York: Cambridge University Press, 2010). 26. According to Sidney M. Milkis, for example, the Progressives dismantled the party system and replaced it with the modern presidency. Sidney M. Milkis, The President and the Parties: The Transformation of the Party System since the New Deal (New York: Oxford University Press, 1993). Chapter 1. Presidential Representation in the 1780s The epigraph at the beginning of this chapter is the unamended rendering of the passage on selecting the palatine and one of the few paragraphs actually “in Locke’s hand,” according to Mark Goldie, Locke Political Essays (Cambridge: Cambridge University Press, 1997), 160–162. 1. For example, William G. Howell and Terry M. Moe write, “The founders saw great value in presidential leadership. They never intended, however, for the president to be a tribune of the people. On the contrary, they shielded the office from popular pressures that might arise from ordinary Americans. Presidents were to be elected not through a direct vote, but rather by an Electoral College of elite “electors,” whom the states would choose in whatever manner their legislatures deemed appropriate. As the founders saw it, the selection of the president was too important to be placed in the hands of everyday citizens.” Howell and Moe, Relic: How Our Constitution Undermines Effective Government (New York: Basic, 2016), 14. 2. “The consideration which

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notes to pages 14–16 particularly urges a change in the representation is that it will obviate the principal objections of the larger States to the necessary concessions of power.” Madison to Washington, April 16, 1787, in James Madison: Writings, ed. Jack N. Rakove (New York: Library of America, 1999), 81. 3. Richard J. Ellis, ed., Founding the American Presidency (Lanham, MD: Rowman and Littlefield, 1999), 63. 4. Sidney M. Milkis and Michael Nelson, The American Presidency: Origins and Development, 1776–2002 (Washington, DC: CQ Press, 2003), 30–33; Richard Ellis, The Development of the American Presidency (New York: Routledge, 2012), 23–25; Benjamin Ginsburg, Presidential Government (New Haven, CT: Yale University Press, 2016), 8–9, 129. 5. Federalist No. 68. 6. James Ceaser, Presidential Selection: Theory and Development (Princeton, NJ: Princeton University Press, 1979), 46. 7. Ceaser, Presidential Selection, 42–51. 8. Ceaser, Presidential Selection, 51–55. 9. Jeffrey K. Tulis, The Rhetorical Presidency (Princeton, NJ: Princeton University Press, 1988), 39–40. Nichols frames the debate somewhat differently to argue that Ceaser and Tulis have underestimated the extent to which the Framers wanted the president to look to popular sources of authority. Pointing to the men at the convention who won the question of the presidency rather than to those who lost, Nichols argues that the question of the popular nature of the presidency turned on a difference between men like Hamilton who supported the Electoral College as a “check on popular opinion” and men like Wilson who supported the Electoral College because they saw the presidency

“as a direct outgrowth of popular support.” In his view, the presidency represents more of blend than a victory for one or the other, and that blend is best represented by Gouverneur Morris. Like Wilson, Morris imagined the president to be a man of the people, but like Hamilton he expected that the Electoral College would refine the people’s will. But it would be the “extent of the country,” not the wisdom of the electors per se, that would do the refining, because “only worthy candidates would have a chance of gaining election from so large a constituency.” David K. Nichols, The Myth of the Modern Presidency (University Park: Pennsylvania State Press, 1994), 36, 43–44. A handful of other studies have agreed with the Nichols’s main point that Hamilton’s argument for the Electoral College as a refining mechanism was never made at the convention. Terri Bimes agrees that the problem with popular election was not so much demagoguery, but rather that elections would be corrupted by factions. See “The Practical Origins of the Rhetorical Presidency,” in Rethinking the Rhetorical Presidency, ed. Jeffrey Friedman and Shterna Friedman (London: Routledge, 2012), 33–35. 10. Eric Nelson, The Royalist Revolution: Monarchy and the American Founding (Cambridge, MA: Harvard University Press, 2014). 11. “The Wilsonian view that representation requires authorization and authorization requires voting is tantamount to a defense of anarchy, for in every election there are citizens who vote for the losing candidate and in almost every legislative controversy there are representatives who vote against the eventual law. If it is really the case that

notes to pages 16–18 one cannot be represented by a magistrate for whom one has not voted, and that one cannot be said to have authorized a law for which one’s representatives has not voted, then it would appear that there are only two choices: to grant every citizen a veto over the election of representatives, and every representative a veto over the enactment of laws, or to accept the enslavement of large numbers of citizens.” Nelson, Royalist Revolution, 95 12. Nelson writes, “In the context of the ratification debates there was no need to address this question, since both theories of authorization delivered the desired result. . . . But this strategic ambiguity on the part of the framers would have serious consequences for the future of American political thought. It would efface the crucial fact recognized by Adams and other veterans of the pamphlet wars of the 1770’s: that if American constitutionalism does not rest on the Royalist theory of representation, it rests on nothing.” Nelson, Royalist Revolution, 107. 13. Tench Coxe as “An American Citizen,” “An Examination of the Constitution of the United States,” 26–29 September 1787, in Friends of the Constitution: Writings of the Other Federalists, 1787–1788, ed. Colleen A. Sheehan and Gary L. McDowell (Indianapolis: Liberty Fund, 1998), 462. 14. Noah Webster as “A Citizen of America,” “An Examination into the Leading Principles of the Federal Constitution,” 17 October 1787, in Friends of the Constitution, 379–380. 15. Shlomo Slonim, “The Electoral College at Philadelphia: The Evolution of an Ad Hoc Congress for Selection of President,” Journal of American History

73, no. 1 (1986): 35–58. See page 57 for quotation. 16. Slonim, “The Electoral College at Philadelphia,” 58. 17. Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Random House, 1997), 265. Rakove also argued that these calculations about tensions between the large and small states proved to be unfounded, thus rendering the logic of the Electoral College “irrelevant to the actual politics of presidential elections.” See page 268. David Nichols likewise noted, “the same principle that had been used to settle the dispute between the small states and the large states in regard to legislative apportionment could be applied to presidential selection.” Nichols, Myth of the Modern Presidency, 43. For the diversity of views at the convention and among the Anti-Federalists, see Michael T. Rogers, ‘“A Mere Deception—a Mere Ignus Fatus on the People of America’: Lifting the Veil of the Electoral College,” in Electoral College Reform: Challenges and Possibilities, ed. Gary Bugh (Surrey, England: Ashgate: 2010), 19–41. 18. James P. Pfiffner and Jason Hartke, “The Electoral College and the Framers’ Distrust of Democracy,” White House Studies 3, no. 3 (2003): 261–273. 19. “Pilgrim Code of Laws,” in Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund, 1998), 61–63. 20. “Fundamental Orders of Connecticut,” in Lutz, Colonial Origins, 211. 21. See Lutz, “State Constitution-Making through 1781,” 269–270. 22. See Connecticut Charter of 1662 and the Rhode Island Charter of 1663 at

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notes to pages 18–21 http://avalon.law.yale.edu/17th_century /ct03.asp and http://avalon.law.yale .edu/17th_century/ri04.asp. See also Christopher Collier, Roger Sherman’s Connecticut: Yankee Politics and the American Revolution (Middletown, CT: Wesleyan University Press, 1971); Arthur May Mowry, The Dorr War: The Constitutional Struggle in Rhode Island (Providence, RI: Preston and Rounds, 1901), 15–17. 23. “Massachusetts Ordinance on the Legislature,” in Lutz, Colonial Origins, 92–93. 24. Samuel Eliot Morrison, A History of the Constitution of Massachusetts (Boston: Wright and Potter, 1917), 9–11. 25. See Jeremy D. Bailey, Thomas Jefferson and Executive Power (New York: Cambridge University Press, 2007), 28–35; “The Virginia Constitution,” in Papers of Thomas Jefferson, vol. 1, ed. Julian Boyd (Princeton, NJ: Princeton University Press, 1950), 329–386; Carter Braxton recommended a unicameral legislature and legislative selection of the governor. See A Native to this colony [Carter Braxton], “An Address to the Convention of the Colony and Ancient Dominion of Virginia on the Subject of Government in General, and Recommending a Particular Form to Their Attention,” in American Political Writing during the Founding Era, 1760–1805, ed. Charles S. Hyneman and Donald S. Lutz, 2 vols. (Indianapolis: Liberty Fund, 1983), 1:328–339. 26. This includes Pennsylvania. See the following paragraph in the main text. 27. Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), 139. For a different account, which emphasizes the conservative turn

toward a “unitary” public during the Revolution, see Jessica Chopin Roney, Governed by a Spirit of Opposition: The Origins of American Political Practice in Colonial Philadelphia (Baltimore: Johns Hopkins University Press, 2014). 28. Wood, Creation of the American Republic, 139. 29. Pennsylvania Constitution of 1776, http://avalon.law.yale.edu/18th _century/pa08.asp. 30. Demophilus [George Bryan?], “The Genuine Principles of the Ancient Saxon, or English[,] Constitution,” 1776, in American Political Writing during the Founding Era, 1760–1805, ed. Charles S. Hyneman and Donald S. Lutz (Indianapolis: Liberty Press, 1983), 340–367. 31. Nelson, Royalist Revolution, 170. 32. Richard Alan Ryerson writes that Adams “appears to resemble no other person of his time and place,” and, in the context of postrevolutionary America, was distinct in his willingness to publicly argue for “a more powerful executive,” “the inevitability of aristocracy,” and “a relatively subordinate role for the mass of the people.” Richard Alan Ryerson, John Adams’s Republic: The One, the Few and the Many (Baltimore: Johns Hopkins University Press, 2016), 416. 33. Ryerson, John Adams’s Republic, 14. 34. Ryerson, John Adams’s Republic, 311. 35. Ryerson, John Adams’s Republic, 91–93. 36. John Adams, Thoughts on Government, in The Portable John Adams, ed. John Patrick Diggins (New York: Penguin, 1984), 177. Compare to Gordon Wood, who writes that Adams had assumed in Thoughts that the chief struggle would be between the chief magistrate and the people but had changed to see the executive as a mediator in his later A Defense

notes to pages 21–24 of the Constitutions of the United States. See Gordon S. Wood, Revolutionary Characters: What Made the Founders Different (New York: Penguin, 2006),189. 37. Massachusetts Constitution of 1780, quoted in Ryerson, John Adams’s Republic, 223. 38. As Ryerson puts it, “the lower house represented the people, or the democratic principle; an upper house embodied society’s aristocratic forces; and a single king, president, or governor, however chosen, expressed the executive power without which the whole polity could not survive, and the whole society could not prosper.” John Adams’s Republic, 189. 39. Ryerson, John Adams’s Republic, 293. 40. For Nelson, this is evidence that the Whig theory had been rejected. Nelson, Royalist Revolution, 175. Oscar Handlin and Mary Handlin, ed., The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 (Cambridge: Belknap, 1966), 457. This language is more or less the same as the language Adams used in his “Report of a Constitution,” which became the working draft for the final version. “Report of a Constitution,” in Papers of John Adams, ed. Greg L. Lint, et al. (Cambridge: MA: Harvard University Press, 1989), 8:228–271. 41. Handlin and Handlin, Popular Sources of Political Authority, 437. The quotation comes from the “Address of the Convention,” which was drafted in March 1780, when the convention approved the constitution to be presented to Massachusetts voters. Ryerson describes the document as “the convention’s March 1780 letter that introduced the new constitution to the voters.” Ryerson, John Adams’s Republic, 223.

42. Handlin and Handlin, The Popular Sources of Political Authority, 735–736. I first encountered this quotation in Nelson, Royalist Revolution, 176. 43. “Both were peripheral communities, distant from the metropolis and sparsely populated in relation to it. They would rarely, if ever, send representatives to the legislature that claimed the right to govern them.” Nelson, Royalist Revolution, 178. 44. Handlin and Handlin, Popular Sources of Political Authority, 184 and 188. See also Harry A. Cushing, History of the Transition from Provincial to Commonwealth Government in Massachusetts, vol. 7 in Studies of History, Economics and Public Law (New York: n.p., 1896), 210–212. 45. James Madison, Notes of the Debates in the Federal Convention as Reported by James Madison, ed. Adrienne Koch (Athens: Ohio University Press, 1966S), 147. 46. Handlin and Handlin, Popular Sources, 738. 47. This point has eluded many historians. See, for example, Forrest McDonald, The American Presidency: An Intellectual History (Lawrence: University Press of Kansas, 1994), 135. 48. Handlin and Handlin, Popular Sources of Political Authority, 195. 49. Ryerson, John Adams’s Republic, 211. 50. In his view, the veto would establish three legislative departments. He explained this in a 1779 letter to Elbridge Gerry, which is worth quoting at length. I am clear for Three Branches, in the Legislature, and the Committee have reported as much, tho aukwardly expressed. I have considered this

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notes to pages 24–25 Question in every Light in which my Understanding is capable of placing it, and my Opinion is decided in favor of Three Branches. And being, very unexpectedly called upon to give my Advice to my Countrymen, concerning a Form of Government, I could not answer it to myself, to them, or Posterity, if I had concealed or disguised my real Sentiments. They have been received with Candor, but perhaps will not be adopted. In such a State as this, however, I am perswaded, We never shall have any Stability, Dignity, Decision, or Liberty, without it. We have so many Men of Wealth, of ambitious Spirits, of Intrigue, of Luxury and Corruption, that incessant Factions will disturb our Peace, without it. And indeed there is too much reason to fear with it. The Executive, which ought to be the Reservoir of Wisdom, as the Legislature is of Liberty, without this Weapon of Defence will be run down like a Hare before the Hunters. John Adams to Elbridge Gerry, 4 November 1779, Papers of John Adams 8:276. (Spelling as is in the original). Later, he explained to Roger Sherman that he believed England was a republic because its legislative power “is vested in more than one man.” John Adams to Roger Sherman, 17 July 1789, in The Portable John Adams, ed. John Patrick Diggins (New York: Penguin, 1984), 397. 51. Handlin and Handlin, Popular Sources of Political Authority, 195. 52. Handlin and Handlin, Popular Sources of Political Authority, 457. 53. Handlin and Handlin, Popular Sources of Political Authority, 178. 54. James Warren to John Adams, 22

June 1777, in Founders Online, National Archives, last modified June 29, 2017, http://founders.archives.gov/docu ments/Adams/06-05-02-0139. [Original source: The Adams Papers, Papers of John Adams, vol. 5: August 1776 – March 1778, ed. Robert J. Taylor (Cambridge, MA: Harvard University Press, 2006), 5:229–232]. 55. Handlin and Handlin, Popular Sources of Political Authority, 20-21. 56. The main criticism was that the constitution had not been drafted by a convention with specially delegated powers from the people. Belchertown and New Salem, for example, complained about representation and the selection of the justices of the peace. Handlin and Handlin, Popular Sources of Political Authority, 219–220, 244. 57. Handlin and Handlin, Popular Sources of Political Authority, 324–325. 58. James Warren to John Adams, 22 June 1777, Founders Online. 59. Charles C. Thach Jr., The Creation of the American Presidency, 1775–1789: A Study in Constitutional History (Baltimore: Johns Hopkins University Press, 1922; Indianapolis: Liberty Fund, 2007), 160. 60. Daniel J. Hulseboch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005), 176. 61. In January, Robert Morris wrote Jay to report that Philadelphia had been “made to tremble,” and the source of the problem was that the state lacked a “wholesome constitution.” See Robert Morris to John Jay, 12 January 1777, in Selected Papers of John Jay, ed. Elizabeth M. Nuxoll (Charlottesville: University of Virginia Press, 2010), 1:353. In February, Robert Morris wrote to Jay, expressing

notes to pages 25–27 confidence in those “able heads” who had taken “the lead” in the New York convention. He singled out Livingston, Duane, and Jay as worthy of admiration. See Robert Morris to John Jay, 4 February 1777, in William Jay, Life of John Jay with Selections from His Correspondence and Miscellaneous Papers (Freeport, NY: 1833; rpt. Books for Libraries Press, 1972), 1:66–67. Although it comes after the New York Constitution, James Duane’s letter to Jay, Morris, and Yates bemoaned the condition in Pennsylvania, blaming the desperate situation on the status of the executive under the Pennsylvania Constitution. Duane wrote, “Their Supreme Executive have adjourned themselves for a Month—Executive adjourned, say you, how is that possible? Sirs they have adjourned; not for a Want of Business, for surely no Country ever cried more loudly for a vigilant active and decisive government. They have adjourned because—faith I cannot tell you why—perhaps for the Want of Authority to save their Country under their new Constitution—perhaps for want of Resolution to exercise the power they have.” James Duane to Robert R. Livingston, John Jay, Gouverneur Morris, and Robert Yates, April 1777, in Nuxoll, Selected Papers of John Jay, 1:397. 62. In August of 1776, New York constructed a committee of fourteen to propose a constitution. That committee included John Jay, Gouverneur Morris, Robert R. Livingston, John Sloss Hobart, John Morin Scott, William Smith, Henry Wilsner Sr., Samuel Townshend, Charles DeWitt, John Broome, James Duane, Abraham Yates, Robert Yates, and William Duer. 63. Alfred F. Young, “Conservatives, the Constitution, and the ‘Spirit of

Accommodation,’” in How Democratic Is the Constitution?, ed. Robert A. Goldwin and William A. Schambra (Washington, DC: American Enterprise Institute, 1980), 125–126. 64. Thach, Creation of the Presidency, 23. 65. Jay was not in attendance when it was presented, as he was not present until the seventeenth. Charles Zebina Lincoln, The Constitutional History of New York: From the Beginning of the Colonial Period to the Year 1905, Showing the Origin, Development, and Judicial Construction of the Constitution (Rochester, NY: Lawyer’s Cooperative Publishing, 1906), 1:505, 556. 66. Walter Stahr, John Jay: Founding Father (New York: Hambledon and London, 2005), 74–75. Charles Lincoln called Jay the “chief author.” Constitutional History of New York, 1:471. 67. Donald S. Lutz, “State Constitution Making through 1781,” in A Companion to the American Revolution, ed. Jack P. Greene and J. R. Pole (Malden, MA: Blackwell, 2000), 275. 68. Lincoln, Constitutional History of New York, 1:496. 69. Bernard Mason, The Road to Independence: The Revolutionary Movement in New York, 1773–1777 (Lexington: University of Kentucky Press, 1966), 224–227. 70. Nuxoll, Selected Papers of John Jay, 1:400. 71. Nuxoll, Selected Papers of John Jay, 1:400. 72. Nuxoll, Selected Papers of John Jay, 1:404. 73. Nuxholl, Selected Papers of John Jay, 1:401. 74. John Adams to Jefferson, 18 September 1823, in The Adams-Jefferson Letters: The Complete Correspondence between Thomas Jefferson and Abigail and John Adams, ed. Lestor J. Cappon (Chapel

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notes to pages 27–28 Hill: University of North Carolina Press, 1959), 598–599; Mason, Road to Independence, 243. 75. Lincoln, Constitutional History of New York, 1:525–527. 76. On religious toleration, see Nuxoll, Selected Papers of John Jay, 1:372–385. See also Max M. Mintz, Gouverneur Morris and the American Revolution (Norman: University of Oklahoma Press, 1970), 75. 77. The editor of the Jay papers writes that the original plan submitted to the convention in March by the committee called for selection by electors from the Senate, but this seems to be a mistake. Nuxoll, Selected Papers of John Jay, 1:402. See also Richard Morris, ed., John Jay: The Making of a Revolutionary. Unpublished Papers 1745–1780 (New York: Harper and Row, 1975), 391. 78. Mason, Road to Independence, 233–237. 79. William Howard Adams, Gouverneur Morris: An Independent Life (New Haven, CT: Yale University Press, 2003), 86. 80. According to William Howard Adams, “From the limited record, it is difficult to know precisely [Morris’s] motives.” The “voice vote might well represent an excess of popular participation, too much ‘passion.’ But an open voice vote among citizens might also, to his mind, make for a more cohesive, stable government.” Nevertheless, he concludes, just how the will of the people could be translated into a stable republican government was the overriding hurdle for the Convention, an issue that deeply troubled Morris. The demand for the election of both the assembly and senate by secret ballot became a major political issue in the convention. In an attempt to limit

the popular vote, Morris moved to strike out a provision for the election of the assembly and senate by secret ballot. After his motion passed, the old election procedure of the Provincial Assembly of voting viva voce seemed to prevail until Jay later asked for reconsideration. Jay then proposed that after the war, secret voting would be tested. Adams, Gouverneur Morris, 86. 81. Journal of the Provincial Convention, etc., of the State of New York (1775–77), 2 vols. (Albany, NY: 1842), 1:867 and 895. See also William Howard Adams, 87. 82. Mason, Road to Independence, 234. 83. Mason, Road to Independence, 240–243. 84. Allan Nevins, The American States during and after the Revolution, 1775–1789 (New York: 1924), 164. I am indebted to William Howard Adams for pointing me to Nevins. Adams also points to Cecilia Kenyon on the problem of terms like “popular.” Cecilia M. Kenyon, “Republicanism and Radicalism in the American Revolution: An Old-Fashioned Interpretation,” William and Mary Quarterly 19, no. 2 (April 1962): 153–182. 85. Journal of the Provincial Convention, 874. 86. Alexander Hamilton, Federalist No. 70, in The Federalist, ed. Robert Scigliano (New York: Modern Library, 2000), 453. Later, Theodore Roosevelt would criticize Morris’s colleagues for their small-mindedness in attaching a council to the governor for appointments. Theodore Roosevelt, Gouverneur Morris (Boston: Little Brown, 1888), 54–55. 87. Journal of the Provincial Convention, 896.

notes to pages 29–34 88. Journal of the Provincial Convention, 895. 89. Journal of the Provincial Convention, 884. 90. Journal of the Provincial Convention, 895. 91. Robert Livingston and Gouverneur Morris to John Jay, 26 April 1777, in Nuxoll, Selected Papers of John Jay, 1:407. 92. Journal of the Provincial Convention, 890. 93. This tension between more densely populated areas and less densely populated areas was one of the problems in Rhode Island in its contest between rival constitutions in the 1840s. Mowry, Dorr War, 78–79, 107–127. 94. Robert Livingston and Gouverneur Morris, 26 April, 1777, in The Correspondence and Public Papers of John Jay, ed. Henry Johnston (New York: Putnam’s, 1890), 1:126–128. 95. John Jay to Robert Livingston and Gouverneur Morris, 29 April, 1777, in Correspondence and Public Papers of John Jay, 1:135. 96. The editor notes that the envelope was addressed to Gouverneur Morris but the heading of the letter itself to the whole committee. Alexander Hamilton to the New York Committee of Correspondence, 7 May 1777, in The Papers of Alexander Hamilton, ed. Harold C. Syrett, 27 vols. (New York: Columbia University Press, 1961–1987) [hereafter PAH], 1:248–250. 97. Gouverneur Morris to Alexander Hamilton, 16 May, 1777, in PAH 1:253–254. 98. Alexander Hamilton to Gouverneur Morris, 19 May, 1777, in PAH 1:255. 99. Hamilton, “The Farmer Refuted,” [23 February] 1775, PAH 1 101. 100. Hamilton, Speech in New York

Ratifying Convention, 21 June 1788, PAH 5:36–45. 101. Hamilton, Speech in New York Ratifying Convention, 21 June 1788, PAH 5:36–45. 102. Hamilton, “The Farmer Refuted,” 95. 103. Nelson, Royalist Revolution, 167. 104. Hamilton, “Pay Book of the State Company of the Artillery,” [1777], PAH 1:396–397. 105. Nelson is correct to write that Hamilton was searching ancient texts to “think through the sort of balanced monarchical government that he would propose.” Nelson, Royalist Revolution, 169. 106. Madison, Notes, 45. 107. Madison, Notes, 46. 108. Nelson further explains: Only a well-poised legislature, on Sherman’s account, can be regarded as the “depositary of the supreme will of the Society,” and “image” of the body of the people that can be said to represent them. Like all orthodox theorists of “virtual representation,” Sherman had no attachment whatsoever to direct elections or an expanded franchise; voting, on his view, was entirely beside the point. He accordingly opposed even the popular election of members of the House of Representatives. Royalist Revolution, 195. 109. Madison, Notes, 48. 110. Ceaser reads the defense of popular selection—in particular in the speeches of Wilson, Morris, and Madison—as growing out of the insight that large districts would create better representation by discouraging “petty

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notes to pages 34–37 popular appeals” and by favoring “men of reputation.” As for the other side, Ceaser—like Nichols—ignores Sherman. But he reads Gerry’s and Mason’s opposition as growing from a belief that direct election would tend toward oligarchy. They perceived that nonpartisan elections would favor factions that had organized behind the scenes. Thus, “both were advocates of Congressional selection, in their case as much out of concern for protecting the popular cause as for limiting the independence of the executive.” Ceaser, Presidential Selection, 69–70, 75–77. 111. Terri Bimes argues that Wilson and Morris had in mind the trustee model, where a president would exercise a “paternal” care over the national interest, not be a plebiscitary mouthpiece of public opinion. See Bimes, “Practical Origins,” 36. She cites Ellis, Founding the American Presidency), 149. 112. James Wilson, “Lectures on Law,” in Collected Works of James Wilson, ed. Kermit Hall, 2 vols. (Indianapolis, IN: Liberty Fund, 2009), 2:875. 113. Wilson, “Lectures on Law,” 877. 114. Madison, Federalist No. 37, Scigliano, 227. 115. James Madison, Notes on the Debates in the Federal Convention of 1787, ed. Adrienne Koch (Athens: Ohio University Press, 1966), 302–303. 116. See Richard J. Ellis’s note in Founding the American Presidency, 70. 117. Bimes acknowledges the contest between large state and small states, but she says that, like slavery, it was secondary in importance to the “Framers’ worries that public ignorance would enable elite groups to control presidential elections.” This explanation captures the arguments of Elbridge Gerry, but

it should be noted, too, that Gerry believed that Wilson’s proposal would give “a handle” to “state Partizans” because the public was yet prepared for “stripping the States of their powers.” Bimes, “Practical Origins of the Rhetorical Presidency,” 35. 118. Madison, Notes, 327. 119. These delegates include Hugh Williamson and Oliver Ellsworth on July 25, and Dayton, as well as Langdon, Rutledge, Roger Sherman and Nathaniel Gorham on August 24. 120. Madison, Notes, 523. 121. Madison, Notes, 523; Collier, Roger Sherman’s Connecticut, 248. 122. Madison, Notes, 585; Collier, Roger Sherman’s Connecticut, 249. 123. On July 25, in the context of explaining his preference for the imperfect solution of having the people or some part of them choose the president, Madison said he would only take notice of two difficulties which he admitted to have weight. The first arose from the disposition in the people to prefer a Citizen of their own State, and the disadvantage this wd. throw on the smaller States. Great as this objection might be he did not think it equal to such as lay agst. every other mode which had been proposed. He thought too that some expedient might be hit upon that would obviate it. On the question of a joint ballot, on August 24, Madison pointed out that large states would lose influence too. “If the amendment be agreed to the rule of voting will give to the largest State, compared with the smallest, an

notes to pages 37–42 influence as 4 to 1 only, altho the population is as 10 to 1. This surely cannot be unreasonable as the President is to act for the people not for the States.” Madison, Notes, 365 and 525. 124. Collier, Roger Sherman’s Connecticut, 195 [citation is to “Draft Code, ps. 45–55, 100” and “House Journal 1783–1785, ps. 75, 103”]. In 1773, Sherman and Richard Law were assigned the duty of proposing reforms to Connecticut’s legal code. 125. “The Freemen shall have Liberty to choose the Governor and Lieutenant Governor, where they see Cause, of all or any Freemen within this State.” See “An Act for regulating the Election of the Governor, Lieutenant-Governor, Assistants, etc.,” in Collected Works of Roger Sherman, ed. Mark David Hall (Indianapolis: Liberty Fund, 2016), 87. 126. Collier, Roger Sherman’s Connecticut, 250. 127. It is perhaps relevant that in his later exchange with Adams, Sherman wrote, “It appears to me that the Senate is the most important branch in the government.” See Sherman to John Adams, in Collected Works of Roger Sherman, 698. 128. David Brian Robertson, The Constitution and America’s Destiny (New York: Cambridge University Press, 2005), 154–155. 129. Madison, Notes, 39–41. 130. Madison, Notes, 56. 131. Madison, Notes, 57 132. Madison, Notes, 50. 133. Note, however, that large-state delegates faced a conceptual problem in arguing for both a proportional senate and a small senate. This conceptual problem surely contributed to their defeat. See Rakove, Original Meanings, 60–63; Frances Lee and Bruce

Oppenheimer, Sizing Up the Senate: The Unequal Consequences of the Great Compromise (Chicago: University of Chicago Press, 1999), 16–43; John Patrick Coby, “The Proportional Representation Debate at the Constitutional Convention: Why the Nationalists Lost,” American Political Thought 7, no. 2 (2018): 216–242. Chapter 2. Jefferson’s Federalists, Jackson’s Whigs, and Lincoln’s Democrats 1. Federal Farmer, No. 3, in The AntiFederalist: An Abridgment of the Complete Anti-Federalist, ed. Herbert Storing and Murray Dry (Chicago: University of Chicago Press, 1985), 46. 2. Most Anti-Federalists focused their arguments on the absence of a bill of rights and on the powers of Congress. One notable exception was Cato, of New York, who argued that the president’s length of term, combined with no term limit, made the president more powerful than the sum of the enumerated powers. See Cato, No. 4, in Herbert J. Storing, ed., The Complete Anti-Federalist (Chicago: University of Chicago Press, 1981), 2:113–116. 3. On the emergence of the presidency see Jack N. Rakove, “The Political Presidency: Discovery and Invention,” in The Revolution of 1800: Democracy, Race, and the New Republic, ed. James Horn, Jan Ellen Lewis, and Peter S. Onuf, 30–58 (Charlottesville: University of Virginia Press, 2002). For a summary of the politics of the neutrality debate see Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788–1800 (New York: Oxford University Press, 1993), 336–363; and Gordon S. Wood, Empire of Liberty: A History of the

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notes to pages 43–47 Early Republic (New York: Oxford University Press, 2009), 174–208. 4. Alexander Hamilton, Pacificus No. 1, in Alexander Hamilton: Writings, ed. Joanne B. Freeman (New York: Library of America, 1951), 801–809; James Madison, Helvidius No. 1, in James Madison: Writings, ed. Jack N. Rakove (New York: Library of America 1999), 537–546; Madison, Helvidius No. 4, in Writings of James Madison, ed. Gaillard Hunt (New York: G. P. Putnam’s Sons: 1900–1910), 4: 174. For a discussion of the constitutional question, see Jeremy D. Bailey, Thomas Jefferson and Executive Power (New York: Cambridge University Press, 2007), 81–94. See also Benjamin A. Kleinerman, The Discretionary President: The Promise and Peril of Executive Power (Lawrence: University Press of Kansas, 2009), 125–136; Gary J. Schmitt, “Washington’s Proclamation of Neutrality,” in The Constitutional Presidency, ed. Joseph M. Bessette and Jeffrey K. Tulis, 54–75 (Baltimore: Johns Hopkins University Press, 2009). 5. Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to George Bush (Cambridge, MA: Belknap Press of Harvard University Press, 1993). 6. James Madison, Federalist No. 51, in The Federalist, ed. Robert Scigliano (New York: Modern Library, 2000), 330. 7. Madison, Federalist No. 37, in The Federalist (Scigliano), 227. 8. Madison, Federalist Nos. 48 and 51, in The Federalist (Scigliano), 317 and 330. 9. Madison, Federalist No. 51, in The Federalist (Scigliano), 331. 10. Hamilton, Federalist No. 70, in The Federalist (Scigliano), 448. 11. Hamilton, Federalist No. 72, in The Federalist (Scigliano), 463–465.

12. Hamilton, Federalist No. 70, in The Federalist (Scigliano), 452–54. 13. Hamilton, Federalist No. 68, in The Federalist (Scigliano), 437. 14. Hamilton, Federalist No. 72, in The Federalist (Scigliano), 464. 15. The leading scholar on this subject is Colleen Sheehan, James Madison and the Spirit of Republican Self-Government (New York: Cambridge, 2009). For the minor differences I have with her account, see Jeremy D. Bailey, James Madison and Constitutional Imperfection (New York: Cambridge University Press, 2015), 89–113. 16. Madison, “Consolidation,” in James Madison: Writings, 499. 17. Madison, “Public Opinion,” in James Madison: Writings, 500–501. 18. Madison, “Charters,” in James Madison: Writings, 504–505. 19. Madison, “Spirit of Governments,” in James Madison: Writings, 510–511. 20. Jefferson, “Response to the Citizens of Albemarle,” 12 February 1790, in Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 491. 21. Madison, Federalist Nos. 10 and 63, in The Federalist (Scigliano), 54, 404. 22. See Charles A. Beard, An Economic Interpretation of the Constitution (New York: Free Press, 1913); Robert Dahl, Preface to Democratic Theory (Chicago: University of Chicago Press, 1956); and Martin Diamond, “Democracy and the Federalist: A Reconsideration of the Framers’ Intent,” American Political Science Review 53, no. 1 (1959): 52–68. 23. Madison to Jefferson, 17 October 1788, James Madison: Writings, 421–422. 24. Madison, “Public Opinion, 19 December 1791, in James Madison: Writings, 501. For a larger discussion of

notes to pages 48–51 the scholarship on whether Madison changed his mind, see Bailey, James Madison and Constitutional Imperfection, 70–83. 25. My argument relies on the analysis in J. David Alvis, Jeremy D. Bailey, and F. Flagg Taylor IV, The Contested Removal Power, 1789–2010 (Lawrence: University Press of Kansas, 2013), 16–47. See also Edward S. Corwin, The President’s Removal Power under the Constitution (New York: National Municipal League, 1927); Louis Fisher, Constitutional Conflicts between Congress and the President, 4th ed., rev. (Lawrence: University Press of Kansas, 1997), 49–86; and Richard Ellis, The Development of the American Presidency (New York: Routledge, 2012), 295–345. 26. Annals of Cong., 1st Cong., 1st sess., 518. 27. For Hamilton’s position, see Jeremy D. Bailey, “The New Unitary Executive and Democratic Theory: The Problem of Alexander Hamilton,” American Political Science Review 102, no. 4 (2008): 453–465; Bailey, “The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman,” Harvard Journal of Law and Public Policy 33, no. 1 (2010): 169–184; and Alvis, Bailey, and Taylor, Contested Removal Power, 57–61. 28. Madison to Edmund Pendleton, 21 June 1789, in James Madison: Writings, 465–466. 29. Annals of Cong., 1st Cong., 1st sess., 479–480. 30. For a fuller account of Madison’s position on public opinion before his partisan turn, see Bailey, James Madison and Constitutional Imperfection, 59–88. 31. Nathaniel C. Green, “‘The Focus of Wills of Converging Millions’: Public Opposition to the Jay Treaty and the

Origins of the People’s Presidency,” Journal of the Early Republic 37, no. 3 (2017): 429—469. The quotation is from 459. 32. Ralph Ketcham, Presidents above Party: The First American Presidency, 1789–1829 (Chapel Hill: University of North Carolina Press, 1984), 90. 33. Todd Estes, The Jay Treaty Debate, Public Opinion, and the Evolution of Early American Political Culture (Amherst: University of Massachusetts Press, 2006). 34. For a more partisan rendering of this list of principles, see Jefferson to Gideon Granger, 13 August 1800, in Jefferson Writings, 1078. 35. Jefferson, “First Inaugural Address,” 4 March 1801, in Jefferson Writings, 492–496. For a larger discussion of Jefferson’s ambition for the First Inaugural and an account of Federalist responses, see Bailey, Thomas Jefferson and Executive Power, 132–150. 36. Jefferson, “First Inaugural Address,” 4 March 1801, in Jefferson Writings, 492–496. 37. For a summary of the politics of the Bank debate see Elkins and McKitrick, The Age of Federalism, 233–243; and Wood, Empire of Liberty, 143–145. 38. Alexander Hamilton, “Opinion on the Constitutionality of a National Bank,” 23 February 1791, in Alexander Hamilton: Writings, ed. Joanne Freeman (New York: Library of America, 2001), 613. 39. As Jefferson put it, “It is known that the very power now proposed as a means was rejected as an end by the Convention which formed the Constitution.” See Jefferson, “Opinion on the Constitutionality of a National Bank,” in Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 418.

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notes to pages 51–56 40. For Madison’s records of the bank discussed in the convention, see James Madison, Notes of the Debates in the Federal Convention of 1787 as Reported by James Madison, ed. Adrienne Koch (Athens: Ohio University Press, 1966), 638. Jack N. Rakove and others have argued that Madison looked to the state ratification debates rather than the convention debates to discern the original meaning of the Constitution. In my view, Madison’s own view is more complex than that. See Bailey, James Madison and Constitutional Imperfection, 141–170. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1997), and H. Jefferson Powell, A Community Built on Words: The Constitution in History and Politics (Chicago: University of Chicago Press, 2002). 41. Madison, “The Union: Who Are its Real Friends,” in James Madison: Writings, 517–518. 42. Jefferson to John C. Breckinridge, 12 August 1803, in Thomas Jefferson: Writings, 1136–1137. 43. Henry Adams, History of the United States of America during the Administrations of Thomas Jefferson (New York: Library of America, 1986), 354. 44. Jefferson to Wilson Carey Nicholas, 7 September 1803, Thomas Jefferson: Writings, 1140. 45. For Jefferson’s understanding of the Louisiana Purchase, see Bailey, Thomas Jefferson and Executive Power, 171–224, 242–258. 46. Robert M. S. McDonald, Confounding Father: Thomas Jefferson’s Image in His Own Time (Charlottesville: University Press of Virginia, 2016), 112–131. Quotation at 123. 47. Jefferson to Judge Spencer Roane,

6 September 1819, in Thomas Jefferson: Writings, 1425. 48. Garry Wills, Negro President: Thomas Jefferson and the Slave Power (Boston: Houghton Mifflin, 2003). 49. It is true that there were parties in the United States before the 1790s. As Hofstadter put it, the question was whether these parties were part of a legitimate party system. Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840 (Berkeley: University of California Press,1969). See also Sidney M. Milkis, Political Parties and Constitutional Government: Remaking American Democracy (Baltimore: Johns Hopkins University Press, 1999). For a recent account of parties in colonial Pennsylvania, for example, see Jessica Chopin Roney, Governed by a Spirit of Opposition: The Origins of American Political Practice in Colonial Philadelphia (Baltimore: Johns Hopkins University Press, 2014). 50. Wills, Negro President, 73–89. 51. Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (Cambridge, MA: Belknap Press of Harvard University Press, 2005), 30–35, 142–162, 245–248. 52. Ackerman, Failure of the Founding Fathers, 41–54. 53. Adams to Gerry, 7 February, 1801, Works of John Adams, 98, quoted in Ackerman, Failure of the Founding Fathers, 86. 54. Ackerman, Failure of the Founding Fathers, 86. 55. Akhil Reed Amar argues that the Twelfth Amendment should be understood as another ratification of the pro-slavery Constitution because it continued the three-fifth bonus for states with enslaved populations. See America’s

notes to pages 56–65 Unwritten Constitution: The Precedents and Principles We Live By (New York: Basic Books, 2012). 56. Annals of Cong., 8th Congress, 1st sess., 207–209. 57. Madison, Federalist No. 39, in The Federalist (Scigliano), 244. 58. September 4, in Madison, Notes of Debates, 576–578. 59. September 5, in Madison, Notes of Debates, 583. 60. September 5, in Madison, Notes of Debates, 584. 61. September 5, in Madison, Notes of Debates, 585. 62. Annals, 8th Congress, 1st sess., 376–377. 63. Annals, 8th Congress, 1st sess., 99–100, 112. 64. Annals, 8th Congress, 1st sess., 153. 65. Madison, Federalist No. 49, in The Federalist (Scigliano), 322–325; Senate, Annals, 8th Congress, 1st sess., 154. For a discussion of constitutional veneration in these debates, see Bailey, Madison and Constitutional Imperfection, 134–139. 66. Annals, 8th Congress, 1st sess., 522. 67. Annals, 8th Congress, 1st sess., 533. 68. Annals, 8th Congress, 1st sess., 190. 69. Annals, 8th Congress, 1st sess., 190–192. 70. Annals, 8th Congress, 1st sess., 206. 71. Annals, 8th Congress, 1st sess., 517 or 522. 72. Annals, 8th Congress, 1st sess., 87. 73. Annals, 8th Congress, 1st sess., 119. 74. Annals, 8th Congress, 1st sess., 87.

75. Annals, 8th Congress, 1st sess., 100. 76. Quotation on condition of the country comes from Noah Webster. See Webster, Collection of Papers on Political, Literary, and Moral Subjects (New York: Webster Clark, 1843). 77. James M Banner, To the Hartford Convention: The Federalists and the Origins of Party Politics in Massachusetts, 1789–1815 (New York: Knopf, 1970), 346. 78. Max M. Mintz, Gouverneur Morris and the American Revolution (Norman: University of Oklahoma Press, 1970), 238–239. 79. Theodore Roosevelt, Gouverneur Morris (Boston: Houghton Mifflin, 1888), 307–309. 80. George Cabot, “Report of the Hartford Convention,” 1804, in The American Republic, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002), 455–456. 81. Wills, Negro President, 190. 82. James Hillhouse, Propositions for Amending the Constitution of the United States (New Haven: Oliver Steel, 1808). 83. James Hillhouse, Propositions for Amending the Constitution of the United States, Providing for the Election of the President and Vice-President, and Guarding against the Undue Exercise of Executive Influence, Patronage, and Power (Washington: Gales and Seaton, 1830). 84. Gerard N. Magliocca, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (Lawrence: University Press of Kansas, 2007). 85. Direct election by voters, with plurality winner, was supported by Garnset, Kellogg, Thompson, Livingston, and Polk, just to name a few. See Reg. Deb. 1377–1378, 1544, 1462, and 1648 (1826).

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notes to pages 65–74 86. Reg. Deb. 1420 and 1569 (1826). 87. Reg. Deb. 1347 (1826). 88. Reg. Deb. 1554 (1826). 89. Reg. Deb. 377 (1826). 90. Philip Shriver Klein, President James Buchanan: A Biography (University Park: Pennsylvania State University Press, 1962), 49. See also Reg. Deb. 1418 (1826). 91. Reg. Deb. 1634 (1826). 92. Reg. Deb. 1647 (1826). 93. Reg. Deb. 1493 (1826). 94. Reg. Deb. 1572 (1826). 95. Reg. Deb. 1585 (1826). 96. Madison, Federalist No. 37, in The Federalist (Scigliano), 227. 97. Madison, Federalist No. 39, in The Federalist (Scigliano), 244. Reg. Deb. 1525 (1826). 98. Reg. Deb. 1655–1666 (1826). 99. Reg. Deb. 1581 (1826). 100. Reg. Deb. 1717 (1826). 101. Reg. Deb. 1715 (1826). 102. Reg. Deb. 1715 (1826). 103. Reg. Deb. 1586 (1826). 104. Reg. Deb. 1588 (1826). 105. Andrew Jackson, First Annual Message, in A Compilation of Messages and Papers of the Presidents, 1797, ed. James D. Richardson (Washington, DC: Government Printing Office, 1896), 2:442–449. 106. See Alvis, Bailey, and Taylor, Contested Removal Power, 67–89. 107. Robert V. Remini, Andrew Jackson and the Bank War: A Study in the Growth of Presidential Power (New York: Norton, 1967), 46–48. 108. Holt notes that three times as many non-border-state Southern senators voted to censure Jackson in 1834 as had voted to override Jackson’s bank veto in 1832. Michael F. Holt, The Rise and Fall of the American Whig Party: Jacksonian Politics and the Onset of the

Civil War (New York: Oxford University Press, 1999). 109. Reg. Deb. 3182 (1834). 110. Reg. Deb. 3114 (1834). 111. Daniel Walker Howe, The Political Culture of the American Whigs (Chicago: University of Chicago Press, 1979), 89. 112. As cited in Remini, Jackson and the Bank War, 138. 113. Robert Remini, Daniel Webster: The Man and His Time (New York: Norton, 1997), 413–414, 418–419. 114. Charles M. Wiltse, ed., The Papers of Daniel Webster: Speeches and Formal Writings, vol. 2: 1834–1852 (Hanover, NH: University Press of New England, 1988), 134. 115. Reg. Deb. 3742 (1834). 116. Reg. Deb. 3745 (1834). 117. Reg. Deb. 3746 (1834). 118. Reg. Deb. 3045 (1834). 119. Reg. Deb. 3047 (1834). 120. Lincoln, 1848 letter to Herndon, in Abraham Lincoln: His Speeches and Writings, ed. Roy P. Basler (Cleveland: World Publishing, 1946), 220–221. 121. Lincoln, “Speech on the Presidential Question,” in Lincoln Speeches and Writings, 236. 122. Lincoln, “Speech on the Presidential Question,” 236. 123. James K. Polk: “Fourth Annual Message,” 5 December 1848. Online by Gerhard Peters and John T. Woolley, The American Presidency Project, accessed on 2/5/2019, https://www.presidency.ucsb .edu/documents/fourth-annual-mes sage-6. 124. Stephen M. Engel, American Politicians Confront the Court: Opposition Politics and Changing Reponses to Judicial Power (New York: Cambridge University Press, 2011). 125. Richard J. Ellis and Stephen

notes to pages 75–80 Kirk, “Presidential Mandates in the Nineteenth Century: Conceptual Change and Institutional Development,” Studies in American Political Development 9, no. 1 (Spring) 1995: 175. 126. Benjamin A. Kleinerman, The Discretionary President: The Promise and Peril of Executive Power (Lawrence: University Press of Kansas, 2009). 127. Edward Bates, “Suspension of the Writ of Habeas Corpus: A Letter from the Attorney General, transmitting, in Answer to a Resolution of the House of the 12th Instant, An Opinion Relative to the Suspension of Habeas Corpus,” July 13, 1861, 37th Congress, House of Representatives, Ex. Doc. 1st Session, No. 5, accessed on 2/5/2019, https://archive.org/stream/suspension ofwrit00unit/suspensionofwrit00u nit_djvu.txt. 128. Marshall’s analysis of the drafts of Jackson’s bank veto message suggests that Taney did not have a hand in the portions asserting coordinate review. See Lynn L. Marshall, “The Authorship of Jackson’s Bank Veto Message,” Mississippi Valley Historical Review 50, no. 3 (1963): 466–477. Yet Ballard writes that the “doctrine of the Protest seems to derive naturally from an advisory opinion given by Attorney General Taney in 1831” (74), citing 2 Opinions of the Attorney General 482. Rene N. Ballard, “The Administrative Theory of William Howard Taft.” Western Political Quarterly 7, no. 1 (1954): 65–74. 129. Ex parte Merryman, 17 F. Cas. 149 (C.C.D. Md. 1861). 130. Jennifer L Weber, Copperheads: The Rise and Fall of Lincoln’s Opponents in the North (New York: Oxford University Press, 2006). 131. Clement Vallandigham, Speeches,

Letters, Writings (New York: J. Walter, 1864), 316. 132. Vallandigham, Speeches, 317. 133. Vallandigham, Speeches, 266–276. 134. Vallandigham, Speeches, 293–294. 135. Weber, Copperheads, 48–49. 136. Vallandigham, Speeches, 110–111. 137. Vallandigham, Speeches, 13. 138. Weber, Copperheads, 48. 139. Weber, Copperheads, 120. 140. Vallandigham, Speeches, 707. 141. Vallandigham, Speeches, 260. 142. Andrew Johnson, speech in The Great Union Meeting, Held at Indianapolis, February 26th, 1863: Speeches of Andrew Johnson, of Tennessee, Gen. Samuel F. Carey, of Ohio, and Others (Indianapolis, IN: Indianapolis Daily Journal, 1863), 574, accessed on 2/5/2019, https:// archive.org/stream/greatunionmeetin 00john#page/4/mode/1up 143. Kleinerman, Discretionary President, 188–217. 144. Kleinerman, Discretionary President, 202–203. 145. 37th Congress, 2nd Session, Congressional Globe, 1560. 146. Sumner argued that Congress was the prime mover with respect to the war power: “It is by an act of Congress that the war powers are all put in motion. When once in motion, the President must execute them.” And like Trumbell, Sumner grounded Congress’s superiority in its proximity to sovereignty: “The rights of war may be enforced by act of Congress, which is the highest form of the national will.” See Cong. Globe, 37th Cong., 2d sess., 1862,2464–2465. 147. Kleinerman, Discretionary President, 211. 148. Vallandigham, Speeches, 471. 149. Richard J. Ellis and Stephen

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notes to pages 80–85 Kirk, “Presidential Mandates in the Nineteenth Century: Conceptual Change and Institutional Development,” Studies in American Political Development 9, no. 1 (Spring) 1995: 117–186. 150. Richard J. Ellis, The Development of the American Presidency (New York: Routledge, 2012), 92. Chapter 3. The Progressives and Presidential Representation 1. President’s Committee on Administrative Management, Report of the Committee with Studies of Administrative Management in the Federal Government (Washington, DC : Government Printing Office, 1937), 2–4. 2. Report of the Committee with Studies of Administrative Management, 1. For a very good analysis of presidential representation and the Brownlow Report that concludes that Congress endorsed presidential representation, see John A. Dearborn, “The Foundations of the Modern Presidency: Presidential Representation, the Unitary Executive Theory, and the Reorganization Act of 1939,” Presidential Studies Quarterly, forthcoming, accessed on February 6, 2019, https://onlinelibrary.wiley.com /doi/abs/10.1111/psq.12463. 3. “His power will depend not upon the support of a machine, which must be paid for getting out the vote, but on his ability to secure and hold the attention of public opinion.” Herbert Croly, Progressive Democracy (New York : Macmillan, 1914), 312–313. 4. Croly, Progressive Democracy, 335. 5. Croly, Progressive Democracy, 342. 6. See James W. Ceaser, “Progressivism and the Doctrine of Natural Rights,” John Marini, “Progressivism, the Social Sciences and the Rational State,” and

Charles R. Kesler, “Woodrow Wilson and the Statesmanship of Progress,” in Progressive Challenges to the American Constitution: A New Republic, ed. Bradley C. S. Watson (New York: Cambridge University Press, 2017), 67–86, 105–143, and 226–253. 7. For example, Sidney M. Milkis writes, “Unlike the reform that punctuated the cramped party state of the nine-teenth century, Progressives promised a ‘living Constitution’ that would empower the president, as the steward of the ‘whole people,’ to meet the imposing domestic and international challenges of modern America.” Milkis, “Theodore Roosevelt, the Progressive Party, and the Ascendance of the Living Constitution,” in Watson, Progressive Challenges to the American Constitution, 50. See also Theodore J. Lowi, The Personal President: Power Invested, Promise Unfulfilled (Ithaca: Cornell University Press, 1985), 44–66. 8. Sidney M. Milkis, Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy (Lawrence: University Press of Kansas, 2009), 183. 9. Thomas Goebel, A Government by the People: Direct Democracy in America, 1890–1940 (Chapel Hill: University of North Carolina Press, 2002), 32–45; Steven L. Piott, Giving Voters a Voice: The Origins of the Initiative and Referendum in America (Columbia: University of Missouri Press, 2003), 1–15; Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, MA: Harvard University Press, 1989), 48–50. 10. Herbert Croly, The Promise of American Life (New York: MacMillan, 1909), 270–271 11. Croly, Promise, 29, 44.

notes to pages 86–91 12. Croly, Promise, 49. 13. Croly, Promise, 113. 14. Croly, Promise, 35. 15. Croly, Promise, 182. 16. Croly, Promise, 351. 17. Croly, Promise, 339. 18. Compare to Andrew Rehfeld, The Concept of Constituency: Political Representation, Democratic Legitimacy, and Institutional Design (New York: Cambridge University Press, 2005). 19. Croly, Progressive Democracy, 288–301. 20. Croly, Progressive Democracy, 316–317. 21. Croly, Progressive Democracy, 296. 22. Croly, Progressive Democracy, 236. Quotation found in Edward A. Stettner, Shaping Modern Liberalism: Herbert Croly and Progressive Thought (Lawrence: University Press of Kansas, 1993), 100. 23. This comes from an article that Croly scholar Edward A. Stettner says was “almost certainly by Croly.” See editorial, “The Burden of Presidential Office,” New Republic 3 (June 19, 1915): 162. See Stettner, Shaping Modern Liberalism, 114. 24. Croly, Progressive Democracy, 356, 358–359, and 364. 25. Croly, Progressive Democracy, 353–354. 26. Croly, Progressive Democracy, 335–336. 27. Croly, Progressive Democracy, 356. 28. Woodrow Wilson, Constitutional Government in the United States (New York: Columbia University Press, 1908), 53–55. 29. Wilson, Constitutional Government, 53–57. 30. Wilson, Constitutional Government, 60. 31. Wilson, Constitutional Government, 57.

32. Wilson, Constitutional Government, 119–120. 33. Wilson, Constitutional Government, 57–60, 69. 34. Wilson, Constitutional Government, 68–69. 35. Jeffrey K. Tulis, The Rhetorical Presidency (Princeton, NJ: Princeton University Press, 1988), 117–144. See also James W. Ceaser, “The Presidency and the New ‘Bully Pulpit,’” in The Imperial Presidency and the Constitution, ed. Gary J. Schmitt, Joseph M. Bessette, and Andrew E. Busch (Lanham, MD: Rowman and Littlefield, 2017), 125–144. Ceaser writes that Wilson believed that “American government should be rearranged so as to eliminate the legal obstacles that sought, with minimal impact, to divide or balance powers.” By placing the illimitable power to “represent and speak for the public” in the presidency, American government would become “more responsible by eliminating the deal making taking place behind the scenes.” 36. My reading is similar to Kleinerman’s in that both of us see Wilson as arguing not against the Founders but rather against a certain misrepresentation of the Founders. For Kleinerman, what Wilson wants most is the Hobbesian vigor that can be found in Hamilton’s reading of the constitution. I think that is correct in the sense that Wilson values practicality and adaptation, but I also think Wilson wants to retain some of what might considered a Jeffersonian predisposition toward limited government. See Benjamin A. Kleinerman, The Discretionary President: The Promise and Peril of Executive Power (Lawrence: University Press of Kansas, 2009), 80–84.

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notes to pages 92–99 37. Woodrow Wilson, “Inaugural Address,” March 5, 1917, in Gerhard Peters and John T. Woolley, The American Presidency Project, accessed February 6, 2019, https://www.presidency.ucsb.edu /node/207576. 38. Lewis L. Gould, Four Hats in the Ring: The 1912 Election and the Birth of Modern Politics (Lawrence: University Press of Kansas, 2008), 167. 39. Henry Jones Ford, The Rise and Growth of American Politics: A Sketch of Constitutional Government (New York: Macmillan, 1898), 187–89. 40. Ford, Rise and Growth of American Politics, 208–216. 41. Ford, Rise and Growth of American Politics, 278. 42. Although I think the argument is overstated, Lonce Bailey and Jerome Mileur write that Ford “was a constitutionalist who revered the work of the nation’s founders.” See “Henry Jones Ford: The President and Responsible Democracy,” in In Defense of the Founders Republic: Critics of Direct Democracy in the Progressive Era, ed. Lonce H. Bailey and Jerome M. Mileur (New York: Bloomsbury Academic, 2015). 43. Henry Jones Ford, Alexander Hamilton (New York: Charles Scribner’s Sons, 1920), 83. 44. Ford, Alexander Hamilton, 54. 45. Ford, Alexander Hamilton, 134. 46. Ford, Alexander Hamilton, 373. 47. Henry Jones Ford, The Cost of Our National Government: A Study in Political Pathology (New York: Columbia University Press, 1910), 105–112. 48. Henry Jones Ford, Woodrow Wilson: The Man and His Work (New York: D. Appleton, 1916), 299–300. 49. Ford, Woodrow Wilson, 316–318. 50. Woodrow Wilson to Mitchell

Palmer, 13 February 1913, in Ford, Woodrow Wilson, 319–326. 51. Woodrow Wilson to Mitchell Palmer, 13 February 1913, in Ford, Woodrow Wilson, 322. 52. Woodrow Wilson to Mitchell Palmer, 13 February 1913, in Ford, Woodrow Wilson, 324–325. 53. Woodrow Wilson to Mitchell Palmer, 13 February 1913, in Ford, Woodrow Wilson, 325. 54. Theodore Roosevelt, An Autobiography of Theodore Roosevelt (New York: Macmillan, 1913), 379. 55. James R. Garfield, “How President Taft Pledged Himself to Follow the Roosevelt Policies and Failed,” Outlook, May 18, 1912, 116–122. 56. Theodore Roosevelt, “The Eight and Ninth Commandment in Politics,” Outlook, May 12, 1900; reprinted in Roosevelt, The Strenuous Life (New York: Review of Reviews, 1904), 107–112. I was made aware of this essay by Jean Yarbrough, Theodore Roosevelt and the American Political Tradition, 131–122. 57. Theodore Roosevelt, “The College Graduate and Public Life,” Atlantic Monthly, August 1894; reprinted in Roosevelt, Strenuous Life, 63–67. I was made aware of this essay by Jean Yarbrough, Theodore Roosevelt and the American Political Tradition, 97. 58. Theodore Roosevelt, Thomas Hart Benton (Boston: Houghton Mifflin, 1886), 55. I was made aware of this treatment of Jackson by Jean Yarbrough, Theodore Roosevelt and the American Political Tradition (Lawrence: University Press of Kansas, 2012), 62. 59. Roosevelt, Thomas Hart Benton, 65. 60. Roosevelt, Thomas Hart Benton, 104–105. 61. Roosevelt, Thomas Hart Benton, 109.

notes to pages 99–104 62. Yarbrough, Theodore Roosevelt and the American Political Tradition, 139. 63. Theodore Roosevelt, Gouverneur Morris (Boston: Little Brown, 1888), 133. 64. Roosevelt, Gouverneur Morris, 54–55. 65. Roosevelt, Gouverneur Morris, 134. 66. Roosevelt, Gouverneur Morris, 119 67. According to one scholar of the period, “No other element of direct democracy aroused as much strident opposition as the judicial recall.” Thomas Goebel, A Government by the People: Direct Democracy in America, 1890–1940 (Chapel Hill: University of North Carolina Press, 2002), 62. 68. William Howard Taft, “Special Message of the President of the United States, Returning without Approval House Join Resolution No. 14” (1911), National Archives, Center for Legislative Archives, last reviewed August 15, 2016, https://www.archives.gov/legislative /features/nm-az-statehood/taft-veto .html. 69. Theodore Roosevelt, Speech at Ohio State Constitutional Convention, February 21, 1912, in Proceedings and Debates of the Constitutional Convention of Ohio (Columbus, OH: F. J. Heer, 1912), 1:379, 384. 70. Sidney M. Milkis, Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy (Lawrence: University Press of Kansas, 2009), 55. 71. Yarbrough, Theodore Roosevelt and the American Political Tradition, 207. 72. Roosevelt, Speech at Ohio State Constitutional Convention, 21 February 1912. 73. Gould, Four Hats in the Ring, 64–67. 74. Sidney M. Milkis, Political Parties and Constitutional Government: Remaking

American Democracy (Baltimore: Johns Hopkins University Press, 1999), 46–50. 75. Gould, Four Hats in the Ring, 163. 76. See, for example, Joseph Postell and Johnathan O’Neill, eds., Toward an American Conservatism: Constitutional Conservatism during the Progressive Era (New York: Palgrave Macmillan, 2013). 77. William Howard Taft, Our Chief Magistrate and His Powers (New York: Columbia University Press, 1916; rpt., Carolina Academic Press, 2002), 139. 78. Roosevelt, Autobiography, 489. 79. Taft, Our Chief Magistrate 146–147. 80. According to David S. Brown, “Taft’s comparatively limited range of references accompanied a narrowly legalistic mind-set. He revered the law in an orthodox and fundamental way that imparted precious little compassion for the kind of democratic constitutional upheavals the United States sustained in the Progressive and New Deal eras.” David S. Brown, Moderates: The Vital Center of American Politics, from the Founding to Today (Chapel Hill: University of North Carolina Press, 2016), 158. 81. Jonathan Lurie, William Howard Taft: The Travails of a Progressive Conservative (New York: Cambridge University Press, 2012), xiii. 82. In his study of Taft’s presidency, Paolo Coletta points out that “Taft agreed wholeheartedly with Roosevelt on the need for conservation,” and notes “Taft’s unrelenting antitrust crusade exceeded Roosevelt’s by far—about seventy suits in four years compared with forty suits in seven years.” Paolo Colettta, The Presidency of William Howard Taft (Lawrence: University Press of Kansas, 1973), 80, 154. 83. Peri Arnold, Remaking the Presidency: Roosevelt, Taft, and Wilson,

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notes to pages 104–111 1901–1916 (Lawrence: University Press of Kansas, 2009). 84. Brown, Moderates, 170, citing Taft to Theodore Roosevelt, 9 May 1903, Reel 319, William Howard Taft Papers, Library of Congress. 85. Brown, Moderates, 169, citing Taft to Mrs. Buckner R. Wallingford, 14 July 1912, Reel 513, WHTP; or Colletta, Presidency of Taft, 242. 86. Lurie, William Howard Taft, 94–95. 87. Sidney M. Milkis, “William Howard Taft and the Struggle for the Soul of the Constitution,” 63–93, in Postell and O’Neill, Toward an American Conservatism, 64–65. Coletta also writes, “Rather than seeing the presidency as the center to which the people turned for inspired directions for conducting their lives, he acted as a bookkeeper engaged in making merely mechanical changes.” See Coletta, Presidency of Taft, 266. 88. Taft, Our Chief Magistrate, 156. 89. Quoted in Ford, The Cost of Our National Government, 113. 90. William Howard Taft, “Fourth Annual Message,” December 3, 1912, in Gerhard Peters and John T. Woolley, The American Presidency Project, accessed February 6, 2019, https://www.presi dency.ucsb.edu/documents/fourth-an nual-message-16. 91. Taft, “Special Message.” 92. William Howard Taft, The Presidency: Its Duties, Its Powers, Its Opportunities, and Its Limitations (New York: Charles Scribner’s Sons, 1916), 51. 93. Myers v. United States (1926) 272 US 123. 94. William Howard Taft, Popular Government: Its Essence, Its Permanence and Its Perils (New Haven, CT: Yale University Press, 1913), 2–4.

95. Taft, Popular Government, 24–29. 96. Taft, Popular Government, 63–64. 97. Taft, Popular Government, 110–120. 98. Taft, Popular Government, 151–52. 99. Taft, The Presidency, 50. 100. As quoted in Gould, Four Hats in the Ring, 70. 101. Gould, Four Hats in the Ring, 59. 102. Henry Cabot Lodge to Brooks Adams, March 5, 1912, as quoted in James Holt, Congressional Insurgents and the Party System, 1909–1916 (Cambridge, MA: Harvard University Press, 1967). I was made aware of the Lodge quotation by Gould. 103. Henry Cabot Lodge, “The Constitution and Its Makers,” North American Review 196, no. 680 (July 1912): 34. 104. Lodge, “Constitution and Its Makers,” 35–39. 105. Lodge, “Constitution and Its Makers,” 48. 106. Charles Nagel, “William Howard Taft,” 18 November 1909, in Charles Nagel: Speeches and Writings, 1900–1928, ed. Otto Heller (New York: G. P. Putnam’s Sons, 1931), 2:3. 107. Nagel, “William Howard Taft,” 4. 108. Charles Nagel, “The League of Nations,” 23 July 1919, in Charles Nagel: Speeches and Writings, 2:193–196. 109. Charles Nagel, “Public Questions and the Public,” 21 June 1911, in Charles Nagel: Speeches and Writings, 1:34–36, 39–40. In 1922, Nagel argued, “The direct primary presents a further obstacle to party unity. The office no longer seeks the man who typifies an accepted program; the man must seek the office; anyone may file; the more vague his opinions, the greater the possible circle of voters from which he may draw. Each candidate consults the local interests or preferences of his

notes to pages 111–116 district. Expediency becomes the order of the day.” See “A Call for Leadership,” 23 October 1922, in Charles Nagel: Speeches and Writings, 187. 110. Charles Nagel, “The Growth of Our Law,” 10 July 1914, in Charles Nagel: Speeches and Writings, 55, 58–60. 111. Nagel, “William Howard Taft,” 4. 112. Nagel, “William Howard Taft,” 5–6. 113. Lewis Gould estimates that a fair count of delegates would have kept Taft from having a clear majority of delegates. Gould adds that Taft’s victory was also aided by tensions between La Follette and Wisconsin governor Francis McGovern. By opposing McGovern as convention chair, La Follette actually helped Taft. Gould, Four Hats in the Ring, 67, 71–72 114. Elihu Root, The Citizen’s Part in Government (New York: Charles Scribner’s Sons, 1907), 16. 115. Root, Citizen’s Part in Government, 75–75, 84–88. 116. William Schambra, “The Election of 1912 and the Origins of Constitutional Conservatism,” 96–119, in Postell and O’Neill, Toward an American Conservatism, 99–100. 117. Root, Citizen’s Part in Government, 118. 118. Root, Citizen’s Part in Government, 95. 119. Elihu Root to Timothy Woodruff, 19 March 1910, as quoted in Phillip C. Jessup, Elihu Root (New York: Dodd, Meade, 1938), 2:154. 120. Robert J. Lacey, “Elihu Root: Balancing Constitutionalism and Direct Democracy,” in Bailey and Mileur, In Defense of the Founders Republic, 131–158. 121. “Address of the Temporary Chairman,” Official Report of the Proceedings of

the Fifteenth Republican National Convention (New York: Tenny Press, 1912), 89. 122. “Address of the Temporary Chairman,” Fifteenth Republican National Convention, 97. 123. “Address of the Temporary Chairman,” Fifteenth Republican National Convention, 98. 124. “Address of the Temporary Chairman,” Fifteenth Republican National Convention, 100. 125. “Address of the Temporary Chairman,” Fifteenth Republican National Convention, 98–99. 126. Elihu Root, “Speech before the National Security League,” 24 April 1918, in Men and Policies: Addresses by Elihu Root, ed. Robert Bacon and James Brown Scott (Cambridge, MA: Harvard University Press, 1924), 181. 127. Elihu Root, Experiments in Government and the Essentials of the Constitution (Princeton, NJ: Princeton University Press, 1913). 128. Root, Experiments in Government and the Essentials of the Constitution, iv. 129. Root, Experiments in Government and the Essentials of the Constitution, 11–12. 130. Root, Experiments in Government and the Essentials of the Constitution, 23. 131. Root, Experiments in Government and the Essentials of the Constitution, 31–33. 132. Root, Experiments in Government and the Essentials of the Constitution, 72. 133. Root, Experiments in Government and the Essentials of the Constitution, 76. 134. Nicholas Murray Butler, “Alexander Hamilton,” in Why Should We Change Our Form of Government?: Studies in Practical Politics (New York: Charles Scribner’s Sons, 1912), 128–129. 135. He was Taft’s running mate in 1912, and after James Sherman died, ran for president in 1928 in order to protest

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notes to pages 117–123 prohibition. See Lonce H. Bailey, “Nicholas Murray Butler: Universal Truths and the Foundations of Republican Institutions,” in Bailey and Mileur, In Defense of the Founders, 36–37. 136. Nicholas Murray Butler, True and False Democracy (1907), Essay Reprint Series (Freeport, NY: Books for Libraries Press, 1969), 33–34. 137. Butler, True and False Democracy, 17. 138. “It must never be forgotten that the same individuals constitute both the mob and the people. When their lower nature rules, these individuals are a mob; when their higher nature guides, they are the people. The demagogue makes his appeal to the people; the political leader, the statesman, makes his appeal to the people.” Butler, True and False Democracy, viii. 139. Butler, True and False Democracy, viii. 140. Butler, True and False Democracy, 30–31. 141. Butler, Why Should We Change Our Form of Government?,7. 142. Butler, Why Should We Change Our Form of Government?, 7. 143. Butler, Why Should We Change Our Form of Government?, 20. 144. Butler, Why Should We Change Our Form of Government?, 25–46. 145. A. Lawrence Lowell, “The Physiology of Politics,” Presidential Address, Sixth Annual Meeting of the American Political Science Association, American Political Science Review 4, no. 1 (1910): 6. 146. A. Lawrence Lowell, Essays on Government (Boston: Houghton Mifflin, 1889), 20–59. 147. Lowell, Essays on Government, 9–10.

148. Lowell, Essays on Government, 90–91. 149. Lowell, Essays on Government, 93. 150. Lowell, Essays on Government, 97–98. 151. A. Lawrence Lowell, Public Opinion and Popular Government (New York: Longmans, Green, 1913), 116–117. 152. Lowell, Public Opinion and Popular Government, 104. 153. Lowell, Public Opinion and Popular Government, 151. 154. Lowell, Public Opinion and Popular Government, 276–277. 155. 47 Cong. Rec. (1911), 4118–4141, 4217–4242. 156. A. Maurice Low, “The Dominant Figure: It Is to the President Rather Than to Congress That the Country Will Look for the Fulfillment of Campaign Pledges,” Harper’s Weekly 54, ed. George Harvey (December 7, 1912), 10. 157. Count Bernstoff, “Harding and Germany,” Die Hilfe, March 15, 1921, Living Age, 8th ser., 22 (Boston: Living Age Company, 1921): 263–264. 158. J. M. Bonn, “A German Estimate of American Opinion,” Europäische Staats und Wirtschaftszeitung, republished in Living Age, 8th ser., 10 (Boston: Living Age Company, 1918): 754–758. The editor’s note says Bonn’s essay was published “early in the war.” 159. See, for example, the difference between the Milkis and Schambra in the volume Toward an American Conservatism. Milkis reads Taft’s defeat as evidence that “Taft’s defense of constitutional sobriety fell on deaf ears,” but Schambra reads Taft’s nomination in 1912 as a victory that “determined, once and for all, that the nation would try to solve the perplexing problems of the ensuing century without

notes to pages 123–128 abandoning its fundamental commitment to limited government and constitutional constraints on majority rule.” Milkis, “William Howard Taft and the Struggle for the Soul of the Constitution,” 84; Schambra, “Election of 1912,” 112. 160. Hans Kelsen, The Essence and Value of Democracy, ed. Nadia Urbanati and Carlo Invernizzi Accetti, trans. Brian Graf (Lanham, MD: Rowman and Littlefield, 2013), 89–90. 161. Henry Jones Ford, Representative Government (New York: Henry Holt, 1924), 273–285. 162. Ford, Representative Government, 304–308. 163. For an analysis of the delegations to Wilson during wartime, see Benjamin A. Kleinerman, ‘“In the Name of National Security,’ Executive Discretion and Congressional Legislation in the Civil War and World War I,” in The Limits of Constitutional Democracy, ed. Jeffrey K. Tulis and Stephen Macedo (Princeton, NJ: Princeton University Press, 2010), 91–111. 164. Elihu Root, “The Restoration Policies of the United States,” 19 February 1920, in Men and Policies, 216–217. Chapter 4. The National Security Constitution and Presidential Representation at Midcentury 1. In a chapter with the title “The Modern Presidency,” Rossiter identified four ways in which the presidency had changed since Hoover: the working relations between Congress and the president, changes in communication techniques by which the president can influence public opinion, the requirement that the president is the keeper of the peace for the world, and the

president as a leader in the struggle civil rights. Clinton Rossiter, The American Presidency, Second Edition (New York: Harcourt, 1960), 105-117. 2. The other new job duties were Chief of Party, Protector of the Peace, Manager of Prosperity, and World Leader. American Presidency, 28. 3. Rossiter, American Presidency, 28. 4. Rossiter, American Presidency, 28. 5. For a discussion of the Roman model, see Nomi Lazar, “Why Rome Didn’t Bark in the Night: Some Thoughts on Crisis Government and Constitutional Flexibility,” Polity 45 (2013): 422-444. 6. Rossiter, Constitutional Dictatorship, 308-309. 7. “Democracy and Dictatorship,” February 24, 1933, Today and Tomorrow, in The Essential Lippmann: A Political Philosophy for Liberal Democracy, ed. Clinton Rossiter and James Lare (New York: Random House, 1963), 263-265. 8. Lippmann to Frankfurter, March 3 and 14, 1933, in Public Philosopher: Selected Letters of Walter Lippmann, ed. John Morton Blum (New York: Ticknor & Fields, 1985), 303-304. 9. Lippmann to Hugh Johnson, November 10, 1933, in Public Philosopher, 314. 10. Lippmann, “Presidential Power and Congressional Control,” Today and Tomorrow, February 8, 1941, Essential Lippmann, 246-247. 11. Lippmann, “Presidential Power and Congressional Control,” Today and Tomorrow, February 8, 1941, Essential Lippmann, 246-247. 12. Lippmann, “The President’s Return,” Today and Tomorrow, December 21, 1943, Essential Lippmann, 284. 13. Lippmann, “On Reforming the

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notes to pages 128–133 Presidency,” Today and Tomorrow, April 14, 1938, Essential Lippmann, 265. 14. Lippmann to Fred G. Stickel, Jr., October 12, 1939, Public Philosopher, 382. 15. Harry Truman, Memoirs, Volume II, 473. 16. Robert Jackson, concurring opinion in Youngstown Sheet & Tube v. Sawyer (1952) 243 US 653-654. 17. One possibility is that that Truman 80th Congress was fairly typical even if its foreign policy accomplishments proved to be extraordinary. Political scientists have long argued that presidents are more successful in enacting foreign policy than they are in domestic policy because the Constitution gives presidents fewer checks in foreign policy. More simply, it would seem that presidents should be more successful in foreign policy terms because of the patriotic admonition that politics should stop at the water’s edge. Truman biographer Alonzo Hamby writes that Truman pursued domestic policies “he knew he would not get” as a “shrewd strategy” aimed at “rebuilding the Roosevelt coalition.” According to Hamby, Truman “used the veto to make points with selected constituencies, and abandoned virtually any pretense of real legislative leadership or coordination.” But foreign policy was a different story. Truman and this very Congress “worked out some of the most important steps in the history of American diplomacy.” Crediting Truman’s decision to give up on domestic policy and the reputations of men like Marshall and Acheson, Hamby concludes that Truman’s State Department and the 80th Congress constructed a “dazzling expansion” of a bipartisan foreign policy.” Alonzo L. Hamby, “Harry S. Truman: Insecurity

and Responsibility,” in Leadership in the Modern Presidency, ed. Fred Greenstein, 41–75, (Cambridge, MA: Harvard University Press, 1995), 70. 18. See, for example, Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973). 19. Griffin, Long Wars and the Constitution, 63-67. 20. Zeisberg, 125. 21. Zeisberg, 127. 22. Harold Hongju Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair (New Haven: Yale University Press, 1990), 100. 23. Koh, National Security Constitution, 102. 24. Indeed, Koh uses this term two times. Later he writes, “The president and the Congress then designed the national security system in 1947 to sustain that national consensus in the Cold War years through a model of management by an institutional and plebiscitary presidency. But when President Truman used that system to extend the national security state and to lead the nation into the unpopular, undeclared Korean War, the Youngstown Court reaffirmed the limits that the national security Constitution placed upon his authority.” National Security Constitution, 135-136. Zeisberg uses Koh’s formulation in War Powers, 125. 25. See, for example, Bruce Ackerman, We the People, Foundations: Volume 1 (Cambridge, MA: Harvard University Press, 1991) and Mark Tushnet, The New Constitutional Order (Princeton: Princeton University Press, 2003). 26. Douglas Stuart, Creating the National Security State: A History of the Law that Transformed America (Princeton: Princeton University Press, 2008). 27. Stuart, 273.

notes to pages 133–137 28. Quoted in Stuart, 116. Stuart cites Memoirs, Vol. 2., p. 60. 29. Quoted in Stuart, Creating the National Security State, 45. 30. Stuart, 121-130. The quotation is at page 126. 31. Stuart, 143. 32. Sidney M. Milkis and Michael Nelson, American Presidency: Origins and Development, 4th ed. (Washington, DC: Congressional Quarterly, 2003S), 294. 33. Congressional Record, 80th Congress, pp. 8297, 8302, and 8501. 34. Congressional Record, 80th Congress, pp. 8295, 8299, and 8306. 35. Congressional Record, 80th Congress, 8298, 8306, 8312, and 8318. 36. Congressional Record, 80th Congress, 8498. The most interesting argument along these lines came in the House from Representative Dorn, who argued that military was a less of a threat than the president because the military, unlike the president, had no way to cultivate popular support. Nobody in the House commented on this linkage between popular support and potential tyranny. Congressional Record, 80th Congress, pp. 9418. 37. Forrest McDonald, The American Presidency: An Intellectual History (Lawrence, KS: University Press of Kansas, 1994), 407 and 470. 38. David E. Kyvig, Explicit & Authentic Acts: Amending the US Constitution, 17761995. (Lawrence, KS: University Press of Kansas, 1996), 331. 39. Milkis and Nelson, The American Presidency, Origins and Development, 297. 40. Kyvig, Explicit & Authentic Acts, 327. Final House vote on p. 172. 41. Kyvig, Explicit & Authentic Acts, 329. 42. Kyvig, Explicit & Authentic Acts,

329. See the discussion of testimony in the following pages. 43. Hickok, “Pique over Principle,” 40. 44. Milkis and Nelson, American Presidency, 298. 45. See Milkis and Nelson, American Presidency, 296. 46. Bailey, Jefferson and Executive Power, 120-127. 47. Paul G. Wills and George W. Wills, “The Politics of the Twenty-Second Amendment,” Western Political Quarterly 5 (1952): 469. 48. Hickok, “Pique over Principle,” 33. 49. Rossiter, American Presidency, 260. 50. Michael Korzi, Presidential Term Limits in American History: Power, Principles, and Politics (College Station, TX: Texas A&M Press, 2011), 127-128. 51. Korzi, Presidential Term Limits, 140-142. 52. 80th Congress, 841-842. Sabath also predicted, incorrectly, that the states would reject the amendment. 53. Congressional Record, 80th Congress, 865. 54. Congressional Record, 80th Congress, 842-843. 55. Congressional Record, 80th Congress, 860. 56. Congressional Record, 80th Congress, 862. 57. Congressional Record, 80th Congress 864. 58. See Halleck Congressional Record, 80th Congress, 845. 59. Congressional Record, 80th Congress, 861. 60. Congressional Record, 80th Congress, 841 and 845. 61. Congressional Record, 80th Congress, 848.

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notes to pages 137–143 62. Bryne (New York) argued that there was long tradition of non formality because nobody wanted to bind their successors. 63. Congressional Record, 80th Congress, 848. 64. Congressional Record, 80th Congress, 847. 65. Congressional Record, 80th Congress, 849. 66. Congressional Record, 80th Congress, 854. 67. See chapter 2. 68. Congressional Record, 80th Congress, 856. Robsion also said that Americans should not accept the principle of “indispensable man.” Congressional Record, 80th Congress, 850. 69. Congressional Record, 80th Congress, 848. 70. Congressional Record, 80th Congress, 848. 71. See Francis Walter (D- PA) on the ratification process at 845. John Murdock (D-AZ) also made this point. The attempt for amendment by state conventions was defeated 74–134. See Congressional Record, 80th Congress, 871. 72. There was some question about the motives of those who held this third view. Michener said opponents to the bill were driving the 6 year alternative, but the proposal was often called the “Dirksen substitute” and he was for the amendment. Congressional Record, 80th Congress, 861. 73. Congressional Record, 80th Congress, 847. See also Hobbs at p. 861. Kenneth Keating (R-NY) makes a similar argument that taking reeligibility will take away the check of public opinion on appointments, so it will have the opposite effect of the reform. Congressional Record, 80th Congress, 865.

74. Congressional Record, 80th Congress, 857. 75. Congressional Record, 80th Congress, 847. 76. Debate on the National Security Act in the Senate occupied about a day and half. The Senate spent about the same amount of time arguing a judicial appointment, Dooley for US district court in Texas, which turned into a far reaching debate about the founders and the meaning of the Senate’s participation in judicial appointments. It would be incorrect to say that the debate in the Senate was rushed. 77. Congressional Record, 80th Congress, 1962-1965. 78. Congressional Record, 80th Congress, 1770-1774. 79. Congressional Record, 80th Congress, 1681-1682. 80. Congressional Record, 80th Congress, 1966-1967. 81. Nancy Beck Young, Why We Fight: Congress and the Politics of World War II (Lawrence, KS: University Press of Kansas, 2013), 101. 82. John W. Malsberger, From Obstruction to Moderation: The Transformation of Senate Conservatism, 1938-1952 (Selinsgrove, PA, and London: Susquehanna University Press and Associated University Press, 2009), 12-13. 83. Malsberger, From Obstruction to Moderation, 268. 84. Malsberger, From Obstruction to Moderation, 175-187. 85. It should be pointed out that this grouping is somewhat arbitrary. The distance at the extremes is closer across groupings than it is across the whole middle grouping. Thus the most supportive Senator (Aiken) is closer to the first group than he is to the most

notes to pages 143–148 moderate (Saltonstall and Smith) of the moderate group. 86. Malsberger, From Obstruction to Moderation, 18-21, 182-185. 87. Of the fourteen moderates who cast enough votes to be scored, eight received scores of high opposition (a “3”), five received a score of moderate support (a “2”), and only one received score of high support (a “1”). The one supporter was a Democrat, Aiken (TN). The Senators who moderately supported Truman on executive power included Republicans Saltonstall (MA) and Robertson (WY), as well as Southern Democrats Byrd (WV), Overton (LA), and McKellar (TN). 88. The remaining senator (Langer) was unscored. See Table 5-3, in Malsberger, From Obstruction to Isolation, 196. 89. Truman, Memoirs, Volume 2, 172. 90. Dean Acheson, Present at the Creation: My Years in the State Department (New York: Norton, 1969), 223. 91. “G.O.P. Organizes the New Congress,” Life, 22: 2, January 13, 1947. Quotation found in Private Papers of Senator Vandenberg, Volume 3, ed. Arthur H. Vandenberg, Jr. (Boston: Houghton Mifflin, 1952), 332-333. 92. Tomkins, Evolution of a Modern Republican, 140. 93. Arthur H. Vandenberg, “The New Deal Must be Salvaged,” American Mercury, January, 1940, 1-10, accessed February 8, 2019, https://www.unz.org/Pub/AmMer cury-1940jan-00001?View=PDF. 94. Arthur H. Vandenberg, “American Foreign Policy,” January 10, 1945, accessed February 8, 2019, http://www .senate.gov/artandhistory/history/re sources/pdf/VandenbergSpeech.pdf. 95. Alonzo Hamby, Man of the People:

A Life of Harry Truman (New York: Oxford University Press, 1995), 394. 96. Vandenberg, letter on February 26, 1951, in Private Papers, 577-578. 97. Acheson, Present at the Creation, 223. 98. Walter Lippmann to Arthur Vandenberg, Jr., November 1851, in Public Philosopher: Selected Letters of Walter Lippman., ed., John Morton Blum (New York: Ticknor & Fields, 1985), 565. 99. C. David Tomkins, The Evolution of a Modern Republican (1970); Lawrence S. Kaplan, The Conversion of Arthur H. Vandenberg: From Isolation to International Engagement (Lexington, KY: University Press of Kentucky, 2015). 100. Zeisberg, War Powers, 127 and 129. In her view, the key point is that there was a “consensus resistance to using treaty reservations to formalize Congress’s choice.” 101. Vandenberg, The Greatest American, 218. 102. Vandenberg, The Greatest American, 166-167. 103. Vandenberg, The Greatest American, 122. 104. Vandenberg, The Trail of a Tradition, 143-150. 105. Kaplan, Conversion of Arthur H. Vandenberg, 36. 106. Vandenberg, “The New Deal Must be Salvaged,” 3. 107. Vandenberg, “Remarks on the President’s Message,” March 13, 1947, in Private Papers, 340. 108. See Vandenberg, letter of March 24, 1947. “The trouble is that these ‘crises’ never reach Congress until they have developed to a point where Congressional discretion is pathetically restricted. When things finally reach a point where a President asks us to ‘declare war’ there usually is nothing left

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notes to pages 148–155 except to declare ‘declare war.’ In the present instance, the overriding fact is that the President has made a longdelayed statement regarding Communism on-the-march which must be supported if there is any hope of ever impressing Moscow with the necessity of paying any sort of peaceful attention to us whatsoever. If we turned the President down—after his speech to the joint Congressional session—we might as well either resign ourselves to a complete Communist encirclement and infiltration or else get ready for World War No. Three.” Private Papers, 342. 109. Private Papers, 411 and 483. 110. Vandenberg to Wherry, February 2, 1951, in Private Papers, 567. 111. Vandenberg to Lodge, February 26, 1951, in Private Papers, 572. 112. Vandenberg, letter to a constituent, August 1, 1949, and letter to Lippmann, August 9, 1949, in Private Papers, 507. 113. Lippmann to Vandenberg, January 18, 1950, Public Philosopher, 547-548. 114. Lippmann, “The Usurpers,” Today and Tomorrow, January 17, 1952, in Essential Lippmann, 289. 115. Lippmann, The Public Philosophy, in Essential Lippmann, 235-240. 116. Lippmann to Robert Brand, May 9, 1955, Public Philosopher, 582. 117. Lippmann, “Democracy in Trouble,” Today and Tomorrow, January 5, 1956, Essential Lippmann, 249. Chapter 5. Reformed Democrats and Unitarian Republicans 1. For an example of the common view, see Richard Pious, “The Presidency and the Nominating Process: Politics and Power,” in The Presidency and the Political System, 7th ed., ed. Michael

Nelson (Washington, DC: Congressional Quarterly Press, 2003), 217–238. For a significant challenge to the dominant view, see Marty Cohen, David Karol, Hans Noel, and John Zaller, The Parties Decide: Presidential Nominations before and after Reform (Chicago: University of Chicago Press, 2008). 2. John Kenneth White, “Mandates without Parties,” in Challenges to Party Government, ed. John Kenneth White and Jerome M. Mileur (Carbondale and Edwardsville: Southern Illinois University Press, 1992), 84–103. 3. Mandate for Reform: The Commission on Party Structure and Delegate Selection (Washington, DC: Democratic National Committee, 1970), 9. 4. Mandate for Reform, 10–11. 5. Mandate for Reform, 13. 6. Mandate for Reform, 34–35. 7. Mandate for Reform, 49. 8. Mandate for Reform, 10. 9. Mandate for Reform, 49. 10. Michael Nelson, Resilient America: Electing Nixon in 1968, Channeling Dissent, and Dividing Government (Lawrence: University Press of Kansas, 2014), 153. 11. Nelson, Resilient America, 163–164. 12. Sam Rosenfield, The Polarizers: Postwar Architects of Our Partisan Era: (Chicago: University of Chicago Press, 2018), 117. 13. Byron E. Shafer, Quiet Revolution: The Struggle for the Democratic Party and the Shaping of Post-Reform Politics (New York: Russell Sage, 1983), 14–24. 14. Nelson, Resilient America, 167. 15. The Democratic Choice: Report of the Commission on the Democratic Selection of Presidential Nominees (n.p.: n.p., 1968), 9–14. 16. Democratic Choice, 15 17. Democratic Choice, 3–6.

notes to pages 155–161 18. Democratic Choice, 14–16. 19. Shafer, Quiet Revolution, 27–34. 20. Walter Cronkite “dismissed it as ‘pretty much of a technical matter.’ Most newspaper reports did not mention the vote at all.” Nelson, Resilient America, 169. 21. “Rules Committee,” August 17, 1968, in “Rules Committee 1968” folder, Jim Wright Papers, Special Collections, at the Mary Couts Library, Texas Christian University. 22. Shafer, Quiet Revolution, 27. 23. “Freedom of Conscience Rule,” in “Rules Committee 1968” folder, Jim Wright Papers. 24. Nelson, Resilient America, 167–68. 25. Shafer, Quiet Revolution, 32–36. 26. Shafer, Quiet Revolution, 43–44. 27. Bruce Miroff, The Liberals’ Moment: The McGovern Insurgency and the Identity Crisis of the Democratic Party (Lawrence: University Press of Kansas, 2007), 20. 28. Shafer, Quiet Revolution, 73. 29. Shafer, Quiet Revolution, 95. 30. Shafer, Quiet Revolution, 76. 31. Shafer, Quiet Revolution, 93–95, 100. 32. Shafer, Quiet Revolution, 116–118. 33. Shafer, Quiet Revolution, 128–130, 148, 155. 34. Shafer, Quiet Revolution, 227–229. For an example of lawyerly concern that the reforms would meet “resistance” that would have to be in court, see [no author], “Constitutional Safeguards in the Selection of Delegates to Presidential Nominating Conventions,” Yale Law Journal 78, no. 7 (1969): 1228–1252, 1229. 35. Austin Ranney, Curing the Mischiefs of Faction: Party Reform in America (Berkeley: University of California Press, 1975), ix–x. 36. See, for example, the exchange

between Harvard political scientist Samuel Beer and Indiana senator Birch E. Bayh in Shafer, Quiet Revolution, 166–168. 37. Ranney, Curing the Mischiefs of Faction, 111–113. See Hanna Fenichel Pitkin, The Concept of Representation (Berkeley: University of California Press, 1967). 38. Ranney, Curing the Mischiefs of Faction, 188–191. 39. A. James Reichley, “Party Politics in a Federal Polity,” in Challenges to Party Government, ed. John Kenneth White and Jerome M. Mileur (Carbondale and Edwardsville: Southern Illinois University Press, 1992), 55. 40. Rosenfield, Polarizers, 136. 41. Rosenfield, Polarizers, 143. 42. Shafer, Quiet Revolution, 303, 315. 43. William J. Crotty, Decision for Democrats: Reforming the Party Structure (Baltimore: Johns Hopkins University Press, 1978), 111–112 44. Jules Witcover, Party of the People: A History of the Democrats (New York: Random House, 2003), 575. 45. Rosenfield, Polarizers, 143–145. 46. Richard M. Scammon and Ben J. Wattenberg, The Real Majority (New York: Coward-McCann, 1970), 42–81. WCrotty, Decision for the Democrats, 230. 47. Quoted in Phillip A. Klinkner, The Losing Parties: Out-Party National Committees, 1956–1993 (New Haven: Yale University Press, 1994), 111. 48. Crotty, Decision for the Democrats, 226–231. 49. Scammon and Wattenberg, Real Majority, 142–144. They conceded that the system did have “a good deal of democratic slippage” and that the system was probably closer to “helter-skelterism” than to a system: Some states have beauty contests

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notes to pages 162–166 and unbounded delegates. Some states have no beauty contest but elect pledged delegates. Some states choose delegates by caucus or convention. Some delegates in some states are chosen directly by the state committees. Some states have hybrid mixtures of these systems. Some states have all the mechanisms available for an open, contested primary but never reach a “democratic” choice because two competing candidates do not enter the contest. Some nonprimary states went to McCarthy, many more to Humphrey. Some nonprimary states went by a unit rule totally to Humphrey; some primary states went by a unit rule totally to McCarthy; some states split their vote. 50. Jeanne Kirkpatrick, The New Presidential Elite: Men and Women in Politics (New York: Russell Sage, 1976), 287–289, 328–331. 51. Klinkner, The Losing Parties, 110– 111; Miroff, Liberals’ Moment, 262–265. 52. Of the immediate impact, Miroff writes, “Rarely in American history had a major interest group suffered such a rapid drop in power as did organized labor between 1968 and 1972.” Miroff, Liberals’ Moment, 186. 53. Shafer writes: The crucial distinction was between volunteer state parties, those who relied upon independent activism in pursuit of party affairs, and organized state parties, those which could turn to a perpetually staffed set of party offices for the same party business. Volunteer parties, through the nature of their incentives, the character of their participants, the

form of their electoral campaigns, and the overall party structure which these, together, created were far more responsive to national urgings toward party reform. Organized parties, for these same reasons, were far less responsive at every analogous stage. Quiet Revolution, 272. 54. Shafer, Quiet Revolution, 282. 55. Shafer, Quiet Revolution, 293. 56. Rosenfield, Polarizers, 145. 57. Beer to McGovern, November 4, 1969, as cited in Rosenfield, Polarizers, 139. Rosenfield cites Box 18, Folder “Responses to the Guidelines II,” DNC Records. 58. Rosenfield, Polarizers, 135. 59. Miroff, Liberals’ Moment, 21. 60. Austin Ranney, “Changing the Rules of the Presidential Nominating Game: Party Reform in America,” in Parties and Elections in an Anti-Party Age: American Politics and the Crisis of Confidence, ed. Jeff Fishel (Bloomington: Indiana University Press, 1978), 220, 226. 61. Richard Nixon, “Special Message to the Congress on Electoral Reform,” February 20, 1969, in Gerhard Peters and John T. Woolley, The American Presidency Project, accessed February 7, 2019, http://presidency.proxied.lsit.ucsb.edu /ws/index.php?pid=2400&st=&st1=. 62. “House Votes for Direct Election of President,” in CQ Almanac 1969, 25th ed. (Washington, DC: Congressional Quarterly, 1970), 895–901, accessed February 7, 2019, http://library.cqpress .com/cqalmanac/cqal69-1247065. 63. “House Votes for Direct Election of President.” 64. “Electoral College Reform Victim of Senate Filibuster,” in CQ Almanac 1970, 26th ed. (Washington,

notes to pages 167–171 DC: Congressional Quarterly, 1971), 05840-05-845, accessed February 7, 2019, http://library .cqpress.com/cqalmanac/cqal70-1291702. 65. “House Votes for Direct Election of President.” 66. “Electoral College Reform Victim of Senate Filibuster.” 67. “House Votes for Direct Election of President.” 68. Richard Nixon, “Statement on Congressional Action on Electoral Reform,” September 30, 1969, in Gerhard Peters and John T. Woolley, The American Presidency Project, accessed February 7, 2019, http://presidency.proxied.lsit.ucsb .edu/ws/index.php?pid=2249&st=&st1=. 69. “Drops National Primary; President Won’t Push Plan, Pomerene Reporting Adversely,” New York Times, New York ed., March 25, 1915, 5. 70. Congressional Quarterly Almanac, vol. 28, 92nd Cong., 2nd sess. (Washington, DC: Congressional Quarterly Press, 1972), 661–662. 71. Congressional Quarterly Almanac, 28:661–662. 72. Nelson Polsby and Aaron B. Wildavsky, Presidential Elections: Strategies of American Electoral Politics, 3rd ed. (New York: Charles Scribner’s Sons, 1971), 238–239. 73. In 1971, Polsby and Wildavsky predicted: We believe, in short, that widespread use of direct primaries would weaken the party system because only the wealthiest candidates could possibly enter a large number of them; they would encourage prospective candidates to bypass regular party organizations in favor of campaigns stressing personal publicity;

and they would throw nominations entirely into the hands of persons whose stake in the workings of the political process is not great enough to ensure that the eventual nominee would be qualified for the Presidency by the experience, qualities of mind, or by virtue of political alliances with others professionally engaged in political activity. See Presidential Elections, 239. 74. Klinkner, Losing Parties, 102–104, 204. 75. Nelson W. Polsby, Consequences of Party Reform (Oxford: Oxford University Press, 1983), 53–55. 76. Robert J. Huckshorn and John F. Bibby, “National Party Rules and Delegate Selection in the Republican Party,” American Political Science Association 16, no. 4 (1983): 658. 77. Crotty, Decision for the Democrats, 30, 279n10. 78. Geoffrey Kabaservice, Rule and Ruin: The Downfall of Moderation and the Destruction of the Republican Party (New York: Oxford University Press, 2012), 18–26. 79. Kabaservice, Rule and Ruin, 334–337. 80. Kabaservice, Rule and Ruin, 334–337. 81. Polsby, Consequences of Party Reform, 53–55. 82. Cohen, Karol, Noel, and Zaller, Party Decides, 168–169. 83. Busch explains that McGovern won more primary delegates because of his “extraordinary capacity to translate low primary votes into high delegate totals.” Moreover, he did better in states that already had primaries and worse in states that recently created primaries.

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notes to pages 171–176 Andrew E. Busch, Outsiders and Openness in the Presidential Nominating System (Pittsburgh: University of Pittsburgh Press, 1997), 90–93. 84. One study concludes that Kennedy received around 35 percent of endorsements, with Carter receiving 65 percent. See Cohen, Karol, Noel, and Zaller, Party Decides, 196–197. 85. Timothy Stanley, Carter v. Kennedy: The 1980 Battle for the Democratic Party’s Soul (Lawrence: University Press of Kansas, 2010), 160–164. 86. Andrew E. Busch, Reagan’s Victory: The Presidential Election of 1980 and the Rise of the Right (Lawrence: University Press of Kansas, 2005), 86–87 87. “Excerpts from the Democratic Convention’s Report on New Convention Rules,” New York Times, March 27, 1982. 88. Elaine Kamarck, Primary Politics: Everything You Need to Know about How America Nominates Its Presidential Candidates (Washington, DC: Brookings, 2016), 159–162. 89. Kamarck, Primary Politics, 163; Cohen, Karol, Noel, and Zaller, Party Decides, 161. 90. Jim Hunt, “Why the Superdelegate Idea Still Works,” February 27, 2008, Washington Post. 91. Stephen Skowronek, “The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive,” Harvard Law Review 122, no. 8 (2009): 2093. 92. Skowronek, “Conservative Insurgency and Presidency Power,” 2098–2099. 93. J. David Alvis, Jeremy D. Bailey, and F. Flagg Taylor IV, The Contested Removal Power, 1789–2010 (Lawrence: University Press of Kansas, 2013), 178–183.

94. Steven G. Calabresi and Kevin H. Rhodes, “The Structural Constitution: Unitary Executive, Plural Judiciary,” Harvard Law Review 105, no. 6 (1992): 1153–1216; Steven G. Calabresi and Saikrishna Prakash, “The President’s Power to Execute the Laws,” Yale Law Journal 104, no. 3 (1994): 541–665; Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (New Haven, CT: Yale University Press, 2008). 95. Steven G. Calabresi, “Some Normative Arguments for the Unitary Executive,” Arkansas Law Review 48, no. 1 (1995): 23–104. 96. “Many present day conservatives proclaim that they are fighting for rule by the people and against liberal elites who scorn ordinary men and women. Indeed, ballot initiatives became a favorite tactic of conservative activists in California to challenge its progressive establishment.” More than that, conservatism as Milkis sees it actually relies on claims of direct democracy that are eerily similar to those of Roosevelt. Beginning with Proposition 13, an anti-property tax measure passed in 1978, conservative activists enacted a number of ballot initiatives constraining government revenues, reducing welfare benefits for illegal immigrants, and prohibiting public universities and state agencies from using affirmative action programs in admissions and hiring practices. The popular enthusiasm generated by these measures soon spread beyond California, helping to propel Ronald Reagan to the White House in 1980 and to push taxes to the forefront of the national political agenda.

notes to pages 176–184 Sidney M. Milkis, “Theodore Roosevelt, the Progressive Party, and the Ascendance of the Living Constitution,” in Progressive Challenges to the American Constitution: A New Republic, ed. Bradley C. S. Watson (New York: Cambridge University Press, 2017), 58. 97. Stephen F. Hayes, Cheney: The Untold Story of America’s Most Powerful and Controversial Vice President (New York: Harper Collins, 2007), 490. 98. Dick Cheney, In My Time: A Personal and Political Memoir (New York: Threshold Editions, 2011), 146–147. 99. Hayes, Cheney, 197; Cheney, In My Time, 145. 100. Hayes, Cheney, 218. 101. Cheney, In My Time, 321, 348–351. 102. Report of the Congressional Committees Investigating the IranContra Affair (Washington, DC: US Government Printing Office, 1987), 449–451. 103. Report on Iran Contra, 449. 104. Alvis, Bailey, and Taylor, Contested Removal Power, 196–199. 105. Morrison v. Olson, 48 U.S 705 (1988). 106. Morrison v. Olson, 731. 107. Morrison v. Olson, 729. 108. On the usage of the term “unitary executive,” see John P. MacKenzie, Absolute Power: How the Unitary Executive Is Undermining the Constitution (New York: Century Foundation Press, 2008), 22. 109. Charles Fried, Order and Law: Arguing the Reagan Revolution (New York: Simon and Schuster, 1991), 153–154. 110. Fried, Order and Law, 158. 111. Edwin Meese III, With Reagan: The Inside Story (Washington, DC: Regnery, 1992), 282–283. 112. Douglas W. Kmiec, The Attorney General’s Lawyer: Inside the Meese Justice Department (New York: Praeger, 1992), 52.

113. Kmiec, Attorney General’s Lawyer, 57–58. 114. Steven G. Calabresi, “The President, The Supreme Court, and the Constitution: A Brief Positive Account of the Role of Government Lawyers in the Development of Constitutional Law,” Law and Contemporary Problems 61, no. 1 (Winter 1998): 73. 115. Fried, Order and Law, 158. 116. Fried, Order and Law, 148. 117. Alvis, Bailey, and Taylor, Contested Removal Power, 187. 118. Fried, Order and Law, 148. 119. Fried, Order and Law, 172–203. 120. See Jeremy D. Bailey, “The New Unitary Executive and Democratic Theory,” American Political Science Review 102, no. 4 (2008): 453–465; Seth Barrett Tillman, “The Puzzle of Federalist No. 77,” Harvard Journal of Law and Public Policy 33, no. 1 (2010): 149–167; Bailey, “The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman,” Harvard Journal of Law and Public Policy 33, no. 1 (2010): 169–184; and Alvis, Bailey, and Taylor, Contested Removal Power, 33–37, 57–61. 121. James Madison, “Speech in Congress on Presidential Removal Power,” in James Madison: Writings, ed. Jack N. Rakove (New York: 1999), 454. 122. Jeremy D. Bailey, James Madison and Constitutional Imperfection (New York: Cambridge University Press, 2015), 63– 69; Bailey, Thomas Jefferson and Executive Power (New York: Cambridge University Press, 2007), 151–170; Alvis, Bailey, and Taylor, Contested Removal Power, 48–105. 123. George W. Bush, Decision Points (New York: Crown Publishers, 2010), 155. 124. Bob Woodward, Bush at War

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notes to pages 184–188 (New York: Simon and Schuster, 2002), 52. 125. George W. Bush: “Address to the Nation on Iraq,” March 17, 2003, in Gerhard Peters and John T. Woolley, The American Presidency Project, accessed February 7, 2019, http://presidency .proxied.lsit.ucsb.edu/ws/index .php?pid=63713&st=&st1=. 126. George W. Bush, Statement on signing H. R. 2863, December 30, 2005, http://presidency.proxied.lsit.ucsb.edu /ws/index.php?pid=65259&st=&st1=. 127. Barton Gellman, Angler: The Cheney Vice Presidency (New York: Penguin, 2009), 135–136. 128. John Yoo, “The President’s Constitutional Authority to Conduct Military Operations against Terrorists and the Nations Supporting Them,” September 25, in Opinions of the Office of Legal Counsel of the United States Department of Justice Consisting of Selected Memorandum Opinions Advising the President of the United States, the Attorney General, and Other Executive Officers of the Federal Government in Relation to Their Official Duties, ed. Nathan A. Forrester (Washington, DC: 2012), 25:188–196. 129. The memorandum was signed by Assistant Attorney General Jay Bybee but written by Yoo. See Jay Bybee, Memo for Alberto Gonzales, August 1, 2002, accessed February 7, 2019, http://www .washingtonpost.com/wp-srv /nation/documents/dojinterrogation memo20020801.pdf 130. John Yoo, War by Other Means: An Insider’s Account of the War on Terror (New York: Atlantic Monthly Press, 2006), xii. 131. Yoo, War by Other Means, 119–120. 132. Jack Goldsmith, The Terror

Presidency: Law and Judgment inside the Bush Administration (New York: Norton, 2009), 80. 133. Goldsmith, Terror Presidency, 81. 134. Goldsmith, Terror Presidency, 81. 135. Goldsmith, Terror Presidency, 64–69, 82–85. 136. Gellman, Angler, 129–130. 137. Goldsmith, Terror Presidency, 88–89. It should be pointed out that John Yoo is dismissive of those in “the media” who “have become obsessed” with Addington. Yoo reads this misplaced attention as part of a larger and incorrect emphasis on the importance of Cheney. See Yoo, War by Other Means, 32–33. 138. Hayes, Cheney, 313–14. 139. Gellman, Angler, 135–136. 140. Gellman, Angler, 101. Cheney’s memoir also notes that Cheney had earlier objected to a proposal by Gerald Ford to share the presidency with Reagan on the grounds that “certain presidential powers cannot be delegated.” Cheney, In My Time, 140 141. Hayes, Cheney, 159–61. 142. Hayes, Cheney, 239. 143. Dick Cheney, “Congressional Overreaching in Foreign Policy,” in Foreign Policy and the Constitution, ed. Robert A. Goldwin and Robert A. Licht (Washington, DC: AEI Press, 1990), 102–103, 121. 144. It is worth noting that Goldsmith wrote in his 2012 book, Power and Constraint: The Accountable Presidency after 9/11, that “Cheney was right about the impact of congressional reforms on presidential powers.” This is because any of the reforms “seemed invisible before 9/11 because their constraints were relatively unimportant” before

notes to pages 188–192 the terrorist attacks revealed that the executive would need new flexibility in intelligence and interrogation. Because these laws were written in the aftermath of Vietnam, they did not anticipate the realities of a war several decades later. See Jack Goldsmith, Power and Constraint: The Accountable Presidency after 9/11 (New York: Norton, 2012), 36–37. 145. In the context of the invasion of Iraq, Bush’s political advisors Karl Rove and Karen Hughes debated the merits of a legal case versus one meant for public consumption. See Bob Woodward, Plan of Attack (New York: Simon and Schuster, 2004), 250, 288–291. 146. Woodward, Bush at War, 104, 136,176–7, 190. 147. According to Steven Brill, Ashcroft investigated ways of suspending habeas corpus but dropped the issue when opposed by the chair of the House of Judiciary Committee, Jim Sensenbrenner. As a self-professed admirer of Lincoln, Ashcroft must have considered Lincoln’s example during the Civil War, but when asked by Jeffrey Rosen about Lincoln and the Constitution, particularly about Daniel Farber’s 2004 book Lincoln’s Constitution, Ashcroft did not take the opportunity to reflect on the broader question about the merits of suspending habeas corpus. Steven Brill, After: How America Confronted the September 12 Era (New York: Simon and Schuster, 2003), 74; Jeffrey Rosen, “John Ashcroft’s Permanent Campaign,” Atlantic 293, no. 3 (April 2004): 68–82. 148. Skowronek, “Conservative Insurgency and Presidential Power,” 2095.

Conclusion: Law and Opinion 1. Elaine Kamarck, Primary Politics: Everything You Need to Know about How America Nominates Its Presidential Candidates (Washington, DC: Brookings, 2016), 164–169; James W. Ceaser, Andrew E. Busch, and John J. Pitney Jr., Epic Journey: The 2008 Elections and American Politics (Lanham, MD: Rowman and Littlefield, 2009), 118. 2. Ed O’Keefe and John Wagner, “Sanders Faces Tough Sell in Persuading Superdelegates to Switch Allegiances,” Washington Post, May 4, 2016. 3. Steven Yaccino, “A Small Group of Superdelegates Could Close the Deal for Hillary—But Won’t,” Bloomberg, May 17, 2016, accessed February 7, 2019, https:// www.bloomberg.com/news /articles/2016-05-17/a-small-group-of -superdelegates-could-close-the-deal -for-hillary-but-won-t. 4. Elaine Kamarck, “Actually, National Democrats should interfere in Primaries,” May 3, 2018, New York Times. 5. One of the Inventors of Superdelegates Explains Why They Were Created: To Stop “Outlier Candidates,” Branko Marcetic interview with Elaine Kamarck, In These Times, May 18, 2016, accessed February 7, 2019,http://inthese times.com/features/superdelegate-inter view-elaine-kamarck.html. 6. See unpublished interview from October 2017, accessed February 8, 2019, at https://www.youtube.com/watch ?v=1t0OVkth3Ek&feature=youtu.be. 7. Peter Shane, “A Compromise on Superdelegates,” Washington Monthly, June 13, 2016, accessed February 8, 2019, https://washingtonmonthly .com/2016/06/13/a-compromise -on-su perdelegates/. Donna Brazile,

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notes to page 192 “Democrats Stripped My Superdelegate Powers,” USA Today, August 31, 2018, accessed February 8, 2019, https://www .usatoday.com/story/opinion/voices

/2018/08/31/democratic-national -committee-weakened-superdele ngates-like-me-party-faithful-column /1135303002/.

INDEX

abolitionism, 77 accountability independent regulatory commissions and, 181 Madison’s defense of executive power and, 174 See also presidential/executive accountability accountability theory of representation, 159 Acheson, Dean, 143–144 Ackerman, Bruce, 54, 55 Adams, Henry, 51 Adams, John influence on the New York Constitution of 1777, 27 Massachusetts Constitution of 1780 and, 20–22, 23–24 notion of constitutional balance, 20–21 presidential election of 1800 and, 53, 54, 55 Adams, John Quincy, 59, 64, 66, 68 Addington, David, 177, 185, 186–187 administration Abbott Lowell on administrative experts, 120 Herbert Croly’s vision of expert administrative officials, 88–89 Nicholas Butler’s account of, 117 AFL-CIO, 160, 171, 172 Aiken, George, 142, 167 Allen, Leo, 139 American Enterprise Institute, 187 American Farm Bureau Federation, 167 American Mercury, 144, 146 American Presidency, The (McDonald), 135 American Presidency, The (Rossiter), 126 anthracite coal strike of 1902, 103–104 Anti-Federalists, 42

appointment power, New York Constitution of 1777 and, 28–29 Arizona statehood issue, 106, 120–121 Arkansas Law Review, 175 Article II Edward Bates’s defense of Lincoln’s suspension of habeas corpus, 75 Vesting Clause (see Vesting Clauses) Ashcroft, John, 188 Atlantic Monthly, 98 authority creation of the presidency and, 12–17 Madison’s view of public opinion as a source of, 45–48 Authorization for the Use of Military Force (2002), 184 Autobiography (Roosevelt), 97, 103 Bagehot, Walter, 119 Baker, Howard, 165 Baker, Jim, 187 Bank of the United States, 50–51, 99 Barkan, Al, 162 Bates, Edward, 75 Bayh, Birch, 166 Beard, Charles, 86 Beer, Samuel, 163 Benton, Thomas Hart, 98–99 Bernstoff, Johann Heinrich von, 121–122 bicameral legislatures Adams’s view of, 21 problems of representation and executive independence, 40–41 Bickel, Alexander, 166–167 Bill of Rights, 47, 114 blockade power, 76 Bodds, Bill, 160 Boland Amendment, 176 Bonn, M. J., 122 Brandeis, Louis, 101

242

inde x Brazile, Donna, 192 British Parliament, Hamilton’s case against, 31, 32 Brownlow, Louis, 82 Brownlow Committee, 82–83, 84, 181 Bryan, George, 20 Bryan, William Jennings, 85, 98, 104 Bryson, Joseph, 137 Buchanan, James, 65 Burgess, Tristam, 69–70 Burke, Edmund, 107, 117, 118, 182, 196 Burr, Aaron, 53, 54–55 Busch, Andrew E., 171 Bush, George W., 177, 183–188, 198–199 Butler, Nicholas Murray, 116–119, 196 Butler, Pierce, 38, 56–57 Calabresi, Steven G., 175, 181 Califano, Joseph, 160 California, Proposition 13, 176 Carter, Jimmy, 171–172 Ceaser, James, 2, 14–15 Celler, Emanuel, 139 Central Intelligence Agency, 133 Cheney, Dick, 176–177, 186–188, 189 Christopher, Warren, 157 Clay, Henry, 66, 70 Cleveland, Grover, 93–94 Clinton, Hillary, 1, 173, 190–191 Clopton, James, 58 Coalition for a Democratic Majority, 161–162 Cocke, William, 58 Cold War, reforms of the 80th Congress and, 131–132 colonial America, executive representation in, 17–19 Committee on Postponed Matters, 56–57 Confiscation Act (1862), 78–79 Connecticut charter of 1662, 24 executive representation in the colonial period, 18 Hughes Commission, 154–155 power of the early state governor, 37, 192 rejection of the Twelfth Amendment, 59 Connecticut Compromise, 17, 35, 36, 40, 67, 193

conservative coalition, 142. See also moderate Republicans “Consolidation” (Madison), 46 constitutional balance, 20–21 Constitutional Convention of 1787 Connecticut Compromise, 17, 35, 36, 40, 67, 193 creation of the Electoral College, 12, 13–17, 56–57, 193 debate on the contingency election, 57–58 debates on the presidency and presidential representation, 12–17, 33–40, 193 Madison on the balancing of energy, stability, and republican principles in, 4 Pierce Butler and the Committee on Postponed Matters, 56–57 problems of representation and executive independence, 39–41 tensions between the issues of stability and responsibility, 183 Virginia Plan, 13, 33, 37–38 Constitutional Dictatorship (Rossiter), 126–127 Constitutional Government in the United States (Wilson), 89–91 containment policy, 131–132 contingency elections debate on changing in 1826, 65–66 debate on in the Convention of 1787, 57–58 as the “eventual election,” 57 Massachusetts Constitution of 1780 on, 24 presidential election of 1800 and, 54–55, 194 Twelfth Amendment and, 55–61, 194 Contras, 176 Cooper, John, 143 Copperheads, 76–78 council of appointments, 28–29 Council of Safety (Connecticut), 37 Cousins v. Wigoda, 160 Coxe, Tench, 16, 17 Creating the National Security State (Stuart), 133

inde x Croly, Herbert Abbott Lowell’s critique of, 120 Brownlee Committee’s visions of the executive and, 84 critique of the two-party system, 83 influence on Theodore Roosevelt, 101 vision of executive power, 83, 85–89, 102, 196 Crotty, William J., 160 Curtis, Carl, 166 Daley, Richard, 159–160, 171 Dayton, Jonathan, 59 Debs, Eugene, 121 Delaware, 59, 60 (table), 61 demagogy, 2, 139 democracy presidential power and the “indispensable man” concept, 138 See also direct democracy Democratic Choice, The (Hughes Commission report), 154–155 Democratic National Committee, 155–156 Democratic Party critics of Andrew Jackson’s expansion of executive power, 71 limits of nomination reform, 170–173 Peace Democrats and opposition to Lincoln, 76–78 political crisis of 1968 and the McGovern-Fraser Commission, 153–159 (see also McGovern-Fraser Commission) Polk’s defense of Andrew Jackson’s conception of executive power, 72–73 “qualified veto power” of the president and, 74 sociopolitical changes of the 1960s and, 151 superdelegates and, 172–173, 190–192, 198 view of presidential authority and representation by 1864, 80, 81 Democratic State Chairs Association, 172 “Demophilus,” 20 Department of Defense, 133 deputy-governors, 18

descriptive representation, 159 Dewitt, Charles, 26 Diamond, Martin, 14 Dicey, A. V., 85 Dickinson, John, 38–39 direct democracy Charles Nagel’s critique of, 110 Elihu Root’s critique of, 115–116 Henry Cabot Lodge’s critique of, 109 Nicholas Butler’s critique of, 116, 118–119 Populist origins of, 85 Reagan Revolution and, 176 Theodore Roosevelt and the Republican debate over, 100–101 William Taft’s critique of, 106–108 direct election limits of reform efforts and, 171 Nixon’s proposed amendment for, 164–167 See also plebiscitarian presidency; popular selection Direct Legislation by the Citizenship through the Initiative and Referendum (Sullivan), 85 direct primaries Charles Nagel’s critique of, 110 Elihu Root’s view of, 113 McGovern-Fraser Commission and, 152, 164 in mid-twentieth century, 123 national primary proposal of 1972, 167–168 Republican movement toward, 170 Theodore Roosevelt’s support for, 100 William Taft’s critique of, 108 Woodrow Wilson and, 96 Dirksen, Everett, 139 district plan for presidential elections, 165–166 district system of elector selection, 64–65 divided representation, 123–124 Dolliver, James, 137, 138 Eagleton, Thomas, 168 Eastland, James, 166 Economic Interpretation of the Constitution of the United States (Beard), 86

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inde x 80th Congress major reforms of and the modern presidency, 130–132 moderate Republicans and, 142–143 National Security Act of 1947, 133–134 Twenty-Second Amendment, 134–141 Eisenhower, Dwight D., 126, 142 Electoral College Andrew Jackson’s call for the abolishment of, 68–69 creation of, 12, 13–17, 56–57, 193 James Wilson on, 34 modern conceptions of, 12 Nixon’s proposed amendment for direct election and, 164–167 opponents of a plebiscitarian presidency and, 10 popular will and, 45 presidential election of 1800 and, 53–55 presidential election of 2016 and, 1, 190 ratification debates and, 42 Roger Sherman and, 37 Twelfth Amendment and, 55–61 Woodrow Wilson’s account of, 90–91 Ellis, Richard J., 72, 74, 80 Embargo Act (1807), 51, 61 emergency powers, 127–129 England, Washington’s neutrality policy and, 42 enhanced interrogation, 184 Environmental Protection Agency, 178 Essays on Government (Lowell), 119 Essex Result, 24 Estes, Todd, 49 Ethics in Government Act, 178 European intellectuals, views of presidential representation, 121–122, 123 Everett, Edward, 66–67, 68 executive accountability. See presidential/ executive accountability executive branch, problems of the Founders in creating, 12–17 executive council, 19–20 executive independence Convention of 1787 and debates on representation, 39–41

Electoral College and, 14 New York Constitution of 1777 and, 28 executive power accountability and, 48 (see also presidential/executive accountability) Andrew Jackson and his opponents, 64, 68–73 Charles Nagel’s account of, 111–112 democracy and the “indispensable man” concept, 138 designs for in early state constitutions, 192–193 Elihu Root’s account of, 115–116 emergence of the contemporary Republican theory of, 169 George W. Bush on, 183–184 Hamilton’s account of, 10, 44–45, 48, 182–183 Hartford Convention on, 62–63 Herbert Croly’s account of, 83, 85–89, 102, 196 James Garfield’s account of, 97–98 Jefferson and, 10, 51–52, 194–195 Lincoln and, 74–79, 80–81, 195 Madison’s defenses of, 174 moderate Republicans and Arthur Vandenberg on, 143, 145–148, 197 opposition to the reconstructive presidents between 1800 and 1864, 43–44 partisanship and, 5 public opinion and (see public opinion) Reagan’s vision of, 181–182 reforms of the 80th Congress and, 130–132 (see also 80th Congress) republican principles and, 45 Robert Jackson on, 2–3 struggles to identify, 174 Theodore Roosevelt’s account of, 97–102 Truman and, 128–129 unitary executive and, 173–189, 198–199 (see also unitary executive) Walter Lippmann’s account of, 127–128, 149–150 executive prerogative, 185–186 executive representation in colonial America, 17–19 early state constitutions and, 19–32

inde x “Executive Usurpation” (Vallandigham), 76 Ex parte Merryman, 75–76 Experiments in Government and the Essentials of the Constitution (Root), 115 expert administrative officials, 88–89, 120 extraconstitutional prerogative, 185–186 federalism conflicted views of presidential representation and, 4, 102 creation of the Electoral College and, 17 executive representation in colonial America and, 18–19 Elihu Root’s account of, 114 Herbert Croly’s critique of, 85–86 Federalist, The Hamilton’s view of accountability in, 48 Madison’s view of public opinion, 47 No. 10, 38, 47, 118 No. 37, 4, 35, 40, 67 No. 39, 45, 57, 67 No. 49, 58 No. 51, 33 No. 63, 145 No. 68, 1, 14, 45 No. 70, 28, 44, 177, 179, 182, 185, 187 No. 72, 44, 182 No. 77, 182, 183 No. 84, 97 struggles to identify executive power, 174 Theodore Roosevelt’s view of, 98 Federalists Bank of the United States issue and, 50 Hartford Convention, 61–63, 77 Herbert Croly’s critique of, 86 “indispensable man” concept and, 138 Madison’s characterization of, 51 opposition to the Twelfth Amendment, 56, 58–59, 138, 194 presidential election of 1800 and, 49, 50, 53, 54, 55, 194 royalist patriots and the 1787 Convention debate on the executive, 15–16 Theodore Roosevelt’s account of, 100 views of the presidency and public opinion, 4–5, 49, 194 Ferraro, Geraldine, 172 Flanders, Ralph, 142, 143

Ford, Gerald, 171 Ford, Henry Jones account of presidential representation, 92–96, 102 assessment of presidential representation in 1924, 123–124 on William Taft’s vision of presidential representation, 105 foreign policy moderate Republicans and Arthur Vandenberg on, 142, 143, 144, 145, 146–148, 197 National Security Act of 1947 and, 133–134 national security constitution and, 131–132 unitary executive and the power to control, 175, 176–178, 188–189 Washington and the neutrality policy, 42–43 Founders. See Constitutional Convention of 1787; and individual Founders Fourteenth Amendment, 170 France, Washington’s neutrality policy and, 42, 43 Frankfurter, Felix, 127 Franklin, Benjamin, 33, 67 Fraser, Donald, 157, 168. See also McGovernFraser Commission Fried, Charles, 179–180, 181–182, 189 Fundamental Orders of Connecticut, 18 Gallatin, Albert, 52 Garfield, James R., 97–98 Gellman, Barton, 184 “Genuine Principles of the Ancient Saxon, or English[,] Constitution, The” (“Demophilus”), 20 George, Henry, 85 Gerry, Elbridge, 38, 55, 58 Gillie, George, 137 Gingrich, Newt, 187 Goldsmith, Jack, 185–187, 188–189, 198–199 Goldwater, Barry, 161 Gonzalez, Alberto, 185, 186–187 Goodwin, Richard, 167 Gorham, Nathaniel, 36

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inde x Gould, Lewis, 101, 109 governors designs for executive power in early state constitutions, 192–193 elections of 1970, 160 executive representation in early state constitutions, 19–32 executive representation in the colonial period, 18 Herbert Croly’s vision of executive power and, 86–87 Roger Sherman and the power of the governor in Connecticut, 37 Graham, Louis, 137–139 Great Debate on Korea, 148 Greece. See Truman Doctrine Green, Jeffrey, 7 Green, Nathaniel, 49 Griffin, Stephen M., 131 Griswold, Roger, 59 “Growth of Our Law, The” (Charles Nagel speech), 111 gubernatorial elections of 1970, 160 habeas corpus suspension, 74–76, 78 Hamby, Alonzo, 144 Hamilton, Alexander account of executive power, 10, 44–45, 48, 182–183 Arthur Vandenberg’s reading of, 144 Bank of the United States issue and, 50 case against the British Parliament, 31, 32 Convention of 1787 and debates on the executive, 15–16 debate on treaty power and the presidency, 43 Henry Jones Ford’s account of, 94 Herbert Croly’s critique of, 85–86 influence on John Yoo’s notion of the unitary executive, 185 New York Constitution of 1777 and, 28–29, 30–31 Nicholas Butler’s view of, 116 presidential election of 2016 and, 1 struggles to identity executive power, 174 Theodore Roosevelt’s account of, 100 view of popular government, 30–31

view of presidential representation, 31–32 view of public opinion, 44–45, 194 view of the executive and accountability, 10, 48 Woodrow Wilson’s account of, 90 Hamilton Electors, 1 Harper’s Weekly, 121 Harris, Fred, 160 Harrison, William Henry, 92–93 Hartford Convention, 61–63, 77 Hartke, Jason, 17 Harvard Law Review, 174 Hayes, Stephen H., 187 Helvidius. See Madison, James heroic leadership, 141 Hill, Joseph, 140 Hilles, Charles Dewey, 109 Hillhouse, James, 58–59, 63, 64 Hoey, Clyde, 142 Hofstadter, Richard, 5, 9 Holland, Spessard, 142 Holt, Michael, 69 Horatius essay, 55 House of Representatives debate on the Twenty-Second Amendment, 136–139 1826 debate on changing contingency elections and, 65–66, 67 (see also contingency elections) 80th Congress and moderate Republicans (see 80th Congress) Nixon’s proposed amendment for direct election and, 165–166 See also US Congress Howe, Daniel Walker, 70 Howell, William G., 6–7, 9 Hruska, Roman, 166 Hudak, John, 6 Huger, Benjamin, 58 Hughes, Harold E., 154, 156–157 Hughes Commission, 154–155, 157, 158 Humphrey, Hubert Democratic crisis of 1968 and, 151, 153, 154, 155–156, 157 McGovern-Fraser Commission reforms and, 161 Hunt, Jim, 172–173 Hunt Commission, 192

inde x impeachment process, 39 Independent Gazetteer, 16 independent prosecutor, unitary executive and the power to remove, 175, 178–183, 189 independent regulatory commissions, accountability and, 181 “indispensable man” concept, 138 initiative Charles Nagel’s critique of, 110 direct democracy movement and, 85 Elihu Root’s critique of, 115 Theodore Roosevelt’s support for, 100 William Taft’s critique of, 107–108 internationalism, Arthur Vandenberg and, 143–145, 146–148 Iran Contra affair, 175, 176–178, 182, 188–189 Iraq invasion (2003), 184 isolationism, 144, 145 Ives, Irving, 142, 143 Jackson, Andrew censure by the Senate, 70 expansion of executive power and the opposition of Whigs to, 64, 68–73, 80, 195 Henry Jones Ford’s account of, 93 opposition to as a reconstructive president, 43–44 party rule and, 112 presidential representation and partisanship, 194–195 Protest Message, 71 Theodore Roosevelt’s account of, 98–99 use of removal and veto powers, 195 Jackson, Henry “Scoop,” 162 Jackson, Robert, 2–3, 129–130 Jay, John, 25, 26–28, 29–30 Jay, William, 26 Jay Treaty, 48–49 Jefferson, Thomas Arthur Vandenberg’s critique of, 145–146 election in 1800 and the Electoral College, 52–55 “essential principles of Government,” 49–50

executive power and, 10, 51–52, 194–195 formation of the Republican Party and, 54 Herbert Croly’s critique of, 85–86 impact on the Federalists, 61 limited government and the Bank of the United States issue, 50–51 Louisiana Purchase and, 51–52 objections to the Constitution, 42 opposition to as a reconstructive president, 43–44 party rule and, 112 term limits and, 135 theory of executive prerogative and, 185–186 Twelfth Amendment and reform of the Electoral College, 55–56, 194 view of public opinion, 47, 50, 52, 194 Virginia Constitution of 1776 and, 19 Johnson, Andrew, 78 Journal of American History, 17 Journal of the Provincial Convention, 26 judicial recall Arizona statehood issue and, 120–121 Elihu Root’s critique of, 114, 115 Theodore Roosevelt and the Republican debate over, 100–101 Kamarck, Elaine, 191–192 Kelsen, Hans, 123 Kennedy, Edward, 171–172 Kennedy, Robert, 153–154 Ketcham, Ralph, 49 Kirk, Stephen, 72, 74, 80 Kirkpatrick, Jeanne, 161–162 Kleinerman, Benjamin, 74–75, 78–79, 81, 90 Kmiec, Douglas, 180–181 Koh, Harold, 131–132, 187 Korean War, 132, 148 Korzi, Michael, 136 Kriner, Douglas L., 6 Kyvig, David E., 135 labor, McGovern-Fraser Commission and, 159–160, 162 La Follette, Robert, 100, 101 Langer, William, 143

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inde x large-states/small-states rivalry Constitutional Convention of 1787 and, 35–40 1826 debate on changing the Electoral College, 67 Nixon’s proposed amendment for direct election and, 166 Twelfth Amendment debates and, 59–61 law presidential representation and the enduring debate between law and opinion, 2–5, 9–11, 192–199 See also US Constitution “lawfare,” 186 League of Nations, 110, 145–146 Lecture on Law (Wilson), 34 legislative deputies, 18 legislatures Adams’s view of, 21 Herbert Croly’s vision of, 86–87 problems of representation and executive independence, 40–41 Levins, Sander M., 191 liberty, Dick Cheney on, 188 Life magazine, 144 limited government Elihu Root’s account of, 114 Herbert Croly’s critique of, 85–86 Jefferson and the Bank of the United States issue, 50–51 Woodrow Wilson’s vision of, 92, 101, 196–197 Lincoln, Abraham Confiscation Act and, 78–79 executive power and public opinion, 74 George W. Bush on, 183, 184 lawyerly defense of executive power, 80–81, 195 Lyceum address of 1838, 80 opposition to Andrew Jackson’s notions of presidential representation, 72, 73 opposition to as a reconstructive president, 43–44 Republican criticism of over the use of the war power, 79 suspension of habeas corpus and, 74–76, 78 Lincoln, Charles, 26

Lippmann, Walter, 127–128, 144–145, 149–150 Livingstone, Robert, 25, 26, 29–30 Locke, John, 3, 12–13, 174, 180 Lodge, Henry Cabot, 109, 196 Lodge, Henry Cabot, Jr., 143, 148 Louisiana Purchase, 51–52, 61 Louisiana Treaty, 59 Lowell, Abbott Lawrence, 119–120, 196 loyalty, Burke on, 182 Lutz, Donald S., 26 Lycurgus, 32 Machiavelli, Niccolò, 146 MacKenzie, John, 179 Madison, James Bank of the United States issue and, 51 Bill of Rights and, 47 on Connecticut Compromise, 67 Convention of 1787 and balancing concerns of energy, stability, and republican principles, 4, 183 Convention of 1787 and debates on the presidency, 13, 33, 35–37, 38, 39, 40, 41, 193 Convention of 1787 and the plan for proportional representation, 193 debate on treaty power and the presidency, 43 defenses of executive power, 174 on Electoral College, 57 formation of the Republican Party and, 54 impact on the Federalists, 61 on republican principles and the executive, 45 struggles to identity executive power, 174 view of public opinion, 45–48, 50, 194 view of the executive and accountability, 48 magistrates, 18 Maine, Sir Henry, 14 majoritarianism, McGovern-Fraser Commission reforms and, 163 Malbin, Michael, 177 Malsberger, John W., 142, 143 Mandate for Reform, 152–153 Mansfield, Mike, 167

inde x Marshall, George, 133 Marshall, John, 55 Marshall Plan, 130, 142 Maryland, 19 Mason, Bernard, 26 Mason, George, 38, 57, 58 Massachusetts Constitution of 1780 and the design for executive power, 19, 20–22, 23–24, 27, 192, 193 Twelfth Amendment and, 59, 61 Massachusetts Bay Province, 18 Maybank, Burnet, 142 Mayhew, David, 6 McCain, John, 184 McCarthy, Eugene, 154, 155, 156, 157 McCormack, John, 136–137 McCracken, William, 85 McCulloch, William W., 165 McDonald, Forrest, 135 McDonald, Robert, 52 McGovern, George, 157, 162, 171, 173. See also McGovern-Fraser Commission McGovern-Fraser Commission concerns with the opportunity to participate over the level of participation, 153 creation of, 152, 157 formal name of, 152 Hunt Commission and, 192 internal conflicts over views of representation, 159 Jim Hunt’s defense of superdelegates and, 173 1968 report and recommendations, 152–153 object and effects of the reforms, 151–152, 162–164, 197–198 opposition to the proposals of, 159–162 political crisis of 1968 and, 153–159 reformist bias of, 157–158 Meany, Owen, 160 Meese, Edwin, 175, 180–181 Meet the Press (television news show), 187 Memoirs (Truman), 129 Michener, Earl, 137 Milkis, Sidney M., 101, 104–105, 134, 135, 176

Miroff, Bruce, 162 Mitchell, John N., 167 Mitchell, Thomas, 67–68 moderate Republicans Arthur Vandenberg, 143–148, 197 80th Congress and, 142–143 emergence of, 141–142 foreign policy views, 142, 143, 144, 145, 146–148, 197 new conservatism and, 142 nomination reform in the 1960s and 1970s, 169–170 modern presidency Clinton Rossiter’s account of constitutional dictatorship, 126–127 Herbert Croly’s vision of executive power, 83, 85–89 moderate Republicans and new conservatism, 141–148 notions of presidential representation and, 3–4 problem of political parties and partisanship, 8–9 Progressives and, 9, 83–85 (see also Progressives) reforms of the 80th Congress and, 130–141 (see also 80th Congress) Robert Jackson on, 129–130 Theodore Roosevelt and, 97–102 (see also Roosevelt, Theodore) traditional account of, 3, 84 Truman and, 128–130 Twenty-Second Amendment and, 134–141 (see also Twenty-Second Amendment) unitary executive (see unitary executive) Walter Lippmann’s view of executive power, 127–128, 149–150 Woodrow Wilson and, 89–92, 94–96 Moe, Terry M., 6–7, 9 Mondale, Walter, 172 Morris, Gouverneur Convention of 1787 and debates on presidential representation, 17, 34, 35–36, 37, 40 on Electoral College, 57 New York Constitution of 1777 and, 25, 26, 27–28, 29–30

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inde x Morris, Gouverneur, continued Theodore Roosevelt’s account of, 99–100 support for secession at the Hartford Convention, 61–62 Morrison, Alexia, 178–179 Morrison v. Olson, In re Sealed, 179, 180 Morton, Rogers, 169 Myers, Frank, 106 Myers v. United States, 106 Nagel, Charles, 109–112 Nation, 85 National Cotton Council, 167 national direct election proposal, 165–166 National Gazette, essays of James Madison, 45–47, 50, 51 nationalization. See steel industry nationalization national primary proposal, 167–168 National Security Act (1947), 130, 131, 132, 133–134, 142 national security constitution Harold Koh’s account of, 131–132 National Security Act of 1947 and, 132, 133–134 Twenty-Second Amendment and, 132 National Security Constitution (Koh), 131–132 National Security Council, 133–134 NATO, 131, 142, 143, 145, 148 Nelson, Eric account of the creation of the Electoral College, 15–16 on American Revolution and the Constitution, 1–2 on Hamilton’s view of presidential representation, 31–32 on Massachusetts Constitution of 1780, 20, 22 on Roger Sherman’s view of the presidency in the Convention of 1787, 33 Nelson, Michael, 134, 135, 156 Nevins, Allan, 28 Newark Evening News, 105 new conservatism, 141–148. See also moderate Republicans New Deal, 82, 127, 144, 146

“New Deal Must Be Salvaged, The” (Vandenberg), 144 New England Confederacy, 62 New Freedom, 101 New Hampshire, 59 New Politics, 161 New Republic, 101 New York Constitution of 1777, 19, 25–32, 192, 193 New York Times, 85, 191 Nicaragua, 176 Nixon, Richard Ford’s pardon of, 171 presidential election of 1968 and, 164 presidential election of 1972 and, 173 proposed amendment for direct election, 164–167 The Real Majority and, 161 the unitary executive and, 174–175 North American Review, 109 North Atlantic Treaty Organization (NATO), 131, 142, 143, 145, 148 Obama, Barack, 173, 190 O’Brien, Lawrence, 160 Olson, Theodore, 178–179 Oregon Constitution, 86–87 Our Chief Magistrate and His Powers (Taft), 103–104, 105 Outlook, 97 Overton, John, 140 Pacificus. See Hamilton, Alexander Packwood, Robert, 167–168 Palmer, A. Mitchell, 95 parliamentary government, Theodore Roosevelt’s dismissal of, 98 partisanship Andrew Jackson’s presidency and, 194–195 Congress and, 6–7 executive power and, 5 political parties and the modern presidency, 8–9 presidential representation and, 5–7, 194–195 party bosses, 120 party rule, Taft Republicans and, 112

inde x Peace Democrats, 76–78 Pearce, Dutee, 67 Peirce, Neil, 168 Pennsylvania, 19–20 Pepper, Claude, 141 Pfiffner, James, 17 Pickering, Timothy, 59, 62, 63 Pilgrim Code of Law, 18 Pinckney, Charles Cotesworth, 33, 54, 70 Pitkin, Hanna Fenichel, 159 plebiscitarian presidency, 7–8, 10, 132. See also direct election; popular selection Plumer, William, 58 Plymouth colony, 18 political parties Abbott Lowell on party bosses, 120 Elihu Root’s account of, 112–114 Herbert Croly’s critique of the two-party system, 83 McGovern-Fraser Commission reforms and, 152 partisanship and the modern presidency, 8–9 presidential representation and the enduring debate between law and public opinion, 4–5 Taft and party rule, 112 US Constitution and, 53–54 political science Abbott Lowell and, 119 contemporary interest in presidential representation, 1–2 Polk, James K., 65–66, 72–73, 94 Polsby, Nelson W., 168 popular government, Hamilton’s view of, 30–31 popular selection Convention of 1787 and debates on presidential representation, 33–34, 35–36, 38–39, 41 Federalist opposition to, 63 Hamilton’s view of, 30–31 Massachusetts Constitution of 1780 and, 21–22, 23–24 New York Constitution of 1777 and, 25, 27–28, 29–30 See also direct election; plebiscitarian presidency

populism, 104 Powell, Colin, 188 preferential proportional representation, 159 presidency Brownlow Committee recommendations, 82–83 Convention of 1787 and debates on presidential representation, 12–17, 33–40, 193 Convention of 1787 and the creation of the Electoral College, 12, 13–17, 56–57, 193 Edwin Meese on the president’s authority to interpret the Constitution, 180–181 McGovern-Fraser Commission and the transformation of, 151–152, 163–164 (see also McGovern-Fraser Commission) overview of the Progressive vision of, 2, 83–84 (see also Progressives) problems in creating and determining the selection of, 12–17 Reagan’s vision of presidential authority, 181–182 Republican victories and partisan politics following the 1968 election, 168–169 standard reading of the Constitution’s design of, 2 Theodore Roosevelt’s account of executive power, 97–102 See also modern presidency; unitary executive presidential election of 1800 contingency election, 54–55, 194 Federalists and the Hartford Convention, 61–63 Jefferson and expansion of executive power, 51–52 Jefferson’s election and reform of presidential selection, 52–61 Jefferson’s “essential principles of Government,” 49–50 Jefferson’s view of limited government, 50–51 Jefferson’s view of public opinion and the executive, 52

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inde x presidential election of 1824, 64, 66, 98–99 presidential election of 1832, 69 presidential election of 1840, 77 presidential election of 1864, 74 presidential election of 1912, 100, 101, 121, 122–123 presidential election of 1968, 164, 165, 198 presidential election of 1972, 171, 173, 198 presidential election of 1976, 171 presidential election of 1980, 171–172 presidential election of 1984, 172 presidential election of 2008, 173, 190 presidential election of 2016, 1, 190–191 presidential/executive accountability arguments for a plebiscitarian presidency and, 10 concerns regarding in the mid-twentieth century, 125 Hamilton’s and Madison’s views of, 48 Henry Jones Ford’s view of, 124 New York Constitution of 1777 and, 29 unitary executive and, 176, 177–178, 181, 198 Woodrow Wilson’s account of, 95–96 See also accountability presidential leadership, 128 presidential nomination process Democrats and the limits of, 170–173 direct primaries (see direct primaries) McGovern-Fraser Commission reforms (see McGovern-Fraser Commission) national primary proposal of 1972, 167–168 Republicans and nomination reform in the 1960s and 1970s, 168–170 superdelegates and, 172–173, 190–192, 198 presidential power. See executive power presidential representation absence of a clear history of the idea of, 3–4 Andrew Jackson’s expansion of executive power and the Whig response, 64, 68–73, 80, 195 Charles Nagel’s account of, 111–112 competing principles of federalism and separation of powers, 4, 102

contemporary interest in, 1–2 Convention of 1787 and debates on, 12–17, 33–40, 193 critics of, 5–11 Democratic and Republican views of presidential representation by 1864, 80–81 1826 debate on changing the Electoral College, 64–68 enduring debate about law and public opinion and, 2–5, 9–11, 192–199 European intellectuals on following the 1912 presidential election, 121–122, 123 executive representation in colonial period and, 17–19 Hamilton’s view of, 31–32 Henry Jones Ford’s account of, 92–96, 102, 123–124 influence of early state constitutions on, 19–32 Jay Treaty and public opinion, 48–49 Lincoln and his opponents, 74–79 Madison’s view of public opinion as a source of authority, 45–48 modern presidency and, 3–4 (see also modern presidency) new theory of the unitary executive, 173–189, 198–199 (see also unitary executive) Nicholas Butler’s account of, 116–119 normative defenses of, 6–7 overview of key issues from Washington to Lincoln, 43–44 partisanship and, 5–7, 194–195 plebiscitarianism and, 7–8, 10, 132 presidential election of 1800 and, 49–63, 194 (see also presidential election of 1800) problem of contending constituencies and, 10–11 Progressives and (see Progressives) reforms of the McGovern-Fraser Commission and, 152 (see also McGovern-Fraser Commission) Washington and neutrality policy, 42–43 William Taft’s account of, 105–109

inde x Woodrow Wilson’s account of, 90–92, 102, 196–197 presidential selection contingency elections (see contingency elections) direct primaries (see direct primaries) Electoral College (see Electoral College) Hartford Convention on, 62–63 Hughes Commission on, 154–155 Jefferson and the election of 1800, 52–55, 194 national primary proposal of 1972, 167–168 plebiscitarian presidency, 7–8, 10, 132 Twelfth Amendment and the reform of, 55–61, 194 See also direct election; popular selection; presidential nomination process Presidential Selection (Ceaser), 14–15 Progressive Democracy (Croly), 83, 86–87 Progressives Brownlow Committee, 82–83 conflicted views of presidential representation among, 102, 123–125, 195–197 direct democracy movement and, 85 (see also direct democracy) Henry Jones Ford’s account of presidential representation, 92–96, 102, 123–124 Herbert Croly’s vision of executive power, 83, 85–89, 102 key questions regarding, 84–85 modern presidency and, 9, 83–85 (see also modern presidency) overview of the Progressive vision of the presidency, 2, 83–84 presidential representation and the election of 1912, 121, 122–123 Republican critics of, 102–121 Theodore Roosevelt’s account of the presidency, 97–102, 196 Woodrow Wilson and presidential representation, 89–92, 94–96, 102, 196–197 progressivism, the Republican unitary executive and, 176 Promise of American Life (Croly), 85–86, 101

property requirements, 28 proportional demographic representation, 159 proportional plan for presidential elections, 165–166 proportional representation Herbert Croly’s vision of, 87 Madison’s view of, 13 Massachusetts Constitution of 1780 and, 23–24 New York Constitution of 1777 and, 28–29 Proposition 13 (California), 176 Protest Message, 71 proxy voting, 169 public opinion in Clinton Rossiter’s account of presidential representation, 126 Convention of 1787 and debates around the creation of the presidency, 12–17 Electoral College and, 12, 45 Federalists’ views of public opinion and the presidency, 4–5, 49, 194 Hamilton’s view of, 44–45, 194 Herbert Croly’s vision of expert administrative officials and, 88–89 Herbert Croly’s vision of the executive and, 83, 87–89 Jefferson’s view of, 47, 50, 52, 194 Lincoln and the election of 1864, 74 Madison’s view of, 45–48, 50, 194 plebiscitarian presidency and, 7–8, 10, 132 presidential representation and the enduring debate between law and opinion, 2–5, 9–11, 192–199 Robert Jackson’s view of the modern presidency and, 129, 130 Truman’s account of presidential representation and, 129 Washington and the Jay Treaty, 48–49 Woodrow Wilson’s account of the presidency and, 91, 96 See also popular selection “Public Opinion” (Madison), 46, 47 Public Opinion and Popular Government (Lowell), 119–120 Public Philosophy, The (Lippmann), 150

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inde x qualified veto power, 74 quotas, McGovern-Fraser Commission and, 159, 161, 162 Rakove, Jack, 17 Raney, Roger, 75–76 Ranney, Austin, 159, 163–164 Reagan, Ronald independent prosecutor and the power to remove, 175, 178–183, 189 Iran Contra affair and the power to control foreign policy, 175, 176–178, 188–189 unitary executive and, 175, 176–183, 188– 189, 198 (see also unitary executive) vision of presidential authority, 181–182 Real Majority, The (Wattenberg & Scammon), 161 recall Charles Nagel’s critique of, 110 direct democracy movement and, 85 Elihu Root’s critique of, 115 See also judicial recall Reed, Chauncey, 138 Reed, Joseph, 20 reelection concerns about demagoguery and, 139 Woodrow Wilson’s view of, 96 See also term limits Reeves, Andrew, 6 referendum Charles Nagel’s critique of, 110 direct democracy movement and, 85 Elihu Root’s critique of, 115 Theodore Roosevelt’s support for, 100 William Taft’s critique of, 107–108 Remini, Robert V., 70 removal power Andrew Jackson and, 64, 69, 195 Herbert Croly’s vision of, 89 Madison’s defense of executive power and, 174 tensions between stability and responsibility in Hamilton’s thinking on, 182–183 unitary executive and, 175, 178–183 Vallandigham on Lincoln’s use of, 76 William Taft’s account of, 106

representation Abbott Lowell on Congress as a representative body, 119–120 conflicting views of in the McGovernFraser Commission, 159 Convention of 1787 and debates on executive independence, 39–41 debates on the meaning and requirements of, 8 Elihu Root’s account of, 114 Henry Jones Ford on divided representation in America, 123–124 Herbert Croly’s vision of, 87 trustee theory of, 117, 118 William Taft’s notion of, 107 Representative Government (Ford), 123–124 Republic (Plato), 98 Republican National Committee, 168 Republican National Convention of 1912, 112 Republican Party Bank of the United States issue and, 50–51 criticism of Lincoln’s use of the war power, 79 critics of Theodore Roosevelt and the Progressives, 102–121 (see also Progressives) debate over judicial recall and direct democracy in 1911–1912, 100–101 80th Congress and, 130 emergence of the contemporary theory of executive power, 169 impact on the Federalists, 61 Jefferson, Madison, and the formation of, 54 Jefferson and the presidential election of 1800, 49–55, 194 (see also Jefferson, Thomas; presidential election of 1800) Lincoln’s lawyerly defense of executive power, 80–81, 195 Madison and the authority of public opinion, 48 moderate Republicans and new conservatism, 141–148 (see also moderate Republicans) new theory of the unitary executive, 173–189 (see also unitary executive)

inde x 1912 presidential election and, 121 nomination reform in the 1960s and 1970s, 169–170 party rule and, 112 presidential representation and the enduring debate between law and public opinion, 4–5 presidential victories and partisan politics following the 1968 election, 168–169 sociopolitical changes of the 1960s and, 151 William Taft’s rejection of Roosevelt’s vision of presidential representation, 97–98, 103–105 William Taft’s vision of presidential representation, 105–109 Twelfth Amendment and, 55–57, 58, 194 Twenty-Second Amendment and, 134–135, 136 (see also Twenty-Second Amendment) republican principles, executive power and, 45 responsibility Hamilton’s notion of the executive and, 185 Locke’s notion of executive power and, 180 tensions between stability and responsibility and conceptions of the power to remove, 182–183 Reuther, Walter, 160 Rhetorical Presidency, The (Tulis), 15 Rhode Island, 18 Ripon Society, 170 Rise and Growth of American Politics, The (Ford), 92–94 Robertson, David, 37 Robsion, John, 138 Roosevelt, Franklin Delano Arthur Vandenberg and, 144, 146 Brownlow Committee and, 82 Claude Pepper’s defense of heroic leadership and, 141 Commonwealth Club Address of 1932, 85 concern about grand “Czars,” 133

Twenty-Second Amendment and, 134–135 Walter Lippmann and, 127, 150 Roosevelt, Theodore account of executive power and the presidency, 97–102, 196 anthracite coal strike of 1902 and, 103–104 Arthur Vandenberg and, 145 George W. Bush and, 184 1912 presidential election and, 121 William Taft and other Republican critics of, 97–98, 103–105, 109–121, 196 Root, Elihu, 112–116, 124–125, 196 Rosenblum, Nancy, 7–8 Rosenfield, Sam, 160, 163 Rossiter, Clinton, 126–127, 135–136 Row, A. Maurice, 121 royalist patriots, 15–16 Rumsfeld, Donald, 188 Ryerson, Richard Alan, 20, 21, 23–24 Sabath, Adolph, 136 Saltonstall, Leverett, 140, 142 Sanders, Bernie, 190, 191 Sandinista regime, 176 Scalia, Antonin, 179 Scammon, Richard, 161, 167 Schambra, William, 113 secession, radical Federalists and, 61–62 Second Bank of the United States, 69 Segal, Eli, 163 Senate censure of Andrew Jackson, 70 debate on the Twenty-Second Amendment, 139–141 Hamilton’s view of presidential representation and, 32 moderate Republicans and Arthur Vandenberg, 143–148, 197 national primary proposal of 1972, 167–168 Nixon’s proposed amendment for direct election and, 164, 166–167 presidential power to remove and, 48 Succession Act of 1792 and, 55 treaty power and, 43 See also US Congress

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inde x separation of powers Abbott Lowell’s view of, 119 conflicted views of presidential representation and, 4, 102 Elihu Root’s account of, 114 Henry Jones Ford’s account of, 94, 95 Regan presidency and the theory of the unitary executive, 175, 180 struggles to identify, 174 Woodrow Wilson’s account of, 90 Shafer, Byron, 156, 157, 160, 162 Shane, Peter, 192 Shapiro, Samuel H., 156 Shays’ Rebellion, 38 Sherman, Roger, 33, 35, 36–38, 58 Silberman, Laurence, 179 Skowronek, Stephen, 174–175, 189 slavery Confiscation Act and, 78–79 presidential election of 1800 and, 54 Slonim, Shlomo, 17, 38 small-states/large-states rivalry. See largestates/small-states rivalry Smith, H. Alexander, 142, 143 South Dakota, 85 “Spirit of Governments” (Madison), 47, 50 Springer, Raymond, 137 state constitutions designs for executive power in early constitutions, 192–193 influence on presidential representation in the 1787 Constitution, 19–32 Massachusetts Constitution of 1780, 20–24 New York Constitution of 1777, 25–32 state government, William Taft’s defense of against the Progressives, 108 state legislatures, Herbert Croly’s vision of, 86–87 steel industry nationalization, 2–3, 129 Steiger, William, 170 Stevenson, Andrew, 66, 67 Stone, Donald, 133 Storrs, Henry, 67 Strauss, Robert, 162 Stuart, Douglas, 133, 134 Succession Act (1792), 55

Sullivan, James W., 85 Sumner, Charles, 79 superdelegates, 172–173, 190–192, 198 Superfund legislation, 178 Suspension Clause, 75 Switzerland, 85 Taft, Robert, 143, 150 Taft, William Howard account of presidential representation, 105–109 Barbour-Page lectures, 106 Charles Nagel’s critique of, 111–112 Myers v. United States and, 106 party rule and, 112 presidential election of 1912 and, 100, 101, 121 rejection of Theodore Roosevelt’s view on presidential representation and executive power, 97–98, 103–105, 196 Republican National Convention of 1912 and, 112 veto of Arizona statehood, 106, 120–121 Taft-Hartley Act, 142 Taylor, John, 58 Tenth Amendment, 50 term limits Convention of 1787 and, 14 Hamilton’s account of executive power and, 44–45, 182 Jefferson’s view of, 42, 135 Twenty-Second Amendment and, 134–141 (see also Twenty-Second Amendment) Woodrow Wilson and, 95, 96 Terror Presidency, The (Goldsmith), 185–187, 188–189 Thach, Charles, 25 Thirteenth Amendment, 74 Thomason, Ewing, 136 Thoughts on Government (Adams), 21, 23, 27 Thurmond, Strom, 166 Thye, Edward, 143 torture, 184 treaty power, 43, 174 “True and False Democracy” (Butler), 116–117

inde x Truman, Harry Arthur Vandenberg and, 143, 144, 147–148 concerns about the National Security Council, 133–134 80th Congress and, 130 (see also 80th Congress) Korean War and, 132 moderate Republicans and, 142, 197 Robert Jackson’s account of presidential power and, 129–130 steel industry nationalization and, 2–3, 129 Twenty-Second Amendment and, 135 views of executive power and presidential representation, 128–129, 130–131, 132 Walter Lippmann’s criticism of, 149–150 Truman Doctrine, 130, 142, 143, 144, 147 Trumbull, Lyman, 79 Trump, Donald, 1 trustee theory of representation, 117, 118 Tulis, Jeffrey, 2, 15 Turkey. See Truman Doctrine Twelfth Amendment debate on and opponents of, 55–61, 138, 194 and 1826 debate on changing the Electoral College and contingency elections, 65–66, 67 opponents of a plebiscitarian presidency and, 10 Twenty-Second Amendment House debate on, 136–139 moderate Republicans and, 142 overview and significance, 197 passage of, 130, 132 Senate debate on, 139–141 standard account of, 134–136 Udall, Morris, 168 unicameral legislatures, 21 “Union, Who Are Its Real Friends?, The” (Madison), 51 unitary executive accountability and, 176 conflicted views in the arguments underlying, 174, 182–183, 198–199 dangers of personal form of rule and, 189

first use of the term, 179 George W. Bush and, 183–188, 198–199 independent prosecutor and the power to remove, 175, 178–183, 189 Iran Contra and the power to control foreign policy, 175, 176–178 Nixon and, 174–175 principle arguments underlying, 173–174 Reagan presidency and, 175, 176–183, 188–189 Steven Calabresi on the power to remove, 175 United Automobile Workers, 160 United Nations, 131, 143, 144, 145 unit rule, 153, 155–157, 169 Urbinati, Nadia, 8 US Congress Abbott Lowell on Congress as a representative body, 119–120 in Arthur Vandenberg’s view of executive power, 147–148 Confiscation Act of 1862 and, 78–79 Dick Cheney’s critique of in defense of the unitary executive, 187–188 debate on Twelfth Amendment, 55–69 80th Congress and the modern presidency, 130–132 (see also 80th Congress) Iran Contra affair and the theory of the unitary executive, 176, 177–178 moderate Republicans and new conservatism, 141–148, 197 national primary proposal of 1972, 167–168 Nixon’s proposed amendment for direct election and, 164–167 partisanship and presidential representation, 6–7 Walter Lippmann’s view of executive power and, 127–128, 149–150 US Constitution Charles Nagel’s view of, 110 conflicted views of presidential representation held by Progressives and, 102, 196 Dick Cheney’s notion of the constitutional protection of liberty, 188

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inde x US Constitution, continued Edwin Meese on the president’s authority to interpret, 180–181 Elihu Root’s defense of, 114 Hamilton’s and Madison’s views of accountability and, 48 Hartford Convention recommendations, 62 Henry Jones Ford’s account of, 94, 95 Herbert Croly’s critique of, 86, 196 Jefferson’s objections to, 42 Madison’s view of legislative majorities and, 47 new theory of the unitary executive and, 173–174 presidential representation and the enduring debate between law and opinion, 2–5, 9–11, 193–199 problem of political parties, 53–54 standard reading of the design of the presidency in, 2 William Taft’s defense of, 106–107 Woodrow Wilson’s vision of, 89–91, 196–197 See also Constitutional Convention of 1787 US Supreme Court Cousins v. Wigoda, 160 independent prosecutor ruling and Scalia’s dissenting opinion, 179 Myers v. United States, 106 Robert Jackson’s account of the modern presidency, 129–130 Vallandigham, Clement, 76–78, 79 Vandenberg, Arthur H., 143–148, 149, 150 Vesting Clauses debate on executive power during the Jackson administration and, 69–70 1826 debate on changing the Electoral College and, 68 new theory of the unitary executive and, 173–174, 179, 198 and ongoing debates about presidential representation residing in law or opinion, 199 William Taft’s account of the power to remove and, 106

veto power Andrew Jackson and, 195 Massachusetts Constitution of 1780 and, 19, 20 Polk and, 72–73 William Taft’s veto of Arizona statehood, 106, 120–121 vice presidency, 53, 55 Virginia Constitution of 1776, 19 Virginia Plan, 13, 33, 37–38 Wallace, George, 164 War on Terror, George W. Bush’s unitary executive and, 184–188 war power Arthur Vandenberg’s view of, 146–147, 148 Elihu Root’s concerns about the war powers delegated to Wilson, 124–125 George W. Bush’s War on Terror and the unitary executive, 184–188 reforms of the 80th Congress and, 131 Republican criticism of Lincoln’s use of, 79 Warren, James, 24 Washington, George, 42–43, 47, 48–49, 50–51 Wattenberg, Ben, 160–161 Weber, Jennifer L., 77 Webster, Daniel, 70–71, 76, 195 Webster, Noah, 16–17 Wells, Maine, 22, 23 Wherry, Kenneth S., 148 Whigs Henry Jones Ford’s account of, 92–93 response to Andrew Jackson’s claims of executive power, 64, 69–72, 73, 80, 195 Woodrow Wilson’s critique of the Whig theory of government, 89–90 White, Theodore H., 167 Why Should We Change Our Form of Government? (Butler), 118 Wildavsky, Aaron B., 168 Wilde, Richard Henry, 71 Wiley, Alexander, 140

inde x Wilson, James on contingency election as the “eventual election,” 57 Convention of 1787 and debates on presidential representation, 33–34, 36, 37, 38–39, 67 popular selection of the executive and, 15, 16, 19 Wilson, Woodrow account of presidential representation, 90–92, 94–96, 102, 196–197 Elihu Root’s concerns about the war powers delegated to, 124–125 first inaugural address and account of his own election, 91–92 Henry Jones Ford’s account of, 94–95 Louis Brandeis and, 101 Myers v. United States and, 106 national primary proposal, 167

1912 presidential election and, 121 view of Constitution, 89–91, 196–197 view of limited government, 92, 101, 196–197 view of presidential accountability, 95–96 Wise, Henry, 71 Wisner, Henry, 26 Wood, B. Dan, 5–6, 8–9 Wood, Gordon, 19 Woodward, Bob, 188 Wright, James C., 156 Yarbrough, Jean, 99 Yates, Robert, 26 Yoo, John, 184–185, 187 Young, Nancy Beck, 141–142 Zeisberg, Mariah, 131, 145, 146

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