Posted on 03/12/2012 9:11:10 AM PDT by jfd1776
REFLECTIONS ON PRESIDENTIAL OBLIGATIONS
Ever think about every president’s first official act? Before he can do anything else, before he can make a binding appointment or issue a single order, he swears a solemn oath to preserve, protect, and defend the Constitution of the United States.
Normally, a Supreme Court Justice administers the oath in public (though a lesser representative of the judicial system may stand in, if it’s an emergency; Calvin Coolidge was sworn in by his father upon the death of Warren Harding, for example).
The U.S. president is not crowned by a bishop in a religious ceremony; he doesn’t even succeed to the position automatically after the votes are counted or his predecessor dies. No, the U.S. President must first swear an oath of fealty – not to some vague promise to “do his best” or to “take care of the people” – that’s not his job. In America, the people are supposed to take care of themselves.
The oath of office is to obey the Constitution – to preserve it, to protect it, and defend it. Our government is designed to be a meal prepared according to a specific recipe; deviate from that recipe, and you risk ruining the dinner. Or perhaps we can think of it as a route through dangerous territory; stay on the path and you’ll find your destination, safe and sound; deviate from the path, and you risk getting lost in the wild, surrounded by all the dangers of jungle, swamp, or mirkwood.
THE FOUNDERS' VISION
Our nation’s Founding Fathers were hesitant about rebelling against the mother country. Not just because it was sure to be a hard war – it certainly was – but because they were proud to be Englishmen themselves.
The Founders thought of Great Britain as the home of constitutional governance, and they were proud to be a part of it. Each colony had its own house of burgesses, delegates, or representatives, a legislature with the power to do what the people thought right and just, from managing a court system to authorizing roads to collecting import duties.
England had been a constitutional monarchy for seven centuries. King Henry I accepted specific limits to his power and to the power of his successors in 1100 A.D., in the Charter of Liberties. King John was forced to accept greater limits in 1215, when the Magna Carta became the law of the land. The American colonists were proud of this tradition, proud to be a part of this wonderful limited monarchy that provided both economic and political freedom, along with the security of being part of the world’s most powerful empire.
They rebelled only when they realized, in the 1760s and 1770s, that this blanket of constitutional limits was a fraud. It was no longer obeyed by their king, at least not outside the boundaries of England itself.
We had legislatures of our own, as guaranteed in the charter, but the king paid them no heed. If he needed taxes, he could present his case, and our legislatures would deliberate and determine how to collect and provide what was just. But George III didn’t care; he dismissed the spirit of the Magna Carta even at home, and dealt with the people of America as chattel who lived under a delusion of freedom at his pleasure. If he chose, he could remove it in an instant.
And so he did. On October 1, 1768, George III’s troops arrived in Boston Harbor, and they remained there for eight long years, to remind his subjects what they were. Not free men and women, not sovereign citizens with their own inherent rights, but the king’s subjects, who must obey or be occupied. He ordered territorial governors to close our legislatures if they misbehaved; he lost interest in even keeping up the pretense of a constitutional monarchy.
Why did our Founders rebel? Because when they realized they had been so proud of participating in such a sham, they were horrified. As soon as the scales were lifted from their eyes, they needed to begin severing the ties that had joined them to that unconstitutional monarchy. And they were determined to replace it with one that remained true to its promise.
THE FIRST CONSTITUTIONAL EXECUTIVE
When the Framers of our Constitution met in the summer of 1787, they had their mother country very much in mind. Despite their revolution against England, they knew that the British form of government had much to recommend it; their saw their duty as designing a government that learned from the lessons of history, including the lessons of their former home “across the Pond.”
The president would be the chairman of the “executive” branch, the branch of government that “executes” the laws and policies as defined in the Constitution itself. That was his job. Not to “rule” at all… not to enjoy great pomp and circumstance, not to be served and fed by footmen and maids. This head of state was to be a manager, an administrative officer. Whatever Congress directed him to do, he was to find some efficient, successful means of accomplishing… provided, of course, that it was constitutional.
His oath was to fulfill the duties of government as designed in the Constitution and as directed by current and previous Congresses. Simple as that.
Our first president, General George Washington, was not elected president by accident. He had been the first great unifier of the nation, through leadership of the colonial forces during and after the French and Indian War, and during the great coastwise boycott of England that began after the Townshend Acts in 1768. He was elected presiding officer of the Constitutional Convention; he knew exactly what was expected of our first president, and his colleagues trusted him completely.
Perhaps most importantly, after serving as commander of the US forces during the Revolutionary War, he stepped down in 1783, a Cincinnatus who returned to the farm after a successful campaign, rather than taking power as victorious generals so often had in the past. This was the rare man who did not crave power, a man who could be entrusted with authority, without fearing that he would abuse it.
He was to spend his entire eight year tenure in the office, ever conscious of the precedent he was to set. Every state dinner, every executive order, every appointment, every political choice, every bill signing or veto, would be viewed by posterity as a guide to how all future presidents were to behave. He agonized over many choices, appointed the best aides he could, and trusted to Divine Providence to be given the wisdom to do the right thing, not just for today, but for as long as this blessed land was to last.
A PRESIDENT'S MORAL CHALLENGE
The Father of his Country spent his eight years confident in his discharge of his oath. He didn’t pretend to be perfect, but he could certainly defend his choices as constitutional. He never presented a recommendation, or signed a bill, or advanced any policy, that he seriously feared might be in violation of his oath, though one time, just once, the possibility arose, and became a battle within his own cabinet.
In December of 1790, not yet two years into Alexander Hamilton’s leadership of the national treasury, the secretary asked Congress for a bill to charter a new Bank of the United States.
All the banks in the nation at the time were chartered by individual states, and taken all together, they had a cumulative capital of just $2 million. Hamilton believed that the nation needed a publicly chartered, privately managed bank with $10 million in capital – in the valuation of those days – in order for the currency to be stable and for the nation’s economy to be set on the road to prosperity.
Congress agreed, and it sailed through the legislative process smoothly enough. Then it went to the president for his signature, and Rep. James Madison, a fellow Virginian and friend, declared that a national bank might be unconstitutional.
Now here was a dilemma. The Constitutional Convention had arguably been a project of three people – George Washington, Alexander Hamilton, and James Madison.
Though Gouverneur Morris and James Wilson had participated more in the nuts and bolts of the final document’s crafting, Washington viewed the Constitution as, in some ways, the offspring of he and his two younger friends Hamilton and Madison. There would have been no Constitution without them; not only did they organize the support to hold the convention in the first place, they were also arguably the two people most responsible for its ratification.
Hamilton’s and Madison’s brilliant “letters to the editor,” signed anonymously as Publius ( along with their less prolific ally John Jay), were known as the Federalist Papers, and remain the primary source for understanding the intent of the Framers even today. If Hamilton and Madison disagreed on the constitutionality of a proposal, who on earth could be set forth as a fair expert for breaking such a tie?
WASHINGTON'S CHOICE
The president could have simply made the decision himself. He had presided over the Constitutional Convention, and could easily have justified signing the bill on the grounds that he knew as well as anyone what the Constitution meant to cover. True or not, he could make the claim, and what politician would argue against it?
Or he could say that he was president of the United States, and this bank was needed. The nation’s economy was at stake; sometimes you have to bend a rule here and there to provide your nation with a successful result. Again, who could have argued? Kings and queens of England had often disobeyed the Magna Carta over the centuries; people had grown to expect it. As long as it was for a good cause, a moral end, why not? Congress passed it already; just sign the bill!
George Washington decided against those two choices. As president, he was ever conscious of precedent, and he would not make an arbitrary decision. If a veto was needed to obey his oath, he would veto it. If a constitutional amendment was needed to authorize it, he would wait for an amendment. To be sure, to help make his decision, he would seek the advice – in writing – of his experts.
WRITTEN ARGUMENTS FROM THE EXPERTS
The president asked everyone in his cabinet to comment on the constitutionality of the bank. He knew, of course, that Hamilton believed it was constitutional – it had been Hamilton’s proposal, after all – but he wanted to be sure he understood whether the opposition from others was truly an objection to its constitutionality or if it was actually just a policy difference.
Attorney General Edmund Randolph and Secretary of State Thomas Jefferson were opposed; it was a gift to the northern “moneyed” interests, they insisted, and was not specifically authorized in the Constitution by name. “To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power” said the Secretary of State, who had been away, serving in France, during the actual constitutional debates in 1787.
The opponents’ arguments were few and simple. Washington was well aware of the anti-merchant bias of some of his southern brethren, and was disappointed in their attempt to ground their position in the Constitution, which was essentially: If it’s not listed, you can’t do it.
The president believed that he might or might not veto a bill passed by Congress, but he absolutely must veto a bill if it was unconstitutional. They had made an argument, but he wanted to see the bank’s champion’s response.
Hamilton, ever most brilliant under pressure (bills on the president’s desk have a Constitutional time limit), wrote 15,000 words of brilliant prose, as if back in the courtroom addressing judge and jury, dispatching the arguments of Randolph, Jefferson, and Madison sufficiently to win over the president.
He relied partially on his former colleague Madison’s own words in the Federalist Papers (though it was not then public knowledge who had written which) for his argument. Publius had declared that the executive branch must have the power to do what it is ordered to do; where the ends are required, the necessary means must also be allowed. While this position was not in fact tantamount to the infinite elasticity that anti-Hamiltonians later claimed it to be, it was nevertheless a different definition from those who maintained the Constitution was just, in the late Joseph Sobran’s words, a shopping list; if it’s not on the list, you can’t buy it.
To use modern terms, Hamilton might argue that it was indeed a shopping list, just a broader and more practical one. If your shopping list calls for the ingredients for pizza – flour, yeast, tomatoes, cheese, sausage – then the Jeffersonians would demand that you buy them, and nothing else, even though you have no pan to cook it in, so the effort is bound to fail. Hamilton would say that the order to make pizza requires you to buy the pan as well, even though it wasn’t listed, since your effort is doomed without it.
Hamilton did not obliterate the line entirely, as the Jeffersonians claimed, but nor did he provide the service of fully clarifying a new line either. Hamilton believed, along with Washington, in a small but efficient government that could foster a prosperous private sector through such basics as a stable currency and a varied and prosperous business sector, including manufacturers and merchants instead of limiting itself to just farmers alone, as the opposition often appeared to advocate.
Hamilton’s logical argument supported this end that almost everyone desired, demonstrating that the alternative reading would put such a straight-jacket on the government that ridiculously detailed amendments would be required more frequently than any of the Framers could ever have intended. In Federalist #70, Hamilton had argued for “energy in the executive.” Perhaps this is a part of what he meant.
Washington signed the bill. The bank was established, and at the end of its successful twenty-year charter, was taken private by Stephen Girard.
LESSONS FROM A CONSTITUTIONAL ARGUMENT
Two centuries later, the U.S. Congress passes blatantly unconstitutional bills all the time. Presidents issue executive orders on any and every subject; they sign everything passed by their party in Congress, veto anything passed by their opposing party.
And what have we as a result? A national government fifteen trillion dollars in direct debt, with some hundred trillion in unfunded liabilities when counted honestly. An unemployment rate published at nine percent, but double that when counted honestly. A housing sector that has spent four years flatlining… a manufacturing sector in terror over crippling regulations, both in place and yet to come… a healthcare sector in fear for its life as nationalization threatens to strangle it.
All because of a government grown too large, too acquisitive, too constrictive. All because too many in every role, but especially in leadership, began, somewhere along the way, to disregard their oath to uphold the Constitution in every act.
In the end, whether the Hamiltonians or the Jeffersonians were objectively “right” about the bank isn’t the important thing. A legitimate case could be made on either side, and was.
The important thing is how our first President reacted when a challenge to the bill’s constitutionality was first voiced. He didn’t dismiss it outright; he didn’t laugh it off or direct his minions to spread the message that he knew best, that his election authorized him to do whatever he thought best.
George Washington gave his entire cabinet a job – to interpret the constitutionality of the measure and advise him promptly. How it split up – with the Secretaries of War and Treasury on the one side, the Attorney General and the Secretary of Defense on the other – is a marvelous lesson for our times. These Founding Fathers, giants in our history books, all had an opinion, and all thought the constitutional question as important as the policy question. Jefferson and Randolph were as adamant that the national bank’s charter was not allowed as Hamilton and Knox were certain that it was. While Washington did not think he had to wait until there was consensus – he rightly assumed that would never happen, on this point at least – he was equally certain that he could not sign the bill until he himself was assured it would not violate his oath.
Imagine if today, every time a Congressional leader – of either party – challenged the constitutionality of a bill, the president respected his oath enough to go through what our first president did. It would require a president who appointed only cabinet members, under-secretaries, and senior advisors who share an equal respect for the Constitution. It would require an administration that values honor and patriotism above power and even policy.
Many of our greatest problems today have been caused by bad policies rushed through the legislative process without concern for anything but politics. A little deliberation, not just on the policy but on the constitutionality as well, might go a long way toward reducing the blight on our land of federal programs, buildings, paperweights and anchors, at least some of which might have been halted if only their champions had respected their oaths of office enough to ask the question and perform a little analysis.
As we contemplate every even-year November’s selection of our national government’s elected officials, and especially as we select our respective party’s nominees for that contest each preceding spring, we would do ourselves a great service if only we would think past the policies we support or oppose, but also think on whether our candidates will respect their oaths once in office.
There will always be political opposition, for there will always be times when two hard choices are both constitutional options. But wouldn’t it be grand if we could again be blessed with leaders who limited themselves to only such choices as these?
No candidate is perfect, in this or any nation. But as voters, we owe our fellow citizens our greatest care in choosing the most winnable candidate who will respect his oath of office, and let the Constitution be his foremost guide, from his first day in office to his last.
As did the Father of his Country, that wonderful role model, so many, many years ago.
Copyright 2012 John F. Di Leo
John F. Di Leo is a Chicago-based Customs broker and international trade lecturer. For further reading on Hamilton and Washington, he recommends Richard Brookhiser; for further reading on the era, Willard Sterne Randall is excellent. And for a new president as primaries approach, the old National Review standard, “the most conservative candidate who is electable,” remains as good a rule of thumb as any!
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Would also add Ron Chernow's Franklin and Washington to the suggested readings.
bfl
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