America's Unwritten Constitution: The Precedents and Principles We Live By (51 page)

THE INAUGURATION OF WASHINGTON (APRIL 30, 1789, AS DEPICTED IN 1876).

As America’s first “first man,” Washington set precedents from his earliest moments on the job. At his 1789 inauguration he wore civilian garb and swore his oath of office on the Bible. Nothing in the written Constitution specified this protocol, yet later presidents have emulated various elements of Washington’s inaugural etiquette and have closely followed many other Washingtonian precedents. Several presidents have even made a point of swearing their oaths on the same Bible that Washington used on April 30, 1789. Note also the foreground presence of two of the four men whom Washington would later bring into his first cabinet—future treasury secretary Alexander Hamilton at the far left and future war secretary Henry Knox at the far right.

L
AUNCHING AMERICA
’
S CONSTITUTION MEANT MORE
than simply discussing and approving the text of the Philadelphia plan in the several state conventions. True, Article VII of the plan proclaimed that ratification by these conventions would be “sufficient for the Establishment of this Constitution.” Formally, once the state conventions said yes, the deal was done, and it remained merely for all to obey the legally binding words that the American people had approved. But in reality, the Founding process extended past the ratification period. Some patches of constitutional text raised nearly as many questions as they answered. Before these parts of the document could be obeyed, they would need to be clarified and concretized.
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We should therefore view the Founding as a two-part drama. First, in 1787–1788, the American people assembled in special conventions to enact—to
activate
—the Philadelphia plan. Next, newly authorized government agents appeared on the scene to reenact—to
act out
—the approved legal text, much as a theatrical troupe might act out a playwright’s written script. In this post-1788 process, America’s leading man, George Washington, who had waited quietly in the wings during the ratification period, now strode to center stage. During the Constitution’s debut, Washington and other actors manifested the meaning of the terse text, deepening the two-dimensional print into a three-dimensional performance that set the standard for later government actors. In short, after the Founders in ratifying conventions took a mere proposal and made it law, the Founders in government took law and made it fact.
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Over the ensuing centuries, the constitutional understandings that crystallized during the Washington administration have enjoyed special authority on a wide range of issues, especially those concerning presidential power and presidential etiquette. Much as modern Christians ask themselves, “What would Jesus do?,” presidents over the centuries have quite properly asked themselves, “What would President Washington do?” and, even more pointedly, “What did President Washington do?” In the American constitutional tradition, what Washington did—the particular way in
which he handled treaties, conducted foreign affairs, dealt with the Senate, controlled his cabinet, and so on—has often mattered much more than what the written Constitution says, at least in situations where the text is arguably ambiguous and Washington’s actions fall within the range of plausible textual meaning.

OF ALL THE TEXTUAL UNCERTAINTIES
confronting America’s first president, none loomed larger than the indeterminacy shrouding his own role in the new constitutional order. The Constitution’s text made some things clear. America’s chief executive would serve a four-year renewable term; would wield a federal veto pen (subject to override) and a federal pardon pen (except in impeachment cases); would personally oversee high executive officers whom he would handpick (with senatorial support); would make treaties (again, with senatorial involvement); could win reelection independently of Congress; and could be ousted from office only if a House majority and a Senate supermajority found him guilty of gross misconduct. In all these respects, America’s president would tower far above a typical state governor circa 1787, yet remain far below England’s King George III.

But the text failed to specify exactly how far above and below these distant models Washington should position himself on a variety of executive-power issues as to which the constitutional text was silent or opaque. Most important of all, uncertainty existed early on about whether a president properly had any general executive powers or privileges beyond those specifically listed in the constitutional text.

The Executive Article (Article II) opened with the following words: “The executive Power shall be vested in a President of the United States of America.” This sentence appeared to confer upon the president a general residuum of “executive Power” above and beyond various specific presidential powers and duties itemized a few paragraphs later. Yet ordinary Americans during the ratification period could be forgiven for missing this point. The Legislative Article (Article I) confined Congress to an enumerated list of specified powers, and the Judicial Article (Article III) likewise limited the jurisdiction of federal courts to a textually enumerated
list. Although the Executive Article used subtly different language that seemed to say that its list of specific presidential powers was exemplary rather than exhaustive, it took an eagle eye to spot the textual difference,
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and few Americans during the ratification period paid attention to the powerful possibilities coiled within the Executive Article’s opening clause. Eager to persuade anxious Anti-Federalists that the Constitution did not squint toward monarchy, leading Federalists, from Hamilton/Publius on down, directed the public’s gaze to the limited nature of the specifically enumerated presidential responsibilities.
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Faithful constitutionalists seeking to honor the text as originally understood are thus yanked hard in opposite directions. On the one hand, most ratifiers may not have realized that the president would enjoy a residual “executive Power.” On the other hand, the people had said yes to a text that seemed to say just that—and surely the public did understand that the Constitution would conjure up a far more muscular executive than anything they had experienced since 1776.

The seeming tension between the text and the public understanding in 1787–1788 invites a closer look at both in the hope of finding some means of reconciliation. Why didn’t the text delimit the scope of presidential power more clearly and precisely? And why didn’t ratifying conventions pay closer heed to every detail of Article II?

At least three things blunted the edges of the Executive Article and blurred the ratification conversation. First, no ancient or modern model closely prefigured the federal chief executive that the Founders fashioned. British monarchs had ruled by dint of noble birth and claims of divine right; most colonial governors had answered to kings; most post-Independence state governors seemed far too weak; and the presiding officer of the Confederation Congress was likewise a mere shadow of the
new presider Americans were inventing. Though Americans could agree that their new president needed a very different blend of powers and limits from any previous executive, there remained considerable uncertainty about exactly what mix would be best.
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Second, the very nature of presidential power made it hard in 1787—and continues to make it hard today—to fully specify its precise boundaries in all contingencies. In a nutshell, Congress passes laws, authorizes expenditures, organizes itself, polices its own membership, and oversees the other branches via investigations and impeachments, while federal judges decide cases under law and monitor subordinates within the judicial branch. By contrast, presidents perform a far wider range of multifarious tasks. They promulgate interstitial rules, much like legislators. They find facts, construe laws, and apply laws to facts in the first instance, much like judges. But they also do much, much more. For example, they officially propose new legislation and define national reform agendas; they participate in the passage of federal statutes; they pick federal judges; they directly communicate and coordinate action with state governments; they stand atop a vast bureaucratic pyramid, filling and sometimes thinning the ranks of federal executive officialdom; they collect revenues and disburse funds; they manage federal properties; they file and defend lawsuits on behalf of the nation; they prevent, investigate, and prosecute civil and criminal misconduct; they ponder mercy for miscreants; they command armed forces in both war and peace; they respond to large-scale disasters and crises; they direct diplomacy and international espionage; and they personify America on the international stage. Even today, sophisticated commentators often define “executive Power” not affirmatively but residually. On this view, executive power encompasses all proper governmental authority that is neither legislative nor judicial in nature. Whereas legislatures and judiciaries almost always act via standard operating procedures, presidents recurrently need to improvise to handle fast-breaking situations that threaten to upend the entire system (such as the Civil War) or that present unique opportunities to promote the national welfare (such as the Louisiana Purchase). The essence of the presidential office defies easy textual specification, even after two centuries of presidential experience.

Third, even if precise textualization of every aspect of presidential power
had been theoretically possible in 1787–1788, Americans were not designing the office in the abstract. Rather, they were tailoring it for its intended first occupant—George Washington. Without Washington at the helm as America’s first president, it was widely believed that even a perfectly designed constitutional ship of state might founder at the launch. Conversely, with Washington in charge at the outset, even an imperfect text might work—so long as the text fit the first “first man” suitably well. An overtextualized Executive Article might not match Washington’s precise proportions. Thus Americans undertextualized the presidency, trusting Washington to make sensible adjustments after wearing his custom-made constitutional uniform and testing it against the elements. The textual openness of Article II—the “give” in the garment of executive power—was not a design flaw, but a desired feature.

It is true that nothing in the official constitutional text required that George Washington be America’s first president. But without the near-universal understanding that Washington would guide the new ship at the start, the Executive Article would have been drafted in a dramatically different fashion, and perhaps nothing closely resembling the Philadelphia plan would have ever won the express approval of the American people. Washington’s indispensability was recognized by both the supporters and the critics of the Philadelphia plan in every state. Fittingly, the attestation section of the ceremonial parchment began with the suggestive signature of the Philadelphia Convention’s presiding officer, as follows: “Go. Washington—Presidt.” In many a printed version of the proposed Constitution circulating in 1787–1788, this accompanying signature was reformatted to read, “GEORGE WASHINGTON,
President
.”
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It is also true that nothing in the official constitutional text explicitly delegated authority to George Washington to fill in the blanks of Article II and thereby sharpen the role of all future presidents. But neither did the terse text explicitly prohibit the inference that the framers and rati-fiers were deputizing Washington to clarify the Executive Article, subject to the broad advice and consent of the other branches and the American people. Though the Constitution’s text does not compel this delegation-to-Washington interpretation, the text permits and even invites this reading for the simple reason that this reading makes sense. It explains the
otherwise puzzling and even dangerous looseness of the Executive Article, and it turns what might otherwise seem an abject failure of draftsmanship and deliberation into something safe and clever.
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SEVERAL BASIC FEATURES
of America’s enduring presidential system have been established less by the Constitution’s text than by the gloss on the text provided by President Washington’s actions—actions that he initially undertook with scrupulous constitutional consciousness and that ultimately won acceptance from the other branches and the American people.

First, America’s presidents today enjoy unilateral power to officially recognize and derecognize foreign governments. In 1979, for example, without any specific preauthorization from Congress as a whole or from the Senate, President Jimmy Carter established normal diplomatic relations with the (Communist) People’s Republic of China, formally recognizing that regime as the official sovereign power in China. In the process, Carter cut formal diplomatic ties with the (anti-Communist) Taiwanese government, which had previously been recognized by the U.S. government as the lawful Chinese regime and, indeed, an official American treaty partner.