The Constitution and the Executive Brow

On 23 July, the New York Times published a valuable editorial by Adam Cohen on what the U.S. Constitution says about the three branches of government. Cohen wrote in part:

Given how intent the president is on expanding his authority, it is startling to recall how the Constitution’s framers viewed presidential power. They were revolutionaries who detested kings, and their great concern when they established the United States was that they not accidentally create a kingdom. To guard against it, they sharply limited presidential authority, which Edmund Randolph, a Constitutional Convention delegate and the first attorney general, called “the foetus of monarchy.”

The founders were particularly wary of giving the president power over war. They were haunted by Europe’s history of conflicts started by self-aggrandizing kings. John Jay, the first chief justice of the United States, noted in Federalist No. 4 that “absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal.”

Many critics of the Iraq war are reluctant to suggest that President Bush went into it in anything but good faith. But James Madison, widely known as the father of the Constitution, might have been more skeptical. “In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed,” he warned [in his “Helvidius” letters of 1793]. “It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle.”

When they drafted the Constitution, Madison and his colleagues wrote their skepticism into the text. In Britain, the king had the authority to declare war, and raise and support armies, among other war powers. The framers expressly rejected this model and gave these powers not to the president, but to Congress.

The Constitution does make the president “commander in chief,” a title President Bush often invokes. But it does not have the sweeping meaning he suggests. The framers took it from the British military, which used it to denote the highest-ranking official in a theater of battle. Alexander Hamilton emphasized in Federalist No. 69 that the president would be “nothing more” than “first general and admiral,” responsible for “command and direction” of military forces.

The founders would have been astonished by President Bush’s assertion that Congress should simply write him blank checks for war. They gave Congress the power of the purse so it would have leverage to force the president to execute their laws properly. Madison described Congress’s control over spending [in Federalist No. 58] as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

The framers expected Congress to keep the president on an especially short leash on military matters. The Constitution authorizes Congress to appropriate money for an army, but prohibits appropriations for longer than two years. Hamilton explained [in Federalist No. 26] that the limitation prevented Congress from vesting “in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.”

Congress has basically abdicated its power and responsibility to declare and direct war since the end of World War II. To some extent, that change was driven by technology: airplanes, missiles, and nuclear bombs meant that war could come with more speed and devastation than the founders had imagined. But I think there’s also been a lazy hope to have things both ways—to fight (or, most recently, start) a war without actually declaring one constitutionally. The result is a creeping monarchism, investing the Presidency with powers the job was not originally supposed to have.