The Presidency has always given us trouble. It was, from the beginning, the “dark continent” of American constitutionalism—the phrase is Charles A. Beard’s. There were ample precedents for the new legislative and judicial departments which the framers established, but none—except in a limited way in the states—for an elected executive who would serve at the pleasure of the people and on terms laid down by them. History, that great arsenal of morality, taught that all men in power were ambitious, vainglorious, and corrupt, and prone to aggrandize power to themselves: you could read it in Thucydides or Plutarch or Montesquieu or Gibbon.
Contemporary experience reinforced the teachings of history, and the framers were determined that the United States should never have a Louis XIV to ruin his nation by his extravagance, a Frederick the Great to plunge his people into ceaseless wars, a George III to corrupt elections. As James Wilson, himself a strong-executive man, observed early in the Convention, he “did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers.” All true enough. Yet after the near-breakdown of the Confederation, the nation needed a strong executive. And there was a further consideration—almost an embarrassment. Throughout the Convention, there sat George Washington presiding with awful dignity over the deliberations, the great man who would inevitably be the first President, whose rectitude was unassailable, and whose image would inevitably be reflected in the provisions for the presidential office.
As it turned out lack of precedents and experience produced grave difficulties. Article II was the most debated and the least satisfactory part of the new Constitution. It emerged from the debates a kind of masterpiece of ambiguity and evasion whose meaning we have been exploring ever since. Not surprisingly, it has been modified by no fewer than four constitutional amendments—XII, XX, XXII, and XXV—while only one amendment (XVII) has modified the legislative branch and one (XI, now universally forgotten) the judicial.
Because the powers of the President were not adequately defined, their character depended, from the beginning, on the Presidents who exercised them: that is why the game of classifying Presidents as “strong” or “weak,” or as “active-positive” or “passive-negative,” has fascinated so many historians. Certainly Presidents can define the executive powers far more easily than the Congress or the courts can define theirs, for within the Presidency there is no competition, no rival party to bargain with or accommodate to. We do not define the legislative branch by Madison or Clay, Sumner or Blaine, nor do we define the judiciary by Marshall or Story, Holmes or Warren. But we do define the executive by analyzing Washington, Jackson, Lincoln, Wilson, Franklin Roosevelt, and L. B. Johnson.
All strong Presidents have aggrandized power just as all strong judges have “soaked up jurisdiction like a sponge.” Are we witnessing now a shift from aggrandizement to usurpation? The distinction, not always clear, is that the former functions within the hospitable and accommodating framework of the Constitution, and the latter does not. Washington, Lincoln, and Franklin Roosevelt were indubitably “stronger” Presidents than Mr. Nixon, but Nixon is the first who has openly declared that he will not observe the constitutional grant of war powers to the Congress and that he will not permit any interference with his own interpretation of “national security”; he is the first, too, to treat the guarantees of the Bill of Rights with open contempt.
Last October when the Senate was debating a proposal to permit the President to cut appropriations that Congress had voted, Senator Long of Louisiana said that “maybe the time has come when we need a benevolent dictator.” This was not so much a speculation as a description, though not an accurate one, for even Mr. Nixon’s uncritical admirers do not call him “benevolent.” When we think of dictators, we conjure up Cromwell, Napoleon, Stalin, or Hitler, and assure ourselves that it is improbable that one of these could ever emerge out of American politics.
The traditional meaning of the term, however—that which traces back to ancient history—is “one who is constitutionally or legally vested with supreme authority during a crisis.” That is precisely what Mr. Nixon is aiming at in some areas of government, certainly in the conduct of foreign affairs, of war, and of whatever he chooses to believe involves national security—a supreme authority which is above the law. It is this principle that enables him to countenance, and his sycophantic subordinates to brush aside, Watergate and the Ellsberg break-in, to authorize the use of agents provocateurs, flout congressional will in appropriations, wage secret war on a neutral country and then lie about it, conceal vital information from the people and from the Congress, and claim privileges and immunities heretofore unknown to the Constitution.
The Supreme Court disposed of these claims to be above the law first in the Milligan case of 1866 and then, some ninety years later, in the Youngstown steel case—a case which has interesting analogies to the invocation of independent war powers and national security arguments by Mr. Nixon today.
The Constitution of the United States [said Justice Davis] is a law for rulers and for people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.
And in Youngstown v. Sawyer, which rejected President Truman’s seizure of the steel mills on the ground of military necessity, Justice Black returned to the principle of Milligan:
The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed upon Article II which says that “the Executive Power shall be vested in a President,” that he “shall take care that the laws be faithfully executed” and that he “shall be Commander-in-Chief of the Army and Navy of the United States.” This order [Mr. Truman’s take-over] cannot properly be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the law-making process to the recommending of laws he thinks wise, and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.
Now once again the great question of the scope, and the limit, of these powers is before the courts.
Over the years courts have been courageous and bold in the exercise of judicial review, as they were in the Milligan and the Youngstown Steel cases, but is it a courage we can count on or a boldness we should ask them to display? Judges are understandably reluctant to intervene in the conduct of a war: as Justice Hughes once said, “The war power is the power to wage war successfully.” The interventions usually, though not always, come well after the fact—as did that of the Milligan case. Traditionally judges have avoided “questions of a political nature”—an avoidance less sweeping in the past two or three decades than in the more remote past. They are often troubled by the question of jurisdiction—as they are, even now, over the question of a subpoena of the executive tapes. And time and again they find themselves in the position of putting the stamp of constitutionality upon legislation or conduct which they disapprove on grounds of policy or of morals—as they did, for example, in the fugitive slave cases and in the Japanese relocation cases.
Doubtless the deeply engrained American instinct for putting controversial political and legal conduct to the constitutional test—which means the judicial test—is admirable, certainly it is instructive; it is also dangerous. It is admirable because it bespeaks a respect for the law and a conviction that the Constitution and the law are supreme and that no one, no matter how exalted, is above the law. It is instructive because it provides for the whole American people a continuous learned commentary on constitution and law, and on a great many other things as well: in the clarification of the never-ending problem of the relations of men to government, the United States Supreme Court is the greatest educational institution in history. It is dangerous because, over the years, it has substituted the criteria of legality for those of policy or wisdom; correctly so, for the function of the Court is legal, not moral.
As we tend to assume that an Act or an action which is unconstitutional is bad, and should therefore be rejected, so we conclude that one which some-how satisfies the criteria of constitutionality is good, and should be accepted. This is the position on which Mr. Nixon now takes his stand. He is not prepared to defend in principle such things as taping the conversations of his guests and associates, bombing Cambodia and then lying about it, or using provocative agents to instigate crime; instead he makes a great show of legal rectitude by shifting the whole question to that of his executive immunity to questions or to challenge.
In this sleight-of-hand he has been, so far, successful. He has the whole country talking about his constitutional right to protect the confidentiality of his tapes rather than asking why he made them in the first place; he has the country gravely considering whether his solemn obligation to protect the “national security” permits him to ignore ordinary constitutional limitations rather than asking what a civil war in Cambodia has to do with our national security or, for that matter, what the records of Mr. Ellsberg’s psychiatrist have to do with national security. If the historic controversy over Mr. Nixon’s abuse of executive authority in the foreign or the domestic arena bogs down in a debate over constitutionality it will achieve little except universal exacerbation.
Ultimately there is no warranty for the principle of the supremacy of the law, the integrity of the constitutional fabric, and the successful functioning of the democratic process except the virtue and intelligence of the American people and of those they choose for high office. If these fail us, nothing will succeed.
The question which confronts us now—it is the theme or the major premise of both Senator Javits’s and Emmet Hughes’s books—is whether the constitutional crisis which Presidents Johnson and Nixon have precipitated is a product of irresistible currents of history which cannot be deflected or reversed, or of the fortuitous conjunction of the cold war and the ten-year war in Indochina and of two Presidents given to paranoia and egomania. On the answer to this question will depend in large measure our answer to the fateful query whether we can return to our long tradition of constitutionalism or whether we must resign ourselves to revolutionary changes in our political system.
Hamilton, who wrote the Federalist Papers on Article II of the Constitution, insisted that the most important quality in a President was energy, and he defined energy as the constitutional provision for unity, duration, adequate provisions for support, and competent powers. In this definition, Hamilton’s customary habit of looking at all sides of a question failed him. The definition was circular, and the principle misleading. Energy for what, and to what ends? After all, there was no lack of energy in Frederick the Great or Napoleon; in our own time there has been no lack of energy in Hitler or Stalin. It is because Presidents Johnson and Nixon have indulged their energies irresponsibly and presumptuously that the Presidency is in graver trouble today than ever before in our history, and that the American constitutionality is in trouble too.
The central principle of that constitutional system, as both Madison and James Wilson saw, is not energy but authority moderated by prudence, restrained by law, illuminated by reason, and animated by respect for freedom: in short, the reconciliation of freedom and order. It was to achieve this reconciliation that the Founding Fathers framed a constitution (the first of its kind in history) designed not only to form a more perfect union, but to establish justice, promote the general welfare, and secure the blessings of liberty. That was the end to which individual principles and mechanisms were made to contribute: separation of powers, checks and balances, distribution of governments among nation and states, bills of rights, judicial review. Thanks in large part to Presidents who used energy to ensure a more perfect union and to enlarge the area of freedom, this system of authority controlled by law survived the Civil War and the Great Depression and the Second World War without sacrificing the general welfare or betraying the liberties it was designed to safeguard. Can it survive the present crisis?
As soon as we ask this question we are conscious that it is rooted in disingenuousness and duplicity. For in fact the crises of the cold war and of the wars in Vietnam, Laos, and Cambodia are not remotely like those of slavery and secession, or of the threat from the totalitarian world in 1940. By comparison with these, they are artificial and almost willful. We can see now—what sensible people saw twenty years ago—that China posed no threat to America or to legitimate American interests; certainly we can see now what the other signatories of SEATO saw from the beginning (all were equally bound by that treaty), that Vietnam and Laos posed no threat to the United States or to world peace.
So with most of the crises that have disfigured the history of the Nixon Administration. The crisis of “national security” posed by the publication of the Pentagon Papers was imaginary—no faintest hint of that threat to national security so hysterically invoked has yet emerged. The crisis of student protest and violence which Mr. Nixon recently invoked to justify such things as the Ellsberg break-in and which Mr. Mitchell assumed extenuated the Kent State killings was so artificial that when it died away of inanition the government had to reanimate it by the use of provocative agents. The fiscal crisis which led to the impounding of money voted by the Congress was phony; Mr. Nixon was prepared to spend twice as much new money on military weaponry and gadgetry as he proposed to save on medicine, welfare, and education.
The crisis dramatized by Watergate—that of possible defeat at the polls—was one neither in principle nor in fact but utterly contrived. It is absurd to say that the security of the nation was at stake in a Republican victory at the polls, and after all, Nixon had the election in the bag. There was therefore no excuse even—we might say—on the criminal level for the extortion of millions of dollars in illegal or surreptitious campaign contributions, or for the whole bag of “dirty tricks” indulged in by Mr. Nixon’s friends and associates. And the current crisis of the tapes, too, is something concocted out of fatuousness and guilt; it could have been avoided by refraining from making these indecent recordings in the first place.
Yet to meet these non-crises of his own making, Mr. Nixon created a genuine crisis—one that goes far beyond the fate of his own Presidency and to the very nature of the institution itself. For to defend policies he never should have adopted, to justify misconduct he should have avoided, to claim powers he did not need and which he had no right to exercise, he contumaciously challenged principles of the supremacy of the law, the separation of powers, the probity of our system of justice, and the integrity of the democratic process. This crisis is indeed ominous. Does it call for drastic remedies?
What remedies present themselves? We can persuade ourselves that the breakdown in the Presidency is a product of Mr. Nixon’s malfeasance and try to impeach him and remove him from office. We can conclude that the presidential system, adequate for simpler days, is no longer competent to the problems that confront us, and turn to that parliamentary system which has proved successful and which the majority of the civilized nations of the globe now embrace. We can argue that the failure of the Congress to assert itself is not pathological but fortuitous, and that the mere reassertion of its power over the purse—where all that is needed is backbone—will restore that balance of power which was the original design of the framers. Or we can seek to write into the law or the Constitution additional safe-guards against usurpation of power by Presidents.
It is improbable that impeachment would succeed, and certain that whether it did or not it would further exacerbate rather than heal the deep rifts in our political and social fabric. It is wildly improbable that Americans would trade in a system which has served them well for over a century and a half in exchange for one with which they have no experience, which is ill-adapted to the needs of federalism, and which has worked just as badly for many countries as its worst critics think the presidential system works in America.
A vigorous reassertion of the power of the purse would indeed go far to restore congressional authority and curb executive pretensions, but experience since Tonkin Bay (or perhaps since McKinley’s Boxer expedition of 1900!) demonstrates that in times of foreign or military crisis the Congress is not disposed to call the President to account—or even to inquire too closely into the legitimacy of the crisis. Perhaps the fourth remedy holds out some promise of placing curbs on the executive which, by taking on the sober garb of the familiar and the routine instead of the lurid robes of emergency, might survive executive impetuousness, duplicity, and corruption. Catharsis and reform rather than convulsion and revolution seem indicated.
Senator Javits’s contribution to this ongoing debate, Who Makes War, is a swift, vigorous, and lucid survey of the choreography between President and Congress in the making of war (and of foreign policy) from the beginning of our history to the present. It makes clear that the early Presidents—those who had been schooled in the great revolutionary debates, and who had some experience in state and national politics, scrupulously observed constitutional limitations on presidential war-making. The next generation was not so fastidious, and the aggrandizement of war-making powers can be dated from President Polk’s exploitation of the border dispute between Texas and Mexico to foist a war on both countries—conduct which earned him the cognomen “Polk the Mendacious”; his mendacities seem mild enough now. Senator Javits’s discussion of Lincoln as war President overlooks some important considerations of that unique chapter in presidential history—the distinction, for example, between making or waging a foreign war and putting down a domestic insurrection, or that between responding to an attack on United States soil and carrying war to the territory of other countries.
The modern history of executive usurpation begins with the otherwise mild and innocuous McKinley, who fought one unauthorized war in the Philippines and, without even consulting the Congress, committed 5,000 troops to the rescue of foreign legations in Peking at the time of the Boxer uprising. Wilson’s record was surprisingly irregular for so logical a man: he was high-handed in Mexico and the Caribbean but legally scrupulous in his conduct toward the European belligerents in the great war. Like most of us, Senator Javits is ambivalent about Franklin D. Roosevelt; his latitudinarian use of the war powers was, the senator concedes, necessary if the nation was to survive, but we have paid a high price for it, nevertheless. Mr. Javits is careful to point out that with Roosevelt, as with Lincoln, the crisis which he faced was a real one, that he did not make his more extreme actions the basis for extreme claims of power, and that he always sought, and received, congressional approval for what he did.
The senator’s discussion of recent usurpations of executive power in the cold war, the Korean War, and the wars in Southeast Asia are, in a sense, a prelude for his argument for the Javits-Stennis War Powers Act. That bill, which has already passed the Senate, is now under attack from both the right and the left—if those terms are not misleading. Arthur Schlesinger, one of the most acrimonious and relentless critics of the Johnson-Nixon misuse of the war powers—argues persuasively that the bill would dangerously handicap the President in any genuine emergency but be of little value in staying the hand of a President who wished to contrive an emergency to justify his own ambition or folly. “Had this act been on the statute books, surely it would have prevented Roosevelt from responding to Hitler in the North Atlantic,” he has said, “and would surely not have prevented Johnson from escalating the war in Vietnam.”
This is a criticism whose justice Senator Javits himself acknowledges, without conceding that it is fatal. At the other extreme is Tom Wicker, who regards the war powers bill as simply another invitation to presidential war-making, for what Congress, he asks, would stop a war after just one month of fighting? After all, it took Congress eight years to get around to stopping our part in the least justifiable and most disgraceful war in our history—if indeed we have permanently stopped it.
No legislation can cover all contingencies, just as no statesman can anticipate the future. As Hamilton wrote (in Number 23 of the Federalist Papers), “It is impossible to foresee or define the extent or variety of national exigencies.” This observation holds good, to be sure, of almost all legislation, and if we took its implications literally might paralyze all legislation that looked to the future. The chief value of the war powers bill—if and when passed—is in all likelihood symbolic: it puts the Congress on record against the Johnson-Nixon brand of imperial wars.
Mr. Emmet Hughes, a long-time aficionado of the Presidency, has given us not so much history as a political and moral tract which draws on history, politics, law, and personal experience. It is not a systematic inquiry into the question of presidential powers—the kind of inquiry that Raoul Berger has conducted in so magisterial a manner—but rather, as the subtitle indicates, “a consideration of the resources and dilemmas of the presidential office.” It is informed, intelligent, and acute, sharply critical of recent developments in the Presidency but not unsympathetic to the problems and complexities of that office.
At times, indeed, Mr. Hughes is so overwhelmed by the spectacle of mountains of uncontrollable problems, domestic and foreign, that he is almost ready to admit that the United States is ungovernable and the presidential office impossible; he never goes to quite that extreme. After all, Franklin Roosevelt managed the Presidency during the worst of our economic crises and the greatest and most terrible of our wars, and did this without impairing the constitutional fabric of the nation—or its moral fabric, either. The conclusion must surely be not that the problems are so much more formidable today but that the Presidents are so much less.
For three quarters of a century, now, there has been a steady, though fluctuating, growth of presidential power. This process may continue, and while the Old World finds itself with monarchs who have neither the power nor the trappings of power, we may find ourselves with Presidents who have both beyond other heads of state in the Western world. Or are we perhaps on the verge of a shift in the nature and exercise of presidential power?
If that power depends so largely on war, will the end of our ten-year war in Asia and of the prospect of war among the great powers diminish the opportunity of exercising it? If much of the strength of Kennedy, Johnson, and Nixon came, over the years, from their special role as cold warriors at a time when the country always seemed to be on the verge of nuclear war, will the thawing of the cold war and the growing improbability of nuclear war diminish the presidential role as champion of the “free” world? If domestic issues such as the control of environment, pollution, public health, zero population growth, poverty, urban renewal, and race problems, which demand professional expertise and bureaucratic efficiency, usurp the place of war and foreign affairs in the public mind, will not the center of political gravity shift from Presidents who bestride a world stage, no matter how awkwardly, to efficient managers who can solve unglamorous domestic problems?
If the impact—slower in coming than most of us thought—of Baker v. Carr, and the twenty-sixth amendment, the emergence of blacks as a genuine political force, the disillusionment of organized labor over the mismanagement of the economy, all go to revive an opposition party and bring more independent politicians into the Congress, may we not see that branch reassert its legislative prerogatives, and thus weaken or diminish the role that the President may be expected to play? And finally, may not Watergate, with its sordid revelations of chicanery and blundering, spread such a sense of disillusionment through the body politic that voters will turn wearily from executive to legislative leadership—always assuming, to be sure, that the Congress can provide it? If so, we may be on the verge of a swing away from the full tide of executive power to ebb tide. If this is possible, it is too soon to write obituaries on the presidential system of government.
But to speculate on the future is hazardous: countervailing forces may prevail, and may serve to enhance rather than to contract executive power. There is, after all, no assurance that the detente between the United States and the Soviet Union will be permanent, nor is it clear that the United States has acknowledged the folly of her Asian policies over the past quarter century and permanently abandoned the dream—or nightmare—of becoming an Asian power. Far more threatening in the long run is the upsurge of defiance and resolution among the impoverished nations of the globe—an upsurge whose strength and character was dramatically revealed in the recent meeting of seventy-six nations at the Algiers conference, whose theme was an end to the “pillage” of the globe by the great powers—particularly the United States.
The United States might be strong enough, independently, to resist, both materially and morally, pressure from fifty or sixty of the smaller unaligned nations, but can it resist pressure from the Arab nations which control most of the world’s oil; can it resist India whose friendship it has all but forfeited by its demented policy of “tilting” toward Pakistan; can it resist China if that behemoth throws its support to the underdeveloped nations and peoples of the world?
If the quarter century of cold war between the United States and the communist nations is to be succeeded by a new cold war between the West and the rest of the world, all the considerations that produced the obsession with armaments and secrecy and the concentration of power in the executive will inevitably continue.
Nor is the threat wholly military. What if we continue to lay waste our natural resources of soil, water, timber, coal, and oil, and come more and more to depend on outside contributions? What if our economy, staggering under the insensate demands of the military, the demands of the exploration of outer space, the insatiable demands for an ever-higher standard of living and of growing inefficiency and wastefulness, cannot successfully compete with nations like Japan and Germany, happily emancipated from the demands of the military, or with the European Common Market? Would not an economic crisis of this dimension enhance the executive power much as the crisis of the Great Depression made possible—even inevitable—the enhancement of presidential power under Franklin Roosevelt?
Just as the best and perhaps the only way to curb presidential misuse of the war powers is to end the cold war and avoid violent war, so in the long run the only way to limit the abuse of presidential authority in domestic affairs may be to recognize the great revolution of three-fourths of the human race seeking, in one generation, to pull abreast of the rich and powerful nations of the West, and to join with them, and with the United States, to achieve a more just distribution of wealth and welfare and an end to every kind of colonialism—even the colonialism implicit in our 1,200 military bases and our CIA operating stealthily in sixty-one countries.
It does not require much imagination to see the problems and perils that confront us, or much statesmanship to acknowledge the necessity of a multinational attack on those problems. Alas, this Administration seems more prone to create and welcome crises that appear to require the enlargement of presidential powers than to work out solutions to those crises that might weaken the rationale for the exercise of those powers.
October 18, 1973