CLAY JENKINSON: Future In Context — America’s Constitution: Its Surprising Evolution From 1788 To The 21st Century

In an earlier article, Editor-at-Large Clay Jenkinson described America’s three constitutions: The capital-c Constitution drafted in 1787; and the small-c constitution of norms and traditions not specified in the written Constitution and the ways the American people actually constitute themselves. In this third in a series, Jenkinson suggests that even — or especially — in our norm-busting times, a president’s bully pulpit has grown bigger, stuffed as it is with extra constitutional executive actions.

The capital-c Constitution has been in effect since 1788. It has been amended only 27 times in 234 years, with the Bill of Rights (the first 10 amendments) ratified just three years later, almost as an extension or appendix to the Constitution itself. The great debates from 1788-1860 involved three questions.

Constitutionally Speaking, What Is This?

The first question is whether the Constitution should be interpreted literally, narrowly and strictly, as a national restraining document (Thomas Jefferson’s view), or broadly and flexibly, a “living” constitution (Alexander Hamilton’s view), so that it could come to terms with new opportunities, challenges, technologies and issues. On the whole, and with the significant help of Chief Justice John Marshall, who served between 1801-1835, the Hamiltonians won that debate.

Second, whether the Constitution created a truly national government in which the states were clearly subordinate, or whether sovereign power was to be shared between a national government that did certain enumerated things while state governments handled most public affairs that were not truly national in scope. This was, in effect, the debate over the meaning and scope of the 10th Amendment, which seemed to envision a confederation of sovereign states with a modest, perhaps even minimalist national government. Here, again, thanks to the enormous power and influence of John Marshall, the nationalists won more debates than they lost. The Civil War settled the issue; with the ratification of the 14th Amendment (1868), the national government cast a long and increasingly dark shadow over state sovereignty.

And third, slavery. It didn’t take the 1619 Project to teach us that slavery and race have dominated American public life from the beginning and even when they do not appear to be on the table, they lurk in a distorting and destabilizing way just below the surface. The question was: Does the national government have the authority to regulate or terminate slavery, if not for the whole country, at least in the new territories beyond the Appalachian Mountains? The Civil War began as a debate (war as politics by other means) over the extension of slavery into the trans-Missouri west, and ended, as we all know, with the formal legal end to slavery altogether.

The Aggrandizement of the Executive Branch

Today, virtually everyone accepts broad construction of the Constitution, even if they grumble about it. Nobody declares that the National Science Foundation is unconstitutional, or the National Endowment for the Arts or the CIA. Jefferson loathed the idea that the Supreme Court would decide which laws were constitutional and which not, and the concept of judicial review is nowhere mentioned in the text of the Constitution, but virtually all Americans now accept that the Supreme Court should play this role. They only cry foul when the court decides a case in what they regard as the wrong way. Neither party raises a fuss when the court rules in a way that suits its agenda, but they both complain bitterly when the court upholds laws they consider wrongheaded or strikes down legislation they embrace. “Judicial activism” and “legislating from the bench” are terms invoked usually by individuals, more often conservatives than liberals, who don’t like the way the court has decided the case.

Americans have also largely accepted the steady aggrandizement of the executive branch of the U.S. government. On the whole, presidents from 1788 to 1901 deferred to the legislative branch, some more than others. If you except Abraham Lincoln, who presided firmly over America’s greatest national crisis (1861-65), most of the first 25 presidents were content to be caretakers who made recommendations to Congress and then stepped back to let the primary legislative branch deliberate. It was Theodore Roosevelt (1901-09), an “accidental president,” who was the game changer. When he was lifted into the presidency in September 1901 after the assassination of William McKinley, he looked around at a country of 75 million people in 45 states, including millions of recent immigrants from non-English-speaking countries, and asked himself two questions: What does American need at this juncture, and how can it be accomplished?

Teddy Roosevelt on Congress: It Wouldn’t — or Couldn’t — Do What the Country Needed

Teddy Roosevelt, among eight so-called accidental presidents, was also a game changer and had an out-sized impact on the modernization of the country.

Roosevelt decided that the United States needed to address a number of important issues and he rightly reckoned that Congress (the legislative branch) was not going to be willing or perhaps even able to address those issues in anything like a meaningful way. These issues included the relationship between labor and capitalconservation of our national resources before the entire public domain was skinned for profit; some restraint on giant corporations, monopolies, and trusts; a “square deal” for the little guy who was falling through the cracks of the national economic juggernaut; a stronger navy for a nation that now embraced both the Atlantic and Pacific shores; the need for a canal through the isthmus between North America and South America; a larger role for the United States in the world arena; and protection of recent immigrants from the ruthlessness of the American economy.

To the extent that Congress would cooperate with this agenda, Roosevelt was willing to abide by the spirit of the founders, who feared strong executives and who wanted America’s national affairs to be handled by representatives of the people and states in Congress. But when Congress balked — as when Speaker of the House Joseph Cannon said “not one cent for scenery” — Roosevelt was quite willing to go it alone.

Bookended by Roosevelts, these presidents used the ‘soft law’ of Executive Orders to exercise greater power than the Founders would have thought to be constitutional.

He issued 1,081 Executive Orders (not mentioned in the Constitution), compared to 364 by Bill Clinton, 276 by Barack Obama, and 291 by George W. Bush. Only three presidents have issued more: Woodrow Wilson (1,803), Calvin Coolidge (1,203) and Roosevelt’s fifth cousin Franklin (3,721). Before TR, the largest previous number was 217 Executive Orders issued by Ulysses S. Grant.

“The Constitution was made for the people, not the people for the Constitution.”

— President Theodore Roosevelt, 1913

Roosevelt explained his philosophy of government in his 1913 autobiography:

“My view was that every executive officer … was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin. I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. I did not usurp power, but I did greatly broaden the use of executive power.”

Roosevelt also declared that “the Constitution was made for the people, not the people for the Constitution.” By the force of his charisma, his status as a bona fide war hero and America’s first cowboy president, and by the overwhelmingness of his political personality, Roosevelt so greatly expanded the power of the presidency that it has never returned to its intended constitutional channel, not even when a few of his successors (Calvin Coolidge, Warren Harding, Herbert Hoover) tried to reset the balance somewhat.

The Buffalo Evening News headlines the presidential declaration of a State of War on April 2, 1917.

Toward a Near-Monarchical Presidency

The great war presidents of the 20th century, Woodrow Wilson and Franklin D. Roosevelt, with the additional weight of such Cold War presidents as Eisenhower, Kennedy, Johnson and Nixon, enlarged the powers of the presidency to near-monarchical status. Congress occasionally reasserts itself, as after Watergate and the Iran-Contra Affair, but the presidency has become so powerful that the founders’ intense desire to locate the war powers almost solely in Congress, indeed in the people’s House of Representatives, has essentially broken down in the aftermath of World War II, thanks in part to technologies of nearly instant destruction that James Madison and even Alexander Hamilton would have regarded as magic or alchemy. Constitutional theorists and “small-r“ republicans fret endlessly about the power of modern presidents to start and wage wars largely without congressional approval, but the American people have, on the whole, accepted the shattering of what someone like Jefferson regarded as one of the most sacred principles of a republican polity.

“When a president does it, it means it’s not illegal.”

— Richard M. Nixon, 1977

The presidency has grown so powerful, pervasive and essential to the way we are actually governed in the 21st century (no matter what the pesky Constitution says) that in the George W. Bush administration, serious political theorists and advocates had the audacity to posit a “unitary executive,” in which there is no practical limit to what a president of the United States can legitimately do.

Former President Richard Nixon told interviewer David Frost, “When a president does it, it means it’s not illegal.” Donald Trump was only vulgarizing the emerging principle slightly when he declared, in July 2019, “I have the right to do whatever I want as president.” Article II of the Constitution “gives me all of these rights at a level nobody has ever seen before.” From the vantage point of 38,000 feet, President Trump seems to have been declaring the true state of affairs in today’s America. The Mueller investigation spared President Trump from indictment for obstruction of justice only because, as Mueller explicitly said in his report, the Justice Department had ruled Oct. 16, 2000, that a sitting president must be immune to criminal indictment.

President Trump was twice impeached for abuses of his oath of office, but he was also twice acquitted by the U.S. Senate. Most political theorists believe that even if former President Trump is indicted by the state of New York or the U.S. Justice Department for alleged crimes committed before or even during his one-term presidency, he is very unlikely to be convicted in a court of law. The presidency is that potent. As King Claudius says in Act 4 of “Hamlet” when the hotheaded Laertes threatens to kill him, “Let him go, Gertrude; do not fear our person: There’s such divinity doth hedge a king, That treason can but peep to what it would.”

Maintaining the Myth of Invulnerability

The American people, including the American establishment, have never been willing to break the aura of invulnerability that hedges in a president of the United States. Whether the Justice Department would have indicted Richard Nixon for his crimes had his hand-picked successor Gerald Ford not pardoned him Sept. 8, 1974, is an often-debated question. The Founding Fathers would almost certainly be appalled by the idea of an imperial presidency, or the immunity of a sitting or former president from punishment over provable crimes, but the way we agree to construe the Constitution is more important than what its text seems to signify.

Gerald Ford famously said, “impeachment is whatever Congress says it is.” In some respects, the U.S. Constitution is whatever the American people say it is, irrespective of the original intent of the Founding Fathers. It would be hard to find three issues that the founders cared more about and attempted more strenuously to prevent and preclude than an unrestrained, unaccountable, indeed unimpeachable national executive, the capacity of a president to loose the dogs of war without the unequivocal endorsement of the House of Representatives and the capacity of the national government to print and spend unlimited amounts of money without consequence.

A few decades ago, balancing the budget and preventing a runaway national debt were regarded as so important that the political establishment of both parties agonized over the issue. Balanced budget amendments were seriously debated in the Congress. Men and women ran for Congress pledging to focus their entire energy on reining in the national debt. Today fiscal responsibility has dramatically fewer advocates, and the Republican Party, once the principal spokesman for fiscal responsibility, raises the issue in a pro forma way, if at all.

In the third decade of the 21st century, it would be accurate to conclude that the United States government operates according to a “constitution” that is loosely based on the written Constitution of 1787. Presidents increasingly govern by way of Executive Orders that evoke the idea of monarchy much more than of a constitutional republic. The founders would be aghast and appalled, and yet the American people, particularly those of the party in power, are quite comfortable with the system that has evolved. Congress, meanwhile, seems quite willing to wallow in a miasma of paralysis, inefficiency and naked partisanship, preferring to do nothing rather than to pass bipartisan legislation that might require them to share the public’s gratitude with the other party. A Senate Majority Leader like Mitch McConnell can say without any political cost that he would rather obstruct anything the other party might propose than cooperate and compromise to address the nation’s pressing needs. Congressional paralysis leads presidents (like Barack Obama and more recently Donald Trump) to deliberately exceed their constitutional authority because somebody or something has to fill the vacuum left by prolonged Congressional inaction.

If the American people demanded more of their political system, they would surely get it. Because they don’t, or a majority of them don’t, it may be that the Enlightenment philosopher Joseph de Maistre was right when he said, “people get the government they deserve.”

You can hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, The Thomas Jefferson Hour,” and the new Governing podcast, The Future In Context.”

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