Jeremy D. Bailey
Preface and Chapter 1
The scholarly understanding of presidential power rests on two distinctions. The first distinction concerns the extent of the president's formal powers and the place of the presidency in the constitutional order. The other distinction contrasts the Founders' presidency against the modern presidency by emphasizing the extraconstitutional powers of twentieth-century presidents. The first distinction is often characterized as arising from the differences in the political thought of Alexander Hamilton and Thomas Jefferson, that is, between a generous and a narrow reading of the Constitution's grant of authority to the president. The second distinction supposes that the modern presidency escaped from the constraints imposed by the Founders' careful plan to separate and check power by looking beyond the Founders' Constitution for its resources and became, in some cases, precisely what the Founders tried to prevent. Because recent presidents eagerly exploit the constitutional hinges that allow the presidency to be strong, and because they bolster this strength with extraconstitutional devices, it is easy to conclude that the current presidency is both Hamiltonian and modern. As this scholarly understanding of the presidency puts it, Hamilton's case for implied powers, with its broad reading of the vesting clause in Article One, opened the space for later presidents to claim, as Theodore Roosevelt did, that they possess any power, not forbidden by the Constitution, to act on behalf of the people and for FDR to argue that the presidency needs the institutional resources to secure rights under modern conditions.
But this formulation points to an obvious difficulty: how compatible is the seemingly democratic modern presidency with the Hamiltonian presidency? The modern presidency is both powerful and popular, but the one seems to undermine the other. Because elections have become more democratic, and because the science of polling allows, as Dick Morris taught us, "every day" to be "election day in modern America," a president can be both caretaker and creature of the popular will. Yet presidents increasingly rely on secrecy and administrative fiat to pursue their ambitions. Presidents use executive orders to avoid working with Congress, and, since Watergate, presidents have asserted executive privilege while calling it something else. Among scholars and presidents, the current understanding of the war power is that the president, not Congress, is responsible for determining when the nation is at peace or war. At the same time, presidents appeal to the people to justify their policies and their extraordinary acts of executive power.
Moreover, several scholars have found that the modern and premodern classifications rest on an uneasy theoretical foundation. Harvey Mansfield Jr. has argued that the distinction between the Founders and the moderns fails to appreciate the extent to which the modern presidency grows out of the modern doctrine of constitutionalism, which allows the formal and informal presidency to occupy the same office. And, as Stephen Skowronek has written, the distinction between the Founders' presidency and the modern presidency fails to appreciate the more serious similarities among presidents who face similar political challenges, namely being associated with or opposed to a resilient or vulnerable regime. Twentieth-century presidents have new tools, but does this make them new?
More important, even though modern presidents employ methods in the spirit of the Hamiltonian presidency, they have not wholeheartedly embraced it. FDR, for example, appealed to Hamilton's defense of national power only after discrediting Hamilton's suspicion of democracy. Although Hamilton's reputation as an opponent of democracy is perhaps undeserved, his reasoning in The Federalist No. 70 illustrates the dilemma for modern presidents: where is the president who would argue that if republican government is antithetical to an energetic executive, then it must mean that the republican form, not energy in the executive, must be discarded? Where is the president who will say in public, as TR did in private, that the people's love of Jefferson is a discredit to his country?
The Problem with Inventing the Presidency
More than relics of a lost world, such questions force us to examine the heart of the modern presidency. Today, presidents use their elections to claim a mandate from the people; they claim that the Constitution confers upon them the ultimate power of defending the Constitution and therefore tacitly grants them the power to use any means to do so; they appeal directly to the people to get Congress to pass their proposals and to encourage executive officials to do their bidding; and they carefully cultivate public opinion in order to make these appeals more useful. These aspects of the modern presidency are well known and well studied, but they can be better understood with reference to their institutional origins. The case for mandates presumes a particular kind of presidential selection and would have been incomprehensible under the original Electoral College; the argument for the constitutionality of executive prerogative requires a particular understanding of the relationship between necessity and fundamental law; and appeals to the public had to first be defended as a legitimate, and useful, practice in democratic government. Even a quick reading of the Constitution and its interpretation in The Federalist reveals that none of these developments can be taken for granted. Rather, somebody had to invent them.
But, as scholars affiliated with American Political Development argue, such inventions come about at particular intersections between political and institutional paths. Or, as Karen Orren and Stephen Skowronek put it, instead of searching for "prime movers and master organizing mechanisms," scholars would do well to present "more circumspect specifications of order." Put differently, the functional bias behind the question of who invented a particular institutional reform should be replaced by less normative and more historically subtle investigations of the interaction between established commitments, institutional rules, and new politicswhat Orren and Skowronek call "intercurrence." Consider, for example, the rival explanations of the apportionment scheme in the U.S. Senate. According to one interpretation, equal apportionment reflects the sovereign status of the states. According to another, the apportionment scheme grew out of the primary concern for the size of the Senate, which was paramount because the Senate was meant to be an elite body in the style of the House of Lords. But if Frances E. Lee and Bruce I. Oppenheimer are to be believed, such functional accounts should be replaced by one more attentive to "path dependency." For these scholars, equal apportionment arose because small-state delegates at the Constitutional Convention assembled a coalition that managed to protect equal apportionment by connecting it to past steps in the path: voting rules (which accorded each state one vote) and bicameralism (which presumed that one of the two houses of Congress be small) worked to the advantage of the small states and resulted in the Great Compromise. The same has been said of presidential leadership. Presidents can be agents of institutional change, yet the opportunities for change are confined by historical contingencies and previously traveled paths.
But, as the example of equal apportionment in the Senate suggests, the attractiveness of path dependency is also its danger. It can include rival, functional, interpretations even as it attempts to explain events as "historical contingencies." Could equal apportionment remain a viable option without the previous commitment, held by some would-be advocates of proportionality in apportionment, that the ideal Senate was a small Senate?' At the same time, there is a second functional explanation for equal apportionment: some of Madison's opponents insisted on equal representation because they shared a commitment to state authority, if only because the check on national authority would serve their respective interests.' In other words, equal apportionment in the Senate arose because the small states, with voting rules that were advantageous to their interests, exploited particular functional theories about what a senate should be.
All this is to say that the third president provides an important case study for those who study institutional development. More than any other presidentwith the possible exceptions of Madison and WilsonJefferson was a lifelong student of political change, and, with Madison, he was the founder of the nation's first opposition party. Consequently, Jefferson had to preside over a government that had undergone its first change of power, but the nature of that change was altered by how Jefferson wanted it to take place. Not a Framer of the Constitution of 1787, Jefferson had his own ideas about how to reconcile political change with constitutionalism. Consider, for example, his continued fascination with tern limits: with the first transfer of power, Jefferson reconstructed the timing of the constitutional order itself by connecting presidential elections to constitutional transformation. Put differently, Jefferson reordered political time.
The Revolution of 1800 was thus a moment of opportunity, but, more than others, it had its limits because Jefferson's own project was confined by his attentiveness to his own place within it. With the exception of Washington, Jefferson was more aware than any other president of the importance of precedent, so his institutional transformations were almost always accompanied by an explanation. But, ever the revolutionary, he was famously enthusiastic about reform and suspicious of broad interpretations of the government's authority, so he attempted to combine electoral and institutional change with a strict construction of the law. A lifelong politician, however, he was forced to make compromises and seek alternative paths. Always subject to contingency, his political world required strategic choices, yet his writings and actions reveal a politician trying to find a theory of executive power that would be acceptable to republican theory and would not be undone by the events lawful republicans could not anticipate. Throughout his writing, then, runs the tension between a politician always conscious of the potential effect of his words and a theorist who wanted above all else to present coherence to future readers. Ideas and paths converged, partly because Jefferson had forged those paths.
"The execution of laws is more important than the making of them"
Reconciling Executive Power with Democracy
Your Administration, will be quoted by Philosophers, as a model, of profound Wisdom; by Politicians, as weak, superficial, and short-sighted.
John Adams to Thomas Jefferson, 3 July 1813
Mr. Jefferson appears to me to be a man who will embody himself with the house of representatives. By weakening the office of President he will increase his personal power.
John Marshall to Alexander Hamilton, 1 January 1801
But it is not true as is alleged that he [Jefferson] is an enemy to the power of the Executive, or that he is for confounding all the powers in the House of Rs. It is a fact which I have frequently mentioned that while we were in the administration together he was generally for a large construction of the Executive authority, & not backward to act upon it in cases which coincided with his views.
Alexander Hamilton to James Bayard, 16 January 1801
Historians and philosophers have written countless studies of Jefferson's life and ideas, but few have examined Jefferson's understanding of executive power. So, too, with political scientists: in the issue of Presidential Studies Quarterly marking the bicentennial of the United States Constitution, scholars reexamined the presidency as understood by George Washington, James Madison, John Adams, Alexander Hamilton, James Wilson, and Gouverneur Morrisbut not Jefferson. There is a reason for this omission. Jefferson has been remembered by admirers and critics alike as preferring a weak executive, and partisans of feebleness do not make good subjects for studies of the presidency.
To the extent that scholars have examined Jefferson and the presidency, there is a consensus that he was in principle an enemy of executive power. According to this account, Jefferson had advocated a weak executive before he became president, and although he embraced executive power after he won the presidency, he did so unwillingly. Furthermore, his confession to Madison that he was not a "friend" to "energetic government," like his First Inaugural's description of good government as "frugal," was consistent with his summary of the difference between Federalists and Republicans as the "shade of more or less power to be given to the Executive or Legislative organ." After all, he did not even include his two terms as president when prescribing the inscription for his own tombstone.
The father of this scholarly consensus, of course, is Henry Adams. After documenting Jefferson's use of powerthe Louisiana Purchase, the impeachments of Federalist judges, the arrest and trial of Aaron Burr, and the EmbargoAdams concluded if the difference between Jefferson and his opponents was the amount of power given to the executive it "was hard to see how any President could be more Federalist than Jefferson himself." Since Adams's monumental work, scholars have followed Adams in charging Jefferson with constitutional inconsistencies as well as finding in Jefferson a lesson about the triumph of practice over principle. Under this formulation, Jefferson the president yielded to temptation, proving that the Jeffersonian presidency was impossible.
To be sure, as the quotations by John Adams and John Marshall at the beginning of this chapter show, the consensus on Jefferson and the presidency can accommodate different approaches. Some have followed John Adams to argue that Jefferson's philosophy of opposition bound the exercise of power and made execution of the laws under his administration impossible. Others, however, have marveled at Jefferson's party leadership by considering Jefferson's skill at the political art of persuasion, and as a result have confounded John Adams's prediction that future politicians would find Jefferson's methods shortsighted. Others have emphasized Jefferson's reforms of the presidency to confirm John Marshall's prediction that Jefferson would bring about a shrinking of the office: Jefferson's abolition of presidential levees, conspicuously republican attire, delivery of presidential addresses to Congress in writing rather than in person, and advocacy of the two-term limit confirm Jefferson's suspicion of energy and foreshadow presidential decline under later Jeffersonian presidents.
Only a few scholars have challenged the traditional account. Ralph Ketcham, for instance, wrote that the Jefferson as flexible or hypocritical thesis misunderstands Jefferson's activities as opposition leader: "In that position he had continued to accept both radical Whig scorn for imperial government and the idea of the patriot king, and he sought earnestly to find a mode of republican leadership retaining the values of each." So, according to Ketcham, "the real essence of Jefferson's disagreement with the Federalist presidents" was not that Jefferson sought to "to make the office of the president less powerful" but, rather, that "Jefferson sought to make it more popular." Similarly, David N. Mayer warns that the dichotomy between a "strong" and a "weak" presidency fails to appreciate Jefferson's concern for constitutional propriety: "Where the Constitution assigned powers exclusively to the president, Jefferson vigorously exercised them; where powers were assigned to or shared with other branches, however, Jefferson preached and exercised restraint." And, in an important article, Gary Schmitt found that Jefferson did not object to the use of "potentially expansive executive authority" even if he did have qualms about formalizing such power.
If the scholarly minority is correct, then the consensus on Jefferson and the presidency is terribly wrong. If Jefferson was, as Hamilton reported, for a strong executive in the early 1790s, that is, if Jefferson eagerly embraced presidential power rather than being forced to it, then the traditional account has explained Jefferson's presidency in terms of a contradiction that need not exist. We are forced, then, to ask whether the events of Jefferson's administrations can be better understood by asking whether Jefferson brought to the office a particular understanding of presidential power. Stepping from the shadow of Henry Adams, we can examine Jefferson's view of presidential power as Jefferson presented it and with a proper understanding of political time. It is significant, after all, that Hamilton said he preferred Jefferson over Burr because Burr lacked a "theory."
Two recent bicentennials illustrate the point. The Louisiana Purchase and the Twelfth Amendment, ratified in 1803 and 1804, reconfigured the geographical and political shape of the Union. The first, of course, doubled the size of the country and lessened the likelihood that the European powers would one day be meddlesome neighbors. The second corrected a flaw in presidential selection by requiring members of the Electoral College to "designate" whom they meant to elect as president and as vice president, thus lessening the possibility of an embarrassing stalemate in the House of Representatives. Each was a step in national development: the Purchase, as Abraham Lincoln said, settled the question of acquisition of territory, and the Twelfth Amendment, as John C. Calhoun noted, made it more likely that presidents would represent a national majority. Each violated the Jeffersonian creed by lessening the authority of the individual states: the addition of new territory diluted the power of the existing states, just as the reform of the Electoral College made it less likely that state delegations in the House would choose the president. And each event can be interpreted according to the scholarly consensus. In the case of the Louisiana Purchase, Jefferson doubted its constitutionality and even drafted an amendment giving the government requisite authority yet remained silent with his doubts when the fate of the treaty, what he must have known would be his biggest accomplishment as president, was insecure. So, too, with the Twelfth Amendment: because the amendment guaranteed his own reelection, he could overlook the tension with states' rights. In each case, the opportunity was more important than the principle.
But questions remain. If expediency triumphs over constitutional scruple, why not simply proclaim that the Louisiana Purchase was constitutional? More perplexing, if the purchase of Louisiana made the United States saferand Jefferson believed it didwhy not assert its constitutionality on those grounds? And what was so pressing about the Twelfth Amendment? Was there any likelihood that Republicans would repeat their miscalculation of 1800, when they gave Jefferson and Burr the same number of electoral votes? Did it matter that Congress debated each at the same time? Was Jefferson paying attention to, even organizing, party strategy? Did Jefferson and his party choose one amendment over the other? Just as we do not yet understand the administration of the third president, we do not yet know all that there is to know about two important events in our political history.
1800 as Revolution in Executive Power
It is well known that Jefferson described his election as a revolution, and that this revolution resulted in the party system, but a recent book is the first to argue that the 1800 brought about a revolution in the presidency. According to Bruce Ackerman, the electoral deadlock between Jefferson and Aaron Burr helped transform the partisan question of who would be president into a larger question about the place of the presidency in the political system. When Republicans argued that more people intended their votes to make Jefferson president, Federalists pointed out that the Constitution provided no such way to gauge such intent. That is, because of the "mistake" of the Framers, the Constitution was ill-equipped for the Republican claim that more people wanted Jefferson to be president than Burr, and it had to be modified to accommodate Jefferson's victory. The election of 1800 could have been resolved differently, with Jefferson presiding over the Constitutional Convention of 1802, but, because of a few fortunate events, the Constitution of 1787 was preserved, but only in name. In place of a congress of elites, the informal Constitution of 1800 placed popular presidents as leaders of the democratic system. For Ackerman, then, the election in the House was more than a crisis in terms of who would rule, for it was really a constitutional moment that decided whether the presidency should represent the people or whether a technical reading of the law could resolve the crisis without recourse to public opinion. Put differently, Federalists and Republicans pursued the paths that would lead to their own success, but Jefferson's accidental victory transformed the constitutional presidency into the democratic presidency.
Ackerman is right to notice that the debate over the resolution of 1800 changed the way that Americans thought of the presidency, but what he fails to consider is how prepared Jefferson was to exploit this twist of fortune. Although Ackerman masterfully shows that the different strategies of Federalists and Republicans reflected different notions of authority, he does not really say whether Jefferson or others considered the mandate theory of the presidency before 1800. Put differently, he leaves it to the reader to assume that the mandate theory of the presidency was latent in the Republican opposition until the botched election of 1800 forced Republicans to make their partisan case for control of the presidency.
The truth is that by the time Jefferson sought the presidency, he had already devoted much of his efforts to thinking about executive power and constitutionalism. As constitutional reformer, wartime governor of Virginia, delegate to Congress under the Articles of Confederation, ambassador to France, Secretary of State, and opposition leader, Jefferson had devoted over two decades to reconciling the theoretical requirements of constitutional democracy with the practical realities of political life. Because Jefferson was convinced that democratic government required a strong chief executive, he focused his efforts not only on preventing what he believed to be Hamilton's monarchical designs but also on strengthening the presidential office. Consequently, his "Revolution of 1800" was a victory for the democratic principle and for a particular doctrine of presidential strength. By bringing his doctrine of presidential power to the presidency in 1800, he meant to connect the presidency to its democratic origins. But this plan for the democratic executive has not received the attention it deserves. Although we know the twists and turns of the election of 1800, and though we know that Jefferson called it a revolution, we do not fully understand why Jefferson believed it was a revolution.
In this regard, Bruce Ackerman is right to argue that the Revolution of 1800 was part and parcel of the actual American Founding, but his account of 1802 is flawed because it, like the traditional scholarly account of Jefferson, misunderstands Jefferson's project. The Revolution of 1800 was more than a dangerous-yet-fortunate convergence of partisan politicians who had not yet embraced parties and a Constitution that had ignored parties, because the figurehead of that Revolution had a plan for the presidency. This is not to insist that Jefferson was "consistent," for the simultaneity of the Louisiana Purchase and the Twelfth Amendment forced Jefferson to choose opportunity over consistency. But it is to say that the fullness of this choice has been obscured by generations of scholars who presume that Jefferson wanted a weak presidency. By assuming that Jefferson wanted a presidency other than the one he created, scholars have failed to appreciate Jefferson what attempted to accomplish as politician and lawgiver. Because we do not yet know why Jefferson wanted to be president, it is time that we get around Henry Adams by revisiting Jefferson's understanding of executive power.
Alexander Hamilton and Energy in the Executive
Before we turn to Jefferson's understanding of executive power, we should consider Alexander Hamilton's defense of executive energy in The Federalist. After a careful buildup, in which the presidency had been only delicately introduced, Hamilton addressed the "idea" that "a vigorous Executive is inconsistent with the genius of republican government." Hamilton because of confusion arising from twentieth-century scholarship about the republican origins of the Constitution, democratic conveys the point more clearly today. Because I rely on Jefferson's words, however, I sometimes use republican. I do not mean to draw a distinction between the two or between those terms and another, popular. admonished the "enlightened well-wishers" of republican government that they should hope that an energetic executive was consistent with republican government, as "Energy in the Executive is a leading character in the definition of good government." According to Hamilton, an energetic executive was essential to good government in times of emergency as well as during the daily routine of governance. In the first case, energy was necessary to guard "the community against foreign attacks" and to protect property against "irregular and high-handed combinations which sometimes interrupt the ordinary course of justice." Hamilton's illustration on this point did not pull punches: the fact that the Roman republic was often "obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator," to be saved from internal intrigue or external dangers, proved that executive energy was essential to Rome's very survival. But however necessary executive energy is during times of emergency it is also essential for a "steady administration of the laws." Here, Hamilton's argument was straightforward: even during the quiet routine of peace the effective execution of the laws was preferable to ineffective execution. The simplicity of the argument was meant to convince republicans that their preferred form of government would have to be conducive to energy if it was to be a good government. "There can be no need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble Execution of the government. A feeble execution is but. another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government." Having forced republicans to choose between their theories and their interest, Hamilton went on to list the ingredients of energy: unity, duration, fixed salary, and competent powers. In the formulation of Madison's No. 51, in which "the interest of the man has to be connected with the constitutional rights of the place," the first three might be considered as giving the president the "will" to use the fourth, that is, the powers he would need to execute the office. One of those three, a fixed salary, is straightforwardin order to for the president to have its own will it could not be dependent on another department of government for his paybut the other two deserve more attention.
Hamilton's first two ingredients of energy are unity of office and duration. Unity, as opposed to plurality, offers the president the chance to act with "decision, activity, secrecy, and dispatch," as there will not be co-presidents or an executive council to leak information or aid the opposition when they disagree with a policy. Duration in office is linked to the principle that "a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it." Simply put, an adequate time in office with the possibility of reelection was necessary in order to attract and retain men of ability as well as provide presidents the space to carry out "extensive and arduous enterprises for the public benefit" and "dare" to act their "own opinion." Separately, they embolden the executive to move beyond the "negative merit of not doing harm" and aspire to "the positive merit of doing good." Together, they point to accountability and ensure that executive energy remain republican.
As the following chapters argue, Jefferson's understanding of executive power came to include the ingredients listed by Hamilton. With Hamilton, Jefferson came to believe that the executive branch could be unified, and therefore energized, by removing the executive council, and Jefferson was among the first to argue for providing the executive with a fixed salary. With regard to duration, Jefferson did not believe that a sitting president should be eligible for reelection, but his case for a term limit presumed that a term limit would strengthen, not enfeeble, the presidential office. And although Jefferson would later disagree with Hamilton concerning the powers of the president, he added the removal power to Hamilton's list of powers needed by the president: to connect the formal powers of the Constitution to his role as agent of the people, Jefferson placed the hitherto unsettled removal power under the president's command by attaching it to public opinion. This is not to say that Jefferson was "Hamiltonian," for Jefferson was suspicious of Hamilton's attempt to empower the executive branch, but it is to point out how striking it is that, once the Constitution was set in place, Jefferson attempted to make the president, not Congress, the leading agent of democratic change.
The central objective of this book, then, is to present Jefferson's under-standing of executive power, which consisted of three principles. First, the president unifies the will of the nation and thereby embodies it. The source of the president's claim to embody the will of the nation is his mode of election; because the president is the single nationally elected officer, the president can claim, more than members of Congress, to represent the national will.
Because the president must be able to execute that will, it must be surprisingly strong, or energetic. Second, because a constitution can never be adequate for the opportunities and emergencies that will arise, and because the executive is caretaker of the public good, the executive must sometimes act outside the law, or even against it, on behalf of the public good. But the condition for such discretionary action is that the executive "throw himself" on the people for judgment, and, in order to make that judgment as accessible as possible, the executive must avoid broad constructions of the Constitution. Third, in order to provide a standard by which the people can judge executive action, the executive provides "declarations of principle." Such declarations allow for political change but also preserve constitutional limitations on power by enabling the people to judge executive discretion. Because this book presents this understanding as it unfolded over time, the remainder of this chapter will lay out these three components of Jefferson's theory of democratic energy.
Executive Unity and Public Opinion
Before he became president, and more than any of his contemporaries, Jefferson spent considerable effort thinking about the connection between public opinion and constitutional change. On some occasions, Jefferson went so far as to suggest that constitutions and forms of government were less important than the majority will. But, on others, he allowed that the public could be wrong. On the simplest level, he admitted that his "fellow citizens" could be "hood-winked" by "extraordinary combination of circumstances" or by partisan maneuvering, and he characterized the Federalist period as a "storm" of "delusion" More important, he also believed that it was difficult for most people to rise above the horizon of their early education: "I have great confidence in the common sense of mankind in general: but it requires a great deal to get the better of notions which our tutors have instilled into our minds while incapable of questioning them; & to rise superior to antipathies strongly rooted." Accordingly, after he retired from public life, Jefferson founded the University of Virginia, partly because he disapproved of the curriculum at William and Mary. Although he believed that the will of the majority would suffer "honest, solitary and short lived" errors, he did acknowledge that it would "sometimes err." It is therefore important to remember that Jefferson spent much of his life studying, drafting, commenting on, and proposing constitutions. In the Notes on the State of Virginia, Jefferson criticized the Virginia Constitution on the grounds that "the ordinary legislature may alter the constitution itself" and recommended that a new constitution be written to include a provision for an amendment process through constitutional convention. Similarly, Jefferson's famous advocacy for a strict construction of the Constitution suggested he believed that constitutions were required to make public opinion discernible.
But there were requirements for constitutions, too, and the executive power occupied a central place in Jefferson's constitutionalism. In July 1789, for example, Jefferson described the U.S. Constitution as organizing the legislative, executive, and judicial departments of government around the standard of popular government. "We think in America that it is necessary to introduce the people into every department of government as far as they are capable of exercising it; and that this is the only way to ensure a long-continued & honest administration of it's powers." In the judicial branch, for example, the people may not be able to judge law, but they can judge fact and therefore serve on juries. Similarly, although the people are "not qualified to exercise themselves the EXECUTIVE department," they "are qualified to name the person who shall exercise it." After laying out the popular principle in the American system, Jefferson added a hypothetical: "Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative." Jefferson's choosing to leave the people out of the legislative branch rather than the others reflected his fear that Congress would dominate the president and judges, but it also grew out of his discovery of the relationship between the executive branch and popular rule: "The execution of laws is more important than the making of them."
As the following chapters will argue, Jefferson was an early advocate of unity in the executive because he found that a plural executive blurred accountability. For now, consider his extension of the principle to his observations of French politics and France's plural executive. Although he was a lover of France and a partisan of its Revolution, he criticized the Jacobins for domineering "over their executive so as [to] render it unequal to it's proper objects." In 1796, he wrote, "I fear the oligarchical executive of the French will not do, since a "small council" necessarily gets into "cabals and quarrels, the more bitter and relentless the fewer they are." As Jefferson put it, the French should have learned from the American experience under the Articles of Confederation, and the remedy for the inconveniences of a small council was a single executive, not a larger council: "We saw this in our committee of the states; and that they were from their bad passions, incapable of doing the business of their country. I think that for the prompt, clear and consistent action so necessary in an Executive, unity of person is necessary as with us." Then, and later, Jefferson cast the American and French republics as "experiments" on the question of unity or plurality. In 1800, he predicted that Napoleon would see it in his interest to advocate a "single executive, limited in time and power" and therefore unite all the parties in France and conclude forever the republican experiment of a plural executive. Furthermore, Napoleon could neither keep the plural executive directory, because "perpetual broils & factions" resulted in a "standing division" of three against two, nor could he "declar[e] for royalty," as he would be assassinated by "a Brutus." Napoleon's ambition, then, would lead the French to "think the experiment decided in favor of our form." After he retired from the presidency, Jefferson wrote to a pamphleteer that the "untimely fate" of the French Directory "cut short the experiment," but whether or not the internal dissensions of the Directory were the cause of its overthrow, he continued to suspect that the dissensions were "incident to a plurality."
In 1811, Jefferson continued his campaign against the plural executive when wrote Destutt de Tracy to praise his critical commentary of Montesquieu's Spirit of the Laws. Jefferson argued that Tracy had at least one problem in his work, that is, that the doctrine of a plural executive would "probably not be assented to here," because American experience in 1784 and the simultaneous experiment in France proved to "the wise" that a plural executive was "impracticable with men constituted with the ordinary passions." Furthermore, the American experiment had demonstrated that a unitary executive corrected a defect inherent in republican government: "The tranquil and steady tenor of our single executive, during a course of twenty two years of the most tempestuous times the history of the world has ever presented, gives a rational hope that this important problem is at length solved." The problem was that republican government hitherto lacked the unity of action of a monarchy, but the invention of the president would make republican government at least as effective as a monarchy, since the president "produces unity of action in all the branches of the government." By unifying democratic wills under a single-minded administration, the presidential system could enjoy one benefit of monarchy.
But unity was not enough. To ensure that representative government within the extended republic remained true to its democratic origins, Jefferson continued to advocate frequent elections. "Governments are more or less republican as they have more or less of the element of popular election and control in their composition." And, "Governments are more are less republican in the proportion as this principle enters more or less into their composition": "action by the citizens in person, in affairs within their reach and competence, and in all others by representatives" is the "essence of a republic." The will of the nation is the foundation for legitimate government. By submitting to the will of the majority, rather than to the one or the few, government is made "rational" in the sense that the errors of the majority will be more "honest, solitary and short-lived" than the errors of the one or the few. Serving as a "rational and peaceable instrument of reform," elections replace the "sword" as the method by which a nation can "declare" its "will."
But the relationship between public opinion and the president also moves in the other direction. The primary source of the president's unique relationship to the majority will is the national election, which, in Jefferson's hands, became an occasion for the president to summarize and direct the majority will in an inaugural address. Two days after his First Inaugural, Jefferson wrote John Dickinson that he hoped the American government would "be a standing monument" for other countries to imitate, that the Americans would prove "free government" to be the "most energetic" and would therefore "ameliorate the condition" of people everywhere. But his First Inaugural would serve as another kind of monument: because the Election of 1800 marked the return of a previously "hood-winked" people to their "principles," the Inaugural would serve to remind other would-be leaders that the people can be taught "to see for themselves." To one such reformer, Jefferson spoke of the relationship between the leadership and the majority will in nautical terms: "The storm we have passed through proves our vessel indestructible," and "A few hardy spirits stood firm to their posts, and the ship has breasted the storm. "44 Reflection suggests that the veracity of the first statement rests on the reliability of the second.
The electoral procedures of representative government alone, then, would not satisfy the larger condition that democratic government take its bearings from the will of the nation, because, the majority will has to be carried out. As he wrote in 1816, the "mother principle" of republican government was, for Jefferson, that "governments are republican only in proportion as they embody the will of their people, and execute it." At the simplest level, the execution of laws is more important than the making of laws because execution puts to action what would otherwise remain purely theoretical. Like the extension of the republic beyond the direct democracy of a New England township, the execution of laws requires conforming the people's desires, as expressed in laws written by their representatives, to the requirements of political life. More than a craving for popular approval, the appeal to public opinion makes democratic politics executable: "The approving voice of our fellow citizens, for endeavors to be useful, is the greatest of all earthly rewards." Like a constitution that takes into consideration the people it governs, the executive reconciles theory with practice: "What is practicable must often controul what is pure theory: and the habits of the governed determine in a great degree what is practicable."
In the extended republic, that what is practicable comes from what is just depends on executive leadership. In the debate between Madison and Jefferson over the need for a bill of rights, Madison argued that the extended republic, and the multiplicity of interests it would include, would ensure that minority rights not be trampled by the majority. Later, to Madison's famous argument that a large republic would divide and conquer majority faction, Jefferson added that the president alone can see the "whole ground," that is, the president can uniquely claim to represent a national majority, and, perhaps, with the resources of the executive branch, that the president is uniquely able to distill the public good from the pool of interests. Madison's solution, under Jefferson's reformulation, provides the very foundation for great achievement or emergency require extraordinary actions, the president must be willing to transgress, albeit temporarily, the will of the nation as expressed in the laws. Just as he tacitly conceded to Madison regarding the privileges of habeas corpus, Jefferson understood that it was the executive's duty to meet occasions dealt by necessity even if it required acting in the absence of legal authority or, in some cases, departing from the law.
Jefferson alluded to the tension between executive energy and popular government in his First Inaugural. There, Jefferson disputed the assumption that a republican government lacked the "energy to preserve itself" by boasting that the American government was the "strongest on earth" because each citizen would voluntarily "fly to the standard of law, and would meet invasions of the public order as his own personal concern." But later in that speech, Jefferson asserted that the president, not the citizens, would be the best guide during times of conflict (even though others in government might say otherwise) because, as president, he was uniquely able to see the whole ground. Although Jefferson used the word "prerogative" most often to condemn it, his writings and actions reveal that he was not opposed to its use.
To a large extent, Jefferson relied on the classic formulation of prerogative given by John Locke. In his Second Treatise, Locke defined prerogative as the power to act in the silence of law, and sometimes against the law, for the public good. Because the legislature is, by virtue of its organization, inadequate to practice the prerogativein "some Governments," the "Law-making Power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to Execution"the prerogative power properly rested with the executive power. The executive, then, is the more appropriate power to hold the prerogative partly because the executive power would be unified under a single person and would be "always in being."
Locke cast his definition of prerogative in terms of the law and thus raised a question about the relationship of prerogative and the law. Should the law include express provisions for prerogative, or should the law be silent with regard to prerogative? In Locke's account, prerogative arises because of institutional convenience (the legislative branch cannot be assembled indefinitely) but also because of the fundamental imperfection of the law (things are always in flux). Rephrasing the question, then, how does the law best constrain what it cannot predict and contain? Does the U.S. Constitution include the prerogative power? If not, should it?
Among modern scholars, there are several understandings regarding the U.S. Constitution and the prerogative power. Each understanding agrees that laws are imperfect with regard to the future and must therefore be pushed aside if required to preserve the nation. Furthermore, each concedes that the president, by virtue of his unity of office and duration, is the most convenient as well as the safest repository for emergency powers. The understandings differ on whether the Constitution acknowledges and grants these powers. One understanding argues that Article II's vesting clause, the commander in chief provision, and the oath of office provide the president with the constitutional, that is, the legal, foundation for using the prerogative. According to this constitutional understanding, the Framers constitutionalized necessity by placing prerogative inside the Constitution. Another understanding asserts that the Constitution is silent concerning the prerogative. Under this extraconstitutional understanding, the prerogative power is outside the Constitution, so its occasional exercise, although illegal, must be controlled by politics rather than the Constitution. Because the Constitution is silent concerning the prerogative, it must be pushed aside, albeit temporarily, during times of necessity. Whereas the first understanding finds the latitude for executive discretion within the constitutional framework, this understanding locates executive discretion outside the Constitution. There is yet another scholarly approach that combines the two. Rather than assessing prerogative purely in constitutional, or legal, terms, this understanding holds that prerogative is left to institutional conflict under constitutional design. Under this view, judging prerogative involves debate about premises: Was there an emergency? Was there a grant of authority (or was such authority forbidden) by Congress? Do the "attitudes and opinions of the American community" support the action? Because presidential action becomes prerogative only when the other two branches say so, this understanding holds both a constitutional prerogative, in that the rival ambitions of officeholders in the three departments constrict prerogative, and an extraconstitutional prerogative, in that determining whether discretion is in the public good is a matter of politics simply.
As scholars have noticed, the problem of the constitutionality of prerogative reveals an important difference between Jefferson's and Hamilton's attempts to reconcile executive power with republican rule. As Hamilton's contempt for republican well-wishers suggests, Hamilton believed that the Constitutionalthough perhaps not the ordinary lawhad to be sufficient for any contingency or else the contingencies would prove that constitutions were irrelevant for actual politics. Jefferson held a different understanding of executive prerogative. For Jefferson, Hamilton's defense of prerogative, like Hamilton's assertion of implied powers, undermined the key principle of constitutionalism, consent. Rather than finding the source of the prerogative power in a particular clause in the Constitution (such as the oath of office, the commander-in-chief provision, or the vesting clause), Jefferson believed that the Constitution is silent with respect to presidential prerogative.' Instead of muting these departures from the law with constitutional argument, Jefferson's understanding submits acts of presidential discretion to popular judgment. By placing the prerogative power outside the Constitution, Jefferson meant to reconcile the future trajectory of the will of the nation with its constitutional origins by way of the doctrine of strict construction. Because the condition for executive discretion was that the executive later "throw himself" on the people for their approval or censure, Jefferson's use say with justice that it is his duty, by virtue of his mode of election, to execute the will of the people. Rather than giving the executive the prerogative power on the grounds that the executive was uniquely attached to the people, Locke emphasized the difference between the legislative and executive powers by noting the representative function of the legislature: the legislative power could not always be "in being" because it would come to hold a "distinct interest" from the rest of the community. Jefferson, however, emphasized the public and popular basis for executive prerogative: because the president can unify and direct public opinion toward national objects, the president's role as caretaker of the national will requires that he sometimes act against the law for the public good. Jefferson's "constant agency" democratized Locke's "always in being."
Within this advocacy lies the expansion of presidential prerogative. More than the president's last resort of self-preservation, the democratized prerogative can be used to effect a positive public good in addition to preventing a negative harm. In his First Inaugural, Jefferson spoke of "great occasions," and throughout his presidency he stated that citizens would sometimes have to protect the law by acting outside of it. Jefferson himself had acted against the letter of the Virginia Constitution during his tenure as governor, as did countless officers who impressed horses, confiscated boats, conscripted citizens, and destroyed private property in order to resist the British. As president, Jefferson exercised powers previously nonexistent in the Constitution when he purchased and incorporated the Louisiana territory, just as Robert Livingston and James Monroe went outside their official instructions when they brokered the deal for the entirety of Louisiana. Although Jefferson never explained this doctrine with regard to the Louisiana Purchase, he said his refusal to assert the constitutionality of the Purchase was designed to "set an example" against a broad construction of the Constitution. Moreover, he asserted his doctrine throughout the rest of his administration, used his "Special Messages" to Congress to defend acts of executive discretion by others, and explained his understanding of the prerogative power in private and public letters.
Consider the Election of 1800. Ackerman notes that Republican solutions to the deadlock were mostly extraconstitutional while Federalist solutions included expansive readings of the Constitution. Madison, for instance, proposed that Jefferson and Burr issue a joint proclamation convening Congress (as this "prerogative" "must reside in one or the other of them") and have the newly elected House choose between the two. As he put it, the "crisis" required the extraordinary solution: "The intentions of the people would undoubtedly be pursued. And if, in reference to the Const[itutio]n: the proceedings be not strictly regular, the irregularity will be less in form than any other adequate to the emergency; and it will lie in form only rather than substance; whereas the other remedies proposed are substantial violations of the will of the people, of the scope of the Constitution, and of the public order and interest." Although Jefferson never issued such a proclamation, he, too, let himself be associated with extraconstitutional solutions. He told President Adams that "resistance by force" would be the likely Republican answer if the Senate attempted to name an interim president, he let others believe that he wanted a new convention to resolve the election, and he wrote Lafayette that the "details" of 1800 "cannot be put on paper." Such solutions were surely the desperate acts of partisans creating multiple paths to office, and they call into question Jefferson's attachment to the Constitution. But they also parallel Jefferson's belief that, during extraordinary occasions, it is better to go outside the law than to expand it by interpretation. The method was intertwined with the principle: with an appeal to the people, the Constitution could be saved by finding an extraconstitutional remedy for its deficiencies.
By examining Jefferson's understanding of prerogative, then, we can more seriously appreciate his project to transform executive power. Jefferson's assertion of executive prerogative was more than a defense of the principle that the executive must preserve the government against destruction, for it grew out of his belief that the executive was the representative of the popular will. Accordingly, Jefferson was the first to argue that the president, as the embodiment of what the people say every four years, lays out the whole ground as he sees it. Because Jefferson's solution to the problem of necessity does not include a doctrine of implied powers (indeed, it was formulated to counter it), and because it allows for prerogative to be used during times other than self-preservation, Jefferson's conception of presidential prerogative is remarkably different from the alternative understanding of presidential power. By expanding the prerogative power, Jefferson also meant to limit it.
Declarations of Principle
But the requirement that executives throw themselves on the people only raises more questions. If the law is silent with respect to prerogative, and if the executive is not to use the law to justify his actions, by what standard is the executive to be judged? Will the people be overscrupulous in using the law to discourage executives to act on their behalf, thus ushering in the feebleness mocked by Hamilton. Or will they, as Locke feared, not be watchful enough, even being blinded by a "God like prince" who used prerogative for the public good, and fail to notice when future executives use prerogative against the public good? Because of such questions, Jefferson's solution to the dilemma of prerogative and the law involved more than a strict construction of the Constitution. Specifically, Jefferson's institutional solution to the problem of executive power, and his larger departure from Hamilton, was political education.
Jefferson's understanding of executive power included faith in declarations of principle. To ensure that the president possesses enough energy to secure liberty but does not use his prerogative to tread too far on that liberty, the president enshrines rights in "declarations." By pointing executive energy to the principles underlying the law, these declarations afford the president leverage to carry out the purpose of the law when the limitations of the law would otherwise prevent its execution. Furthermore, by defining the principles by which presidents administer their government, declarations provide the standard by which the intent of presidential discretion can be judged. Consequently, these declarations energize the presidency by gathering public opinion around the president. Serving as a text by which power can be judged and as a platform around which a majority can be gathered, the declaration of principle also brings public sentiment to a single point, educates it, and directs it toward administration. By connecting public opinion to presidential declarations, declarations of principle place change outside the Constitution while at the same time ensuring that government remain constitutional.
More than a felicitous pen in a partisan cause, Jefferson used declarations to frame for the public what he believed to be the purpose of democratic government, that is, to create a kind of law where the laws were silent. Accordingly, studies of Jefferson's role in founding an opposition party show that he meant it to be a temporary and extraconstitutional solution to an emergency and that the democratizing role of parties helped alleviate the tensions inherent in democratic leadership. At the same time, however, the First Inaugural's famous inclusive proclamation "We are all Republicans, we are all Federalists" was more than a shrewd offer of conciliation to the defeated foe of a close contest, for it fit within Jefferson's larger rhetorical aim of placing the president as the oracle of the national will. As he himself put it, Jefferson used the First Inaugural to announce "promise" and his Second Inaugural to announce "performance" and thus transformed the inaugural address from a merely formal acknowledgment of taking the oath of office to a routine declaration of the principles of government.
As president, Jefferson employed declarations of principle to announce the foundations of authority and to unify and direct public opinion. Of his letter to the Danbury Baptist Association, in which Jefferson depicted religious liberty as a "wall of separation" between church and government, Jefferson explained to an advisor that a response to a citizen address could serve as an "occasion" for "sowing useful truths & principles among the people, which might germinate and become rooted among their political tenets." On other occasions, he used his "special messages" to Congress, as well as some of his public letters, to praise instances of discretion employed by other executive officials. Jefferson came to rely on the use of public statements of principle not only to rally support for his party and administration but also to shape public opinion with the dual aim of energizing the presidency and more clearly marking its boundaries.
If the president could direct the public understanding of religious liberty, the presidency also could be the platform to which citizens would look for understanding the principles of their government. One goal of Jefferson's administration, then, was to instruct citizens how they might energetically pursue great democratic projects while at the same time protecting the principle of consent: the practical requirement of the appeal to the people would afford the people the facts with which they need to judge those they entrust with rule, and the regularized opportunity for a declaration of principles would allow that fundamental will to be preserved while being modified.
Declarations thus made democratic consent possible by revealing the people to themselves. If is true that Jefferson's political philosophy hinged on his plan for education, it also true that his political science rested on his faith in declarations.
The Understanding Developed
Rather than being an opponent of an energetic executive, Jefferson articulated his doctrine of executive strength throughout his public career. His numerous attempts to revise the Virginia Constitution as well as his use of executive power as governor of that state, reveal a consistent, if maturing, understanding of the relationship between prerogative and the law. As law-giver, Jefferson avoided broad grants of authority to the executive even as he worked to make it unitary and less dependent on the legislative power. As governor, Jefferson confronted events in which the law made no provision for the executive action required by necessity, but he resisted broad interpretations of the law that would accommodate what the desperate times required. As a delegate to Congress and eventual critic of the Articles of Confederation, he was an early advocate of executive selection independent of the legislature and unencumbered by an executive council. Although this period reveals that Jefferson's understanding of the executive was not fully developed, it also shows that he advocated an executive that would have been remarkably strong and resorted to declarations of principle instead of broad interpretations of the law. Nevertheless, Jefferson had not arrived at his later argument that executive power made democracy possible.
The proposal and ratification of the U.S. Constitution provided the opportunity for Jefferson to complete his understanding of executive power. Although Jefferson had tinkered with rules governing elections and tenure of office, it was not until he and Madison had exchanged letters on amending the Constitution and until he had read The Federalist that Jefferson arrived at his idea that presidential selection could be combined with declarations of principle in order to make executive energy compatible with consent. Jefferson's advocacy for the bill of rights was thus one step in his long-standing project to make declarations practical, and his call for a two-term limit for presidents was meant to connect such declarations to routine democratic change. More than any of his contemporaries, he perceived the democratic potential of a popularly elected president.
Throughout his time in opposition, Jefferson left open the path for his democratic executive. By the time he had taken office as Secretary of State, Jefferson praised the merits of a single executive and recommended to reformers in other nations that their constitutions drop provisions for an executive council. At the same time, Jefferson undertook the project of democratizing the office of the president. This endeavor began with his "Response to the Citizens of Albemarle," and it is traceable through-out his participation with Madison throughout the Helvidius and Pacificus exchange, and in his continuing ambivalence with regard to the greatness of Washington. During his tenure as vice president, Jefferson undoubtedly used his influence to oppose the Federalist president, but he also observed that there were two views on the Constitution, those who considered it to be an "elective monarchy" and those who viewed "it as an energetic republic, turning in all it's points on the pivot of free and frequent elections." No monarchist, Jefferson classed himself in the latter group and balanced his understanding of presidential power on the electoral pivot.
Jefferson's best opportunity for leaving his imprint on the meaning of executive energy came when he was president, and his two terms provide the most accessible example of his theory in practice. Jefferson attempted to empower executive administration by connecting it to public opinion, and he defended the president's removal power at a time when it might have disappeared. Moreover, he transformed the appointment power with public confidence in mind. In addition to serving as the "best criterion of what is best," public opinion "alone" could "give strength to the government." Similarly, Jefferson's use of the prerogative as president fit within his lifelong attempt to place the prerogative outside the law while at the same time making the executive more energetic and more popular. Jefferson believed he had acted outside the Constitution by purchasing and incorporating the Louisiana Territory, but, because political necessity required that Jefferson then not throw himself on the people by recommending a constitutional amendment, he remained silent regarding the constitutionality of the Purchase. Rather than offering one of several constitutional arguments that were then available to him, Jefferson presented his extraconstitutional explanation elsewhere. Jefferson never recommended an amendment, because the Twelfth Amendment took precedence over a Louisiana amendment. The urgency was political and philosophic: Republicans needed to fix the Electoral College to ensure that the election of 1804 would not be manipulated by Federalists, and Jefferson used the Amendment to further connect the presidency to public opinion by making presidential mandates possible. Finally, to institutionalize declarations of principle as the central platform of political change, Jefferson invented the Inaugural Address as we know it and used Washington's example to get the term limit he had long advocated.
More than pointing the nation to its democratic birth, then, Jefferson's victory in 'S00 signified a turning point in the presidential office. In the absence of Washington, and in the early divisions of a party system, the presidency was in crisis. During the mounting crisis with France, Adams, who had once proposed that presidents be addressed by the title "His Highness the President of the U.S. and protector of their liberties," donned a military uniform with sword to deliver inflammatory speeches against France. At the same time, Adams created a standing army and, rather than commanding it himself, designated Washington as Commander in Chief. Worse still, the Alien and Sedition Acts seemed to prove again that democracies would vacillate forever between tyranny and disorder. Although Washington had attempted in his Farewell Address to impart "confidence" in the presidency to the "Yeomanry," his reputation had crippled his successor's ability to inspire confidence in the electorate.
But the crisis in the presidency was more than theoretical, for it raised the question whether the presidency could survive the parties. Would presidents be so attached to their parties that they would be bound by their cabinets, undermining the premise of accountability in the argument for executive energy? When Adams attempted to regain control over his administration, by abruptly announcing that he would send an envoy to France and by removing Hamilton's cronies from his cabinet, Hamilton responded by publishing a pamphlet critical of Adams. There, Hamilton argued that Adams lacked the "talents" necessary for presidency and possessed "great and intrinsic defects" of "character." More important, Hamilton criticized Adams for ignoring the advice of his cabinet. When Burr acquired a copy of Hamilton's pamphlet and, sensing a political opportunity, had it published in the Republican papers, the advantage for the Republicans was twofold. Jefferson was virtually guaranteed to win against a divided Federalist Party, and Hamilton's dividing his own party sowed enough discord that Hamilton lost his leverage as his party's leader. On the morning of Jefferson's inauguration, Adams left the capital under the cover of darkness, leaving the first transfer of power to be attended only by the one on the receiving end of it.
Jefferson's victory in 1800 was more than a victory for the opposition against ruling Federalists, for it was also a unique opportunity for Jefferson to invigorate the presidency. By combining the opportunity of replacing an unloved president with the necessity to shape the presidency outside of Washington's reputation,1800 could occasion a revolution in the executive office alongside a revolution in the electorate. When Jefferson said that his own election would demonstrate that "a free government is of all others the most energetic," he was reveling with fellow partisans and assuring opponents that the country would survive his administration, but he was also letting friends and foes know that he had a plan for the presidency. We now turn to Jefferson's understanding of executive power.