The enduring debate on the nature and scope of presidential authority, dramatized by the renowned 18th-century exchange between James Madison and Alexander Hamilton, and spiked in our time by sweeping assertions of unilateral executive power in warmaking and foreign affairs, and by claims of privilege, secrecy and immunity in domestic matters, has long held center stage in our nation’s politics. In fact, few issues in our long Anglo-American constitutional history can match the high drama, resounding importance, and transcendent interest in the attempts to rein in presidential power and subject it to the principle of the rule of law, an effort, of course, that lies at the heart of American constitutionalism.
The prolonged and occasionally heated debate on the parameters of presidential power was renewed within scholarly precincts and the corridors of power in the aftermath of the 9/11 attack on America. Newspaper editorials, television commentaries, discussions, and debates across the country about the constitutional role of the presidency in the American government, reflect the pressing domestic and foreign policy challenges confronting the United States. The issue plumbs the depths of American history. Since the dawn of the republic, important questions have arisen about presidential authority, particularly in matters of war and national security. The determination of the Framers of the Constitution to create an independent presidency, one strong enough to bear the weight of the power, duties, and responsibilities assigned to it, while seeking to limit executive authority, as declared in the words of Madison in the Constitutional Convention, “to confine and define” presidential power, traveled an uneasy path. Indeed, the question of subordinating the executive to the rule of law, a historical and troubled pursuit in the Anglo-Saxon world, presented a vexing challenge to the Convention. That concern was implicit in Madison’s eloquent statement in Federalist No. 51, that the “great challenge confronting the republic is that of persuading the government to obey the law.” That was the great challenge in 1787; it remains the great challenge in our time.
The enduring questions that probe the scope of executive authority are of great moment:
Questions abound, and they are timeless.
Those questions, among others, are pivotal to our understanding of the president’s role in our constitutional order. Their contemporary importance, reflected in daily headlines and controversies, underscores the importance of this course for those who wish to better understand the separation of powers, checks and balances, and the nature of presidential relations with the judicial and legislative branches. Quite apart from an academic interest in acquiring knowledge about our constitutional system there are, indeed, compelling purposes grounded in matters of civic education and civic engagement.
“The preservation of the sacred fire of liberty and the destiny of the republican model of government are justly considered, perhaps, as deeply, as finally staked on the experiment entrusted to the hands of the American people.”
In our inquiries, we will embrace Aristotle’s admonition: If you would understand anything, examine its origins and development. The aim of this course is to enable each of you to better understand the nature of the debates that have swirled around the assertions and exercise of presidential power for more than two centuries.