Getting Started
Introduction
History and Constitutional Background
Selection of the President and Term Limits
Presidential Succession
Commander-in-Chief
Head of State
Presidential Appointments
Presidential Responsibilities
Interaction with the Legislative Branch
Interaction with the Judicial Branch

Theoretical Foundations of Executive Power and the American Experience

Development of the Non-Monarchial Executive

Drawing on the Ancients

     The Framers drew deeply upon their own experiences in crafting the Constitution, from the colonial period through governance under the Articles of Confederation, but they were also well read and shared a common fund of knowledge of the works of historians, political theorists and legal writers. The range of their scholarly pursuits was impressive and purposeful. They drew upon the ancient Greeks for understanding of the nature and role of government and ideas about democracy, and the ancient Romans for explanation of the virtues and decline of republicanism. Above all, they drafted on the ancients’ emphasis on an “empire of law” which, in theory, might constrain governmental actions. They expressed admiration for, and studied closely, the writings of Sir Edward Coke, whom they lionized as a champion of the common law and advocate of limits on the King’s prerogative power; John Locke, whose writings carved out the intellectual path that the colonists would follow in declaring independence from England; Baron de Montesquieu, whose views on separation of powers aided the Framers in creating a republic without parliamentary government; and Sir William Blackstone, the author of a magisterial treatise on English law that emphasized the separation of powers and limits on executive prerogative, among others. 

Rejecting “the ends justify the means”

Limited Executive Power

     The Framers were an eclectic group; they embraced ideas and observations that they thought well-fitted to serve the republic and the executive that they were creating, and freely rejected centuries of conventional thoughts and purported truths because they were in conflict with their enterprise. Thus writers such as Machiavelli and Hobbes, with whom they were familiar, were of little use to their invention of a Presidency, though their intellectual explorations doubtless informed and expanded the Founders’ intellectual queries and investigations. The English Civil Wars were constantly before their eyes as they contemplated such concepts as sovereignty, constitutional government, executive power, the Divine Right of Kingship, individual rights and various powers, foreign and domestic.  Their rejection of monarchy—the antithesis of republicanism—was illuminated by writings about limited executive power.

Nicolo Machiavelli and The Prince

A President, not a Prince

      The Framers were judicious in their use of political theory and historical writings. Machiavelli, a 16th Century Italian theorist, was best known for his book, The Prince, published in 1513.  It’s not clear if many of the Framers read closely the work of Machiavelli, often referred to as the first writer in the field of modern political thought, but if they had, they would have rejected his ideas about the acquisition of power and the principles of governance. Machiavelli taught that those seeking power –those seeking to be the Prince–should be guided by the ethic of power and success– “the ends justify the means.”  All means of seizing and keeping power—lying, violence, murder—were countenanced, for what mattered to the Prince, was keeping and wielding power to serve his agenda. His assertion that the Prince might aggrandize all power and, indeed, might well rule arbitrarily, ran counter to the fundamental values embraced and promoted by America’s founders. Manifestly, the Framers of the Constitution, in creating an executive subordinate to the rule of law, would have found in Machiavelli’s plan the antithesis of the Presidency that they invented, an office fenced in by constitutional limits, guided by the principles of republicanism, and bound to the requirements and duties of the “Take Care Clause.”  Machiavelli did, however, contribute the concept of a secular, rather than a religious executive.  Certainly that idea, if the Framers had somehow learned of it from Machiavelli, would have had appeal to them. After all, the Founders rejected the concept of a monarchy, including a religious monarchy, as seen in their prohibition of religious tests for those seeking office.  What’s more, the First Amendment Establishment Clause represented a powerful repudiation of state support for religion and an affirmation of the separation of church and state.  Interestingly, Machiavelli argued for separation of religion and politics, principally on the ground that the former corrupted the latter.

Sir Edward Coke

A Poster Boy for Law and Liberty

     The influence of Sir Edward Coke on the Framers’ thoughts about constitutional government, limited powers, constraints on the royal prerogative and the authority of the common law courts could hardly be overstated. Coke (pronounced cook), served on England’s highest courts.  He was Chief Justice of the Court of Common Pleas from 1606 to 1613, and of the King’s Bench from 1613 until his antagonist, King James I, dismissed him three years later.  He was, moreover, a prolific writer, including the four-volumes of Institutes of the Lawes of England, and 13 volumes of Reports, in which he systematized the principles of English law by reporting precedents and cases.  The final two volumes of the Reports, focused on the prerogatives of the Crown. Among legal scholars, Coke was the poster boy for law and liberty.  He was, for the American founders, a titan.

       Coke’s influence among the colonists can scarcely be measured.  His flirtations with judicial review in Dr. Bonham’s Case (1610), fired the imagination of James Otis in the famous Writs of Assistance Case (1761), where he foreshadowed the American doctrine of judicial review and lit the way for separation of powers. And his fundamental—and bold and certainly courageous– assertion that the King of England was subordinate to the law, and bound by interpretations rendered by common law judges whom, it so happened, were the only figures with the capacity of comprehending the mysteries of the ancient constitution were inspirational to American founders.

Sir William Blackstone

Commentaries

     While Sir Edward Coke was inspirational to the founders for his contributions to law and liberty and constitutionalism, Sir William Blackstone was inspirational too—as a teacher of law, whose magisterial three-volume work, The Commentaries on the Laws of England, the first of which was published in 1763, was the source of learning for all those studying law in the colonies.  Blackstone traced the principles of separation of powers and reviewed limits on the King’s prerogatives, while emphasizing parliamentary sovereignty.

The Doctrine of the Separation of Powers

       The Framers of the Constitution found in Locke and Montesquieu articulation of the Doctrine of Separation of Powers, which influenced their view of executive power. The introduction of principles of separation of powers into the discussion about governmental organization and authority marked a turning point in the consideration of executive power. Above all, it undercut and, eventually, demolished the concept of absolute monarchical authority.

      John Locke’s renowned work, The Second Treatise of Government (1691), proved extremely helpful to American colonists in explaining and defending the rationale for the revolution.  Locke’s assertion of the right of revolution, when government grows tyrannical, synthesized the arguments of his intellectual predecessors who, during the English Civil Wars of the mid-17th Century, emphasized as a cornerstone of governmental legitimacy the concept of popular consent. A ruling regime that lacked the consent of the people, Locke argued, was illegitimate. Thomas Jefferson set fire to that concept in writing the Declaration of Independence, and government grounded in the consent of the citizenry became the sheet anchor of American republicanism.

      The seminal idea provided the justification for the drafting and ratification of the Constitution, as manifested in the majestic language of the Preamble to the Constitution:  “We the People ordain and establish this Constitution.”  The premise that governmental power is derived from the Constitution—and constrained by it—represented the implementation of government based on the consent of the people. That includes, of course, the limits on executive power.

       The idea of imposing  constraints on the executive was one of Locke’s most powerful contributions to political theory. Locke rejected the concept of the Divine Right of Kingship, which had been invoked to justify monarchical rule.  He maintained that “absolute monarchs are but men.”  Accordingly, the monarchical rule should not be arbitrary, but should be conducted within the bounds of the rule of law. A critical component in the theory of the rule of law was that the authority to make law should be placed in the hands of the legislature, and that the executive was subordinate to the law. This critical separation between the authority to make and enforce law has enjoyed enduring influence in American Constitutionalism. As Locke justly stated, the combination of the legislative and executive powers, “might be too great a temptation to human frailty.”

     Whether or not the colonists actually read Locke is less important than the fact that the ideas about the nature and purpose of government embodied in his book were, as we have observed, very influential in the colonists’ views about government. And his assertion of executive subordination to the law was a critical component of constitutional government. But his view of an executive prerogative—the authority of the executive to meet an emergency in the absence or, indeed, the violation of law, found no favor among the Framers of the Constitution.  As we shall see in a subsequent discussion, the concept of a presidential prerogative power was of ill-suited to the creation of an American executive who derived his authority solely from the Constitution. Locke’s exaltation of concentration of foreign affairs powers  in the executive, was likewise rejected by the Framers, who preferred to vest in Congress the lion’s share of foreign affairs and national security powers.

Tyranny and the Accumulation of Power

      Montesquieu’s celebrated work, The Spirit of the Laws (1748), was one of the most frequently cited books among the founding generation. His warning that the accumulation of all governmental powers in a single department would constitute the very definition of tyranny, assumed biblical status in the debates in Philadelphia and across the land. Madison was among Montesquieu’s greatest admirers and, indeed, publicly proclaimed him an oracle on the principle of separation of powers. 

The roots of the doctrine of separation of powers could be seen in the Aristotelian idea of mixed government, a concept that provided representation for the various classes of society—royalty, aristocracy and the common people. The aim was balance, which, Aristotle believed, would maintain stability and preclude revolution.  In England, the emergence of the separation of powers occurred as a result of the Civil War, which destroyed the idea of the Divine Right of Kingship and introduced in both the practical and theoretical realms, the principle of parliamentary sovereignty. Parliament asserted its governing authority when it required William and Mary to sign the Declaration of Rights in 1689, before they were crowned. Montesquieu, in Chapter 11 of The Spirit of the Laws, asserted that the judicial power should be separate from the executive power, as it was in England.  The Framers of the Constitution heightened the status of the judiciary and made it a truly coordinate branch of government when they vested in the courts the authority of judicial review.

The Tools to Create a Government

The Social Contract


        The Founders’ eclecticism served them well in constructing a Constitution and a republic. They could, for example, find intellectual appeal in Thomas Hobbes’ assertion in The Leviathan (1651), of the right of the people to contract with government to form the government they desired. For the colonists, who were searching for an intellectual apparatus to limit parliamentary authority, Hobbes’ Social Contract was useful.  But it’s utility was limited; the colonists were seeking a tool, an explanation, for the authority to create government in the first place. Hobbes’ assumed the existence of government.  It was John Locke’s version of the Social Contract that proved enormously useful to the colonists, for Locke posited the right to create government, out of the void of the State of Nature, as it were.  The right of the people to actually create government, meant that the people could determine the authority of government, including that of the executive and, critically, the right of the people to impose what would become constitutional limitations on governmental power. In the end, their ability to cherry-pick ideas from advocates of non-monarchical executive authority was enormously helpful.