A Constitutional Presidency

Next:   Domestic and Foreign Policy

I.   INTRODUCTION

In this age of mass communication, media has brought politics into America’s living room. The public feels, as never before, that it knows the President or a presidential candidate on a personal basis. Knowing the President in a communicative sense, however, is not necessarily the same as knowing him in a legal or constitutional sense. A President maybe a “great communicator,” but he must also be a great constitutionalist. The combination makes a great President.

Such greatness requires three primary commitments: first, a commitment to the laws of nature and of nature’s God as reflected in the Declaration of independence; second, a commitment to the faithful execution of the office of President; third, a commitment to preserve, protect and defend the written Constitution as the supreme law of our land.

These characteristics mark the constitutional standard for presidential action. If a President ignores this standard, he will be driven by the unprincipled winds of political expediency. Our first President, George Washington, understood the importance of raising this standard. Addressing the Constitutional Convention in 1787, Washington declared:

It is too probable that no plan we propose will be adopted. Perhaps another dreadful conflict is to be sustained. If, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and honest can repair.¹

The standard for a constitutional Presidency has remained the same. “Wise and honest” candidates should adhere to that clear standard. On the occasion of the two hundredth anniversary of the United States Constitution, a review of this standard is properly before us. During this celebration, the Constitution is the subject of public attention and its provisions concerning the executive power should be discussed in light of the standard established by the spirit of the founding and the rule of law.

II.   NECESSARY QUALIFICATIONS

A.   Eligibility

Perhaps the first and foremost element of a constitutional Presidency is eligibility. Article II, section 1, clause 4 of the Constitution states:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the age of thirty-five years, and been fourteen years a Resident within the United States.²

The President, therefore, must be a natural born citizen, fourteen years a resident and at least thirty-five years old. There is no other legal eligibility requirement except the oath of office, which will be considered later. Other purely ideological notions of eligibility have been vaulted into the public debate, but they are not legally constraining. Such notions have largely focused on the relationship between religion and the state.

Some, who have wandered from the political faith of our Founding Fathers, have asserted that the Constitution renders ineligible a religious or Christian candidate. This is a form of political censorship. They chant their mantra, “church and state, church and state,” without wavering. At one conference addressing Thomas Jefferson’s Bill for Religious liberty, the subject of the eligibility of a religious candidate was addressed. Jefferson himself articulated the correct view of the subject in the Bill itself. He stated:

Our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right.³

On one hand, no man can be required to profess a religious opinion or belief. On the other hand, no man can be required to renounce his religious beliefs as a prerequisite to seeking or serving in public office. All the mindless chanting of “separation of church and state to the contrary, does not negate that single truth.

There are those who chafe at the thought of a religious President. If the magical words of “separation of church and state” will not achieve their object, they construct their own religious test. Their test does not require a candidate or President to renounce his belief. Instead, they require a public renunciation that such a belief is relevant to government. They assume the fall-back position: `It’s okay to be religious, just don’t bring those religious beliefs into the public forum.’ This is clearly a religious test. It violates the principle expressed by Jefferson, that no man shall be required to renounce his religious belief. It is also contrary to article VI of the Constitution which prohibits religious tests as a qualification for office.⁴

A civil ruler’s religious beliefs neither expand nor contract his civil power. A President’s religious beliefs do not clothe him with more or less presidential power. No President may use his religious beliefs as a pretext for the assumption of constitutionally undelegated power, even when the object is laudable. The exercise of undelegated power, as President John Quincy Adams observed, is both “criminal and odious.”⁵ This is true whether such power is exercised as a function of political expediency or of religious persuasion, Assuming that a given candidate is eligible, the first characteristic a constitutional President must master involves an understanding of the laws of nature and of nature’s God.

B.   The Laws of Nature and of Nature’s God

Sir William Blackstone, the famous English jurist, following in the steps of Sir Edward Coke, declared with precision what the law of nature entailed. He wrote:

Man, considered as a creature, must necessarily be subject to the laws of his creator, . . . This will of his maker is called the law of nature. For as God, . . . When he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.⁶

Blackstone recognized that the law of nature is the will of God. Men may ascertain the law by their reason, though not as clearly as discovering it by revelation. Blackstone concluded with this proposition: “Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.”⁷ Blackstone acknowledged that the law of nature is directly related to the operation of civil governments. Adherence to the laws of nature and of nature’s God is, in essence, government under the rule of law. It is opposed to the rule of lawless men, be they religious or non-religious.

In the American experience, reliance upon the laws of nature and of nature’s God was unequivocably asserted on July 4, 1776, in “A Declaration by the Representatives of the United States of America,” or more simply, the Declaration of Independence. Historically and textually, the Declaration and the Constitution are tied together. They are derived from the same theory of government which is based upon the laws of nature and of nature’s God. Without obedience to the principles espoused in the Declaration of independence, there can be no systematic adherence to either the execution of the office of President or the preservation of the Constitution.

C.   The Declaration as Our Charter

In 1839, former President John Quincy Adams discussed with precision the tie between the Declaration and the Constitution. He noted that, by the Declaration, the colonists

were proclaimed to be one people, renouncing all allegiance to the British crown; all copatriotism with the British nation; all claims to chartered rights as Englishmen. Thenceforth their charter was the Declaration of Independence. Their rights, the natural rights of mankind; their government, such as should be instituted by themselves, under the solemn mutual pledge of perpetual union, founded on the self-evident truths proclaimed in the Declaration.⁸

He concluded that “the Declaration of Independence and the Constitution of the United States, are parts of one consistent whole, founded upon one and the same theory of government.”⁹ This is the reason why the Declaration of independence is preeminent in an examination of a constitutional Presidency. Constitutional presidential power and the principles of the Declaration of independence are founded upon one and the same theory of government.

There is great blindness about this subject today. The Declaration makes good rhetoric, but its application beyond that is politically nonexistent. Few discuss the Declaration when debating the original intent of the Constitution. Furthermore, the debate is currently limited to the judicial branch. The exercise of article II presidential power, however, is no less founded upon the Framers’ intent. The independent duty of the executive to assess the constitutionality of matters within his own sphere of action necessitates this outcome. Without the guiding principles of the laws of nature and of nature’s God as expressly reflected in the Declaration, however, any debate about original intent is a phantom. Original intent analysis must include the timeless legal principles embodied in the Declaration, the document of America’s political origin.

Though it is not the purpose of this article to present all of the evidence to support Adams’ thesis that the Declaration is the charter of our nation, several points are relevant here. First, article VII of the Constitution refers to the “independence of the United States of America.” It states that the Constitution was written in the twelfth year of that independence. The date of independence is the legal birthday of our nation, and this fact is echoed throughout many of the state ratifying documents, as well as subsequent state constitutions. Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, and South Carolina all ratified the Constitution in the twelfth year of independence. Rhode island expressly ratified the Constitution in the fourteenth year of independence.¹⁰

Second, the qualifications for an office in Congress reaffirm the same fact. A Congressman must have been a citizen of the United States for at least seven years when elected to the first Congress in 1789. In the same manner, a Senator must have been a citizen of the United States for nine years in 1789. If the Constitution was the charter of the country establishing United States citizenship, it would have been impossible for anyone to be eligible for election to the first Congress.

Third, on the back of each dollar bill appears the Great Seal of the United States as adopted in 1792. On one side appears the phrase “E Pluribus Unum” which means “out of many one.” On the other side “Annuit Coeptis” and “Novus Ordo Seclorum,” which mean respectively “He has blessed our undertaking” and “a new order for the ages.” At the bottom of the pyramid, there is a date inscribed in stone representing the foundation of our republic. That date is 1776. It is clear that the Framers knew that out of many states came one nation, though it had no form of government in 1776. They understood that our nation, blessed by God, had its origins in 1776. They acknowledged that a “new order of the ages” had begun in 1776. Furthermore, when Congress admitted many western states into the union, it did so expressly on the condition that their state constitutions when formed “should not be repugnant to the principles of the Declaration of Independence.”¹¹

Based on this historical foundation, it is sufficient to say that the President will not know how to properly discharge his duties in the office of President, or preserve, protect and defend the Constitution, unless he first understands the foundation upon which the Constitution is built. Familiarity with that foundation is familiarity with the immutable principles reflected in the Declaration of Independence. That document asserted that the laws of nature and of nature’s God empowered the representatives of the United States to do at least three things: first, separate from England, and become a free and independent state; second, institute a new government based on consent; and third, organize a new government’s power in such a way as to secure the unalienable rights of the people. The principles of the Declaration justified the revolution and legitimized the governmental structure later reflected in the Constitution.

D.   Equality, Consent and Unalienable Rights

The Declaration recognizes that the laws of nature and of nature’s God provided the necessary legal basis for the people to establish a “separate and equal station” and dissolve the political bands with England. The Declaration also asserts that “all men are created equal….” The principle of equality was thus applied to men as well as nations. The law of equality is rooted in the fact that man is created in God’s image and is also reflected in different clauses of the Constitution.¹² The President must observe the principle of equality, both with respect to men and with respect to nations which are lawfully constituted. The principle, however, does not require the President to deal equally with all nations, but only that he recognize a nation when lawfully constituted under international law. The purpose of equality also requires that he be no respecter of persons when executing domestic laws.

The Declaration also notes that “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” President George Washington declared: “The basis of our political systems is the right of the people to make and to alter their constitutions of government.”¹³ Abraham Lincoln called this “the leading principle-the sheet anchor of American republicanism.”¹⁴ This principle requires that civil government exercise only those powers which are specifically granted. Such is the case with the national government. If a power is not granted, the national government does not possess it and therefore may not act as though it does possess it.

The Founders were cognizant of different types of political power and the Declaration of independence reflects this understanding. The Declaration refers to God in a judicial capacity when it appeals to the “Supreme Judge of the world.” It also makes legislative references to God as the lawgiver by the phrase “the laws of nature and of nature’s God.” And lastly, it appeals to Him in an executive capacity by declaring “firm reliance on the protection of Divine Providence.”¹⁵ S The government which was eventually created by the Constitution reflected these divisions. Article I focuses on legislative power, article II on executive, and article III on judicial. The laws of nature and of nature’s God enabled the Framers to establish a government, defining and separating these types of legitimate constitutional powers.

The experience of the Framers with the King and the Parliament of Great Britain, and their familiarity with the writings of Montesquieu,¹⁶ confirmed that the separation of powers was essential to the security of individual rights and liberties. Alexander Hamilton reflected the particulars of this theme in Federalist 78. He declared:

The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.¹⁷

The President must make an independent determination of whether the Constitution extends a given power to his branch, as well as determine if another branch’s exercise of its power, is constitutional as it may pertain to the executive sphere. In a nutshell, the rule is, only those powers granted may be exercised.¹⁸ A constitutional President must understand that the laws of nature and of nature’s God guided the Founders to declare independence, to create a government, and to separate its powers into different branches. Likewise he must understand that it is the Constitution which empowers the presidential office, not any branch of government, executive or otherwise.

Lastly, the Declaration of independence asserts that all men are “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness….” Unalienable means undeniable or inherent. According to the laws of nature and of nature’s God, governments are legitimately instituted in order to secure the unalienable rights of the people. This is not a difficult proposition to master. God endows men with unalienable rights, irrespective of a man’s religious belief or lack thereof. All men, male and female, have certain unalienable rights simply because they are human beings created in God’s image.¹⁹ A constitutional President must recognize the purpose for which governments are instituted – to secure unalienable rights.

The Declaration acknowledges that the Creator is the source of the unalienable rights which the people necessarily retain. Civil government, including the President, must refrain from any interference with the exercise of those God-given rights. The national government, however, may regulate those rights which it creates, or which are not God-given as long as the latter are acknowledged in the Constitution.²⁰

E.   Summary

The President must incorporate many principles into the execution of his office. He must have a working familiarity with the laws of nature and the principles of the Declaration of Independence. He must understand the relationship between them and the Constitution. As he executes the law, the President must consciously seek to maintain and protect equality and the people’s unalienable rights. He must not exercise any power not constitutionally granted by the people to the office of the President. Likewise he may not expand or contract his power because of his religious principles, nor may he permit their dissolution by any other branch or popular sentiment. These are minimal prerequisites for a constitutional Presidency.

III.   LEGITIMATE EXERCISE OF POWER

A.   Executive Power

Executive or presidential power is tied to the word “execute,” that is, the wielding of power under the rule of law in order to enforce the law. Three principles describe the nature or purpose of executive power. First, the executive has no power to promulgate rules or judge cases. In other words, executive power is not legislative or judicial power. It is not the power to make law or change law. Second, the executive power is primarily active, not passive. That is, the executive does not wait for someone to come and request enforcement of a law. This is contrasted to judicial power which is passive or responsive in nature. The judiciary has no power to seek out a case or controversy, but must wait for one to come to it. The executive, on the other hand, need not wait but may seize the initiative. Third, executive power involves a discretionary element. The executive has some lawful discretion concerning if, when, and how certain executive powers are to be employed.

Our written Constitution reflects these three principles. The executive power is vested in the President. These powers are not legislative or judicial in kind. Article II, section 1 of the Constitution of the United States affirms this: “The executive power shall be vested in a President of the United States of America.” Neither the Congress nor the Courts have executive power. Likewise, the President does not have legislative or judicial power. Beyond this, the executive power falls into two categories – those in which the President shall act, and those in which the President may act.

The Constitution extends certain powers to the President which he is compelled to exercise on his own initiative. First, the President “shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.” This is not a discretionary function which the President may assume, nor is this position contingent upon any state of war or peace, though only Congress has the power to declare war. Second, the President shall give information to Congress concerning the state of the Union, and recommend measures for their consideration. Third, he shall receive ambassadors and other public ministers. Fourth, he shall commission all the officers of the United States. Fifth, with the advice and consent of the Senate, he shall nominate ambassadors, other public ministers and counsels, judges of the Supreme Court and all other officers of the United States.²¹

Though not contained in article II, but stated in article I, if the President objects to a bill, he must return the bill with his objections. If he fails to return it within ten days, it becomes law. The executive branch equivalent to the “necessary and proper” clause, is found in article II, section 3 which declares that the President “shall take care that the laws be faithfully executed.”

On the discretionary side of the ledger, the President has several powers available to him as well. First, the President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. Second, he may grant reprieves or pardons for offenses except in cases of impeachment. Third, he may exercise his power to make treaties as long as they are made by and with the advice and consent of the Senate. Fourth, he may fill up vacancies that may happen in the recess of the Senate. Fifth, he may convene both Houses or either House on extraordinary occasions. Sixth, in certain cases of disagreement, he may adjourn Congress. Seventh, according to article I, he has discretion as to whether to sign a bill into law, or to veto a bill.

Having briefly considered both the compulsory and discretionary powers of the President, it is necessary to examine two parallel matters which are logical prerequisites to the President’s ability to “execute the office of President” and “defend the Constitution.” The first concerns his duty to make an independent determination of matters of constitutional law. The second concerns his familiarity with several principles of the law of nature reflected in the Declaration of Independence and incorporated in the Constitution.

B.   Independent Determination of Constitutionality

All executive officers of the federal government, including the President, are bound to support the Constitution as the supreme law of the land. In addition, article II requires the President to take this oath: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” In order to fulfill this oath and execute the law, the President must independently interpret the constitutional provisions relevant to his branch. If the President delegates the responsibility associated with this duty to the Supreme Court, the Congress, or any other body, he violates the obligations of his oath.

A prevalent but erroneous belief is that the Supreme Court not only decides questions of constitutional law in cases and controversies, but that their decisions are absolutely binding on the legislative and executive branches. The Court is considered by many as the sole guardian of the Constitution and therefore its final arbiter. This unconstitutional preoccupation with judicial supremacy was proclaimed in Cooper v. Aaron.²² In that case the Court asserted that the opinions of the Supreme Court are equivalent to the supreme law of the land. This perspective has been defended as essential to the independence of the judiciary. In the final analysis, however, it results in the usurpation of the power extended to Congress and the President, and of the power reserved to the people and states.

President Andrew Jackson rejected such a pretentious usurpation of power. In 1819, the Supreme Court affirmed Congress’ authority to incorporate a bank in McCulloch v. Maryland.²³ When Congress later decided to extend the charter of the bank, Jackson vetoed the measure with these remarks:

It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I cannot assent… . The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty . . . of the President to decide upon the constitutionality of any bill . . . as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must . . . have only such influence as the force of their reasoning may deserve.²⁴

President Abraham Lincoln asserted the same principle. In 1857 the Supreme Court held that the Constitution provided protection against congressional efforts to prevent the spread of Negro slavery into new states. The Court ruled in Dred Scott v. Sanford²⁵ that black men had no rights that white men were bound to respect. In the famous debates with Stephen Douglas, Lincoln contended he was not bound by the Court’s ruling because he had not been a party to the case.

We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free . . . but we nevertheless do oppose that decision as a political rule which shall be binding on the voter . . . the members of Congress or the President.²⁶

In his First Inaugural Address as President, Lincoln justified his opposition to the idea that the Court’s opinion would bind his sphere of action. He said:

[I]f the policy of the Government upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.²⁷

Not until after the New Deal did the President and Congress consistently and unconstitutionally concede that the judiciary possessed the exclusive right to determine the constitutionality of executive and congressional acts. Such deference is the product of presidential and congressional neglect of their independent duty and authority to determine whether their actions conform to the Constitution. This deference is misfeasance at best, or like its judicial counterpart, malfeasance at its worst.

C.   Summary

Eight propositions concerning the constitutional Presidency have been discussed. First, the laws of nature and of nature’s God permitted the creation of the United States and guided its organization of powers into three branches. Second, that same law defined executive power principally as the power to execute the law. Third, executive power must be exercised in a lawful way. Fourth, the lawful exercise of executive power does not include the power to make law or judge cases. Fifth, the Constitution specifies certain qualifications for the office of President and further defines the limits of that power. Sixth, these powers are contained in the office of the President and are of two types-the “he shall” and the “he may” powers. Seventh, the Constitution requires that the President take care that the laws be faithfully executed. Likewise, his oath of office presupposes two things: the first being the power to judge the constitutionality of a matter for the President’s own sphere of action, and the second being that the Declaration and the Constitution reflect one and the same theory of government. Eighth, in the execution of law, the President must not show partiality, impair any unalienable right, exercise power by usurpation, or sanction any power not extended as far as his sphere of action permits.

The next section concerns how a constitutional President addresses public policy issues in light of these eight propositions. Addressing the hard questions of public policy in this light puts the oath of a constitutional President to the test. Public policy issues demonstrate that the standard raised by the Constitution is a high one. Domestic policy will be considered first, then foreign policy briefly.