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Friday, September 17, 2010

Constitution Day Papers

Today is Constitution Day. Several papers at the recent annual meeting of the American Political Science Association dealt with the Constitution and the presidency:

My essay examines how Lincoln’s devotion to the American constitutional union determined how he pursued a greater protection of rights for blacks in the United States. Before 1854, his politics reflected little urgency regarding the equal protection of the laws for blacks in a nation governed by a majority-white citizenry. He was willing to maintain the union at the cost of extending the tenure of slaveholding in certain American states because it was the best chance for selfgovernment to survive and ultimately extend its benefits to all of America’s inhabitants. This was true for Lincoln as long as slavery was understood to be “in the course of ultimate extinction.” However, by the 1850s white Americans in the free states became increasingly indifferent to the spread of black slavery, exemplified by the growing allure of the doctrine of “local popular sovereignty” espoused by Stephen A. Douglas in 1854. Passage of Douglas’s Kansas-Nebraska Act of 1854 signaled to Lincoln a shift in public opinion that threatened the pursuit of justice for all, regardless of color. Lincoln began to address the natural rights of blacks in America in a way that returned white Americans to the ideals and practices of the Declaration of Independence as the surest means of preserving their own liberties. Given the tenuous hold that these principles had on white Americans, Lincoln was unwilling to adopt an abolitionist approach to pursuing the full protection of rights for blacks — an approach he believed would further entrench white prejudice against blacks and undermine the establishment of natural rights as the only legitimate basis of American self-government. The fragility of America as a union of freedom-loving people, despite the existence of slavery in several of the states, led Lincoln to go slow on protecting the rights of blacks, but also moved him to suggest what justice required in a way that he thought would appeal to both their self-interest and humanity.
This paper reports preliminary results of a more extensive project to understand the intellectual and legal history of the commander in chief clause of the U.S. Constitution. This project hopes to eventually develop a rigorous explanation of when, and why, the balance of war powers between Congress and the president has changed over time by content analyzing members of Congress’ references to the commander in chief clause. Focusing on four declared wars, this initial paper, based on an ongoing data collection effort, aims only to test a few simple hypotheses. First, it tests, and shows support for, the claim that the president’s inherent war powers were understood to be far more limited during the early Republic than during the twentieth century. The data also suggest that major changes in the nation’s understanding of the inherent war powers of the president took place far earlier than is usually recognized in the existing literature. Second, it tests whether it has always been the case that members of the president’s party argue for more expansive presidential war powers, and that members of the opposing party argue for more limited presidential war powers. It finds support for both hypotheses in the nineteenth century, with evidence of a major shift toward presidential power by partisan opponents of the president at the beginning of World War I.
At the Constitutional Convention in Philadelphia on June 1st, 1787, James Wilson of Pennsylvania first proposed that the executive powers be rested in a single person. The motion was seconded, and then, as James Madison reported, “a considerable pause” ensued. The delegates’ hesitation was hardly surprising. Only recently had they freed themselves from the tyranny of King George III, and they were firmly committed to creating a new government that would not abuse its powers and oppress its citizens. It must have seemed preposterous to replace a hereditary monarch with an elected monarch. To be sure, the framers invoked important reasons in favor of a unitary executive. With the passage of time, however, it has become clear that the founding fathers misjudged the consequences of a single president. They did not anticipate the extent to which executive power would expand and give us an “imperial presidency.” They did not predict the role that political parties would come to play and how battles to capture the White House would greatly aggravate partisan conflict. They did not recognize that single presidents would represent party ideology much more than the overall public good. And they misjudged the advantages and disadvantages of single versus multiple decision makers.

If the presidency is to fulfill the founding fathers’ vision, it needs to be reconceived. This need for constitutional change led me to the proposal for reform that I consider in this paper - the replacement of our single-person presidency with a two-person presidency, in which each of the two presidents would come from a different political party. A two-person presidency would yield many important benefits - a balancing of power between the executive and legislative branches, a dampening of partisan conflict in Washington, an executive branch more representative of the entire electorate, real opportunities for third-party candidates to win election, and wiser presidential decision making. A dual executive would be far more faithful to the framers’ views of executive power and constitutional design. They wanted a president with limited authority who would serve as a co-equal with Congress. They also believed that power should be limited by dividing it and requiring it to be shared. A two-person presidency relies on the framers’ structural devices to promote their core values.