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Sunday, June 2, 2019

The Executive Power

Julian Davis Mortensen at The Atlantic:
After years of research into an enormous array of colonial, revolutionary, and founding-era sources, I’m here to tell you that—as a historical matter—this president-as-king claim is utterly and totally wrong. I’ve reviewed more than a thousand publications from the 17th and 18th centuries for each instance of the word root exec-, and have read most of those texts from cover to cover with the topic of presidential power squarely in mind. I’ve read every discussion of executive power and presidential authority that appears in the gigantic compilation of archival materials known as the Documentary History of the Ratification of the United States Constitution. And with the help of a team of research assistants, I’m most of the way through flyspecking the full records of the Continental Congress—including committee reports, floor debates, and delegate correspondence—with the same question in mind.
All this work has left me with both the confidence to share this conclusion and the sense of obligation to do so as bluntly as possible. It’s just not a close call: The historical record categorically refutes the idea that the American revolutionaries gave their new president an unspecified array of royal prerogatives. To the contrary, the presidency that leaps off the pages of the Founders’ debates, diaries, speeches, letters, poems, and essays was an instrument of the law of the land, subject to the law of the land, and both morally and legally obliged to obey the law of the land....
“The executive power” granted at the American founding was conceptually, legally, and semantically incapable of conveying a reservoir of royal authority. The real meaning of executive power was something almost embarrassingly simple: the power to execute the law. Overwhelming evidence for this point pervades both the Founders’ debates and the legal and political theory on which their discussions drew.
Listen to how Gouverneur Morris framed the problem for his fellow delegates in Philadelphia. The central challenge of constitutional governance, he said, was to safely distribute each of “the three powers” that everyone knew so well: “one … the power of making[,] another of executing, and a third of judging, the laws.” Under this tripartite system, the function of executive power was both straightforward and indispensable—to implement instructions issued by a valid exercise of legislative power. In a famous 1774 Election Day sermon, Gad Hitchcock stated the consequence plainly: “The executive power is strictly no other than the legislative carried forward, and of course, controllable by it.” These weren’t idiosyncratic views. The catechistic statement of three interlocking powers served as a universal grammar for debating constitutional governance. As one exasperated British reviewer said of the relentless trinitarianism in John Adams’s 1787 constitutional treatise, “Upon this point, like Lord Chesterfield with the Graces, Dr. Adams dwells for ever.”