January 6 and President Selection

 From the J6 Committee:

At the Constitutional Convention 233 years ago, the framers considered but rejected multiple proposals that Congress itself vote to select the President of the United States.143 Indeed the Framers voiced very specific concerns with Congress selecting the President. They viewed it as important that the electors, chosen for the specific purpose of selecting the President, should make the determination rather than Congress:

It was desireable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men, chosen by the people for the special purpose, and at the particular conjuncture.144

The Framers understood that a thoughtful structure for the appointment of the President was necessary to avoid certain evils: “Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption.”145 They were careful to ensure that “those who from situation might be suspected of too great devotion to thepresident in office” “were not among those that chose the president.”146 For that reason, “[n]o senator, representative, or other person holding a place of trust or profit under the United States, can be of the number of theelectors.”147

...

In testimony before the Select Committee, [VP counsel Greg] Jacob described in detail whythe Trump plan for Pence was illegal:

[T]he Vice President’s first instinct, when he heard this theory, was that there was no way that our Framers, who abhorred concentrated power, who had broken away from the tyranny of George III, would ever have put one person—particularly not a person who had a direct interest in the outcome because they were on the ticket for the election—in a role to have decisive impact on the outcome of the election. And our review of text, history, and, frankly, just common sense, all confirmed the Vice President’s first instinct on thatpoint. There is no justifiable basis to conclude that the Vice President has that kind of authority.155

 143. The framers specifically considered and rejected two constitutional plans that would havegiven Congress the power to select the Executive. Under both the Virginia and New Jersey Plans, the national executive would have been chosen by the national legislature. See Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102Mich. L. Rev. 545, 592, 595 (2004); see also 1 The Records of the Federal Convention of 1787,at 21, 244 (Max Farrand ed., 1911) (introducing Virginia and New Jersey Plans), available at https://oll.libertyfund.org/title/farrand-the-records-of-the-federal-convention-of-1787vol-1; James Madison, Notes of the Constitutional Convention (Sep. 4, 1787) (Gov. Morris warning of “the danger of intrigue & faction” if Congress selected the President), available at https://www.consource.org/document/james-madisons-notes-of-the-constitutionalconvention-1787-9-4/

144. The Federalist No. 68, at 458 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 

145. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

146. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

147. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). See also U.S.
Const. art. II, § 1, cl. 2 (“but no Senator or Representative, or Person holding an Office of
Trust or Profit under the United States, shall be appointed an Elector”).

`155. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16), available at https:// www.govinfo.gov/committee/house-january6th

 

Thwarting Ambition: A Feature, Not a Bug

 Wesley Lowery at GQ writes about Congresswoman Alexandria Ocasio-Cortez

There would be other impediments—obstacles about which Ocasio-Cortez is practical, if not exactly optimistic. “Could Obama have gotten elected without the kind of financial support that he had?” she asked, noting that her opposition to Wall Street would be a major hurdle to any further rise. “I don’t know.” Even were she theoretically to become president, then what? She’d face a system—from the Senate to the Supreme Court—both empowered and inclined to thwart her most sweeping ambitions. “There are still plenty of limitations,” she said, playing out the hypothetical. “It’s tough, it’s really tough.”

Federalist 51:

 Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself

Mass Incapacitation and Appointment of House Members

 

In case of a terror attack or other disaster that causes a mass incapacitation of the House, the law provides for expedited special elections.  Some favor constitutional changes to provide for other means of filling the seats.  At The Hill, former representatives F. James Sensenbrenner and David Dreier argue against such measures.

Describing the unique character of the U.S. House of Representatives in Federalist Paper 52, James Madison, wrote: “[I]t is essential to liberty that the government in general should have a common interest with the people. . . . Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.” Madison also warned “[w]here elections end, tyranny begins.”

...

Gubernatorial appointment of U.S. representatives would invite partisan intrigue and legal challenge. Presently, Democrats hold a 12-seat majority in the U.S. House (221-209), among the most narrow of margins in recent history. Currently, 28 of 50 governor’s mansions are occupied by Republicans. If governors could appoint U.S. representatives, some might delay appointments while others expedite the process for partisan gain. This disparity would deny to citizens their constitutional rights to representation and the equal protection of the laws. The second general approach to jettisoning the direct election of U.S. representatives is more dubious than the first. These proposals would amend the Constitution to empower U.S. representatives to surreptitiously create a list of designated successor(s) to be appointed in the event of the elected representative’s death or incapacitation. Allowing members of Congress to choose their own successors invites opportunism and confers to a hand-picked designee the privilege of office and advantage of incumbency that must be earned from voters, not capriciously granted. Covert, dynastic succession of office is more emblematic of North Korea than the world’s greatest representative democracy.

Federalist and Anti-Federalist Views of the Executive

 At AEI, Gary Schmitt and Joseph Bessette have a paper titled "Debating the presidency: Anti-Federalist and Federalist views of executive power during the ratification debate."

The paper analyzes Anti-Federalist and Federalist views of the office of the presidency during the ratification debate over the Constitution in 1787-1788. It explores in detailed fashion the critiques and defenses of what the Constitution’s architects had established with respect to executive power and its relationship to republican government.

The Politics of Place

Federalist 57: "THE THIRD charge against the House of Representatives is, that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few."

David Fontana at WP Magazine:

[Place] still matters a lot — more than you might think — in defining who many Americans are. In the average county weighted by population, according to a study from the Journal of Economic Perspectives, 55 percent of Facebook friends live within 50 miles of one another, even though only 1 percent of people live within 50 miles of one another. Childhood is defined by being in the places that your family chooses for you, and after high school you can finally pick your own place to live — yet one analysis found that college students on average move less than 15 miles from their childhood home. Another study found that the median distance that adults live from their mother is 18 miles.

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Since places are their own communities with their own self-reinforcing worldviews, it stands to reason that, in our democracy, the people who represent those places should genuinely understand them. A democracy that allocates power by place is, or is supposed to be, an intimate democracy. Not all democracies are set up this way — countries like Israel and the Netherlands allocate power through national systems of proportional representation — but in the United States, our political leaders are meant to govern people with whom they share a lived experience anchored in a place.

...

Most Americans still realize how much their place shapes their lives and choices. However, for the most privileged Americans, the power of place, while very real, has become harder to see — because their places change more significantly and more frequently.

Those with professional or graduate degrees are nearly three times as likely as those without a high school degree to move across state lines in a given year, according to the American Community Survey and demographer Lyman Stone. These numbers are even more dramatic among the highest-status educational institutions: As of 2015, 85 percent of Harvard first-year students moved from outside Massachusetts. And those Americans more willing and able to move toward opportunity tend to concentrate in the most privileged neighborhoods in the most privileged metropolitan areas. In 2019, 9 percent of Washington’s population moved from outside D.C. The comparison here is admittedly imperfect, but in the congressional district where I’m from in the North Country, 3 percent of the population moved in from a different state or country.

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One study in the journal Political Behavior found that in the 2005-06 congressional election cycle, about 5 percent of America’s Zip codes — concentrated in a few neighborhoods in a few metropolitan areas — were responsible for 77 percent of all individual contributions to congressional campaigns. And Anne Baker at Santa Clara University found that, from 2006 to 2012, the “average member of the House received just 11 percent of all campaign funds from donors inside the district.” The trend in this direction has been dramatic. In 1990, according to a study in Political Research Quarterly, out-of-district donors accounted for 42 percent of individual contributions to the median incumbent in the U.S. House. By 2010, that number was 72 percent. And candidates from both parties have a similar geographic distribution in their fundraising: Republicans also raise lots of money from New York City, and Democrats also raise lots of money from Houston.

...

There is an entire infrastructure that reflects — and then reinforces — the sense that place matters much less than it really does. Polling firms that produce results dominating our political system ask questions that matter enormously everywhere rather than those that only matter somewhere. They ask how people compare Joe Biden to Donald Trump, or what they want done about immigration, rather than what should be done about a locally significant employer that is departing.

Political elites campaigning for office internalize this lesson over their careers and speak the language of a post-place politics. They talk about red or blue and Trump or Biden. For their part, political editors at major outlets send reporters from far away to cover wide swaths of the country because they do not have reporters living there — and those reporters are more likely to cover these places through a national lens.

Representation, Congress, and the Presidency

 Yuval Levin at NR:

Whatever you think about the particulars of the impeachment trial, the broader truth of this point is increasingly impossible to deny. Almost every other problem in our constitutional system now is a function of or a response to willful congressional weakness. And that willful weakness is not best understood as a reticence to exercise power but as a fundamental failure to understand the nature of Congress’s purpose, function, and role. It’s a failure evident among members of Congress, but also among other constitutional officers, and among the broader public.

That failure is rooted in a deformation of our concept of representation, which itself reaches back to that Wilsonian presidentialism. Long before he was an elected official himself, in his political-science work, Woodrow Wilson argued that the president is the most representative (and therefore the most legitimate) of our public officials because he is the only one chosen by a national electorate. The idea was that the presidency could focus and consolidate the public will in a single person who would then represent our society. This has been a core belief of progressive nationalism ever since, but it has long since become a bipartisan vice and it’s behind a lot of the disfigurement of our republican politics. The fact is that our society is not politically consolidated in this way. It is diverse and manifold, and it is therefore best represented by a plural rather than a singular institution.

The presidency is formed around a single person not because representation is best served by a unitary figure but because, as Alexander Hamilton noted in Federalist No. 70, unity is the first and most essential ingredient of energy in the executive. The president’s job isn’t fundamentally representative. It is Congress that is shaped to be representative. And more important still, Congress is shaped to enable the diverse interests and views of our society to be represented in a way that also enables them to negotiate and bargain, and ultimately to accommodate each other.

This is a primary purpose of Congress as an institution — to enable and compel accommodation in a divided society. And the fact that accommodation now seems nearly impossible in our politics is a result of Congress’s failure to recognize and serve its purpose more than it is the cause of that failure.

Thanksgiving and Constitutional Gratitude

 Yuval Levin and Adam J. White at National Review:

George Washington’s Thanksgiving Proclamation in 1789, like so many other aspects of his presidency, set a precedent. Even if they were spurred by a congressional resolution, Washington’s words went far beyond Congress’s, offering the newly constituted people an example of what to be grateful for, and how to express that gratitude.

Washington went on to further exemplify constitutional gratitude at the end of his presidency, in his 1796 farewell address. There he expressed thanks not just to those who created the Constitution, but also to the Americans now tasked with sustaining it. They had entrusted Washington with the first presidency, and his farewell address is replete with statements of gratitude to Americans, of love for America, and of a profound sense of that with which he had been entrusted.

The man who had devoted his life first to the revolution, and then to the Constitution, left office not suggesting that the people were indebted to him, but the opposite: He offered “deep acknowledgement of that debt of gratitude which I owe to my beloved country,” he wrote, “for the many honors it has conferred upon me; still more for the steadfast confidence with which it has supported me; and for the opportunities I have thence enjoyed of manifesting my inviolable attachment.” The presidency was not a prize that he had earned, but an “important trust” that soon would be committed to his successor.

Washington would not be the last president to speak in such terms, nor should these themes be the exclusive province of presidents. Statesmen in Congress can offer such examples, too. In Federalist No. 57, James Madison writes that members of Congress would be motivated by more than just ambition and self-interest; he also counted duty and gratitude among “the chords by which [those members] will be bound to fidelity and sympathy with the great mass of the people.”

Some more than others, of course, and if the likes of Washington and Lincoln are rare in the White House then they are rarer still on Capitol Hill. But when members of Congress, like presidents, are able to define their office not just in terms of power but also in terms of gratitude both to their fellow countrymen and to their forefathers, they help to perpetuate the Constitution that creates their offices; and they offer an example for the people whose own constitutional gratitude is indispensable for this perpetuation.

This Thanksgiving, when the nation is battered by a pandemic and fractured by political strife, we can hope that statesmen will step forward to exemplify constitutional gratitude. But more important, we can rediscover the sources of our own gratitude, for those who wrote the Constitution and those who perpetuated it — not just for our own sake, but for the sake of posterity.

Foreign Influence on Elections

Federalist 22:

One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind.

In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments.

From the FBI:

Election Day 2020 is less than two months away, and the FBI is charged with protecting the rights of all Americans, including their right to vote.

From now until November 3, every American has a role to play in protecting the election from threats against the democratic process. Across the country, the FBI has initiated public awareness messaging about election security online at fbi.gov and across our social media platforms.

The goal of this social media campaign is to increase the public’s awareness about threats to the upcoming election and to inform Americans about what they can do to help the FBI ensure that the elections are safe and secure. These threats include crimes the FBI has been charged with investigating for decades, including campaign finance crimes; voter/ballot fraud; civil rights violations, cyber threats targeting the election process; and the potential for foreign influence on the democratic process, elected officials and institutions.
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The FBI is the primary investigative agency responsible for engaging with local and state election security counterparts to safeguard election integrity. The FBI is also the lead federal agency for identifying and combating malign foreign influence operations targeting our democratic institutions through the FBI’s Foreign Influence Task Force (FITF). The FITF brings together all FBI authorities and capabilities from multiple divisions to include Counterintelligence; Cyber; Criminal; and Counterterrorism assets to coordinate and work together to combat the threat.

The FITF is committed to providing accessible tools and resources to all levels of government through both in-person briefs and online tools, such as our Protected Voices campaign, found at fbi.gov/protectedvoices. Protected Voices is a public initiative which provides political campaigns, organizations, and other election security stakeholders with tools and resources to protect against malign foreign influence and cyber security threats.

In addition to protecting the November 2020 election, the FITF remains focused on persistent malign foreign influence efforts targeting our democratic institutions and processes outside of election events and works closely to address threats targeting the democratic process and American elections.

If you have information about allegations of election crime or voter fraud, please call your local FBI field office. The Washington Field Office can be reached at 202-278-2000.

Additional information on the FBI’s role in election security and access to educational resources about how to protect your voice and vote, can be found by following the FBI’s Washington Field Office at @FBIWFO.

 

Courts, Civic Education, and Social Media

Chief Justice John Roberts's annual report:

 Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside.  In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital.  The judiciary has an important role to play in civic education, and I am pleased to report that the judges and staff of our federal courts are taking up the challenge.

By virtue of their judicial responsibilities, judges are necessarily engaged in civic education. As Federalist No. 78 observes, the courts “have neither FORCE nor WILL, but merely judgment.”  When judges render their judgments through written opinions that explain their reasoning, they advance public understanding of the law. Chief Justice Earl Warren illustrated the power of a judicial decision as a teaching tool in Brown v. Board of Education, the great school desegregation case.1  His unanimous opinion on the most pressing issue of the era was a mere 11 pages—short enough that newspapers could publish all or almost all of it and every citizen could understand the Court’s rationale. Today, federal courts post their opinions online, giving the public instant access to the reasoning behind the judgments that affect their lives.

The Federalist Papers and a Court Case

Judge Ketanji Brown Jackson explaining why former White House counsel Don McGahn has to testify before Congress:

DOJ’s arguments to the contrary are rooted in “the Executive’s interest in ‘autonomy[,]’” and, therefore, “rest[] upon a discredited notion of executive power and privilege.” Id. at 103. Indeed, when DOJ insists that Presidents can lawfully prevent their senior-level aides from responding to compelled congressional process and that neither the federal courts nor Congress has the power to do anything about it, DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards. In reality, it is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny. See The Federalist No. 51 (James Madison); see also Buckley v. Valeo, 424 U.S. 1, 120 (1976). Thus, when presented with a case or controversy, it is the Judiciary’s duty under the Constitution to interpret the law and to declare government overreaches unlawful. Similarly, the House of Representatives has the constitutionally vested responsibility to conduct investigations of suspected abuses of power within the government, and to act to curb those improprieties, if required. Accordingly, DOJ’s conceptual claim to unreviewable absolute testimonial immunity on separation-of-powers grounds—essentially, that the Constitution’s scheme countenances unassailable Executive branch authority—is baseless, and as such, cannot be sustained.

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 To the contrary, the Framers spoke specifically to the importance of maintaining an established rule of law to regulate government conduct—and, thus, to the significance of the judicial function—when they explained why a system that separates the powers of government and includes checks on the exercise of government power is crucial to sustaining a democracy:

...[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of the attack. . . . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

The Federalist No. 51 (James Madison). The Framer’s specific reference to providing
government officials in each of the separate branches with “the necessary constitutional
means and personal motives to resist the encroachments of the others[,]” id., is especially noteworthy, because, here, DOJ’s artificial limit on the federal courts’ jurisdiction to consider disputes between the branches seemingly decreases the incentive for the Legislature or the Executive branch to behave lawfully, rather than bolsters it, by dramatically reducing the potential that a federal court will have occasion to declare conduct that violates the Constitution unlawful. And there can be no doubt that providing the branches with the power to limit each other’s behavior, for the protection of the People, was the original intent of the Framers, as evidenced both by the constitutional scheme they adopted and by the remarks they made to explain the separation-of-powers construct. Indeed, far from DOJ’s present suggestion that the separation-of-powers construct means that the political branches must resolve their disputes in the political arena and never head to federal court, Federalist No. 51 proceeds to explain that political checks are not the sole solution, and that the branches themselves must also be vested with the power to police the abuses of the others. See id. (“A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. . . . We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.”).

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 In short, DOJ’s implicit suggestion that compelled congressional process is a ‘zero-sum’ game in which the President’s interest in confidentiality invariably outweighs the Legislature’s interest in gathering truthful information, such that current and former senior-level presidential aides should be always and forever immune from answering probing questions, is manifestly inconsistent with a governmental scheme that can only function properly if its institutions work together. See The Federalist No. 51 (James Madison).

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Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. See The Federalist No. 51 (James Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville, Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.

Happy Constitution Day

Yuval Levin at AEI:

Populism and elitism are each in its way a kind of politics of hubris. Each is rooted in a plainly unreasonable view about the capacity of human beings — be it a select class or the people as a whole — to make just the right governing decisions. The Constitution is plainly dubious about both sets of claims to superior judgment. It is built upon a profound skepticism about the ability of any person and any group or political arrangement to overcome the limitations of human reason and human nature, and so establishes a system of checks to prevent sudden large mistakes while enabling gradual changes supported by a broad and longstanding consensus. Experts and aristocrats should not govern, nor should the people do so directly, but rather the people’s representatives should govern in a system filled with mediating institutions and opposing interests — a system designed to force us to see problems and proposed solutions from a variety of angles simultaneously and, as Alexander Hamilton puts it in Federalist 73, “to increase the chances in favor of the community against the passing of bad laws through haste, inadvertence, or design.”

That such a system is far from populist should be obvious. In Federalist 63, James Madison says that the constitutional architecture involves “the total exclusion of the people in their collective capacity” from directly governing. The more democratic elements of the Constitution are intended to be checks on the power of government, not expressions of trust in the wisdom of the public as a whole. And the more aristocratic elements are checks as well — on the tendency of representative institutions to shamelessly curry favor with the electorate at the expense of responsible government.

Basic Madison

James Madison's Montpelier has a  basic video explainer on James Madison, the Constitution, and The Federalist:

War, Veterans, Presidents

The recent passing of President George H. W. Bush -- a hero of World War II -- reminds us that most presidents have served in the military.

Rebecca Burgess at The American Interest:

War creates political opportunities for those who fight them. This is meant as an observation of fact, not a remark intended to cheapen the sacrifices made by soldier-politicians whose military service draws the voting public’s attention and praise. Indeed it is a fact that, historically, some soldiers’ motivation for military service has rested on its perceived value for capturing later electoral dividends. Long before Napoleon Bonaparte strategized how to rule Europe from horseback, and even before Julius Caesar rode his military successes across the Rubicon to occupy Rome, soldiers have leveraged their military prowess for political ends. Sometimes they’ve accomplished this peacefully. Often, they’ve employed their martial skills more directly. The ties that bind war and the political do not necessarily mean that those who wage war will become those who rule, but the historical magnetism between the two expressions of leadership is hard to deny.

The formal exception to this historic trend—the United States—only seems to confirm how deep-seated the attraction is. The framers of the American republic intentionally erected barriers between the military and the political realms. Wary of the dangers that “standing armies” posed to individual liberty, and conscious of the threat that a “man on horseback” could pose to a self-governing people, the framers subordinated military power under layers of civilian control and stripped any political power from the military as an institution. In the final Federalist Papers entry, Publius concludes his pitch for ratifying the Constitution by identifying it as a bulwark to prevent “the military despotism of a victorious demagogue.”

And yet since 1789, Americans have overwhelmingly elected former soldiers to be the nation’s chief executive. Of the first 25 Presidents, 21 had military experience, beginning famously with George Washington, whose chief cabinet officers during his two terms (Henry Knox, Edmund Randolph, Timothy Pickering, and Alexander Hamilton) had served with him as Continental officers. Of the presidential contests from 1789 to 2016, military veterans have been nominated by their parties 65 times, compared to nonveterans’ 58 times. About two-thirds of elected Presidents have been veterans. Mitt Romney in 2012 was the Republican Party’s first presidential nominee to be a nonveteran since Thomas Dewey in 1944. The 2016 presidential election was only the 14th time that both of the two main parties have fielded candidates without military experience.

Kagan on the Court

Justice Elena Kagan spoke at Princeton.

I transcribed the entirety of Justice Elena Kagan's answer about the Supreme Court and institutional legitimacy because I think it's important. pic.twitter.com/BzEbXF5Z9T

— Cristian Farias (@cristianafarias) October 6, 2018

Her comments on the army and money were a loose paraphrase of Hamilton in Federalist 78:

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.

Article II Powers and Duties

In response to a legal memo by POTUS's lawyers, a group of legal scholars has written an open letter on Article II powers.  An excerpt:

While Article II empowers the President to execute the laws, it also constrains him in so doing. The “Take Care Clause” requires that the President “shall take Care that the Laws be faithfully executed” (emphasis added). Article II contains a mandatory Oath of Office whereby the President must swear to “faithfully execute the office of President.” Like the Take Care Clause, the Oath also conceives of the President’s role as a duty—to “preserve, protect, and defend the Constitution”—not a personal power.

When the Founders thus defined the Presidency as an office bound and restricted by overarching duties of care and faithfulness (fidelity) to the Constitution and laws of the United States, they were invoking the well-known concept of treating a public officer as a fiduciary.[3] In the eighteenth century, as today, English and American law required fiduciaries to act always with due care, solely for the good of their beneficiaries, and to abstain from self-dealing, corruption, and other kinds of self-interested actions.

The President’s duties of care and faithfulness are the fiduciary duties most explicitly required by the Constitution, a document that refers to many offices as “Offices of Trust,” invoking the legal concept of trusteeship (a fiduciary relationship). Mirroring the Constitution’s text, the Federalist Papers repeatedly use the language of care, faith, and trust to describe the offices and duties of all three branches of the federal government and the way their powers should be exercised on behalf of the American people. George Washington, in the opening lines of his first inaugural address, spoke of the presidency as a “trust” committed to him by the American people.[4] The Founders’ carefully-chosen words, with their well-known meanings, reflect a conception of a chief magistrate who is duty bound to act with faithfulness to the law and the people, not to his own selfish interests. A similar view of the office underlies the conclusion of the Department of Justice’s Office of Legal Counsel that a president may not pardon himself.[5]

It is not strange that the Founders chose to create a chief executive who would be bound to act for public-spirited reasons, rather than pursuing self-interest, self-dealing, or self-protection. Monarchy and all of its attendant ills were rejected by the Founders. The President would not be a king by another name.[6] By banning titles of nobility,[7]and providing that the President would be elected to a term of years,[8] not chosen on hereditary principles, and not ruling for life, the Constitution addressed the fear that a chief executive’s primary interest would be perpetuation of his dynastic successors and retainers rather than the good of the country. Many English kings had been foreign born, and still held lands and titles abroad, giving them personal interests that might differ from those of the citizenry. In response, the Constitution requires that the President be a citizen.[9] The President was to be given a salary while in office, and prohibited from imposing taxes or otherwise raising funds on his own authority, and also positively barred from accepting bribes, gifts, or other emoluments of office from foreign governments or state governments.[10] Typically monarchical kinds of financial self-dealing by the chief magistrate were therefore substantially checked. And importantly, the Constitution was conceived at a time when the English Bill of Rights constrained even the monarch from exercising the so-called “dispensing” power to dispense with or suspend Acts of Parliament. Our Constitution similarly limits the President, and certainly cannot be read to grant him a power the British monarch lacked.[11]

These structural checks against abuses typical of monarchy further elucidate the Founders’ vision—seen in the Oath and Take Care Clause—of a chief executive bound to act with care and fidelity for the benefit of the country, not himself personally. Other structural provisions in the Constitution which evidence a norm against self-dealing support this reading.[12]

The President’s executive powers therefore would not permit him to terminate the Russia investigation by firing the Special Counsel or his Department of Justice supervisors; to order the destruction of evidence developed in the Special Counsel’s investigation; to pardon himself or other subjects of the Special Counsel’s investigation;[13] or to attempt to quash a subpoena, if the President takes any of these actions motivated predominantly by self-interest. Indeed, the Constitution, properly understood, would prohibit all of those actions under those conditions.

Because the President does have vast powers as head of the executive branch, and because the difference between public-interested (constitutional) and corrupt (unauthorized and hence unconstitutional) presidential actions may often turn on the reasons for which actions are taken, the lawyers for a President have an especially important obligation of their own to the Constitution and people of the United States. The President’s lawyers must counsel their client so that he understands that acting for the right reasons is the key to lawfully exercising the great powers he wields.

The Idea of Reverence for the Constitution

At The Jack Miller Center, James Ceaser writes:

The idea of a written constitution is coupled in The Federalist with another important contribution about how the people should regard the document. What kind of thing is a written constitution? From a legal standpoint, a written constitution is higher law. But is it merely law, or does it perform a further function and have a different status? Is the Constitution something to be venerated—something that endows government with respect and contributes to its stability and endurance— and that provides a bond that connects the people to the nation? 

As with the idea of a written constitution, many today can easily overlook the originality of this doctrine. But there is no logical connection between what are just words on a page and the veneration we apply to them. The idea of reverence for the Constitution was a creation of The Federalist. But why did The Federalist create this doctrine of constitutional reverence? 

First of all, the experience of the leading figures in writing and promoting the Constitution led them to appreciate just how difficult it was to secure a happy outcome for this kind of venture. The odds of success, they concluded, would always be slim, and there were always grave risks in trying. Every attempt at remaking government creates instability and threatens to divide the nation.

These leaders were also aware of how favorable, relatively speaking, were the circumstances in their day for accomplishing their objective. The proposed constitution was being considered at a time when people still had unusual confidence in their leaders, most notably George Washington, and when there was a lingering unity of purpose stemming from the Revolution.

Even more importantly—though the authors could not openly state this about themselves—was that the main figures involved were persons of exceptional talents, with rare devotion to the public good, and, in the case of a few, extensive knowledge of the science of politics. As I hinted above, accident (or chance) played a critical and perhaps decisive role in ratifying the Constitution.

Given these facts, the founders concluded that it would be best to lock in the gain. Veneration of the Constitution was a means to assure its durability and avoid temptations to engage in experiments of new-modeling the government. Durability would not exclude changes, which the Constitution allows for by the process of amendment. But amendment is not made easy, as this would defeat the objective of durability.

It is important to note, finally, that while The Federalist allows for piety as a support for the Constitution, it also presents the rational arguments in its favor. Depending on one’s inclination, either basis of maintaining the frame of government might work. This combination of rationalism and traditionalism is not easy to realize, as these two commitments pull the public mind in different directions. But suspended between these two poles is arguably the most realistic position for the public mind.

To support this combination, I chose upon solemn consideration to place “Fed 49” on my Virginia license plate. By this means I hope to impress on all who venture on our roads, and especially on the willful who tailgate, the need for restraint and the importance of fidelity to the Constitution.

Federalist 86

Reposted from Epic Journey:

Reacting to news that Donald Trump had pretended to be other people while calling reporters, Roger Stone said: “James Madison, John Adams,Alexander Hamilton — they all wrote under pseudonyms, they all had things they wanted to say and they wrote under pseudonyms.”

Indeed, the John Barron Center of Trump University has uncovered an example:  the long-lost 86th Federalist Paper:

..............................................................................................................

Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. So if you see somebody getting ready to throw a tomato, knock the crap out of them, would you? I promise you, I will pay for the legal fees.

It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated.  But they did make terrific statues.  Let me tell you, we will bring those statues over here and put them in beautiful fountains.

But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.  So to hell with angels. Now, our country needs a truly great leader, and we need a truly great leader now. We need a leader that knows the art of the deal.

I'm a uniter. There are three methods of curing the mischiefs of faction: the one, by removing its causes; two, by controlling its effects, three, by putting me in charge. Trust me, you want number three.

A lot of you don’t know the world of economics. Don’t worry. Leave it to me. In political arithmetic, two and two do not always make four.

Forget all this talk, talk, talk about reflection and deliberation. If ever you hear low-energy losers talk about the mild voice of reason, just drown them, okay? Energy in the executive, that's what it's all about.

So what kind of president will the new Constitution give us?  Just listen to what the haters are saying. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. So what do you think? Doesn't that sound terrific?  I guarantee you, we will have the classiest diadems and the best minions!

The accumulation of all powers, legislative, executive, and judiciary, into my very large hands would be fantastic.  After all, you must first enable the government to control the governed; and in the next place oblige it to control itself.  So leave it to me, folks, I've been saying this for a long time: everybody will do as I say.

Federalist 10 and the 2016 Election

D.J. Tice writes at The Minneapolis Star-Tribune:

The founding fathers said there would be days like this. On the eve of the 2016 Iowa caucuses — which will plunge America into a maelstrom of election contests sweeping us dizzyingly toward actually choosing a new president — the understated warning from the chief author of our Constitution clangs like a fire bell.

Enlightened statesmen will not always be at the helm.

...
Yet even if these appetites produce a Sanders or a Trump presidency, the [Jesse] Ventura precedent suggests it might deliver another surprise, and a welcome one. In his official acts (as opposed to his celebrity antics), Gov. Ventura largely steered a mainstream course, delegating vigorously to decent public servants he placed in key jobs. A President Trump or Sanders might adjust to reality, too.

That’s likely, because America’s complex and cumbersome system of government constrains every office holder, making it improbable that even a champion demagogue could enact destabilizing innovations, at least not without major compromise.

This is why debates over the proper boundaries on a president’s executive orders matter. It’s why the much-criticized Senate filibuster, which makes passing controversial laws difficult, shouldn’t be carelessly discarded. It’s why limits should be enforced on a president’s war powers and on the government’s right to spy on citizens. It’s even why we must question tough-on-crime measures like the psychiatric commitment of sex offenders after they’ve served their prison terms.

Mike Lee for Speaker?

Ross Douthat floats the idea of Senator Mike Lee (R-UT) for speaker:

Lee has an insurgent’s résumé: He was elected with the Tea Party wave in 2010, defeating an incumbent Republican, Bob Bennett, along the way. He was Ted Cruz’s partner in crime during the government shutdown debates. His scorecard with Heritage Action, often the scourge of G.O.P. leaders, currently stands at 100 percent. And unlike almost every member of the House and Senate leadership, he’s a genuine foe of comprehensive immigration reform.

At the same time, like Ryan (and unlike Cruz), Lee been a real policy entrepreneur. He authored a pro-family tax plan that breaks with some (if perhaps not enough) of the G.O.P. donor class’s orthodoxies. He has offered serious proposals on transportation, higher education and religious liberty. And just this week he was part of a bipartisan breakthrough on criminal justice reform, one of the rare issues where the late Obama years still offer hope for compromise.

In Lee’s ambitions, you can see what the House insurgents want to be — a force that moves conservative policy making away from donor service and toward genuine reform — rather than the purely nihilistic force they often threaten to become. You can see the outlines of the kind of agenda that might satisfy (some) intransigents and also provide some (very) modest ground for bipartisanship.

And then in his record and persona, you can see a — let’s be frank — tribal identification with insurgency that might make easier for him to persuade the G.O.P.’s right flank to accept the real limits on the House’s power.

Unfortunately the House insurgents do not appear to have a Mike Lee in their ranks.

But there is also no rule preventing the House from electing a senator as its speaker.

Ross Douthat is an elegant, perceptive writer, and I usually agree with him.  But this idea is badly flawed.

First, as a previous post mentioned, it is not entirely clear that the Constitution permits the House to elect a speaker from outside its ranks. Granted, however, it is unlikely that the judiciary would intervene to stop such a move.)

Second, and much more important, it violates a fundamental principle of the Constitution: bicameralism.  In Federalist 51, Madison laid out the rationale for having two different legislative bodies:

In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.

Different terms of office, different constituencies, different prerogatives and functions -- all of these distinctions separate the two chambers, just as the Framers intended.  Members of one should not get into the internal affairs of the other -- unless of course they leave the first and win election to the second.

Demagogues

At Commentary, Peter Wehner says that Trump is the kind of demagogue that the Founders warned against:

While the criteria for identifying a genuine demagogue vary, what I have in mind is a political leader who appeals to emotions rather than reason and to people’s fears and prejudices. There is often the targeting of the “out-group.” Relying on personal charisma, a demagogue typically exploits situations to intensify popular support, thrives by creating divisions and seeks to manipulate the masses. Contradictions and false statements are overlooked and excused. For the demagogue, the problems we face are simple to solve, if the right leader is given the reins of power. All this creates a powerful bond with his followers, who prize “authenticity” over careful arguments and view the leader in nearly mystical terms.

It’s worth noting here that the demagogue, the embodiment of anti-reason, is what the American founders feared. Indeed, the founders designed a system of government – checks and balances, separation of powers – that was meant to prevent the rise of demagogues. It is a recurrent concern in The Federalist Papers, and, in fact is mentioned in the very first one.

In Federalist #71, Alexander Hamilton defends the four-year presidential term on the grounds that it will allow the chief executive to counteract the “sudden breeze of passion” of the people. The argument was the president should not simply be responsive to popular will; instead, he would have some distance from temporary enthusiasms. The purpose was to refine rather than incite public opinion. As Hamilton put it, “The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse that the people may receive from the arts of men, who flatter their prejudices to betray their interests.” (Sound familiar?)

In Federalist #10, James Madison distinguishes between a democracy and a republic, with the goal of a republic to “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” (I recommend this articlein The Atlantic by the Madison biographer Michael Signer, which distinguishes between benevolent and selfish passions.)

Time and again the founders argued for the need “for more cool and sedate reflection.” They spoke about the danger of passion wresting the sceptre from reason. And it is Mr. Trump’s assault on reason, combined with his demagogic tendencies, that most troubles me.