Neoconservatism as a Fake Ideology, Part 2
More on that noted "strict constructionist" and enemy of "legislating from the bench," Harriet Miers (from Progressive Review):
These so-called "strict constructionists" should be aware that the Article II delegation of power to the Executive has an "original understanding" paper trail almost as extensive as that of the legislative delegation in Article I, Section 8. I've done a fair amount of reading on the subject, although I'm too damned lazy to go back through Thorpe's Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies, Madison's Notes, and Elliot's Debates to dig out the exact citations (it's a project in the hopper, though).
Hamilton, that prototype of neocon sliminess, argued as Pacificus that Article II (unlike Article I) was a plenary grant of all executive powers involved in the royal prerogative, minus only those expressly forbidden. But as one defender of Article II's language pointed out in the Federal Convention, there is no general residue of executive power that is not expressly accounted for in some part of the Constitution. All the separate components of the royal prerogative were listed by Blackstone in volume 1 of his Commentaries. And every single one of those components in the Constitution is expressly granted to the President, expressly denied to him, or expressly granted or denied to some other branch of government. There is no residuum of executive power, not thus accounted for, on which to hang a general "national security prerogative."
The language of Article II, likewise, carried clear implications on the extent of Presidential power. The term "president" itself, for example. Three state constitutions, in the 1780s, referred to their executive as a president. In every one of those states, the chief executive was the first among equals, or presiding officer, in a plural executive (hence the Latin participle "president"), sometimes taking the form of a privy council whose "advice and consent" was required for the exercise of a wide range of executive powers. The "advice and consent" requirement was not a mere rubber stamp. It required the nominal chief executive, in effect, to function as a component part of a plural executive: "the governor-in-privy council." Something of this is preserved in the federal executive's direct involvement, in the person of his Vice President, in presiding over the Senate. The clear effect of the Constitution's original language, given the contemporary understanding of its terms of art, was to create the President as presiding officer of a plural executive ("President-in-Senate") in the exercise of all powers for which "advice and consent" were required.
harriet miers , constitution , judicial activism ,
RICK KLEIN, BOSTON GLOBE - Earlier this year, Supreme Court nominee Harriet E. Miers used several speeches to push for expanding President Bush's powers to protect the United States against terrorism, arguing that "a nation at war" needs a stronger executive branch, according to transcripts the White House has provided to the Senate Judiciary Committee.
In her speeches to conservative groups, Miers called for extension of the Patriot Act, which expands law enforcement agencies' power to investigate suspected terrorists. She defended Vice President Dick Cheney's closed-door energy task force as the best way for the administration to use confidential deliberations to set national policy. And she said her role as White House counsel was generally to "protect against any attempted infringement on the appropriate role of the executive branch."
"In order to effectively serve the American people, the president's powers must be protected," Miers said in June, in a speech given to the conservative Heritage Foundation. "We must recognize that we are a nation at war, and that requires a strong presidency to act as commander-in-chief.". . .
These so-called "strict constructionists" should be aware that the Article II delegation of power to the Executive has an "original understanding" paper trail almost as extensive as that of the legislative delegation in Article I, Section 8. I've done a fair amount of reading on the subject, although I'm too damned lazy to go back through Thorpe's Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies, Madison's Notes, and Elliot's Debates to dig out the exact citations (it's a project in the hopper, though).
Hamilton, that prototype of neocon sliminess, argued as Pacificus that Article II (unlike Article I) was a plenary grant of all executive powers involved in the royal prerogative, minus only those expressly forbidden. But as one defender of Article II's language pointed out in the Federal Convention, there is no general residue of executive power that is not expressly accounted for in some part of the Constitution. All the separate components of the royal prerogative were listed by Blackstone in volume 1 of his Commentaries. And every single one of those components in the Constitution is expressly granted to the President, expressly denied to him, or expressly granted or denied to some other branch of government. There is no residuum of executive power, not thus accounted for, on which to hang a general "national security prerogative."
The language of Article II, likewise, carried clear implications on the extent of Presidential power. The term "president" itself, for example. Three state constitutions, in the 1780s, referred to their executive as a president. In every one of those states, the chief executive was the first among equals, or presiding officer, in a plural executive (hence the Latin participle "president"), sometimes taking the form of a privy council whose "advice and consent" was required for the exercise of a wide range of executive powers. The "advice and consent" requirement was not a mere rubber stamp. It required the nominal chief executive, in effect, to function as a component part of a plural executive: "the governor-in-privy council." Something of this is preserved in the federal executive's direct involvement, in the person of his Vice President, in presiding over the Senate. The clear effect of the Constitution's original language, given the contemporary understanding of its terms of art, was to create the President as presiding officer of a plural executive ("President-in-Senate") in the exercise of all powers for which "advice and consent" were required.
harriet miers , constitution , judicial activism ,
posted by Kevin Carson | 11:36 AM
7 Comments:
As long as Hamilton is getting another kicking here, allow me to play devil's advocate.
It's easy to say, with 200 years of hindsight, that the way he helped structure the government centralized power too much. But at the time, it looked like the states were about to break up into squabbling factions, deeply indebted by the war and unable to secure more foreign credit. Hamilton, like many others, believed the states couldn't survive on their own against a hostile British Empire.
According to what I remember of Alexander Hamilton: A Life by Willard Sterne Randall (not that great a biography), Hamilton only had two major examples for how to set up a government and run an economy. Those were England and France, both centralized states. Maybe clung too tightly to the centralized values he learned. Maybe a genius in his place could have come up with a different solution that solved the debt crisis and let the states keep more independence. I don't know enough about Jefferson's alternatives to suggest if they would have worked, and it would be pure speculation, as they were never tried.
And, off topic, it should be remembered that if we were transported back to 1780, we'd be joining Hamilton's abolitionist society, not buying black people like Jefferson.
"The executive power shall be vested in a President of the United States." No specific definition of the "executive power" follows. Not saying I agree, but I believe that would be the justification for giving the president some unenumerated powers.
Also, if we're gonna be stripping down the feds to their enumerated powers, shouldn't the Supreme Court be stripped of the right to judicial review?
Matthew, neither England nor France were centralised states at the time of which you speak, although both had experienced strong centralising tendencies that might have been read as awful mornings as easily as models. England was no more than the major partner of a larger state, and pre-revolutionary France had lots of special cases all though it that Thomas Paine described most ably in his work on that revolution (he was better at description than prediction or prescription).
To see the ordinary usage of "president", consider "President of the North", current in the 16th century and earlier, and "President of the Board of Trade", current in the 19th and 20th centuries. The important issue in all this is not whether the presidency is only defined in relation to another body, but whther that body has corporate power and authority distinct from its members or whether it is collegiate, i.e. merely a place to co-ordinate distinct de facto or de jure power of its members (like the British Cabinet). Remember, too, that modern concepts of kingship derive from northern aristocracy that ipso facto had a strongest, and eastern despotism, from whom all powers actually flowed.
P.M.,
I may have been somewhat mistaken about England (and I should have mentioned that Hamilton's main English inspiration was that country's use of the national debt) but France was most definitely seen as centralized, especially just before Hamilton's time. From the Wikipedia, about the rule of Louis XIV:
He worked successfully to create an absolutist and centralized state; historians and political scientists often cite him as an example of an enlightened despot. Louis XIV became the archetype of an absolute monarch. He is frequently claimed to have said "L'État, c'est moi" ("I am the state"), though this is considered by historians to be a historical myth and is more likely to have been attributed to him by political opponents as a way to confirm a stereotypical view of the absolutism he represented.
Of course there are lots of power-sharing partners in such a state; the clergy, nobles, ethnic and linguistic groups and so on. But the main point is the degree of centalization that is seen as morally justifiable and as desirable. Remember that Hamilton never visited England or France, he learned about their systems from books. His only experience with the way things actually worked was on some Dutch, French and British-ruled Caribean islands and in America.
Matthew,
The popular image of the Confederation period as one of disorder and financial crisis reflects the fact that the winners write the history books. The Federalists had a vested interest in exaggerating the problems of the period, in order to sell their agenda of centralizing power to promote mercantile interests. Cf. Merrill Jensen's writing on the period, which shows that the states were settling trade disputes between themselves and paying of the war debt quite effectively.
Alternative models to Hamilton's centralism certainly weren't lacking. His system was an American knock-off of Walpole's court party. The opposition movement (variously known as the "country party" or "eighteenth century commonwealthmen") was the main source of the ideology of the American revolution--at least its grassroots currents--and the antifederalist and republican movements.
Sam L.,
But the contrary argument, that I cited in my post, is that Blackstone enumerated all the components of the executive power, and that every single one of those components is either delegated or prohibited to some department of the government in the Constitution; no residuum of power remains.
The power of judicial review is implied in the very structure of the document; given the supremacy of the Constitution over both federal statute and state laws, something like judicial review is required in any conflict of laws case. That being said, I don't believe judicial review makes the SC some sort of Platonic guardian class. Their power of judicial review begins and ends with the power to decide a specific case that comes before them.
Talk about finger trouble! I meant "awful warning", not "awful morning". Matthew, there is no doubt that France was seen as centralised, and worked that way, but it did so by co-opting all the components of a decentralised system just like the USSR, strangler vine fashion. For "commissar" read "intendant" throughout. The revolution replaced all this with a genuine top down centralised system, in large part because of the challenge of local identity beginning to reassert itself. As I said, read Tom Paine for an overview of the previous French unwritten constitution, i.e. the way the components actually were structured before 1789.
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