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Thursday, January 15, 2009

Was the Presidency a Mistake? Or Merely Flawed?

The latest Atlantic Monthly brings Maryland law professor and novelist Garrett Epps’s article “The Founders’ Great Mistake,” about flaws in the U.S. Constitution—specifically, the document’s vagueness in defining the role of chief executive in a government that was supposed to be led by the legislative branch.

Some thought-provoking extracts:

  • “One important reason for the [Constitutional Convention] delegates’ reticence was that George Washington, the most admired man in the world at that time, was the convention’s president. Every delegate knew that Washington would, if he chose, be the first president of the new federal government—and that the new government itself would likely fail without Washington at the helm. To express too much fear of executive authority might have seemed disrespectful to the man for whom the office was being tailored.”
  • “Under the pen name ‘Pacificus,’ [in 1793 Alexander] Hamilton wrote a defense of Washington’s power to act without congressional sanction. . . . Hamilton seized on the first words of Article II: ‘The executive power shall be vested in a President of the United States of America.’ He contrasted this wording with Article I, which governs Congress and which begins, ‘All legislative powers herein granted shall be vested in a Congress of the United States.’ What this meant, Hamilton argued, was that Article II was ‘a general grant of…power’ to the president. Although Congress was limited to its enumerated powers, the executive could do literally anything that the Constitution did not expressly forbid. Hamilton’s president existed, in effect, outside the Constitution.” The picture of Hamilton above comes from the Library of Congress.
  • “When George Washington became president, he left a large organization (the Mount Vernon plantation) to head a smaller one (the federal government).” [Smaller in terms of employees, possibly, but not in geographic reach or potential influence on Americans.]
Among Epps’s proposed reforms are direct popular election of the President and an independent U.S. Attorney General, specified executive powers, a sort of a “no confidence” measure after midterm election reversals, and a shorter period between a national election and the next inauguration. It would be interesting to see Epps revisit these proposals at another time besides right now and decide if they all still look as valuable.

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