The Constitution and the Oval Office
CREATING a new frame of government, the men who drafted the Constitution in 1787 also produced something that only political theorists had ever tried: a job description for a chief of state. Sections 2 and 3 of Article II carefully set out not only presidential powers, but also obligations. Although no language specifically says what the president cannot do, the often-expressed view of the framers, and of the ratifying conventions, was that the grants of power extended no further than the constitutional language.
In 200 years, while amendments have limited congressional or state power, the only changes affecting the presidency have concerned elections, inaugurations, succession, reelectability, and disability. They say nothing about what the president can or cannot do.
Thus despite the obvious increase in the actual power of the presidency as an institution, the constitutional imperatives have not changed. The Constitution commands, exhorts, and limits Ronald Reagan as clearly as it did George Washington.
The framers considered two attributes essential to the office they were creating: vigor and responsibility. ``Energy in the Executive,'' said Alexander Hamilton in ``The Federalist,'' ``is a leading character in the definition of good government.'' They wanted the president to exert active control. ``A feeble Executive,'' Hamilton went on, ``implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill-executed, whatever it may be in theory, must be, in practice, a bad government.''
Thus the Constitution imposes on the president a clearly defined obligation: ``He shall take care that the laws be faithfully executed.''
Vigor alone, of course, would not guarantee faithful execution. Hamilton and the rest had had painfully recent experience with a vigorous executive, George III. They wanted to prevent their chief magistrate from following that particular despotic example. So although they made him commander in chief of the Army, the Navy, and (when in federal service) the state militia, they limited military appropriations to a two-year term, thus preventing the rise of a presidential standing army.
Beyond that, they forbade drawing money from the Treasury, unless Congress had appropriated it, and they required periodic publication of public receipts and expenditures. Here they were thinking of how our last king had secretly bribed legislators, bought followers, and created his own reward system.
Finally, they required the president periodically to give Congress ``information of the state of the union.'' This they did not in imitation of the king's address to Parliament from the throne, but rather so that the legislature would know what the executive was up to.
These mandates supported the second cardinal principle: executive responsibility. The framers believed explicitly that a public official must forever answer to the people. The lack of responsibility inherent in a plural executive was the strongest reason, they thought, for having a single chief magistrate.
The men of 1787 did not accept the idea of delegated irresponsibility. ``In a republic,'' Hamilton wrote, ``every magistrate ought to be personally responsible for his behavior in office.''
Otherwise, when things go wrong, it becomes impossible to identify the culprit. The blame ``is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author.''
Worse, ``if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties.'' The result? ``The people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper.''
Responsibility, as the framers conceived it, extended beyond national territory. The judgment of other nations merited deep respect. ``What has not America lost by her want of character with foreign nations,'' Madison asked in ``The Federalist.'' ``And how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?''
The Constitution of 1787 and the words of its authors might be worth reading in the Oval Office of 1987.
Judge Hiller B. Zobel of the Massachusetts Superior Court is a fellow of the Society of American Historians.
