This article was first published in Constituting America, August 1, 2022.
Good government produces good administration, Publius has written. Good administration is what we need from the executive branch charged as it is with carrying out the laws enacted by the legislature within the framework of the supreme law of the land, the United States Constitution. A good executive must act with energy. To enable executives so to act, the offices they occupy must have unity, duration, adequate provision in terms of money and personnel, and competent powers. Publius therefore defends the Frames of the Constitution in their establishment of a presidency unlike the consular system of ancient Rome, which assigned domestic policy to one consul, foreign (and especially military) policy to another. The American president serves as chief administrative officer for domestic policy as well as Commander-in-Chief of the armed forces. Congress may not manipulate his salary and the president can exercise the power to veto Congressional legislation, thereby maintaining his independence of judgment. He is, hen, neither a monarch nor a legislator but a republican executive.
In Federalist 71, Publius presents the reasons for and the institutional means to enable duration in office, “the second requisite to the energy of the executive authority.” There can be no substitute for character for “the personal firmness of the executive in the employment of his constitutional powers.” Nor can there be any substitute for “the stability of the system of administration which may have been adopted under his auspices” as a consequence of that firmness of character. But no person can exercise such character or carry out such a system without an institutional framework which permits him to do so.
As always, Publius shows the link between the Constitution’s institutional arrangements and human nature. “It is a general principle of human nature that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title.” The firmness of the man must be reinforced by the firmness of the office. The “unity” of the office, the fact that the president will share it with no one else, provides some of that institutional firmness. But even a unitary executive can find himself hamstrung if another branch of government has the power to dominate him, remove him at pleasure. In regimes whose executives serve at the whim of the legislature, as in many parliamentary systems, why would any person of character take the executive office seriously? Better to be a power broker in the parliament than the hapless holder of fly-by-night executive powers, powers that will not last if you exhibit the slightest hint of independence. And if you accept such an office, why risk anything to defend powers which are not truly yours to wield? Such an institutional arrangement undermines civic courage, inclining the one who suffers under it, “too little interested in it to hazard any material censure or perplexity from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body.”
This defect had already been on display under the Articles of Confederation, which did not separate executive power from the legislative branch. The Americans who wanted to retain the Articles regime against the proposed Constitution were “inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation.” They want representative government to mirror Athenian-style direct democracy as much as possible, to have it register the opinions and even the passions of the people and their elected legislators. Publius considers such notions as “very crude,” with regard both to the ends and especially the means of government.
The Declaration of Independence had set down the just purpose of American government—indeed of any government—as securing the safety and happiness of the people, a purpose justified by their natural right to life, liberty, and the pursuit of happiness under the Laws of Nature and of Nature’s God. Much of that is “self-evident,” the Declaration affirms. Publius agrees: “It is a just observation that the people commonly intend the PUBLIC GOOD. But as the American people themselves acknowledge, having learned it from experience under the Articles regime, they do not “always reason right about the means of promoting” the public good, “beset as they continually are by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and those who seek to posses rather than to deserve it.” Democracy has its ‘courtiers’ as much as monarchy does.
If self-government is therefore dangerous, “the republican principle demands that the deliberate sense of the community should govern the conduct of those to whom” the people “entrust the management of their affairs.” Characteristically, Publius attempts to increase the chance that the distinctively human characteristic, reason, will have the greatest possible authority in government while acknowledging the impassionate—a Christian would say ‘fallen’—character of human beings.
There will, then, be circumstances “in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have anointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection.” Thus to serve the people “at the peril of their displeasure” takes “courage and magnanimity.” Without well-designed institutions, such virtues will do no good, as statesmen in the late Roman republican learned; without such virtues, the institutions will stand unused, and may be undermined.
It is important to pause and appreciate the moral structure of Publius’ argument, here. He wants to see the rule of reason in the United States—to the extent possible, given human frailty. The Constitution generally, and a four-year, renewable presidential term in particular provides an institutional framework for such rule. But neither the rule of reason nor the defense of the Constitution can survive without two other virtues that array themselves against popular passion. civic courage is easy to understand and to appreciate, if not commonplace. We have all seen men and women, even children, who have refused to buckle under ‘peer pressure.’ Magnanimity is less well understood.
Magnanimity literally means greatness of soul: in Latin, magnus means great, large; anima means soul. The classic description of the great-souled individual comes from Aristotle’s Nicomachean Ethics IV.3. The great-souled man, Aristotle writes, “deems himself worthy of great things and is worthy of them.” This means that he possesses all the cardinal virtues—courage, moderation, justice, and prudence—to a very high degree. Accordingly, he stands ready to withstand the demands of others, however intensely they may clamor, when he sees that those demands are cowardly, immoderate, unjust, or imprudent. He can take the heat, and he can do it without resentment.
A republican regime undergirded by a democratic civil society will test him. He can pass that test, but without a firm institutional foundation on which to stand he will be physically overwhelmed by the majority tide, helpless to resist “the humors of the legislature.” The Articles of Confederation government had folded executive and judicial power into the legislature, giving inadequate support for reason, courage, or magnanimity—the finest human characteristics. “To what purpose separate the executive or the judiciary from the legislature,” as the new Constitution had done, “if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative” branch? The powers would then be separated in name only, with the legislature “exert[ing] an imperious control over the other departments,” unbalancing the apparently balanced powers of the federal government as framed by the Constitution.
This is exactly what had been happening under the Articles. The same thing will happen again unless the president enjoys a stable tenure in office. In view of this, “it may be asked whether a duration of four years would answer to the end proposed,” whether such a duration of a presidential term will suffice to resist attempts b legislators to dominate the system. Publius does not pretend that he knows the answer since a four-year term was untried in previous American governments and the lifelong term of a European monarchy—in principle of not always in practice as stable a provision as can be had—was highly undesirable. It is nonetheless reasonable to think that a four-year residential term “would have a material influence upon the spirit and character of the government.”
Why? Because any person “endowed with a tolerable portion of fortitude” should see that there is “time enough” before the current term expires, and the prospect of re-election draws near, for the people and their legislative representatives to have calmed down to be ready to assess the president with equanimity. True enough, this would mean that he might not dare to resist popular disapproval so readily as hi term drew to an end, but for most of the time he would be able to hold steadily to his constitutional duties and best judgment. At the same time, unlike a monarch, a president won’t stay in office long enough “to justify any alarm for the public liberty.” Which is not to say that his enemies won’t try to raise such alarms.
Publius’ understanding of the presidency not only departs from the conception of executive power which prevailed under the Articles, it also contradicts the new conception of the presidency advanced by the Progressives, more than a century later. President Woodrow Wilson rejected the United States Constitution as an antiquated and constricting product of a bygone era, and equally rejected its moral foundation in the laws of Nature and of Nature’s God. In place of natural right he substituted historical right, claiming that the course of events, guided by divine Providence, provided the true moral light for humanity. In view of this continuing historical progress, the Constitution must be reconceived as an ‘elastic’ or ‘living document to be reinterpreted by political leaders such as himself who placed themselves on the cutting edge of that progress. In place of magnanimity, Wilson substituted compassion not so much a virtue as a sentiment, one intended to carry the people along on a tide of emotion with slogans like ‘I feel your pain.’ The president then should serve not so much as the executor of Congressional legislation within a stable constitutional framework but as the principal leader of the nation the person who senses where public opinion should go next, appealing more to popular passion than to prudence in the hope of inducing the people to follow him to that ever-new, ever-higher destination.
As a result, the Progressives raised expectations to unfillable heights, grafting their own unusual brand of moving-target ‘constitutionalism’ onto the old Constitution, with predictably confusing and self-contradictory result that have persisted to this day.
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