Although this is about the President of the United states, it is in effect about Kansas as a State of the Union. In it you will discover that the past presidents have made history and gained new powers by setting precedents These precedents are what gives today's president, Barack Obama his reasoning for writing executive orders which may and should be considered unprecedented and in some cases unconstitutional.
The English Constitution, as it existed between 1760 and 1787, was the model of the American, but parts of it were inapplicable to the conditions in which the thirteen Colonies found themselves, and where the model failed the Convention struck out anew. The sagacity of the American statesmen in this creative work may well fill Englishmen, so Sir Henry Maine wrote, "with wonder and envy." Mr. Bryce's classification of constitutions as flexible and rigid is apt: of our Constitution it may be said that in the main it is rigid in those matters which should not be submitted to the decision of a legislature or to a popular vote without checks which secure reflection and a chance for the sober second thought, and that it has proved flexible in its adaptation to the growth of the country and to the development of the nineteenth century.
Sometimes, though, it is flexible to the extent of lacking precision. An instance of this is the proviso for the counting of the electoral vote. "The votes shall then be counted" are the words. Thus, when in 1876 it was doubtful whether Tilden or Hayes had been chosen President, a fierce controversy arose as to who should count the votes, the President of the Senate or Congress. While many regretted the absence of an incontrovertible provision, it was fortunate for the country that the Constitution did not provide that the vote should be counted by the President of the Senate, who, the Vice President having died in office, was in 1877 a creature of the partisan majority. It is doubtful, too, if the decision of such an officer would have been acquiesced in by the mass of Democrats, who thought that they had fairly elected their candidate. There being no express declaration of the Constitution, it devolved upon Congress to settle the dispute; the ability and patriotism of that body was equal to the crisis. By a well-devised plan of arbitration, Congress relieved the strain and provided for a peaceful settlement of a difficulty which in most countries would have led to civil war.
In the provisions conferring the powers and defining the duties of the executive the flexible character of the Constitution is shown in another way. Everything is clearly stated, but the statements go not beyond the elementary. The Convention knew what it wanted to say, and Gouverneur Morris, who in the end drew up the document, wrote this part of it, as indeed all other parts, in clear and effective words. It is due to him, wrote Laboulaye, that the Constitution has a "distinctness entirely French, in happy contrast to the complicated language of the English laws." Yet on account of the elementary character of the article of the Constitution on the powers of the President, there is room for inference, a chance for development, and an opportunity for a strong man to imprint his character upon the office. The Convention, writes Mr. Bryce, made its executive a George III "shorn of a part of his prerogative," his influence and dignity diminished by a reduction of the term of office to four years. The English writer was thoroughly familiar with the _Federalist_, and appreciated Hamilton's politic efforts to demonstrate that the executive of the Constitution was modeled after the governors of the states, and not after the British monarch; but "an enlarged copy of the state governor," Mr. Bryce asserts, is one and the same thing as "a reduced and improved copy of the English king." But, on the other hand, Bagehot did not believe that the Americans comprehended the English Constitution. "Living across the Atlantic," he wrote, "and misled by accepted doctrines, the acute framers of the Federal Constitution, even after the keenest attention, did not perceive the Prime Minister to be the principal executive of the British Constitution, and the sovereign a cog in the mechanism;" and he seems to think that if this had been understood the executive power would have been differently constituted.
It is a pertinent suggestion of Mr. Bryce's that the members of the Convention must have been thinking of their presiding officer, George Washington, as the first man who would exercise the powers of the executive office they were creating. So it turned out. Never did a country begin a new enterprise with so wise a ruler. An admirable polity had been adopted, but much depended upon getting it to work, and the man who was selected to start the government was the man of all men for the task. Histories many and from different points of view have been written of Washington's administration; all are interesting, and the subject seems to ennoble the writers. Statesmen meeting with students to discuss the character and political acts of Washington marvel at his wisdom in great things and his patience in small things, at the dignity and good sense with which he established the etiquette of his office, at the tact which retained in his service two such irreconcilable men as Jefferson and Hamilton. The importance of a good start for an infant government is well understood. But for our little state of four million people such a start was difficult to secure. The contentions which grew out of the ratification of the Constitution in the different states had left bitter feelings behind them, and these domestic troubles were heightened by our intimate relations with foreign countries. We touched England, France, and Spain at delicate points, and the infancy of our nation was passed during the turmoil of the French Revolution and the Reign of Terror. In our midst there was an English and a French party. Moreover, in the judgment of the world the experiment of the new government was foredoomed to failure. Wrote Sir Henry Maine, "It is not at all easy to bring home to the men of the present day how low the credit of republics had sunk before the establishment of the United States." Hardly were success to be won had we fallen upon quiet times; but with free governments discredited, and the word "liberty" made a reproach by the course of the French Revolution, it would seem impossible.
Washington's prescience is remarkable. Recognizing, in October, 1789, that France had "gone triumphantly through the first paroxysm," he felt that she must encounter others, that more blood must be shed, that she might run from one extreme to another, and that "a higher-toned despotism" might replace "the one which existed before." Mentally prepared as he was, he met with skill the difficulties as they arose, so that the conduct of our foreign relations during the eight years of his administration was marked by discretion and furnished a good pattern to follow. During his foreign negotiations he determined a constitutional question of importance. When the Senate had ratified and Washington, after some delay, had signed the Jay treaty, the House of Representatives, standing for the popular clamor against it, asked the President for all the papers relating to the negotiation, on the ground that the House of Representatives must give its concurrence. This demand he resisted, maintaining that it struck at "the fundamental principles of the Constitution," which conferred upon the President and the Senate the power of making treaties, and provided that these treaties when made and ratified were the supreme law of the land. In domestic affairs he showed discernment in selecting as his confidential adviser, Alexander Hamilton, a man who had great constructive talent; and he gave a demonstration of the physical strength of the government by putting down the whisky rebellion in Pennsylvania. During his eight years he construed the powers conferred upon the executive by the Constitution with wisdom, and exercised them with firmness and vigor. Washington was a man of exquisite manners and his conduct of the office gave it a dignity and prestige which, with the exception of a part of one term, it has never lost.
Four of the five Presidents who followed Washington were men of education and ability, and all of them had large political training and experience; they reached their position by the process of a natural selection in politics, being entitled fitly to the places for which they were chosen. The three first fell upon stormy times and did their work during periods of intense partisan excitement; they were also subject to personal detraction, but the result in the aggregate of their administrations was good, inasmuch as they either maintained the power of the executive or increased its influence. Despite their many mistakes they somehow overcame the great difficulties. Each one did something of merit and the country made a distinct gain from John Adams to Monroe. Any one of them suffers by comparison with Washington: the "era of good feeling" was due to Congress and the people as well as to the executive. Nevertheless, the three turbulent administrations and the two quiet ones which succeeded Washington's may at this distance from them be contemplated with a feeling of gratulation. The Presidents surrounded themselves for the most part with men of ability, experience, and refinement, who carried on the government with dignity and a sense of proportion, building well upon the foundations which Washington had laid.
A contrast between France and the United States leads to curious reflections. The one has a past rich in art, literature, and architecture, which the other almost entirely lacks. But politically the older country has broken with the past, while we have political traditions peculiar to ourselves of the highest value. For the man American-born they may be summed up in Washington, the rest of the "Fathers," and the Constitution; and those who leave England, Scotland, Ireland, Wales, Germany, and Scandinavia to make their home in America soon come to share in these possessions. While the immigrants from southern Europe do not comprehend the Constitution, they know Washington. An object lesson may be had almost any pleasant Sunday or holiday in the public garden in Boston from the group of Italians who gather about the statue of Washington, showing, by their mobile faces and animated talk, that they revere him who is the father of their adopted country.
During these five administrations, at least two important extensions or assertions of executive power were made. In 1803 Jefferson bought Louisiana, doing, he said, "an act beyond the Constitution." He was a strict constructionist, and was deeply concerned at the variance between his constitutional principles and a desire for the material advantage of his country. In an effort to preserve his consistency he suggested to his Cabinet and political friends an amendment to the Constitution approving and confirming the cession of this territory, but they, deeming such an amendment entirely unnecessary, received his suggestion coldly. In the debate on the Louisiana treaty in the Senate and the House, all speakers of both parties agreed that "the United States government had the power to acquire new territory either by conquest or by treaty."[164] Louisiana, "without its consent and against its will," was annexed to the United States, and Jefferson "made himself monarch of the new territory, and wielded over it, against its protests, the powers of its old kings."[165]
The assertion by the President in 1823 of the Monroe Doctrine (which Mr. Worthington C. Ford has shown to be the John Quincy Adams doctrine) is an important circumstance in the development of the executive power.
President John Quincy Adams was succeeded by Andrew Jackson, a man of entirely different character from those who had preceded him in the office, and he represented different aims. Adams deserved another term. His sturdy Americanism, tempered by the cautiousness in procedure which was due to his rare training, made him an excellent public servant, and the country erred in not availing itself of his further service. The change from the _régime_ of the first six Presidents to that of Jackson was probably inevitable. A high-toned democracy, based on a qualified suffrage, believing in the value of training for public life and administrative office, setting a value on refinement and good manners, was in the end sure to give way to a pure democracy based on universal suffrage whenever it could find a leader to give it force and direction. Jackson was such a leader. His followers felt: "He is one of us. He is not proud and does not care for style."[166] The era of vulgarity in national politics was ushered in by Jackson, who as President introduced the custom of rewarding political workers with offices, an innovation entirely indefensible; he ought to have continued the practice of his six predecessors. The interaction between government and politics on the one hand and the life of the people on the other is persistent, and it may be doubted whether the United States would have seemed as it did to Dickens had not Jackson played such an important part in the vulgarization of politics. Yet it was a happy country, as the pages of Tocqueville bear witness.
Jackson was a strong executive and placed in his Cabinet men who would do his will, and who, from his own point of view, were good advisers, since they counseled him to pursue the course he had marked out for himself. Comparing his Cabinet officers to those of the Presidents preceding him, one realizes that another plan of governing was set on foot, based on the theory that any American citizen is fit for any position to which he is called. It was an era when special training for administrative work began to be slighted, when education beyond the rudiments was considered unnecessary except in the three professions, when the practical man was apotheosized and the bookish man despised. Jackson, uneducated and with little experience in civil life, showed what power might be exercised by an arbitrary, unreasonable man who had the people at his back. The brilliant three--Webster, Clay, and Calhoun--were unable to prevail against his power.
Jackson's financial policy may be defended; yet had it not been for his course during the nullification trouble, his declaration, "Our Federal Union: It must be preserved," and his consistent and vigorous action in accordance with that sentiment it would be difficult to affirm that the influence of his two terms of office was good. It cannot be said that he increased permanently the power of the executive, but he showed its capabilities. It is somewhat curious, however, that Tocqueville, whose observations were made under Jackson, should have written: "The President possesses almost royal prerogatives, which he never has an opportunity of using.... The laws permit him to be strong; circumstances keep him weak."
The eight Presidents from Jackson to Lincoln did not raise the character of the presidential office. Van Buren was the heir of Jackson. Of the others, five owed their nominations to their availability. The evil which Jackson did lived after him; indeed, only a man as powerful for the good as he had been for the bad could have restored the civil service to the merit system which had prevailed before he occupied the White House. The offices were at stake in every election, and the scramble for them after the determination of the result was great and pressing. The chief business of a President for many months after his inauguration was the dealing out of the offices to his followers and henchmen. It was a bad scheme, from the political point of view, for every President except him who inaugurated it. Richelieu is reported to have said, on making an appointment, "I have made a hundred enemies and one ingrate." So might have said many times the Presidents who succeeded Jackson.
The Whig, a very respectable party, having in its ranks the majority of the men of wealth and education, fell a victim to the doctrine of availability when it nominated Harrison on account of his military reputation. He lived only one month after his inauguration, and Tyler, the Vice President, who succeeded him, reverted to his old political principles, which were Democratic, and broke with the Whigs. By an adroit and steady use of the executive power he effected the annexation of Texas, but the master spirit in this enterprise was Calhoun, his Secretary of State. Polk, his Democratic successor, coveted California and New Mexico, tried to purchase them, and not being able to do this, determined on war. In fact, he had decided to send in a war message to Congress before the news came that the Mexicans, goaded to it by the action of General Taylor, under direct orders of the President, had attacked an American force and killed sixteen of our dragoons. This gave a different complexion to his message, and enabled him to get a strong backing from Congress for his war policy. The actions of Tyler and of Polk illustrate the power inherent in the executive office. It might seem that the exercise of this authority, securing for us at small material cost the magnificent domains of Texas, California, and New Mexico, would have given these Presidents a fame somewhat like that which Jefferson won by the purchase of Louisiana. But such has not been the case. The main reason is that the extension of slavery was involved in both enterprises, and the histories of these times, which have molded historical sentiment, have been written from the antislavery point of view. It seems hardly probable that this sentiment will be changed in any time that we can forecast, but there is an undoubted tendency in the younger historical students to look upon the expansion of the country as the important consideration, and the slavery question as incidental. Professor von Holst thought this changing historical sentiment entirely natural, but he felt sure that in the end men would come round to the antislavery view, of which he was so powerful an advocate.
From Taylor to Lincoln slavery dominated all other questions. Taylor was a Southern man and a slaveholder, and by his course on the Compromise measures attracted the favor of antislavery men; while Fillmore of New York, who succeeded this second President to die in office, and who exerted the power of the Administration to secure the passage of Clay's Compromise and signed the Fugitive Slave Law, had but a small political following at the North. Pierce and Buchanan were weak, the more positive men in their Cabinets and in the Senate swayed them. For a part of both of their terms the House of Representatives was controlled by the opposition, the Senate remaining Democratic. These circumstances are evidence both of the length of time required to change the political complexion of the Senate and of the increasing power of the North, which was dominant in the popular House. For the decade before the Civil War we should study the Senate, the House of Representatives, the Supreme Court, the action of the states, and popular sentiment. The executive is still powerful, but he is powerful because he is the representative of a party or faction which dictates the use that shall be made of his constitutional powers. The presidential office loses interest: irresolute men are in the White House, strong men everywhere else.
Lincoln is inaugurated President; the Civil War ensues, and with it an extraordinary development of the executive power. It is an interesting fact that the ruler of a republic which sprang from a resistance to the English king and Parliament should exercise more arbitrary power than any Englishman since Oliver Cromwell, and that many of his acts should be worthy of a Tudor. Lincoln was a good lawyer who reverenced the Constitution and the laws, and only through necessity assumed and exercised extra-legal powers, trying at the same time to give to these actions the color of legality. Hence his theory of the war power of the Constitution, which may be construed to permit everything necessary to carry on the war. Yet his dictatorship was different from Cæsar's and different from the absolute authority of Napoleon. He acted under the restraints imposed by his own legal conscience and patriotic soul, whose influence was revealed in his confidential letters and talks. We know furthermore that he often took counsel of his Cabinet officers before deciding matters of moment. Certain it is that in arbitrary arrests Seward and Stanton were disposed to go further than Lincoln. The spirit of arbitrary power was in the air, and unwise and unjust acts were done by subordinates, which, although Lincoln would not have done them himself, he deemed it better to ratify than to undo. This was notably the case in the arrest of Vallandigham. Again, Congress did not always do what Lincoln wished, and certain men of his own party in Congress were strong enough to influence his actions in various ways. But, after all, he was himself a strong man exercising comprehensive authority; and it is an example of the flexibility of the Constitution that, while it surely did not authorize certain of Lincoln's acts, it did not expressly forbid them. It was, for example, an open question whether the Constitution authorized Congress or the President to suspend the writ of _habeas corpus_.
It seems to be pretty well settled by the common sense of mankind that when a nation is fighting for its existence it cannot be fettered by all the legal technicalities which obtain in the time of peace. Happy the country whose dictatorship, if dictator there must be, falls into wise and honest hands! The honesty, magnanimity, and wisdom of Lincoln guided him aright, and no harm has come to the great principles of liberty from the arbitrary acts which he did or suffered to be done. On the other hand he has so impressed himself upon the Commonwealth that he has made a precedent for future rulers in a time of national peril, and what he excused and defended will be assumed as a matter of course because it will be according to the Constitution as interpreted by Abraham Lincoln. This the Supreme Court foresaw when it rendered its judgment in the Milligan case, saying: "Wicked men ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded [that of a commander in a time of war to declare martial law within the lines of his military district and subject citizens as well as soldiers to the rule of _his will_] and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate." No one can deny that a danger here exists, but it is not so great as the solemn words of the Supreme Court might lead one to believe. For Lincoln could not have persisted in his arbitrary acts had a majority of Congress definitely opposed them, and his real strength lay in the fact that he had the people at his back. This may be said of the period from the first call of troops in April, 1861, until the summer of 1862. McClellan's failure on the Peninsula, Pope's disaster at the second battle of Bull Run, the defeats at Fredericksburg and Chancellorsville lost Lincoln the confidence of many; and while the emancipation proclamation of September, 1862, intensified the support of others, it nevertheless alienated some Republicans and gave to the opposition of the Democrats a new vigor. But after Gettysburg and Vicksburg in July, 1863, Lincoln had the support of the mass of the Northern people. Whatever he did the people believed was right because he had done it. The trust each placed in the other is one of the inspiring examples of free government and democracy. Lincoln did not betray their confidence: they did not falter save possibly for brief moments during the gloomy summer of 1864. The people who gave their unreserved support to Lincoln were endued with intelligence and common sense; not attracted by any personal magnetism of the man, they had, by a process of homely reasoning, attained their convictions and from these they were not to be shaken. This is the safety of a dictatorship as long as the same intelligence obtains among the voters as now; for the people will not support a ruler in the exercise of extra-legal powers unless he be honest and patriotic. The danger may come in a time of trouble from either an irresolute or an unduly obstinate executive. The irresolute man would baffle the best intentions of the voters; the obstinate man might quarrel with Congress and the people. Either event in time of war would be serious and might be disastrous. But the chances are against another Buchanan or Johnson in the presidential office.