Jeffrey K. Tulis - The Presidency in the Constitutional Order: An Historical Examination

First published 2010 by Transaction Publishers

Published 2017 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
711 Third Avenue, New York, NY 10017, USA

Copyright 1981 by Louisiana State University Press.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

Library of Congress Catalog Number: 2010016320

Library of Congress Cataloging-in-Publication Data

The presidency in the constitutional order : an historical examination /
Joseph M. Bessette and Jeff rey Tulis, editors ; with a new introduction
by the editors and a new appendix.
p. cm.
Includes index.
Originally published: Baton Rouge : Louisiana State University Press,
c1981.
ISBN 978-1-4128-1078-4
1. Presidents--United States. I. Bessette, Joseph M. II. Tulis, Jeffrey.

JK516.P652 2010
352.2350973--dc22

2010016320

ISBN 13: 978-1-4128-1078-4 (pbk)

A recent report to the Ford Foundation on the state of scholarship on the American presidency calls attention to the strong revival of the public-law approach, with its emphasis on the constitutional powers and obligations of the president. The collection of new studies presented here aims to contribute to the contemporary debate on the constitutional presidency. Unlike most recent works of this type, however, this book is authored by political scientists, not law professors. Accordingly, it evidences the political scientists concern with structures as well as powers, with conflict between the branches of government as well as the functional separation, and with political prescription as well as legal analysis. Underlying the entire volume is a persistent attention to the nature of executive power and its particular manifestation in the American system.

In Part One the design and principles of the Constitution are delineated. Joseph Bessette and Jeffrey Tulis begin the volume by identifying the predominant approaches to the study of the presidency. Illustrating how the gap between the legal and political modes of analysis can be bridged, they suggest that constitutional analysis may be indispensable to an adequate description of political behavior while also serving as the source of standards for evaluating presidential conduct. A factor inhibiting the full development of the constitutional approach to the study of the presidency has been the great number and variety of interpretations of the Constitution since its framing. This has made it easy to assume that the Constitution has no single and enduring meaning. One of the earliest and most famous disagreements over the constitutional presidency was between James Madison and Alexander Hamilton. In their respective essays Ruth and Stephen Grant and Harvey Flaumenhaft articulate Madisons and Hamiltons theories of the Presidency and show how significant disagreement on important points can nevertheless rest on a common foundation of agreement on fundamental principles. The contributions to this volume mirror the character of that earlier debate. Like Madison and Hamilton, the authors here begin with the assumption that the Constitution has an enduring meaning, seek to discern its principles, share a common approach, yet disagree on some specific interpretations.

The six essays in Part Two address prominent issues in the contemporary political and scholarly debate. In the lead essay Robert Scigliano assesses the constitutionality of the War Powers Act of 1973, the high-water mark of Congress efforts to ensure that American involvement in military hostilities would result from the collective judgment of Congress and the president. Scigliano examines the extent to which this landmark legislation follows the plan of the Constitution in providing pragmatic checks on the exercise of military power by the president, but without so constraining him as to prevent necessary emergency actions. Gary Schmitt follows with a reconsideration of another point of controversy from the Nixon years: the right of a president to withhold information from Congress or the public. Schmitt s analysis reaches conclusions opposed to those of Raoul Berger, whose influential argument holds that executive privilege is a constitutional myth. The third essay of this group, by Murray Dry, deals with an issue which has only recently become a public controversy: Congress use of the so-called legislative veto to invalidate actions taken by the executive branch. President Carter publicly attacked the propriety and constitutionality of legislative vetoes and threatened to ignore them. Indeed, most recent presidents have opposed at least some forms of the legislative veto. Dry argues, however, that although this device is not specifically sanctioned in the Constitution, it is consistent with the broader principles on which the Constitution rests.

The final three essays address issues which are usually not examined in their broader constitutional context. It is well known, for example, that the modern presidential selection system bears little resemblance to the electoral college scheme devised by the framers of the Constitution in 1787. James Ceaser shows, however, that throughout much of its history the party-based system inaugurated in the Jacksonian era has worked remarkably well in fulfilling the purposes of the original constitutional design. Ceaser suggests that these purposes have been jeopardized by the reforms of the past decade and that this may have deleterious consequences for the American political order. One of the more prominent arguments that undercuts the constitutional approach to the study of the presidency is that the functioning of the executive office is less influenced by its structure and powers than by the personality of its occupant. In his analysis of the leading statement of this view, that presented by James David Barber in