09. The American Presidency: Critical Episodes in Its Growth, Part I (video)

0:00Well, this morning begins the last day, of course, of the seminar, which is probably just as well, since what's left of me is prepared to talk to you today about the presidency, the U.S. presidency. And I deliberately made the title of the two sessions today broad enough that when the time came, I could treat whatever issues I found interesting at the time. And so today I'd like to start with just a few general comments on the presidency, And then talk about a particular villain in my telling of American history, Teddy Roosevelt, who was spared in the Politically Incorrect Guide simply because of lack of space. So we're going to rectify that oversight.

0:45And secondly, to say something about presidential war powers, and that issue will spill over into the session this afternoon. because one of the claims that was occupied that office. And then Lew Rockwell continues, In my daydream the president is mostly a figurehead and a symbol, almost invisible to myself and my community. He has no public wealth at his disposal. He administers no regulatory departments. He cannot tax us, send our children into foreign wars, pass out welfare to the rich or the poor, appoint judges to take away our rights of self-government, control a central bank that inflates the money supply His job is simply to oversee a tiny government with virtually no power except to arbitrate disputes among the states, which are the primary governmental units. He is head of state, though never head of government. His position, in fact, is one of constant subordination to the office holders around him and the thousands of statesmen on the state and local level.

1:37He adheres to a strict rule of law and is always aware that any time he transgresses by force, he will be punished. and thousands of statesmen on the state and local level. He adheres to a strict rule of law and is always aware that anytime he transgresses by trying to expand his power, he will be impeached as a criminal. And then, so on. Then I like this particular one. For those who do not vote and do not care about politics, their liberty is secure. They have no access to special rights, yet their rights to person, property and self-government are never in doubt. For that reason and for all practical purposes, they can forget about the President and, for that matter, the rest of the federal government. It might as well not exist. People do not pay direct taxes to it. It doesn't tell them how to conduct their lives. It doesn't send foreign wars, regulate their schools, pay for their retirement, much less employ them to spy on their fellow citizens.

2:25The government is almost invisible. Now, of course, I've left out much of the best of this because it just goes on and on. Of course, I'd just like to make this my own speech. But the conclusion of these remarks is that this, of course, is precisely the model of the presidency

3:10The President is placed beside the legislature like an inferior independent power. The office of President of the United States is temporary, limited and subordinate. When he is at the head of government, he has but little power, little wealth, little glory to share among his friends, and his influence in the state is too small for the success or the ruin of a faction to depend upon his elevation to power. The influence which the President exercises on public business is no doubt feeble and indirect. Now we can contrast this to more modern theories of the presidency, particularly beginning in the progressive era, though certainly not without 19th century precedents. For example, in Lincoln, I think we see some precedents for an expansion of the presidency, as well as in Andrew Jackson.

3:56But in looking over one of Lew Rockwell's essays, I came across some passages from a book by Woodrow Wilson that I had forgotten about. Of course, I did want to include in this, that I made reference to several years ago in my, when we had the History of Liberty conferences, I was quoting Woodrow Wilson. And these are some of the passages, or this is at least the section that I use because it's fascinating. Woodrow Wilson, who is supposedly so different from Teddy Roosevelt, so different that the election of 1912 was one of the most momentous in American history, in effect gives voice to exactly the philosophy of the presidency as that of Teddy Roosevelt. The big difference, by the way, in 1912, in the election of 1912 was that Theodore Roosevelt wanted to just regulate big business, whereas Woodrow Wilson wanted to break it up into little bits.

4:49That's basically the difference between them, the huge momentous difference between the two. And we're told that we have this quotation from Woodrow Wilson in which he said that he himself can't quite see what the difference is between himself, Democrat Woodrow Wilson, and the Republicans at that time, other than the Republicans seem to be more pro tariff. Otherwise he couldn't really see the difference. So already we have the phony choice. Well, here's Woodrow Wilson speaking about the US presidency. There is something eerie about this. There can be no successful government without leadership or without the intimate, almost instinctive coordination of the organs of life and action. We have grown more and more from generation to generation to look to the president as the unifying force in our complex system.

5:36To do so is not inconsistent with the actual provisions of the Constitution. It is only inconsistent with a very mechanical theory of its meaning and intention. The President must be a man who understands his own day and the needs of the country and who has the personality and the initiative to enforce his views both upon the people and upon Congress. He is the representative of no constituency but of the whole people. That's a key innovation. The country never feels the zest of action so much as when its president is of such insight and caliber. Let him once win the admiration and confidence of the country, and no other single force can withstand him. No combination of forces will easily overpower him. His position takes the imagination of the country.

6:40Thomas Jefferson initiated the practice of delivering his State of the Union address through a written message to Congress rather than appearing with all the ceremony before them. The very idea that on a day-to-day basis, we see footage on television of the president playing golf. Oh my goodness, the president is playing golf today. I wonder what his handicap is. It's exactly the opposite of how Jefferson would have thought of the presidential office. Now, the progressive era is a period that I've discussed in the past here at the Institute.

7:27But one of the overlooked aspects of the Progressive Era is how it contributed to the expansion of the presidential office, both materially and philosophically. This is a factor of the Progressive Era that's not typically mentioned in a textbook. The textbooks talk about muckraking journalists and regulatory agencies, and all those things are important. But at least as important is this expansion in the very idea of the presidency. And one of the people I think is largely responsible for this is Teddy Roosevelt and arguably no president did more to institutionalize the activist presidency than Theodore Roosevelt. Roosevelt, as many of you know, became president after McKinley's assassination in 1901 and served two terms in that office and he brought with him a thorough and consistent philosophy of the presidency.

8:18of the Presidency. But yet, even apart from his philosophy of the presidency, we have the fact of Theodore Roosevelt's peculiar and celebrated personality. That personality very much helped to place his imprint on the presidential office. He was someone who needed activity all the time. He needed to be engaged in activity at all times. So I've cited Edward Corwin, who was a scholar of the presidency. who has spoken of the personalization of the presidency, in which what he means is he's speaking about the way in which the unique character of a particular individual places an indelible imprint, an identifiable imprint on the presidential office. And so, for example, I've noted in the past that Mark Twain, who met the president twice, later described him as, quote, clearly insane.

9:15Roosevelt himself in 1884 told a friend that he had a special cowboy suit that he would put on, it had a revolver and a rifle, and that when he had that special cowboy suit on, quote, I feel able to face anything. He then went on and, you know, apparently when he did go down and fight in the Spanish-American in 1898 and he managed to kill a Spaniard. He was just reacting with just a hysterical glee and joy, which was very much typical of his personality. When he was 20 years old and he had an argument with his girlfriend, he went home and shot and killed his neighbor's dog as a response to that. Now during the 1880s, he had this brief moment where he decided that he was just going to relax for a while.

10:02He'd been working very hard and he wrote to a friend that And that because he'd been working so hard lately, he was going to just take the next month off and just do not a thing other than write a biography of Oliver Cromwell. Now a famous quotation attributed to one of his sons is that, quote, father always wanted to be the bride at every wedding and the corpse at every funeral. So a presidential historian has summed up this aspect of Roosevelt. As no president in memory and probably none up to that time, T.R. became a personality, a politician whose every action seemed newsworthy and exciting. His family, his friends, his guests, his large teeth, his thick glasses, his big game hunting and his horseback riding, all were sources of media attention and delight.

10:55In a way that Washington and Lincoln had not done, and even Jackson avoided, T.R. became From a very visible tribune of the people, a popular advocate whose personality seemed immediate, direct and committed to their personal service. Now when I say that he's someone who needs constant activity, it shouldn't be surprising therefore that when he becomes president, he wants to involve himself as president in even the tiniest affairs of the nation. So I've spoken in the past of a conference that was held in 1903 at the White House over The question of excessively rough play in college football and what could the president help to do about this. Now of course on the face of it it's fairly well absurd that the U.S. president would need to intervene here and that the normal channels of civil society couldn't take care of this terrible crisis on their own.

11:48But this is I think a foreshadowing of the future where the president seems to be of course involved in everything and no one even bats an eye about this, that there's something Now, what exactly is Roosevelt's philosophy of the presidency? Well, I identify three planks to it. The first plank is one that, in effect, he shares with Andrew Jackson. This is a theory that Andrew Jackson had put forward and that you can read in Woodrow Wilson's pre-presidential writings as well. The President, by virtue of having been elected by the nation as a whole, possesses a unique claim to be the representative of the entire American people in the aggregate.

12:34So unlike congressmen, who of course are elected only by their own districts or senators elected by the people of their states, the President is elected by the whole people. So he has this special claim, he argues. Now, this is a claim that Andrew Jackson had tried to make, but at that time there were people like John C. Calhoun who argued that, of course, in effect there is no such thing in the original understanding as an American people. There's the people of Massachusetts, people of Vermont, the people of the states. And so the idea that there was one figure who represented the will of this single American people collapsed into a single aggregate was utterly foreign to the American constitutional order. But the president now, beginning with this philosophy of TR, draws conclusions from this.

13:23If I am the unique representative of the American people, then it's my responsibility to see that their will is put into effect. And so I therefore, in effect, have a moral and sort of quasi-legal ability to override whatever obstacle should appear in my path, even if that should be a congressional obstacle. I will override that, because after all, I have to vindicate the will of the people. The second plank that you notice about Franklin Roosevelt, there's a slip, you know, tomato tomato I suppose. The second plank is his view that the President in effect can do anything that the needs of the nation demanded, those are his words, unless it is prohibited in the Constitution. Now the older way of looking at things is that you can do things if they're stated in the Constitution, but you can only do them if they're stated.

14:16Now we have this view that you can do them as long as it's not stated that you can't. Well, of course, obviously, there are infinite things that are not stated in the Constitution. I mean, no one would say you can't run a house of ill repute out of the White House. It's not in the Constitution, but it would be sort of presumed. But according to TR, the President can do anything the nation demanded unless it's prohibited by the Constitution. And he said himself, under this interpretation of executive power, I did and caused to be In the United States, as in any nation which amounts to anything, those in the end must govern who are willing actually to do the work of governing, and in so far as the Senate becomes a merely obstructionist body, it will run the risk of seeing its power pass into other hands.

15:17Hmm, which hands are those, I wonder? Well, the third plank involves the use of executive orders. And I should pause here for a moment because this reminds me of a more recent example. If you ask conservatives today what their opinion of Teddy Roosevelt is, it's usually quite positive. I'm arguing that TR did a tremendous amount of damage to the country.

16:04It's not at all obvious why a conservative would like him, other than the fact that he wasn't a sort of mamby-pamby, modern-day, you know, girly man. And so we naturally respect anybody who just is in any way virile. I guess that may be what they admire in him. But the one way that you can get through to conservatives on this issue is through the Bill Clinton angle. Because Bill Clinton has got this... You know, there's still Bill Clinton books coming out, people buying him like mad. Well, Bill Clinton was once asked, who is your favorite Republican president throughout all of American history? Who is your favorite Republican president? He said Theodore Roosevelt. So now you use that when you pull that out and say, hey, come on now, Bill Clinton likes him. And they'll have to say, oh my gosh, my whole worldview is collapsing. My brain is just, smoke's coming out of my ears.

16:54I can't compute this. And I don't think it's a coincidence that T.R. is mentioned as Bill Clinton's favorite Republican president. And the third plank of his presidential philosophy involves the use of executive orders. Because it was Bill Clinton's aide, Paul Bergala, when speaking of presidential executive orders, actually said in the 1990s, stroke of the pen, law of the land, kind of cool, Theodore Roosevelt was in fact a figure who wasn't the first person to issue executive orders, but he issued them in numbers that were substantially greater than those who preceded him.

17:40Now, an executive order just simply means that it's a presidential measure that's taken by the president himself by virtue of his executive authority, and which he undertakes without consulting Congress or feeling a need to consult Congress. Now, there are uses of executive orders that would be unobjectionable from any standpoint. For example, George Washington, when he took office as president, requested that the outgoing government prepare a report on the state of the country. And he did that by, in effect, executive order. I mean, nobody really has a moral problem with that. or after the war between the states, or in other situations, the president can issue presidential pardons and he can do that by virtue of his own executive authority.

18:27So there are certain things that the president can do by means of an executive order that really are basically unobjectionable. The problem becomes the possibility that executive orders can be abused. What if the president uses an executive order to carry out something that clearly lay within the province of Congress? Congress. What if he becomes a lawmaker just by himself by virtue of just signing executive orders? This obviously disrupts the normal constitutional process. This is a usurpation of power. It violates the original understanding. And in fact, as early as the 1790s, we already see controversy about what they wouldn't have used the term executive orders. We already George Washington declared the United States neutral in 1793 in the wars of the French Revolution.

19:21That seems harmless enough and perhaps even a wise policy, but the point was that the Congress argued that the President in and of himself does not have the authority to declare neutrality. The Congress would declare neutrality, which they, in fact, they retroactively gave their assent to what Washington had done by themselves going on and declaring neutrality. But even there, there was already enough vigilance that people were concerned that this was an abuse of presidential power. And when I get into presidential war powers, I want to return to that issue. So already there was some controversy. Well, to appreciate the extent to which Theodore Roosevelt transforms the presidential office, we need to look at his use of executive orders.

20:07And it shouldn't come as a surprise to us that he should want to use them, because here's his governing style in a nutshell. My will be done. But of course, my will is the people's will. Don't ever forget that. It's the people's will. Well, consider the numbers. Now, I cite in my book in the bibliography, there's a citation to a Cato Institute study on the use of executive orders and yet in the book there's no reference to executive orders really or hardly any and that's because the bibliography was done before we had to start cutting material for space reasons so there are articles and books in there that have no connection to anything in the whole book and so this article, you can find the citation in there but there's not a word about it in the book, it's in the hacked chapter. Well you look at the number of executive orders issued by Theodore Roosevelt's predecessors and then by the man himself. President Hayes issued no executive orders. Likewise for President

21:02Garfield, although he wasn't really alive long enough to issue many executive orders. But Chester A. Arthur issued three executive orders. Six for Grover Cleveland in his first term, four for Benjamin Harrison. Second term Cleveland issued 71. McKinley issued 51. Theodore President Roosevelt issued 1006. Now, alright, so he did serve nearly two terms, but nevertheless what we're seeing here is not merely a quantitative difference, but a qualitative shift in the functioning of the executive office. Now, I've often given as an example of President Roosevelt's use of executive power, what he did in the Dominican Republic in early 1905. And the The other day I was looking through Edmund Morris' book, or most recent volume on Theodore Roosevelt, called Theodore Rex, and it's basically got every little detail of this guy's life, I mean, my gosh, and then, you know, his shoe got a tear in it and he decided to get a new one, and it's incredible, like, why we would, I mean, that, and the fact that we would write that detailed a book is itself a reflection of this deification of the president. It's incredibly disturbing and eerie, as I say. But in that book,

22:19He's got all the time in the world to tell you about every haircut the guy got, you know, whatever. But nothing, not a word, not a sentence, nothing about this. Yes, there is mention of Theodore Roosevelt and the Dominican Republic, but nothing about how he did what he did. The nutshell story goes as follows. In late 1904, Roosevelt, in effect, laid out what he called what became known as the Roosevelt corollary to the Monroe Doctrine. The Monroe Doctrine from 1833 had made clear that while the United States was not going to intervene in European affairs, it expected European powers to reciprocate and that European powers should not intervene in our hemisphere, in our hemisphere because this would be considered a security risk to the U.S. if there were European colonization going on in the Americas.

23:11Well, what Theodore Roosevelt did with his corollary was to say, well, if it seems as if there's going to be European intervention in our hemisphere, then the United States will intervene first so as to forestall the European intervention. And so this doctrine is first instantiated in the case of the Dominican Republic in early 1905 because in the Dominican Republic they were in debt up to their ears and there was concern on the part of Roosevelt that at least one European power may use force and intervene in the Dominican Republic for the sake of the collection of debts. So TR came up with the idea that the United States should intervene in the Dominican Republic in the Dominican Republic and run the customs houses and in effect take some of the customs money and use it for domestic purposes in the Dominican Republic but take a fixed amount and apply it to debt repayment so as to reassure European creditors that their debts would in fact be repaid.

24:14Well, he, of course, is going to want to establish a treaty to this effect with the Dominican Republic. But you can't establish a treaty as president. You can't establish a treaty just on your own, you know, ipsa dixit. It has to be done with the Senate has to approve it. But it looked as if for a while, at least several days, it looked as if Roosevelt was just going to go ahead and enforce this treaty without consulting the Senate at all. until a bunch of senators finally said, wait a minute, you are going to submit this to our vote, right? I mean, remember the Constitution? You know, I mean, you are going to do this. You see, that was in the days when the Senate actually cared about its prerogatives. And so finally, very frustrated, okay, fine, you know, go ahead and vote on it if you feel you must.

25:01But it's interesting that it's quite clear that he had not originally intended the Senate to have any voice in this because it was set to take effect like about 11 days after they signed it. I mean, needless to say, nowhere near enough time for there to be debate, discussion, everybody to read it, whatever. But finally, the Senate did force his hand, and so he submitted it to them. Well, the Senate ended up adjourning without taking any action at all on the matter. And so what did Theodore Roosevelt do? Well, he's frustrated by the Senate's inaction. So he simply declares that, all right, well, maybe you're right. It is a treaty. And so, you know, I can't just impose a treaty on both countries without the consent of the Senate. I haven't gotten the consent of the Senate, I haven't gotten the consent of the Senate, so I just won't call it a treaty. I'll call it an executive agreement, and that the authority to enact it just develops, comes right out of my inherent executive powers.

25:54And that's what he did. He said in his autobiography, I went ahead and administered the proposed treaty anyhow, considering it as a simple agreement on the part of the executive, which could be converted into a treaty whenever the Senate acted. So if the Senate later feels like ratifying what I've done, that's fine, but in the meantime I'm going to act as if it already exists. And he says, I would have continued it to the end of my term, if necessary, without any action by Congress. Now that to me, if you're going to write a 900 page book on Roosevelt, that would deserve at least a third of a page, right? I mean, doesn't that say something about the way the man governed? Not a word. Not a word on that. But there it is. The case of the Dominican Republic shows the use of presidential power, I think, very, very vividly and starkly.

26:41Now, as he looked back on his years in office, Roosevelt told his son, I have been a full president right up to the end, and that he had seized all the powers that he thought were inherent in the office and expanded those powers The United Mine Workers' strike in 1902 involved unionized mine workers striking over their union-recognized Miners strike, for example, in 1902, involved unionized mine workers who were striking over, they wanted their union recognized, they wanted higher wages, they wanted fewer working hours, and there was an impasse between the mine owners and the miners.

27:36And as the months progressed, Theodore Roosevelt finally intervened and said that he was going Theodore Roosevelt was going to impose arbitration on the two sides, and he was very upset at the mine owners, and in effect he said that if the mine owners do not agree, finally, on some arrangement with the miners, Theodore Roosevelt would basically seize the coal fields and run them with the army, have the army actually get the coal and carry out The Theory of Money and Credit

28:41Now, an often forgotten episode in Theodore Roosevelt's Presidency again illustrates something about the nature of the man and what he was doing to the office, and that's something called the Perticaris Affair, which took place in 1904 as the Republican Convention was set to renominate Theodore Roosevelt as President of the United States. Office. And that's something called the Perticaris Affair, which took place in 1904 as the Republican Convention was set to re-nominate Theodore Roosevelt for a second term. What involved a gentleman named Perticaris, who apparently, the situation was that he was being held captive in, oh gosh, was it Tripoli?

29:29in North Africa, he's being held captive, and supposedly he was an American citizen being held captive by a foreign government. So Theodore Roosevelt comes out at the convention and he gets everybody riled up by making a very, very belligerent speech about the need to go get this man back and we'll do whatever we have to do and, you know, if we have to kill the leaders over there, we'll do it. Everybody's thrilled. Well, it so happens that there are two factors that TR was not mentioning in his speech. First of all, Pertikaris was not an American citizen. He was a Greek citizen. He had taken Greek citizenship for business reasons. Secondly, arrangements had already been made to free him at the time of Roosevelt's speech. And Roosevelt knew both of these facts and yet nevertheless went ahead and did that, whipping the country into a jingoistic frenzy. Well, very significant. There's a little bit of an overview of Theodore Roosevelt. I think Now, I think also Theodore Roosevelt would be somebody who, although during his terms in office, with the exception of the suppression of Filipino independence and his shenanigans regarding the Panama Canal, he was not nearly as belligerent in office as he was out of office.

30:44Theodore Roosevelt was constantly making statements like this country needs a good war. He made a statement once in which he said that we could use a good war with Germany because that would make German Americans, would force them into making ostentatiously patriotic displays of anger against Germany. And plus, if New York and a few of our other cities, if cities on the coast like Boston or others were just were burned to the ground by a foreign invader. Well that would be a good object lesson to the American people in the need for a good system of coast defenses. I mean he actually did say that. These are kind of odd statements. Well then after he leaves the presidency he's, you know, he's fanatically in favor of getting involved in World War I, like immediately, as quickly as possible, he wants to get right into it.

31:33And you can imagine that he would be somebody who would be very impatient with a very traditional understanding of presidential war powers And that's another issue that I think is worth discussing because, you know, I'm of the opinion that, you know, given that American law I think makes quite clear, American constitutional law, that the initiative with regard to foreign policy obviously belongs in the hands of Congress and that Congress is, I think for reasons that we might discuss, less likely to embroil the nation in war. Well, given our current predicament, I think it's more and more necessary to talk about What was the original intent and how in American history have war powers been exercised, both by Congress and by the President? Not because I actually expect a future President to say, you know what, I really need to restrain myself here.

32:24I really don't have the authority to deploy troops anywhere I want. What kind of a mental case am I? I suddenly have a great reverence for the Constitution. I don't expect that to happen. But we can at least shame, well no, we can't shame them. What am I saying? They have no shame. But we can at least, at least let our fellow Americans know that, you know, these people have complete contempt for the Constitution. They have complete contempt for the law. And, you know, that's at least something. I mean, it helps to undermine their legitimacy. And that's, you know, can't shake a stick at that. Well, let's look at what the Constitution says on the matter, on the matter of war. Now, it's true that the President is under the Constitution declared to be the Commander-in-Chief. What does that mean?

33:11Well, we know from endless commentaries by the framers of the Constitution and by people in the ratifying conventions that what's understood here is that the Congress has the power to declare war and the President, according to Alexander Hamilton, Hamilton, these are his words, the president would have, quote, the direction of war when authorized or begun. I always like to quote Hamilton whenever possible because you can always, you always precede that with even Alexander Hamilton said, okay, well even he said, the president's power is restricted to the direction of war when authorized or begun. Now the Constitution did not in fact say Congress has the power to make war. It said power, Congress has the power to declare war.

33:57And the difference was understood to mean this, that the president was in fact empowered to repel sudden invasions of the United States. That would be very different from, you know, Iran nationalized an American company, therefore the president has to go to war with them. That's not exactly a full-scale assault on American soil. This is meant to be understood that in an emergency situation, the president could repel a sudden attack, but of course you recall that the Pearl Harbor attack was fairly sudden to most of the American population, and yet the next day they were able to have a congressional declaration of war even in that circumstance. But overwhelming legal precedent dating from the earliest years of the republic supports this interpretation.

34:47Now I'm not one very often to quote Abraham Lincoln, but on this issue, at least prior Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems The Provision of the Constitution, giving the war-making power to Congress, was dictated, as I understand it, by the following reasons.

35:33Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and They resolve to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view, speaking to an antagonist, destroys the whole matter and places our President where kings have always stood. Now the framers of the Constitution were abundantly clear in assigning to Congress what one scholar has called senior status in a partnership with the President for the purpose of conducting foreign policy. So when you consider what the Constitution has to say about foreign affairs, it says as follows, Congress possesses the power to regulate commerce with foreign nations, to raise and support armies, to grant letters of mark and reprisal, to provide for the common defense and even to declare war.

36:33Congress shares with the President the power to make treaties and to appoint ambassadors. As for the President himself, he is assigned only two powers relating to foreign affairs. He is Commander-in-Chief of the Armed Forces and he has the power to receive ambassadors. At the Constitutional Convention, the delegates expressly disclaimed any intention to model the American executive after the British monarchy. James Wilson, for example, remarked that the powers of the British king did not constitute quote a proper guide in defining the executive powers. Some of these prerogatives were of a legislative nature, among others that of war and peace. Edmund Randolph likewise contended that the delegates had quote, no motive to be governed by the British government as our prototype.

37:21To repose such foreign policy authority in the legislative rather than the executive branch of government was a deliberate and dramatic break with the British model of government with which they were most familiar as well as with that of other nations where the executive branch, in effect the monarch, possessed all such rights including the exclusive right to declare war. The framers of the Constitution believe that history amply testified to the executive's penchant for war. As James Madison wrote to Thomas Jefferson, the Constitution supposes what the history of all governments demonstrates, that the executive is the branch of power most interested in war and most prone to it. It has accordingly with studied care vested the question of war in the legislature.

38:07Now at the Constitutional Convention, Pierce Butler supported vesting the power of declaring war in the hands of the President. Well that opinion stunned the other delegates, particularly Elbridge Gerry, who said, quote, that he never expected to hear in a republic a motion to empower the executive alone to declare war. Not only was there no support for Butler's position, there wasn't even a second. No one even seconded it when he proposed that this power should be held by the President. At the Pennsylvania Ratifying Convention, James Wilson said this, This system will not hurry us into war. It is calculated to guard against it.

38:54It will not be in the power of a single man or a single body of men to involve us in such distress. For the important power of declaring war is vested in the legislature at large. This declaration must be made with the concurrence of the House of Representatives. In this circumstance, we may draw a certain conclusion that nothing but our interest can draw us into war. By the way, I should mention that a book by Louis Fisher called Presidential War Power is the indispensable single book on this if you're going to read only one. Now, Alexander Hamilton, or shall I say, even Alexander Hamilton, says in Federalist No. 69, that the President's authority, quote, would be nominally the same with that of the King of Great Britain, but in substance much inferior to it.

39:39It would amount to nothing more than the supreme command and direction of the military and naval forces, as First General and Admiral of the Confederacy, while that of the British King extends to the declaring of war John Bassett Moore was a great scholar of international law, who briefly served as assistant secretary of state, later as a professor at Columbia University, he was a prolific author, who was also the first American judge at the world court, and he said this,

40:20Now, in the history of the early republic, the intentions of the framers, in this regard, were by and large respected. For example, George Washington, in his operations on his own authority against various Indian tribes, he confined himself to defensive measures only, and understood that the permission of Congress would be necessary for any further action.

41:06Washington himself said, The Constitution vests the power of declaring war with Congress. Therefore, no offensive expedition of importance can be undertaken until after they have deliberated upon the subject and authorized such a measure.

41:26I think it was probably with both the Korean War starting in 1950 and then the Vietnam War as it heated up in the 1960s that we begin to hear an alternative conception or we begin to hear that this is much too strict a reading what I've what I've told you is much too strict a reading of the historical record and that in fact historically the presidents have been much more flexible and so for example the State Department in 1966 you know an impartial body you know that could be counted on to give us a a dispassionate overview of this matter said But since the Constitution was adopted, there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior Congressional authorization, starting with the Undeclared War with France 1798 to 1800.

42:18Well, we'll have time later, probably this afternoon, to get into this 125 instances. That 125 instances more recently has turned into hundreds of instances. As I say, there was one particular critic of mine who used the phrase hundreds of instances. It's sort of like the number of people that the atomic bombings of Hiroshima and Nagasaki allegedly saved. So first, you have estimates of 46,000, and then later, President George H.W. Bush was saying that millions of lives had been saved by them. He just said that with no support for it at all. And so eventually we start to get this claim that there were hundreds and hundreds of Well, I'm going to try to go through in chronological order, and in particular I use this quotation right here because it makes specific mention of the Quasi-War with France.

43:10And it says that, you know, this was done without prior congressional authorization. That's just not true at all. There was a congressional statute after statute after statute authorizing Adams to do what he did in outfitting ships and in engaging in this. The Secretary of War, who seemed to favor war, asked Alexander Hamilton do you think this legislation authorizes the President to initiate hostilities?

43:56and Hamilton replied by saying this,

44:26Press hostilities within our waters, including a marine league from our coasts. Anything beyond this must fall under the idea of reprisals and requires the sanctions of that department which is to declare or make war, so in effect speaking of Congress. In the wake of the Quasi-War, the Supreme Court ruled that under the Constitution the Congress could declare war, because of course it says that Congress can declare war, the Congress can also give its authorization to hostilities that would not quite come up to the definition of a full-scale war. They could, by statute, authorize lesser hostilities in lesser wars, and in fact that was what happened in the Quasi-War. But here's something interesting that occurred during the Quasi-War. Congress, at one point, authorized the President to seize vessels that were sailing to French ports.

45:16But Adams, without consulting the Congress and entirely on his own authority, began to instruct American ship captains to capture vessels that were sailing to or from French ports. And so we have this interesting case of a captain, George Little, who obeyed the President and in fact seized a ship that was sailing from a French port. John Marshall ruled that Captain George Little could be sued for damages because he should not have followed a command of the President that was not authorized by Congressional statute.

46:09John Marshall says, I acquiesce in the opinion of my brethren, which is that the instructions by President Adams cannot change the nature of the transaction or legalize an act which without those instructions would have been a plain trespass. Now, Congress later reimbursed Captain Little because he had to pay damages. They reimbursed him for it, in effect saying, well, he was just obeying orders. But, as Fisher points out, this means that Congressional policy announced in a statute necessarily prevails over inconsistent presidential orders and military actions. Presidential orders, even those issued as Commander-in-Chief, are subject to restrictions imposed by Congress.

46:54Now, then we have George Washington backing up a little bit. I mentioned earlier on that there was a little bit of a controversy when George Washington issued his proclamation of neutrality because he had no statutory or constitutional authority to issue a proclamation of neutrality. And even though it seems innocuous enough, there was a concern about the separation of powers. In fact, James Madison took this position against George Washington and said this, In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war and peace to the legislature and not to the executive department. War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created and it is the executive will which is to direct it.

47:41In war the public treasures are to be unlocked and it is the executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied, and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. Hence, it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war. Hence, it is the practice of all states in proportion as they are free to disarm this propensity of its influence. And so even the use of a proclamation of neutrality is an example of potential executive encroachment on Congressional prerogatives. Well, here we have yet another interesting example. I think that George Little example is quite revealing.

48:26We have another example. We have an example of an American who disregarded George Washington's proclamation of neutrality and in fact violated the proclamation, because there were Americans who in the 1790s were capturing ships and whatever. A fellow named Gideon Henfield was prosecuted for violating Washington's proclamation of neutrality, but he was acquitted, even though he clearly was guilty. He was acquitted. Why? Because the jurors did not like the idea of convicting someone of a crime that had been established simply by executive proclamation. If there was no statutory authority behind that executive proclamation, then we have no basis on which to convict this man.

49:11Ah, back when we had liberty-loving Americans who were sitting on juries. Not that I think Gideon Henfield was anybody to write home about, but it's quite an interesting point that they made. Now, Congress, as I said, later did declare neutrality. And so, in effect, it was undertaken in any event. That, by the way, is a big problem with executive orders, is that oftentimes the president will issue one, Congress won't like it at all, but then, you know, retroactively they'll give their authorization by voting in favor of whatever the measure is. And so you're only encouraging him, unfortunately. Now, what we hear, I think, the most common case that we hear in early American history of a president who is, in fact, involving the country in war in the absence of congressional authorization to do so Involves Thomas Jefferson and his activity with regard to the Barbary Pirates.

50:07There's just a little background here. The Barbary states of North Africa were in effect engaged in piracy for a very long time. And so if you had ships sailing the Mediterranean, you would in effect have to bribe them into leaving your shipping alone. During the colonial period, the British government paid the bribes on behalf of Americans. In the early republic, very early, George Washington just paid the bribes. John Adams just paid the bribes. When you get to the early 1800s, Jefferson is not terribly enthusiastic about paying the bribes. By late 1801, some of the Barbary pirates are in fact increasing the amount of the bribe that would be necessary.

50:52And eventually they actually declare war on the United States. Well immediately prior to Jefferson's inauguration, Congress had passed legislation that, among other things, provided for six frigates that, to quote the legislation, shall be officered and manned as the President of the United States may direct. And so when Jefferson sent American ships to the Mediterranean, he was appealing to this. Jefferson sends a small force to the Mediterranean to protect against any possible aggression on American ships and citizens. We can agree or disagree with that position, but it's interesting to note what Jefferson says here Jefferson said that he was, quote, unauthorized by the Constitution without the sanction of Congress to go beyond the line of defense.

52:03He said that Congress alone could authorize, quote, measures of offense also, and so Jefferson went to congress and said, I communicate all material information on this subject that in the exercise of this important function confided by the constitution to the legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight. Now Fisher points out that the justice department very often has made reports and in congressional in 1802 to authorize the president to equip armed vessels to protect commerce and seamen in the Atlantic, the Mediterranean and adjoining seas.

53:03The statute authorized American ships to seize vessels belonging to the Bay of Tripoli, with the captured property distributed to those who brought the vessels into port. Additional legislation in 1804 gave explicit support for, quote, warlike operations against the regency of Tripoli or any other of the Barbary powers, unquote. Now understand the purpose of my bringing this up. It's not to say this is a wonderful decision, it should have been done, but simply to say that in no way can you extrapolate from this to some general ability of the President to deploy American forces anywhere in the world for any purpose. Jefferson, by modern standards, was positively timid in his behavior. In fact, late the next year, in late 1805, there had emerged a dispute with Spain regarding the boundaries of Louisiana and Florida. Jefferson went to Congress and reported on that and said that it was his opinion that Spain revealed, quote, an intention to advance on our possession In the course to be pursued will require the command of means which it belongs to Congress exclusively to yield or to deny.

54:20To them I communicate every fact material for their information and the documents necessary to enable them to judge for themselves. To their wisdom, then, I look for the course I am to pursue and will pursue with sincere zeal that which they shall approve. Okay, again, this is like another planet, basically, this type of language. A couple of more quick ones before we stop and take some questions. And then I think the really interesting stuff actually comes later. I mean, how do we get to the present situation? At the time of the War of 1812, what did President James Madison do? He went to Congress, gave his war message, and the Congress voted to declare war. And at the time, in his discussion of the declaration of war, he referred to it as, quote, a solemn question which the Constitution wisely confides to the legislative department of the government.

55:13So again, he's acknowledging his constitutional responsibilities. Well, the last incident I want to make note of is very little known, but it involves an The Monroe Doctrine had been laid out in 1823, and the following year, Columbia began to fear an attack from France, and they appealed, they inquired of the United States government, citing the Monroe Doctrine, Doctrine, after all, isn't this something that you would want to repel? They inquired of the American Secretary of State, John Quincy Adams, who in effect composed the Monroe Doctrine, they asked, the Colombian government asked him, in what manner the government of the United States intends to resist on its part any interference of the Holy Alliance for the purpose of subjugating the new republics or interfering in their political forms?

56:06And so at a cabinet meeting this question was considered. In his diary, John Quincy Adams wrote the following, The Columbia Republic, to maintain its own independence, hope that France and the Holy Allies will not resort to force against it. If they should, the power to determine our resistance is in Congress. The movements of the Executive will be as heretofore expressed. I am to draft an answer. And he informed Columbia, quote, You understand that by the Constitution of the United States, the ultimate decision of this question belongs to the Legislative Department of the Government. In fact, I can't give you an answer. I don't know what the policy is. That would be something that would be decided by the legislature. Okay, well I think I will pause here a little bit unusually early and take any comments or questions or frustrations you have about any issues relating to this and then after lunch we'll have ample time to go through the Mexican War And then look at, again, some really bizarre little known episodes that have contributed to this discussion of this issue.

57:11Okay, so, yes, sir. My recollection of the Petticaris affair was that Mr. Petticaris gave up his U.S. citizenship to protect property that his wife had in the Confederacy territory and denounced it afterwards and there was a heavy discussion going on in the Department of State whether he was a citizen or he wasn't and the State Department decided to take the position he wasn't a citizen on the facts before him and Roosevelt took the position he was and disagreed with him on the basis of the facts and I don't think necessarily that he was He really was a U.S. citizen. He was just trying to protect his property rights in the Confederacy. He was a white.

58:01He never went to court on the issue.

58:19America's Foreign Wars, and I think he discusses it there. Other things? Other things in people's minds? Oh, you're killing me, people. You're killing me. You're full of questions. Full of questions. Mark Thornton. Tom, what about the president of the Articles of Confederation? We had a presidency under that form of government. It seems odd to me that Americans are more or less required to memorize all the American presidents, Hardly anyone can name one single president under the Art of Confederation.

59:17Let's go back to Washington. I don't know how far it went that he certainly threatened Vermont as an invasion if they just joined this new union. Do you want to flesh that out a little? It almost sounded like he was ready to declare war. I don't know what the state of congressional debate on that was, so I can't really develop that issue very much about the issue on putting pressure on Vermont. If there's anybody who knows more about this, I'd happily take your comments. Because I'd be curious to know what people thought that this is an unjust example of presidential aggrandizement and force, but I don't know what the state of opinion was on that time.

1:00:13My recollection was that it was a dispute between New Hampshire and New York, and the both were claiming overlapping claims of territory at that point. Vermont was independent at that point. They didn't decide they didn't want to join the union, and Washington said, I want it, you're going to be forced to have it. That was not my recollection, but getting back to Mike, I just had one other point. I talked about presidency that didn't have teeth in it, basically. I thought of William Eyde in California, the only time California had a presidency. And William Eyde needed to basically go on, what was written at the time, go on in progress. So the writer talked about, I needed to get down to Los Angeles.

1:01:00The California Treasury had no money, so I worked his way down the coast as a ship as an able-bodied citizen, a president of California. That's a feeble present, in other words, yeah, that's as feeble as it gets, yeah. Yes? Frederic, what was Tegor's motive in setting up all this progressive firm?

1:01:53This is the way the guy is. This is a guy who in effect believes war is a unifying force in the country. I think this is an example of a guy who is trying to whip up American patriotism. I can't prove that the way I can prove other things, but it seems entirely consistent with the man's character and the written record. Do you think the executive powers and the war powers up to the current time, a lot of conservatives who believe in Congress declaring war, once they find themselves in Congress, they say, well, we're just going to have to go along with this, we don't want to declare war, because if we do, then all these executive war powers go into effect that are already sort of sitting in the air.

1:02:46In fact, so many of these executive war powers are themselves usurped from the Congress because I mean, if Jefferson thinks that he can outfit ships and send them to the Mediterranean, but while they're out there, all he can do is repel attacks, he can't actually initiate offensive operations, I mean, that indicates he had a very narrow conception of what executive of War powers were, that they were authorized, they were given to the executive, they weren't inherent to him, they were given by congressional statute. So if Congress really wanted to regain its powers, it would have to, as you say, Mark, not just go back to declaration of war, but right, they don't want to declare war and then have the president say, well, it's a declared war, now I can do X, Y and Z, they have to get X, Y and Z back, which will be a bit of an ordeal. I remember when Ron Paul has tried, like in this most recent war, you

1:03:41He's reminding Congress that the responsibility of declaring war rests with them. And I'm pretty sure, wasn't it Henry Hyde who more or less told him that he had a very old-fashioned and outdated view of the Constitution and things just aren't done that way anymore. It sort of reminds you of what Jefferson said, that our unique security lies in having a written Constitution. Let us not make it into a blank paper by construction. My view would be, since there is no apparent expiration date on the Constitution, simply to say that we don't do it this way anymore doesn't seem to me like the best comeback you could have. Yes?

1:04:48to protect my people from their governments.

1:05:48The evolution of the office of the presidency and expansion. I see a parallel between that and kind of what Hayek wrote and what he's talking about, but we'll just get to the top.

1:06:18The worst getting to the top of that point by Hayek, it's absolutely true. It's funny though, there's this quotation by Rutherford Hayes who said that, up till now our presidential office has been occupied by and large by conservative men who are careful to confine themselves to precedent and traditional ways of acting. But if a Napoleon should take this office, then in effect it's malleable enough and he could make it into, you know, whatever he wills and I think, you know, I think that's what started to happen with the 20th century. Yes? I'm reading David McCullough's book, 1776, and I'm at the spot where the British are occupying, it's after the shocker around the world, and the British are now occupying and George Washington has been made the commander of the Continental Army and he's got them, in essence, blockaded and he convenes a war council and his war council suggests that they send some troops down to New York to protect New York and he feels that he does not have the power to do that so he writes a dispatch to the Continental Congress and John Adams actually intercepts it and he writes back and says absolutely you have a

1:07:42So the point that I'm making is that there's already this idea that one person does not have the authority to just go willy-nilly off and do as they please.

1:08:12to New York, and was told that, of course, you do, but it's interesting that he would even hesitate. This is sort of unrelated, but on the George Washington front, if you haven't read volume four of Conceived in Liberty by Rothbard, it's quite interesting. I'm somebody who, I can't, no matter how I try, cannot get interested in military history. And unfortunately, this is the only history my students are interested in. They love Civil War battles, whatever. Heaven knows I've tried. I sit there, I open the book, I get to page three, and I'm just out. It just holds no interest for me. I don't understand why. I really don't. It just holds no interest for me. But when I read this stuff, when I read Rothbard's treatment of the American War for Independence, I thought it was quite interesting, his thesis about the effectiveness of guerrilla fighting as opposed to conventional war.

1:09:02I was basically persuaded. I have no basis for judging because I'm a complete ignoramus when it comes to military history, but I was quite persuaded by that. by that. And if you don't have Conceived in Liberty, then shame on you anyway. Is it still in print? Oh my goodness gracious. Before you even can get lunch, go and spend your hundred dollars on those four beautiful and handsome volumes. Okay, other thoughts? That's funny because in the earlier talks, I figured, you know, I'm not leaving enough time for questions. There are like seven at the end, still unanswered. So I thought, well, today I'll be super nice I was wondering on the issue of, I guess, complicity going on between the United States.

1:09:49I remember the issue in 1917 when the United States wanted to take in, for the second time, to take in the Virgin Islands and the Caribbean, and the Undertable deals of recognizing Danish control over Greenland, basically wiping out the Norwegian territorial claims, at the same time Norway was fighting the United States in its co-operations in Spitsburg and the Arctic, And I was wondering, if you're going to your lecture later now, this undercover stuff of the State Department with the President's consent, making determinations without Congress's authority to declare Greenland is all Danish, no Norwegian rights, and in turn we acquire the Virgin Islands, and it's all under the table because Congress never authorized it.

1:11:00Right, right. Yeah, well, I actually spent some time in the U.S. Virgin Islands and sort of got to know a little bit about this before going. But the funny thing is that our tour guide, I had a tour guide while we were over there, didn't really give us this story and just simply said, oh yeah, the U.S. acquired St. Thomas and whatever at such and such a date for such and such a sum of money and that was the end of the story. But, no, this won't be an incident that I'm going to do because I'm trying to, I've got, you know, in the one talk left, I've got, I want to do Mexican War and say something about Cuba at the end of the century and then talk about modern presidential war powers and where they come from.

1:11:46I mean, some of it's just, you know, just usurped, but there's an important Supreme Court case that I want to talk about that has given teeth to the bad people. And I wanted to dismantle that. But also, I want to mention, I had a student once who asked me, what would happen if the Congress declared war, but the President didn't want to go to war? What would happen? And at first I didn't know how to answer that. I said, well, I just don't imagine that ever taking place. and a president saying, nope, I have no interest in going to war and you people are a bunch of crazed warmongers and I'm going to... So I thought about it and it turns out that actually there was almost a case of that in the 1890s when there were some people who wanted to, some congressmen who wanted to go to war with Spain over Cuba even in the mid 1890s under Cleveland.

1:12:38and Cleveland said well you know it's not going to happen you know there will be no war with Spain as long as I'm president so they came back and said well hey wait a minute wait a minute we have the power to declare war who are you to tell us whether there's gonna be a war or not and so they so Cleveland replied that well if you declare war you know I'm the commander-in-chief I just I won't call out the armed forces how do you like that and I thought now there's some presidential war power right there okay yes What about Teddy Roosevelt, where he started issuing these volumes of executive orders and started grabbing every piece of power he can? What was the legislative body doing during this whole period of time?

1:13:38Wilson has helped, I think, with some of his writing, has helped to pave the way for this charismatic figure to get the control of the American population and get their enthusiasm, and just, you know, so he's a guy who knows what he wants, he's super organized, whatever, and I think the Congress was just caught unawares at this, and so you get a lot of griping about this guy is just running roughshod over all our prerogatives, You know, in effect, T.R. was able to wear this as a badge of honor, to say, well, these are people who refuse to act, but I'm a man of action. And I think in all ages, you get, there's always this tendency, at least in the part of some of the population, to be swept away by a man of action.

1:14:25I mean, I think, for example, Franklin Roosevelt, even though he doesn't get the country out of the Depression, obviously, just look at the statistics, nevertheless, he's perceived as being a man of action. He did something. It's sort of taken for granted that doing something is always better than doing nothing. And of course when it comes to the economy, that's of course exactly the opposite of the truth. But most people don't know that. Most people have this, I think, this instinct that action and the use of the will, this is always to be preferred to inactivity. And especially when the guy who's undertaking it is just so darn entertaining, I think people are easily swept up in it. Yes, Mark? Is there a correlation between the number of executive orders the President issues and their popularity amongst American historians?

1:15:30I think for the historian, again, which presidents do they like, the ones who exercise all the authority that's coming to them, and much besides. Yes? You've brought up some good ideas about the thunderstorms that went on before World War I. Specifically, what was Congress' reactions to things going on, say, as Mexico and Haiti, among which were action of some sort?

1:16:13Woodrow Wilson, because he notes that even though Wilson did, when it came to World War I, he went and got his declaration of war and, you know, at least from that point of view, was behaving, you know, in a way consistent with American tradition. That doesn't mean that Woodrow Wilson overall was totally harmless and not in any way a villain in the development of modern presidential war powers. But again, I'm afraid I'd have to go back and look to double check on that because I don't want to say something that I can't defend. Yes, and then I think we're coming up to the end? Anyway, I remember in the time period of the 1820s, where the issue of Greece and the Ottoman Empire occurred, Congress was interested in helping the independence establishing of Greece and the State Department.

1:16:58That's right, that's a good point. And I remember leaves from Lafayette to the members, writing personal letters to the members of Congress, asking them to assist Greece in helping them in their independence. And in other words, Lafayette was writing personal letters to congressmen, you know, because the executive didn't care what Lafayette thought.

1:17:41from the Congress and wonderful to see you and good luck with everything and then the time comes to say well so how much are you going to give us or are you going to come help us and the response was well no, why did you think we would, I mean we've got our own country over here, we've got our own problems and you know all we can do is be a good example to you and you know good luck and godspeed but that if we got involved with all these conflicts we would risk as Henry Clay put it we would risk extinguishing I just wondered, did any of the representatives in Congress, other than Thomas and Ron Paul, take an acceptance of this? Is there anybody else in there?

1:18:41And there's a guy, I couldn't remember when I, there's a guy from Tennessee, and I can't think of his name, but there's a good, like a reasonably good guy, like he's a guy, he's a congressman, and maybe people can email me if they know who he is, but he's a congressman who has written articles along the lines of, you know, I'm a conservative and this war is not conservative. Like, there aren't that many congressmen writing articles like that, so maybe somebody might recognize, remember the guy's name, but I can't think of it. There would be a few, but they tend to be sort of on the fringes. Certainly none of the mainstream people are. Like Aron Hatch is not losing any sleep over, oh my gosh, have we delegated too many war powers to the president? It always tends to be the ones who... If they had those opinions, they wouldn't be in positions of influence.

1:19:30They wouldn't have been appointed to major committees. They wouldn't have chairmanships or whatever. So it does seem like it's a very, very small group. What I am going to go into a little bit after lunch, though, is it's sort of quixotic, but there are examples of people in recent years, even just with the Iraq War, who have tried to initiate legal action against the U.S. government, citing all this constitutional stuff and all the historical evidence saying that war was actually not initiated using the proper channels, And therefore, we should actually have recourse to the courts and see what can be done. And, okay, very unlikely you're going to get the U.S. government to say, you know what, you're right, we've got to recall the troops back home or whatever. But I say anything that serves to embarrass a regime that has nothing but contempt for the law should be done.

1:20:22It just should be done. So I totally support that. And I'm pretty sure it's a group of former veterans who brought the thing. So they couldn't be accused of just being, you know, pacifist, pansies or whatever. They're actually people who have fought in the past, but just hold this judgment. Okay, I think that does it. So thank you very much.