AUTHOR'S NOTE: The author would like to thank the participants of the Houston political theory workshop for their comments as well as the editors for their guidance and good judgment. Sarah Mallams provided valuable research assistance.
SYMPOSIUM ON HISTORICAL RESEARCH
Opposition to the Theory of Presidential Representation: Federalists, Whigs, and Republicans
Article first published online: 26 JAN 2014
© 2014 Center for the Study of the Presidency
Presidential Studies Quarterly
Special Issue: Symposium on Historical Research
Volume 44, Issue 1, pages 50–71, March 2014
How to Cite
Bailey, J. D. (2014), Opposition to the Theory of Presidential Representation: Federalists, Whigs, and Republicans. Presidential Studies Quarterly, 44: 50–71. doi: 10.1111/psq.12087
- Issue published online: 26 JAN 2014
- Article first published online: 26 JAN 2014
- Top of page
- Foundations of Presidential Power
- Jefferson's Federalists
- Jackson's Whigs
- Lincoln's Democrats
This article considers the theory of presidential representation by examining its development from 1800 to 1864. In particular, it returns to the critics of Thomas Jefferson, Andrew Jackson, and Abraham Lincoln and presents new evidence that the concept of presidential representation not only remained contested throughout this period but also grew more entangled with rival claims of representation and alternative arguments for executive power. By exploring the early development of the theory of presidential representation, the article contributes to the ongoing scholarly task of classifying arguments about the foundations of executive power and attempts to link literatures regarding the constitutional and political sources of presidential power.
Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations.
—Justice Robert Jackson, concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952, 654)
Robert Jackson's statement points to an enduring difficulty for scholars of presidential power. It argues that, in addition to formal sources of constitutional authority and in addition to the emergence of the president as party leader, there is a third source of presidential power, and that source is public opinion. Scholarship on the presidency has documented the importance of each of these three sources, and the emphasis on the one or the other has ebbed and flowed much like Jackson's description of executive power itself. In the last decade, scholars have variously rediscovered the formal powers of the unilateral presidency, expanded on continuing debates about the constitutionality of prerogative, and found new ways of measuring the extent to which presidents represent their parties or the whole.
The problem is that simply reiterating and expounding upon each of the old arguments does little to clarify the nature of presidential representation. Some scholars today emphasize the legal and philosophic grounds for the arguments made by presidents and their opponents. This is especially true among scholars of executive prerogative, who have distinguished several models of prerogative, usually around the question of its constitutionality or extraconstitutionality. Other scholars emphasize the connection between the president and public opinion. For them, the essential point is that the appeal to public opinion has become a fundamental feature of the modern presidency. These different emphases are fine as far as they go, but in large part they talk past one another, and anyone who tries to navigate between them might be forgiven for coming away with a sense of crossed purposes.
To be sure, some of the confusion derives from the nature of scholarly investigation and is the result of necessary specialization. But the larger obstacle to understanding presidential representation stems from our insistence on the “modern presidency” as an organizing concept. This is a historical construct, and in our search for the precise date of its appearance, we end up imputing to history a before-and-after moment. Looking for the moment of change, we risk missing what endures and misunderstanding the fruits of victory enjoyed momentarily by one or another set of winners.
This article examines the development of the theory of presidential representation between 1800 and 1864. It does so with particular attention to the opposition to various presidential embellishments of the theory. My argument is that opposition responses were not just losers but integral parts of the development in view, that the theoretical and developmental linkages made between claims of executive power and claims of representation carry forward elements of the resistance encountered along with the new assertions. I find that by 1864, the question of presidential representation had become more complicated and more entangled with rival claims of authority, not less. But before I turn to the nineteenth century, let me consider recent scholarship on presidential representation in more detail.
Foundations of Presidential Power
- Top of page
- Foundations of Presidential Power
- Jefferson's Federalists
- Jackson's Whigs
- Lincoln's Democrats
The precise nature of the relationship between the presidency and the public remains a central concern of political science. Presidency scholars still disagree about whether the framers of 1787 designed the president to be democratic (Alvis 2013; Nichols 1994; Tulis 1998); whether going public actually works (Edwards 2006; Kernell 1997); whether the president follows or leads public opinion (Canes-Wrone 2005); and whether presidential mandates exist (Dahl 1990; Heidotting Conley 2001). There is wide disagreement as well about the character of presidential representation. One group of scholars finds that presidents are more centrist in the policies they promote, while another finds that they are more partisan in the views they represent (see Eshbaugh-Soha and Rottinghaus 2013 for a recent review of this debate). Although students of the presidency have made tremendous headway in understanding presidential representation in partisan terms, there is still much work to be done. In a recent article published in Presidential Studies Quarterly, Lawrence Jacobs (2013) surveyed the research on the linkage between the president and the public and concluded not only that the subject was still “undertilled” but also that its study would be enhanced by “cross-field” research, particularly, but not exclusively, with reference to political theory.
In a recent book, B. Dan Wood (2009) goes farther, arguing that scholars of the presidency need to move beyond what he calls the “myth of presidential representation.” In his view, the myth takes two different forms by two very different groups. The first form, most frequently stated by presidents, is that the president represents the national interest as opposed to local interests. The second form, elaborated by one school of political science, is that the president is pulled by electoral self-interest to the median voter. But according to Wood, presidents appeal to fellow partisans rather than to the median voter. Specifically, Wood's president campaigns and governs with an eye on “potential” support, that is, a coalition of the committed and the persuadable. Wood concludes,
Indeed, one is led to question whether modern presidents and presidential candidates even understand what it means to be “enlightened statesmen” in the sense intended by Madison in Federalist 10. Rhetorically, they consistently claim to put the nation or “Country First!” At the same time, they consistently pursue policies directed at supporting the interests of the few, rather than the community of the whole. (2009, 200)
Wood's formulation here is revealing in that it indicates just how underdeveloped the current examination of representation remains. In Wood's view, early Americans considered representation only in terms of partisanship, and because they created a presidency without accounting for political parties, they failed to foresee that presidents might be partisans.
What is important to notice is that Wood is not content with his empirical claim about how presidents behave today. Rather, he explains this empirical claim by invoking a broader understanding of the constitutional design and of American political development, namely, that parties changed everything. In this he is not alone. Though research into American political development is very different from Wood's analytically, it, too, sees the emergence of parties as the critical factor in changing presidential representation. As Ellis and Kirk (1995) point out in an article on the development of the theory of presidential mandates, the Whigs were “modern,” only to the extent that they anticipated the political scientists’ critique of contemporary practices. Like Dahl (1990) and others, Whigs argued that it was implausible that a majority on a certain policy could be discerned from an election. But this is to say that Wood (2009) and Ellis and Kirk (1995) both agree with respect to the essential developmental question, namely, Jackson eventually won, and the Whigs eventually lost (see also Ceaser 1979). Or, as Ellis (2012, 92) puts it in his recent textbook on the presidency, because the Whigs could not articulate a coherent alternative to Jacksonian democracy, the question moved from whether the president works for the people to the way the president relates to the people.
Because both Wood (2009) and Ellis and Kirk (1995) consider presidential representation in partisan terms simply, their accounts are incomplete at best. Contests over executive power and the nature of presidential representation have endured, and they continue because of the imprecise wording of the Constitution. Moreover, this imprecision grows out of the nature of executive power itself. There are two rival arguments for executive power in republican constitutionalism. Or, to put it differently, and to redeploy James Ceaser's (2006) call for examination of foundational arguments in American political development, there are two different foundations for executive power. One is formal law, and the other is public opinion. Each foundation provides an attractive normative argument from republican political theory while at the same time moderating some of the other's excesses. The argument from law appeals to our desire for equality (all are equal under the law) and promotes stability (the rule of law). The argument from public opinion appeals to our desire for democracy (the majority must govern) and promotes progress (the earth belongs to the living). These rival foundations ensure that power remains contested both as a matter of formal law and as a matter of informal opinion. The separation of powers under the Constitution further complicates these struggles by mingling them with rival claims of representation with respect to public opinion. As James Madison conceded in Federalist #37 (Scigliano 2000, 224), the delegates to the Convention of 1787 encountered the difficulty of balancing the requirements of energy and stability with the desire for republican principles. They attempted to solve this not by creating a mixed constitution, based on economic class, but rather by attaching a different principle to the House, Senate, and presidency. These different principles would, in turn, be harnessed by different “wills,” and these wills would include different constituencies.
The emergence of parties altered this framework but did not replace it. In fact, the first parties explicitly took sides on the contest between law and opinion. The Federalists represented the party of law and the Republicans the party of opinion (see Estes 2006 on the politics of the Jay Treaty; Ackerman 2005 on the election crisis of 1800). The argument for party was first a proxy for the argument for public opinion (Sheehan 2009), and once the parties became what Hofstadter (1969) called “legitimate,” both parties saw that they could not reject as out of hand the argument from public opinion. But the question of executive power—and as a result, presidential representation—was altering these developments even as it itself was changed by them. Executive power in republican government requires explanation, and, if that explanation is going to be persuasive, it must attempt to rise above party politics even as it takes into account the way party politics changes the incentives for using and explaining power. The point can be flipped around to apply to the other side as well. Just as partisan accounts are incomplete, so too are examinations of executive power—particularly by scholars of prerogative (Mansfield 1989) and scholars in the public law tradition (Fisher 2007)—that emphasize philosophic or legal argument and omit consideration of presidential representation. The two arguments came to us impacted, one with the other, at the beginning, and for all the development that has ensued, they have remained so.
This article next considers opposition to the first three reconstructive presidents (Skowronek 1993): Thomas Jefferson, Andrew Jackson, and Abraham Lincoln. Not only were each of these the successful leader of an insurgency against a decaying political order, each also went further than prior presidents in governing by executive power and in pushing the argument for executive power in new directions. We know a lot about the push; the concern here is with the equally constitutive pull.
- Top of page
- Foundations of Presidential Power
- Jefferson's Federalists
- Jackson's Whigs
- Lincoln's Democrats
The administrations of Jefferson and Madison transformed New England Federalism from the party of national power to the party of the prerogatives of the states. One development was the Louisiana Purchase, which signaled that the United States would grow more western and more southern, which, combined with the three-fifths slave bonus, doomed the Federalist Party to permanent minority status. Another key development was the “deplorable condition” of the New England economy (Webster 1843), brought about in part by the Embargo of 1807 (and its later iterations as the Non-Intercourse Act) and the War of 1812. But as I have argued in a previous work (Bailey 2007), another key development was the transformation of presidential power brought about by Jefferson's Revolution of 1800. In particular, Jefferson rejected the broad constitutional arguments associated with Alexander Hamilton and the Washington administration, and instead linked his changes to the theory that executive administration should be responsible to the will of the majority. Even more important, Jefferson and his party ushered in the Twelfth Amendment in time for the election of 1804, and, in so doing, set the stage for the theory of presidential representation by constitutionalizing the notion that “one man” could represent the national will.
As New England's political and economic situation worsened, Federalist politics was divided between radicals and moderates on the question of whether the Union was in New England's ultimate interests. At the most extreme end, some Federalists considered secession or, later, a separate peace with Great Britain. The moderates, however, advocated a political solution within the constitutional framework, and modeling themselves after Virginia and Kentucky in 1798, recommended constitutional amendments to protect New England. The contest between these two groups eventually culminated in the Hartford Convention of 1814-15, and according to the leading account (Banner 1970), that gathering was a clear victory for moderates. Instead of a radical call for secession, the convention's final report was more a “statesmanlike declaration of New England grievances” (Banner 1970, 346). Whereas the Virginia and Kentucky Resolutions of 1798 had argued for a particular way to construe the Constitution, the Hartford Convention went so far as to recommend specific amendments to the Constitution such as the removal of the three-fifth bonus for slave states, a supermajority requirement for the incorporation of new states, a supermajority requirement for offensive war, and a limit on Congress's power to issue embargoes. But what has not received sufficient attention is that the nature of presidential power and presidential representation was also part of the conversation.
Given that they had suffered for more than 12 years under Jefferson and Madison, it is not surprising that the Hartford Federalists also targeted executive power. In their official convention report, the Hartford delegates described the president as the mere “organ” of Congress and argued that the president's power over the militia was subject to limitation by “state authorities.” Importantly, the Hartford delegates attempted to limit the powers of the president by reshaping the rules of presidential selection. This was because they perceived that presidential power was not a question of law simply but that, under the Republican way, it would also derive from opinion.
The office of President has charms and attractions which operate as powerful incentives to this passion. The first and most natural exertion of a vast patronage is directed towards the security of a new election. The interest of the country, the welfare of the people, even honest fame and respect for the opinion of posterity, are secondary considerations. All the engines of intrigue, all the means of corruption, are likely to be employed for this object. A President, whose political career is limited to a single election, may find no other interest than will be promoted by making it glorious to himself, and beneficial to his country. But the hope of re-election is prolifick of temptations, under which these magnanimous motives are deprived of their principal force. (Cabot et al. 1815, 455-56)
More than limiting the powers of the president, these critics of presidential power sought to reshape the very design of the presidency by creating a one-term limit and by creating a geographical balance in terms of eligibility for office. Following Madison's famous argument in The Federalist (Scigliano 2000, 331) that the key to separation of powers was giving each department a “will of its own,” the Hartford Federalists perceived the potential representational character of the president's will and wanted to quash it.
In their attention to the relationship between presidential power and presidential selection, the Hartford Federalists were continuing a strand that had already existed within Federalist thinking. One of the most vocal hard-liners at Hartford was Connecticut Senator James Hillhouse. Earlier, in 1808, he published a list of proposed amendments to the Constitution (Hillhouse 1808). One would have removed the vice presidency and another would have required the president to get Congress's approval to remove executive officers. Another would dramatically change presidential election by making it less popular and thus more favorable to the small states. Under his proposal, only senators at the end of their terms would be eligible for president, and the winner would be determined by lottery: “The senator who shall draw the colored ball shall be president”(Hillhouse 1808, 15).
What is important to notice, however, is that Jefferson's opponents had long perceived that the theory of presidential representation would work against their policy objectives. As the above amendment proposals suggest, the key development was the Twelfth Amendment, which I have argued in previous work should be seen as more than the Aaron Burr Amendment (Bailey 2007). That argument has two steps. First, Republicans treated the amendment with urgency, to ensure that the amendment would take effect in time for the election of 1804, even though there was little chance that Republicans would repeat their mistake of 1800. Second, the debate over the number of candidates eligible in the contingency election in the House (preserving five or reducing it to two or three) opened a new debate about the amount of discretion the House should have in choosing the president. For Jefferson's Republicans, the House should have very little discretion in departing from the will of the majority. For the Federalists, the House should have a great deal of discretion because determining the will of the majority was dangerous, if not impossible. In short, the debate over the Twelfth Amendment forced early Americans to wrestle with presidential representation under the Constitution.
Connecticut Senator James Hillhouse, in particular, argued that the amendment was dangerous in that it would allow the people to think that there was “only one man” who was fit to be president. In fact, the opposite had long been the presumption in republican theory. In “some ancient republics,” he noted, ostracism and banishment was the solution for men who were so “popular as to be beyond the reach of competition” (Annals of Congress 1804, 190). But the Constitution of 1787 had come up with a better solution to these men “whose popularity made them dangerous to the liberties of the Republic”:
Our Constitution, more wise and just, has provided a more safe and effectual remedy: no man can become too popular; for, if there is a portion of the people who are disposed to be infatuated, the Constitution provides there shall be two candidates; and those who are not infatuated can choose a man of equal talents for the station. (Annals of Congress 1804, 190)
The beauty of original constitutional design, he argued, was that it allowed some mystery in choosing the president. This mystery moderated the dangerous pressure of mere popularity. Later, it was no accident that Timothy Pickering, who was one of the hard-liners who did not attend the Hartford Convention, wanted the Hartford Federalists to undo the Twelfth Amendment (Wills 2003, 190).
Outside Congress, there was opposition. The state legislatures of Connecticut and Delaware rejected the Twelfth Amendment; in New Hampshire, the governor vetoed the measure. Massachusetts did not ratify the Twelfth Amendment until 1961. The records for some of these debates are hard to find, and to my knowledge, the debates at the state level have yet to be studied. But Delaware, in particular, offers clear evidence that opposition to the Twelfth Amendment was similar to the opposition in the Senate (see Table 1).
|3. Because in fact the amendment does reduce the power and weight of the small states, in the case provided by the constitution, for the choice of President by the House of Representatives, by limiting the selection to three instead of five candidates, having the greatest number of electoral votes.|
|4. Because the present mode of election gives to the small states, a controul and weight in the election for President and Vice-President, which are destroyed by the contemplated amendment.|
|5. Because it is the true and permanent interest of a free people, among whom the relations of majority and minority must ever be fluctuating, to prevent the just weight and respectability of the minority by every proper provision, not impeaching the principle that the majority ought to govern; and we consider the present mode of election as calculated to repress the natural intolerance of a majority, and to secure some consideration and forbearance in relation to the minority.|
|6. Because we view the existing provision in the constitution as among the wisest of its regulations. History furnishes many examples of nations and particularly of republics, in their delirious devotion to individuals being ready to sacrifice their liberties and dearest rights to the personal aggrandizement of their idol. The existing regulation furnishes some check to this human infirmity, by the occasional power given to a few to negative the will of the majority, as to one man, leaving them every other qualified citizen in the country for the range of their selection.|
From these objections, we can see that Delaware perceived that the amendment would be disadvantageous to small states like Delaware but also that it would dangerously empower the majority to rule by way of one man. Importantly, the sixth article asserts that the Constitution allows a minority to block a majority, which in this context must mean that the contingency election in the House was meant to be a filtering device that would prevent the popular choice from becoming president.
- Top of page
- Foundations of Presidential Power
- Jefferson's Federalists
- Jackson's Whigs
- Lincoln's Democrats
The presidency of Jackson provoked the deepest and most sustained critique of executive power in American history. From his very first days in office, Jackson's expansion of executive power provoked opposition. This was particularly true in the case of removals. Like Jefferson, Jackson used the removal power to punish and reward partisans, and like Jefferson, Jackson defended his increased use of removals with an appeal to presidential representation. But Jackson's arguments were more openly partisan, as were those of his opponents, because partisanship was in the process of becoming accepted. More than being the first president to publicly argue for presidential power over congressional power (Magliocca 2007), Jackson was the first president to ground executive power in politics and in the Constitution, and thus was the first president to combine Jeffersonian and Hamiltonian foundations for the executive office. Indeed, as the argument for spoils suggests, Jackson linked his expansion of executive power to his theory of presidential representation from the very beginning of his time in office. It is no coincidence, then, that Jackson called for a direct election of the president, and abolishing the Electoral College, in his first annual message to Congress.
Jackson's appeal to two foundations of executive power prompted a response from the Whigs concerning the proper role and scope of executive power under the Constitution.1 The response from the Whigs forced Jackson to articulate an even more vigorous understanding of presidential representation, which the Whigs, in turn, rejected and attempted to dismantle in part by changing the president's relationship to the executive branch and the president's eligibility for reelection. To be sure, the controversy over removals and over Jackson's understanding of presidential power was eventually entangled with the controversy over control of the Second Bank of the United States. As the leading Jackson historian (Remini 1967) writes, Jackson saw the bank controversy as an opportunity “to buttress presidential power with mass support” (Remini 1967, 46). As a result, the election of 1832 “was the first time in American history that a major issue was taken directly to the electorate for decision” (Remini 1967, 48). When Andrew Jackson won reelection in 1832, he declared that the election settled the policy controversy of the Second Bank of the United States.
But the debate between Jackson and his opponents was bigger than the bank. As the historian Michael Holt has shown (1999), Jackson's use of executive power provided a unity of purpose to what would otherwise have been a loose coalition of politicians opposed to Jackson.2 In the House, Jackson's supporters succeeded in limiting debate concerning Jackson's control over the bank and Jackson's broader claims of representation. But a few critics were able to give extensive speeches. One was by Tristam Burgess, an opponent of Jackson from Rhode Island. Like Clay and other Whigs in the Senate, Burgess noted that the Jackson's claim for control over the Bank amounted to a contest between the president and Congress over implied powers. For Burgess, the Constitution anticipated such conflicts and resolved them in the favor of Congress by limiting the Vesting Clause in Article II to “the” rather than “all” executive power. This was by design, since “A Congress might do all the legislative service of the people; a President could not do all their executive services; and, therefore, all their legislative powers were vested in Congress; and for the same reason, the, but not all the, executive powers were vested in a President” (Register of Debates 1834, 3182). Another was Charles Pinckney of South Carolina, who had been associated with South Carolina's arguments for nullification. In his view, the question ultimately would decide whether the president would “only” execute the laws or whether he would make them too (Register of Debates 1834, 3114).
In the Senate, Jackson's opponents complained bitterly about what they saw as his attempts to transform the presidency into an elective monarchy, because, as Daniel Walker Howe (1979, 89) put it, the “Whig fear of the presidency contained within it a fear of democracy.” It is important to see, then, that they did not concede Jackson's claim that the president represents the people. Indeed, it is likely that the Senate's censure of Jackson (the first and only censure of a president) was not only about Jackson's firing of Treasury Secretary William Duane but also about Jackson's claims regarding the source of his power. In his response to the Senate's censure, Jackson protested the censure as an extraconstitutional device (the Constitution presumes impeachment or nothing), but he also contrasted the president's basis of representation with that of the Senate. “The members of that body [Senate] represent not the people, but the States,” and the “President is the direct representative of the American people.” On the Senate floor, in response to Jackson's message protesting the resolution of censure, Clay said he was “surprised and alarmed at the new source of executive power” (as cited in Remini 1967, 138). In place of the traditional understanding that the Constitution and laws were the “sole source” of presidential authority, Jackson also rested his actions on the authority of elections. Besides being new, this authority was shaky at best since it rested on ambiguous campaign statements being translated into formal parts of the law. Like Clay, Daniel Webster argued that the Constitution of 1787 envisioned something else. In an 1837 speech blaming Jackson's policies for the financial panic that year, Webster went out of his way to dispute Jackson's theory of presidential representation: “Certainly this is not constitutional language. Certainly, the Constitution nowhere calls the President the universal representative of the people. The constitutional representatives of the people are in the House of Representatives, exercising powers of legislation” (Wiltse 1988, 134).
It is tempting, of course, to dismiss the Whig theory of the presidency as window dressing for partisan calculation. But that explanation is not wholly sufficient, because opposition to Jackson came from within Democratic ranks. One example is Henry Wise from Virginia, one of the several members of Congress who was in the process of switching parties (from Democrat to Whig) because of Jackson. He was against Jackson's bank policy, but he also objected to the expansiveness of Jackson's arguments. After Jackson's Protest Message, Wise introduced resolutions in the House that would have affirmed Congress's constitutional primacy over control of the public money (Register of Debates 1834, 3742). In response to criticism from other supporters of Jackson, Wise emphasized that he supported Jackson even though he also believed that Jackson's arguments undermined the authority of the House. Wise noted that he had “spoken for” and “written for” Jackson, and, more generally, that “every feeling of his heart, every prejudice of his mind, was in favor of that individual” (Register of Debates 1834, 3745). His loyalty to Jackson notwithstanding, he objected to Jackson's assertion of control over the deposits as well as the reasoning he gave for it in the Protest Message. Further, Wise said he “had always thought that it was the duty of that House to maintain with watchful jealousy, and strictly to maintain, its own constitutional powers” (Register of Debates 1834, 3746). Another important example is Richard Henry Wilde, from Georgia, who was an old Crawford Republican and was elected as a supporter of Jackson four times from 1827 to 1834. Wilde objected to the majority's tactics, noting that they were “careful not to put their argument in the shape of a distinct proposition to be voted for by the people's representatives, under their responsibility to the people” (Register of Debates 1834, 3045). But more than making a comment about the majority's procedural decisions, Wilde went on to directly confront Jackson's message to his cabinet and annual message: “The intimation given is, that such decision is for ‘the people,’ not the representatives of the people. And in what way are the people to decide? Is it by another election of President?” (Register of Debates 1834, 3047). Wilde noted that Jackson's argument undermined the representative function of his own chamber, but he also noticed the incoherence at the heart of the heart of presidential selection—are presidential elections the only way to decide policies?
More telling, much of the Whig critique of presidential representation was given before Jackson was even elected president. In fact, the controversy surrounding John Quincy Adams's election in 1824 provided the impetus for politicians to recast and articulate their own understanding of the presidency. Just as the election controversy of 1800 provided Jeffersonians with the opportunity to change presidential selection, 1824 forced partisans on both sides to rethink the two foundations of presidential power. Even more than was the case in 1800, the crisis of 1824 prompted calls to amend the Constitution. This movement took over congressional debate in 1826, when the nineteenth Congress considered what one critic counted to be at least 21 proposals to amend the Constitution. As was the case in the Twelfth Amendment, the arguments for the district system complicated the arguments for changing the rules regarding the contingency election in the House. But by 1826, parties were on their way to becoming accepted, and the debate concerning the district system reflects a good deal of that process. The argument concerning the role of the House is of more interest for the purposes of this article.
Generally, supporters of Jackson wanted to amend the Constitution in two ways. First, they wanted to create a uniform system of choosing electors nationwide, with the district system replacing winner-take-all in the states. Second, they wanted to remove the House as the eventual decider in the event that no candidate had an Electoral College majority. Some members of Congress wanted to go further by abolishing the Electoral College altogether and having the president chosen instead by a direct popular vote (usually with the person receiving a plurality the winner).3 Another plan would have rendered members of the House ineligible for executive office whenever the House was called upon to select the president (Register of Debates 1826, 1420), and yet another would have given the second choice to the people but return the choice to the House in case the second vote was inconclusive (Register of Debates 1826, 1569). The opponents to the reform attempted to turn back these efforts by offering a dizzying array of amendments of their own. One called for the end of the three-fifths clause, which afforded the slave states a bonus in the view of nonslave states. Another called for the direct election of senators (Register of Debates 1826, 1347). Finally, one representative proposed an amendment to limit further amendments, arguing that such proposals wasted valuable time (Register of Debates 1826, 1554). In the Senate, Mahlon Dickerson of New Jersey proposed yet another amendment for a term limit for president, which was approved by 25 of 29 senators present (Register of Debates 1826, 377).
As an aside, it is notable that two future presidents offered amendments. Pennsylvania Representative James Buchanan, who was then sorting out his transition from the Pennsylvania “amalgamators” to the Jacksonian Democrats (Klein 1962, 49), offered a plan to split the difference between the two sides and return back to what he saw as the “original” Constitution (Register of Debates 1826, 1418). His proposal would restore the original rules for electing the president, and thus abolish the Twelfth Amendment, but would also send the contingency election back to the states. Tennessee representative and future president James K. Polk was less moderate. His amendment would impose electoral districts, abolish the Electoral College and return any contingency elections back to the people. In his view, it was essential that presidential selection be reformed, because it was a question that implicated the “sovereignty” of the “majority” (Register of Debates 1826, 1634). As he put it, “this is a Government based on the will of the People,” but presidential selection had deviated from this principle (Register of Debates 1826, 1634). The Electoral College and the House were unnecessary because “the people require no such agency” (Register of Debates 1826, 1647) in stating their preference for president. For the young Polk, the Constitution's rules for selecting the president unnecessarily stood in the way of what its designers had intended for executive power. Instead, in his view, constitutional function should trump constitutional text.
Advocates of reform generally agreed that the contingency election should not take place in the House because the House would likely be corrupted by the president on such occasions. The logic for this argument was simple: the House was a preexisting body, and the original idea behind the Electoral College was to avoid corruption by giving the choice of the president to a body that was not already in existence. With the growth of patronage, the president would be able to win reelection or handpick his successor by promising members of the House attractive jobs in the executive branch. For the reformers, the corrupt bargain between John Quincy Adams and Henry Clay was evidence that the House needed to be removed from presidential selection. This charge against the House opened questions larger than whether that body had acted corruptly in 1824 since it required those for and against reform to articulate who should be selecting the president. If not a “preexisting body,” then who?
Opponents to the amendment answered this question in several ways. The first was to appeal, like their Federalist counterparts two decades earlier, to the federative principle. In their view, the key feature of the House's participation in the contingency election was that the states returned to their status of equality by state delegation. Stevenson, of Virginia, noted on March 2 that he would never “consent to make any amendment which should diminish or repair the relative rights and powers of the States, secured by the compact” (Register of Debates 1826, 1493). Massachusetts representative and Adams supporter Edward Everett went further on March 9, arguing that the Constitution authorized no power to amend the Constitution in a way that would fundamentally change the terms of the original “compact” of the states. For Everett, this was more than an historical claim:
In fact I can conceive no maxim in politics more dangerous or more false, than that a written compact of Government can be construed to look forward to its own worthlessness; that it can be supposed to be within the competence of a body of political functionaries, assembled under a written Constitution, to take a single step on the assumption that the Constitution, which is their life and soul, without which they have no political existence, has failed in the exercise of its most important functions. The proposition carries political suicide in its very terms. (Register of Debates 1826, 1572)
This doctrine had all the more force, for, in Everett's view, the Constitution of 1787 was less a constitution aimed at some abstract view of justice than it was a compromise between different parties (Register of Debates 1826, 1585). Under this argument, presidential selection under the Constitution had to account for the portion of sovereignty still held by the states.
This appeal to the role of the states was meant to be the alternative to the amendment's appeal to the role of the people. In one sense, this was another iteration of the contest between large and small states, seemingly resolved by the Connecticut Compromise, but according to Madison in Federalist #37 (Scigliano 2000, 227) actually led to a “fresh struggle” in the rest of the Convention (Scigliano 2000, 227). Stevenson pointed to Madison's argument in Federalist #39 (Scigliano 2000, 244), in addition to speeches by 1787 James Wilson and Benjamin Franklin, to argue that the Constitution intended presidential selection as having “at least as many federal as national features” but that the amendment would undermine a large portion of the federal part of that design (Register of Debates 1826, 1525). As Representatives Henry Storrs (NY) and Dutee Pearce (RI) noted in 1826, the Twelfth Amendment was bad for the small states. Calling that amendment a “suicidal act,” Pearce quoted from an earlier speech by Connecticut Governor Roger Griswold (Register of Debates 1826, 1655-66). It was a suicidal pact because small states were losing their populations to the large states, and the House's role in the contingency election preserved the small states’ status as equals.
These claims were obviously self-serving, but they touched upon a growing dispute about the meaning of representation and its connection to the presidency. For Everett, an important reason why the House was included in the process was that there was a different kind of representation between an executive officer and a member of Congress. Unlike a representative who must attend to “local peculiarities and interests,” the president “is not a Representative of any part of the people, not even of those who choose him” (Register of Debates 1826, 1581). This is because the president's function was to carry out the laws passed by actual representatives and to carry them out without considering whether he is representing any part or any whole. In a slightly different line of reasoning, Thomas Mitchell of South Carolina, who was a Jackson supporter and yet agreed with Everett that the Constitution was a compact aimed a compromise between sovereigns (Register of Debates 1826, 1717), argued that selecting a president required the mediation of representatives. This was because, for Mitchell, there can be no public will without representation:
How can a majority be united in favor of any one candidate, by electors at such vast distances, without the possibility of concert or without the operation of the intervening body, by which their views might be previously collected, digested, and ascertained? (Register of Debates 1826, 1715)
In his view, an election was “the common will, arising out of the common understanding of electors.” But this common will required deliberation by representatives to exist. Mitchell compared it to the House's selecting a speaker: given that individual members would not know whom to select, it would be impossible for that chamber to do that before members actually arrived in Washington and met in an assembly. In his view, the common will was equally scattered in the case of the presidents, and to fix that problem, “you must bring the electors, somehow or another, in contact” (Register of Debates 1826, 1715).
Everett, in particular, pushed this argument to its logical extension and anticipated the Whig critique of Jackson, even while John Quincy Adams had not yet reached the middle of his term. As Everett put it, the central problem was that the reformers wanted to ground the power of the presidency in the argument that the president was to be “responsible” to the people and that they believed that “this responsibility is to grow out of a popular choice” (Register of Debates 1826, 1586). In his view, this formulation would dangerously unfetter the executive from constitutional restraint, a point that was confirmed by a verbal slip by the reformer who quoted the Vesting Clause of Article II to say “all executive power” is given to the president instead of “the executive power” (Register of Debates 1826, 1588). In Everett's view, and in remarkable anticipation of debates about the Vesting Clause in the next decade and well into to the twenty-first century, this misquotation of the Constitution confirmed that the reformers intended to give the president the executive powers held by “any country” anywhere rather than limit the president to those powers in the Constitution. For Everett, the combination of the two foundations of executive power resulted in an unrepublican third way, monarchy.
These arguments by Everett, and the later ones by Webster and Clay, found their way to the young Lincoln in 1848. It is well known that, as a Whig, Lincoln opposed the war with Mexico on its merits and that he objected to the argument that the president can initiate a war without congressional approval (1848 letter to Herndon in Basler 2001, 220-21). But, as noted by Ellis and Kirk (1995), Lincoln also disagreed with the broader understanding of executive power associated with the Democratic Party since Jackson. Lincoln's critique of the Jacksonian theory of representation rested on two grounds. First, Lincoln rejected the premise that party platforms provided meaning with respect to particular policies, calling that argument a “pernicious deception.” The problem with the theory is that it treats all policy questions as equal. In particular, any given platform likely has a new policy position that is “forced upon” a “large portion” of the party and then treated as if it had received as much support from the party as did the other long-standing planks in the platform. Because a good number of the majority party have to “shut their eyes and gulp the whole,” and because the minority party also disagrees with the position, the victorious president often finds himself representing what would actually be the minority view of the new policy. (Lincoln, “Speech on the Presidential Question,” in Basler 2001, 236) Second, Lincoln rejected the deeper assumption that “the President is as much the representative of the people as is Congress.” In his view, this assumption was simply implausible because no president can “know the wants of the people as well as the three hundred other men coming from the various localities of the nation.” If it were otherwise, the framers of the Constitution would not have created a Congress in the first place. Consequently, to elevate the president's veto power into an equal power of legislation, and to base that elevation on an argument about the president's equality with respect to representation, would be to take legislation from “those who understand with minuteness the interest of the people,” and then “give it to one who does not and cannot so well understand it.” (Lincoln, “Speech on the Presidential Question,” in Basler 2001, 236).
- Top of page
- Foundations of Presidential Power
- Jefferson's Federalists
- Jackson's Whigs
- Lincoln's Democrats
It is tempting to conclude that the Whig critique of presidential representation met its defeat during the presidency of Lincoln. As a newly elected president, Lincoln seemed to reject his Whiggish upbringing and instead to point explicitly to his party's platform as a source of authority both for declaring victory in the constitutional controversy at hand (see Engel 2011) and for promising restraint. Later, in the glow of reelection, Lincoln declared in his annual message of 1864 that “some deference” should “be paid to the will of the majority, simply because it is the will of the majority” (Basler 1953, 8:149). According to Richard J. Ellis and Stephen Kirk (1995), the election of 1864 is critical because it was the first time that both parties “openly construed presidential elections as expressions of public purpose on matters of public policy and viewed elections as a grant of power from the people to the president” (Ellis and Kirk 1995, 175). After Lincoln, the issue appeared settled.
What is striking, however, is that Lincoln and his allies did not discard vigorous legal arguments for executive power, nor did they wholly embrace Jacksonian claims that the people conferred power on the president. Indeed, it is noteworthy that Lincoln's 1864 claim of a mandate was on behalf of congressional approval of the Thirteenth Amendment, not on behalf of Lincoln's use of executive power. Likewise, Lincoln's opponents were similarly entangled, and did not try, as did the Federalists and the Whigs, to further limit Lincoln's appeal to opinion by denying its legitimacy. As the party of Jackson, Democrats could not argue that public opinion was not a foundation for presidential power, and yet, as the party closest to the Whig appeal to law and stability, the Republicans could not quite assert the president as the oracle of the national will. Party made for more complicated arguments, but it did not resolve the debate or alter its terms. The enduring tension is best reflected in the evolution of the Democratic Party platform, which from 1844 to 1856 had included a plank defending the president's “qualified veto power,” a plank that disappeared in 1860. As we will see, these engrained tensions are also perceptible in the debates over civil liberties occasioned by Lincoln's suspension of habeas corpus and in the debate over the Second Confiscation Act.
Lincoln's dilemma can be seen in his defense of his suspension of habeas corpus. In his famous special message of July 4, 1861, he relied on a constitutional argument, not on an appeal to public opinion. Lincoln's lawyers continued this line of approach, but, as Kleinerman (2009) has noted, they also carved a place for executive discretion by arguing that the actions in question were best left to the executive branch, and in so doing attempted to leap over legal arguments made by judges. Attorney General Edward Bates argued in 1861 that the critical point was that the suspension of habeas corpus was a “political” act, and therefore not a “judicial” one. But what is important to see is that Bates did not emphasize the “political” nature of the act in order to appeal to public opinion as a source of authority. Rather, he grounded this distinction upon a legal argument about Article II.
Besides, the whole subject-matter is political and not judicial. The insurrection itself is purely political. Its object is to destroy the political government of this nation and to establish another political government upon its ruins. And the President, as the chief civil magistrate of the nation, and the most active department in the government, is eminently and exclusively political in all his principal functions. As the political chief of the nation, the Constitution charges him with its preservation, protection, and defense, and requires him to take care that the laws be faithfully executed. (Ragsdale 2007)
Even though Bates called the president the “political chief of the nation,” completely absent is any claim that, as Jackson and Chief Justice Roger Taney had previously claimed, that the president is the “direct representative” of the people. The key point is that Bates curiously crafted his argument based on the function of the executive without explaining the basis for that function.
In response, Taney faced similar problems. In Ex Parte Merryman (1861), Taney argued that the text and history of the Constitution revealed that the power to suspend habeas corpus was limited and was delegated to Congress alone. As to history, Taney quoted statements from Jefferson, John Marshall, and Joseph Story, all suggesting that they agreed with this point. As to the text, Taney argued that it emphasized the placement of the Suspension Clause in Article I and concluded that this indicated it was a legislative power. It is an open question whether Taney's opposition to Lincoln was the cause of a related change from Jacksonian defender of presidential power to juridical caretaker of separation of powers.4 But what is noticeable is that Taney did not appeal to the argument of Jackson's Protest Message, when as attorney general, he had cowritten the argument that included the claim that the presidents was the “direct representative of the American people,” a claim that was used to justify Jackson's power to remove the Treasury decretary. Instead of reading presidential election as a source of authority, Taney now read the procedures for presidential selection as an indication that the Constitution carefully limited presidential power: “The short term for which he is elected, and the narrow limits to which his power is confined, show the jealousy and apprehension of future danger which the framers of the constitution felt in relation to that department of the government” (Ex parte Merryman 1861, 149).
This confusion over the potential sources of Lincoln's authority is also illustrated by the charges from Lincoln's Copperhead opponents. Sometimes called “Peace Democrats,” these were conservative Democrats in the North who opposed the war (Weber 2006). In particular, Lincoln's deprivation of civil liberties provided the Copperheads with a convenient handle, especially for Copperhead leader Clement Vallandigham, by providing concrete examples of the cost of war beyond the battlefield. If Vallandigham's opposition was unrelenting, his criticism of executive power was problematized by the tension between the law and opinion, between his opposition to Lincoln and his Democratic embrace of the Jacksonian executive.
In an 1861 speech on “Executive Usurpation,” Vallandigham noted that Lincoln had a crossed a line that even Jackson had not transgressed. As opposed to Jackson, who secured authority from Congress to blockade the port of Charleston, Lincoln usurped Congress's power to blockade, a power Congress had “but a few weeks before, refused to exercise” (Vallandigham 1864, 316). Pointing to Webster's insistence that the power to blockade is a power of Congress, and casting himself in the tradition of that “great expounder of the Constitution,” Vallandigham gleefully reminded Republicans that Jackson “did not dare” to issue a blockade without Congress, but “our Jackson today, the little Jackson at the other end of the avenue, and the mimic Jacksons around him, do blockade, not only Charleston harbor, but the whole Southern coast, three thousand miles in extent, by a single stroke of the pen” (Vallandigham 1864, 317). Interestingly, Vallandigham followed in the Whig tradition in another way. Like Webster and other critics of the merger between presidential removal powers and the spoils system, he was concerned that the president's removal power resulted in a marriage between “power and patronage” and had made the president closer to an elective king (Vallandigham 1864, 266-76).
What has not been noticed is that Vallandigham, like the Federalists and Whigs, sought to restore constitutional equilibrium by recasting presidential selection. In February, 1861, Vallandigham proposed an amendment to the Constitution that would in his view solve the crisis caused by what he was calling the “revolution of 1861.” Like Hartford Federalists, and like John C. Calhoun, his reform was aimed to prevent conflating a majority will with regional conflict, and it would solve this problem by making it impossible “to elect a President by the votes of a mere dominant and majority section.” His amendment would require a “concurrent majority of the electors, or States, or Senators, as the case may require, of each section, shall be necessary to the choice of President and Vice-President” (Vallandigham 1864, 293-94). Further, it would reduce the power of the president by limiting presidential tenure to a single six-year term. Likewise, in Illinois, Peace Democrats attempted to change the state constitution by proposing a new one that would “strip the governor of his military powers and cut his four year term in half” (Weber 2006, 48-49). To be sure, slavery both contributed to and complicated this argument. In 1855, Vallandigham had explicitly rejected appealing to the Hartford Federalists as an early example of critics of executive power, choosing instead to link them to what he called the “abolition movement.” In his view, abolitionism was like expansive claims of executive power in that both constituted a “formal assault upon the compromises of the Constitution.” Rather than being principled defenders of civil liberties, the Hartford Federalists thus constituted a “treasonous assembly” (Vallandigham 1864, 110-11).
But the key point is that Vallandigham and those like him always held out hope that their party would win at the polls. Even in 1864, Vallandigham recorded that his first political memory was the election of 1840 (Vallandigham 1864, 13), an election that scholars have marked as critical date in the modernization of presidential campaigns. A Democrat his entire political life, Vallandigham did not know how to reconcile his belief in the Jacksonian theory of representation with the use of executive power by Lincoln. In a recent book, Jennifer L. Weber (2006) has shown that the Copperheads staked much of their opposition on what they saw the likelihood of military defeat for the North: “For the most part, the influence of the antiwar wing of the Democratic Party rose and fell in inverse relation to the armies’ failures and successes” (Weber 2006, 48). According to Weber, Vallandigham and the Copperheads believed that Vallandigham would win the Ohio governorship in 1863, an expectation based on their assumption that soldiers would vote against Lincoln. But, in Weber's analysis, this assumption was “wildly out of touch” with soldier sentiment (Weber 2006, 120). Reflecting this reliance on the people, Vallandigham explicitly relied on the approval of the people to decide when he would as a representative defer to Lincoln's judgment. So, with respect to “men and money,” he would allow Lincoln to “take all the men and money he should demand” and then “hold him to a strict accountability before the people for the results.” But with respect to the suspension of habeas corpus and other assaults on civil liberties, he would “continue to rebuke and denounce them to end” and noted that the people had “rebuked them, too” (Vallandigham 1864, 707). In December 1860, he acknowledged the consequences of his party's electoral defeat: “We are in a minority indeed, today, at the ballot box; and we bow quietly now to the popular will thus expressed” (Vallandigham 1864, 260).
This latter point was made by other Democrats outside the Copperhead sect. At an 1863 meeting meant to rally support for the Union, Andrew Johnson made the case against secession precisely by appealing to the Democratic Party's traditional reliance on electoral victories. In his view, his fellow southern Democrats had abdicated the great tradition of their party, because the “true policy” of the Democratic Party was to favor opposition over secession: “Because Mr. Lincoln beat us, and was elected under the forms of law, he was entitled to come into power and try his policy, and if the country prospered we ought to submit to it like men” (Johnson 1863, 574).
Another opportunity for examination of executive power came in the debate over Second Confiscation Act, a bill that would have allowed the North to seize Confederate property. As Kleinerman (2009) has shown, the debate was not only about whether Congress should violate the Constitution by seizing Confederate slaves. Rather, that question was intertwined with the question of who should violate the Constitution by seizing slaves. That is, the opponents of the Confiscation Act included those who opposed the policy itself and those who agreed with the measure but who thought that it should be undertaken by the president and not Congress. Crucial to this latter argument was the distinction between the respective functions of Congress and the president. For defenders of Congress's power, the argument was that Congress could use the Necessary and Proper Clause and the war power to deviate from the constitutional protection of slavery. For defenders of the president's power, the act would intrude on presidential powers under constitutional design. As Kleinerman summarizes this latter position, the idea was that Congress cannot both make law and exercise discretion, if that discretion might take Congress outside law and the Constitution. But the president could, because such extralegal action is the function of the president, both under the design of the Constitution of 1787 and under the broader doctrine of constitutionalism.
These debates about the relative functions of three departments inevitably included debates about representation (Kleinerman 2009, 202-3). But it was the Republicans who were most willing to voice skepticism over claims to presidential representation. Republican Senator Lyman Trumbull, for example, disputed the argument that the courts had the ultimate authority over the question. In his view, the Constitution “vested the war power … not in the President, but in Congress.” This is to say that in addition to the specific clauses such as the power to declare war to make rules concerning captures, the Constitution “has vested it also with the discretion of determining what means are necessary and proper to enable it to carry into effect these granted powers.” Consequently, the courts had no authority to review wartime actions by the president that were authorized by Congress. Importantly, Trumbull went on to ground this assertion in a theory of institutional representation under original constitutional design:
It does not belong to the courts to determine how a war shall be prosecuted, or what shall be done with the persons or property of the enemy. Those are questions depending on political considerations, which may continually vary, and to be judged of by the sovereign power, which in this country is this people, who speak through their Representatives in Congress so far as war matters are concerned. (Congressional Globe, 37th Congress, 2nd Session, 1560)
Others, like Charles Sumner, made similar points later in the debate.5 But what is important for present purposes is that, as Kleinerman (2009) shows, defenders of the presidential position pointed explicitly to Congress's representativeness as a reason why Congress should not wield the power. Kleinerman thus points to Orville Browning as a model of the Lincolnian approach to executive power: according to this view, “as a majoritarian branch Congress is likely to exercise war power in a way that pleases majorities and oppresses minorities rather than in a way connected to actual wartime necessities” (Kleinerman 2009, 211). So, under this view, the very fact that Congress is more representative of the people is that which precisely makes Congress incompetent to act extraconstitutionally on their behalf. Vallandigham, by contrast, had an easier argument with respect to confiscation: because “legislative tyranny is no more tolerable than executive tyranny” (1864, 471), neither Congress nor the president possessed the power to violate the Constitution.
- Top of page
- Foundations of Presidential Power
- Jefferson's Federalists
- Jackson's Whigs
- Lincoln's Democrats
The deep confusion over the grounds for Lincoln's use of executive power shows that the theory of presidential representation was not by simple development from a premodern to a modern presidency, or from a “constitutional” presidency to a “political” presidency, or from law to opinion. It is marked rather by enduring discontinuities. These stem from constitutionally impacted provisions for the office and the debates they engrain within it. More than a historical footnote to the premodern presidency, the contest between law and opinion is ongoing.
One reason the debate does not go away is because Congress does not always concede that presidential representation justifies executive power. One example that endures from the time of the Whigs onward is the opposition to presidential removal powers. A recent study of the removal power (Alvis, Bailey, and Taylor 2013) shows that presidents Jefferson and Jackson expanded on Madison's 1789 assertion of presidential control of removal powers by connecting Madison's argument to their own arguments for presidential mandates. In response, the Whigs articulated a forceful rejection of not only Jackson and Jefferson but also the result of the Decision of 1789. Though the Whigs “lost” on this question, because Democrats controlled the House, they, in some sense, had a stunning success. The first version of this success was when Republicans used the Tenure of Office Act to try to control Reconstruction and then again in the early twentieth century when Congress turned to the independent regulatory commissions as a way to prevent presidents from controlling regulation.
This partial success by the Whigs endures to this day, as can be seen in the ongoing contests between presidentialists and congressionalists in legal controversies concerning the removal power (see Free Enterprise Fund v. Public Company Accounting Oversight Board ). Even among the presidentialists, some defenders of the Unitary Executive want to blend Madisonian arguments for “responsibility” to public opinion with Hamiltonian arguments for broad readings of the Vesting Clause (Bailey 2008). Where our understanding of executive power can be improved, and where we might be able to find better ways to bridge the quantitative and qualitative literatures, is in finding ways to classify arguments about executive power with more precision. So, for example, as Jack Goldsmith (2007) shows, George W. Bush had to decide whether to ground his use of executive power in appeals to the people or in expansive readings of Article II. Similarly, today, there is new tension in the Republican Party between those who emphasize the formal powers of the Unitary Executive to those who prefer a more narrow (and perhaps more libertarian) readings of the Constitution that would, presumably, leave more discretion in the hands of Congress. Within the current administration, Barack Obama has not relied on neo-Hamiltonian interpretations of Article II, choosing instead to appeal to expansive readings of recent legal doctrines such as the “public safety exception.”
Those grounds are likely to continue to shift, because they are always contestable and therefore always unsettled. Just as we will improve our knowledge of executive power by examining the conditions under which its use emerges (Howell 2003; Mayer 1999), we will also better understand it by paying closer attention to the arguments made on its behalf.
For an extended discussion of the Whig understanding of the removal power, see Alvis, Bailey, and Taylor (2013).
Holt (1999) notes that three times as many nonborder state southern senators voted to censure Jackson in 1834 as had voted to override Jackson's bank veto in 1832.
Direct election by voters, with plurality winner, was supported by Garnset (Register of Debates 1826, 1377-8), Kellogg (Register of Debates 1826, 1544), Thompson (Register of Debates 1826, 1462), Livingston (Register of Debates 1826, 1462), and Polk (Register of Debates 1826, 1648), just to name a few.
Marshall's (1963) analysis of the drafts of Jackson's bank veto message suggests that Taney did not have a hand in the portions asserting coordinate review. Yet Ballard writes that the “doctrine of the Protest seems to derive naturally from an advisory opinion given by Attorney General Taney in 1831” (1954, 74, citing 2 Opinions of the Attorney General 482).
Sumner argued that Congress was the prime mover with respect to the war power: “It is by an act of Congress that the war powers are all put in motion. When once in motion, the President must execute them” (Congressional Globe, 37th Congress, 2nd Session, 2464). And like Trumbell, Sumner grounded Congress's superiority in its proximity to sovereignty: “The rights of war may be enforced by act of Congress, which is the highest form of the national will” (Congressional Globe, 37th Congress, 2nd Session, 2465).
- Top of page
- Foundations of Presidential Power
- Jefferson's Federalists
- Jackson's Whigs
- Lincoln's Democrats
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