January 23, 2010


Who Declares War?: a review of CRISIS AND COMMAND: The History of Executive Power From George Washington to George W. Bush By John Yoo and BOMB POWER: The Modern Presidency and the National Security State By Garry Wills (WALTER ISAACSON, 1/24/10, NY Times Book Review)

Yoo begins with the birth of the Republic. After the Americans threw off a monarch, they suffered for a few years under a system of mostly weak state governors and a feckless central government. That was rectified at the 1787 Constitutional Convention. James Madison proposed a presidency that was a handmaiden of the legislative branch; Alexander Hamilton favored instead a powerful executive elected for life. Yoo contends that the final compromise produced a stronger presidency than many scholars have thought.

The right to negotiate treaties and to send and receive ambassadors, for example, was intended to give the president paramount control over foreign policy. As for the power of the Senate to provide “advice and consent” on treaties and ambassadors, Yoo describes how that was minimized by George Washington during his presidency. After one ill-fated attempt, he quit seeking advice from the Senate. He waged a military campaign against the Indians without asking Congress to declare war. And he organized the executive branch under his control as if it were a military command, creating a model that contemporary advocates of presidential authority would call the “unitary executive.” As Yoo notes approvingly, “Washington set the example of a republican executive that his successors would follow.”

Washington’s willingness to assume power thrilled Hamilton, who wrote an essay defending this expansive view. Madison, on the other hand, was outraged. He wrote to Thomas Jefferson lamenting that Washington had engaged in an “assumption of prerogatives not clearly found in the Constitution and having the appearance of being copied from a monarchial model.” He published his own essay saying that this illustrated why Congress, and not the president, should have the right to initiate war. “Those who are to conduct a war cannot in the nature of things be proper or safe judges whether a war ought to be commenced, continued or concluded,” he argued. “War is in fact the true nurse of executive aggrandizement.”

Yoo declares that Madison was unpersuasive and that Hamilton was proven right by history. Certainly, for better or worse, history marched ahead as Hamilton hoped. Even Jefferson, by such acts as purchasing Louisiana without having a clear constitutional authority to do so, “demonstrated the possibilities of vigorous and independent presidential leadership.” Andrew Jackson, as Yoo notes, subsequently laid the foundations for the modern presidency by casting himself as the tribune of the people and grabbing back powers that had drifted after Jefferson’s time into the hands of Congress. The trend of increasing executive branch power continued under each great president, Yoo contends, most notably Abraham Lincoln and Franklin Roosevelt.

Wills devotes most of his book, as the title implies, to the increase in presidential power after the advent of the atom bomb.

It's obviously easier to rage against LBJ, Nixon and W than against Washington, Jefferson, Lincoln and FDR, but the need to gloss over those first 150 years suggests the weakness of the argument.

Posted by Orrin Judd at January 23, 2010 7:30 AM
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