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Citation: 28 Okla. L. Rev. 97 1975
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ENRICHMENT SERIESt
The President and the Constitution
RAOUL BERGER*
Let us celebrate on this happy occasion the triumph of our democratic
institutions, the return to constitutional government, and, it is to be hoped,
the termination of a long, steady, and dangerous expansion of executive
power. There is no need to recite a litany of Mr. Nixon's excesses, which
not only upset the balance of powers under the Constitution but increasingly threatened the precious individual rights guaranteed by the Bill of
Rights. All this was halted by resort to a rusty, long unused, and, so some
thought, hopelessly clumsy process-impeachment, a remedy entrusted to
Congress by the Framers in order to halt the "progress of arbitrary power."
The Founders had learned from history to distrust the insatiable
greed for power; they perceived that republics had been overthrown by
dictators; they were steeped in the English seventeenth-century struggle
for liberty and knew that the tide of absolutism had been halted at English
shores through the instrumentality of impeachment. And so the Framers,
fearful of an executive swollen with power, confided to Congress the power
to remove him for abuse of power or betrayal of trust. One of the most
intransigent presidents in our history peacefully left office in response to
the manifest determination of the House to impeach him for abuse of power.
That determination fell well within Lord Somers' caution in 1691 that "the
power of impeachment ought to be, like Goliath's sword, kept in the temple,
and not used but on great occasions."
How did we come to Watergate? Watergate was but the culmination
of a process that had long been at work. The atmosphere of crisis that has
surrounded us since the rise of Naziism led us to countenance an everincreasing assumption of power by a succession of presidents. So it was
with Franklin Roosevelt who had no clear mandate to take measures that
threatened to involve us in World War II. So it was with President Truman
who, on Acheson's assurance that he had the power single-handed to comt The Oklahoma Law Review is publishing the text of addresses delivered in conjunction
with the University of Oklahoma College of Law's Enrichment Program. This article is an
address delivered on September 4, 1974.-Ed.
* A.B. 1932, University of Cincinnati; J.D. 1935, Northwestern; LLM. 1938, Harvard.
Charles Warren Senior Fellow in American Legal History, Harvard.-Ed.
Copyright @ by Raoul Berger, 1974
OKLAHOMA LAW REVIEW
[Vol. 28:97
mit the armed forces to battle, propelled us into war with Korea. And so it
was with Lyndon Johnson as he stealthily escalated our involvement in
Vietnam. Nixon merely carried the process foward in the secret bombing of
Cambodia. Then he turned from the employment of force against foreign
nations to the coercion of domestic foes, those he considered inimical to his
administration. Hence, the break-in to Dr. Fielding's office in search of discrediting documents that might be employed against the opposition; hence,
the assault on the electoral process that surfaced at Watergate.
For me there is an overarching lesson: back to the Constitution that
has once more served us so well, back to the distribution of powers that an
unsurpassed group of Framers designed for our governance and that for
185 years has enabled us to maintain stable government in a world in upheaval. Writing in 1791, Tom Paine, one of the potent forces of the Revolution, remarked that the Constitution, like the Bible, was to be found in
every home and was read by all. Today it is seldom dusted off and is an
obscure mystery to most. Yet the 1780 Massachusetts Constitution, drafted
by John Adams, warned that "A frequent recurrence to the fundamental
principles of the constitution ... [is] absolutely necessary to preserve the
advantages of liberty and maintain a free government." Ours, however, is a
pragmatic age; much discourse about a constitutional problem proceeds
from the inarticulate premise that if a solution is expedient or wise, ergo, it
is constitutional. But as Chief Justice Marshall stated, "The peculiar circumstances of the moment may render a measure more or less wise, but
cannot render it more or less constitutional." The demarcation between
wisdom and constitutionality had earlier been noted by James Wilson,
when he argued for the participation of the judiciary in the revision or veto
of legislation: "Laws may be unjust, may be unwise, may be dangerous,
may be destructive; and yet not be so unconstitutional as to justify the
judges in refusing to give them effect." In the upshot, judges were restricted
to constitutionality and intentionally excluded from policy making. We
must therefore be on guard against a too-ready conclusion that because a
particular measure is desirable it is therefore constitutional.
The starting point of constitutional analysis, it hardly needs to be
stressed, is the constitutional text itself. Notwithstanding this, it is surprising how frequently discussion of constitutional issues all but ignores
the text. What did the words mean to those who used them; why should
that be meaningful to us? That will be my first point. Then I shall consider
several massive unilateral reallocations of constitutional power by the
President on pleas of modern exigencies.
We begin with the fact that the Constitution was framed by men who
had been bred to the common law, who sought to preserve for themselves
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English liberties and institutions. To them the common law offered a familiar and convenient shorthand. The Framers, said Chief Justice Taft,
were born and brought up in the atmosphere of the common law and thought
and spoke in its vocabulary.... When they came to put their conclusions into
the form of fundamental law in a compact draft, they expressed them in
terms of the common law, confident that they would be shortly and easily
understood.
The point is illustrated by words like habeas corpus, trial by jury, which
embodied a long history that stood in no need of codification. Lawyers and
judges needed but to turn to the common law to find the scope and attributes
of those terms. Did.the right to trial by jury include the right to challenge
jurors? Yes, Madison said, for that was an attribute of trial by jury. When
we depart from the common law meaning of such terms we are in fact revising the Constitution.
Some are impatient of being corseted by these common law meanings;
they would brush aside the "absolute artifacts of verbal archeology," "the
idiosyncratic purposes of the Framers." Such objectors, who prefer a freewheeling approach to constitutional interpretation to a search for the
"original intention," are fond of invoking a statement by Justice Frankfurter in the Youngstown1 "Steel Seizure Case": "It is an inadmissibly
narrow conception of American constitutional law to confine it to the words
of the Constitution and to disregard the gloss which life had written upon
them."
Such citations overlook his concurring opinion in United States v.
Lovett,' where he distinguished such terms as "due process," the "broad
standards" of which "allow a relatively wide play for individual legal judgment" from "very specific provisions" such as the prohibition of "bills of
attainder," which must be read as "defined by history." It is instructive to
recall that a latitudinarian approach to "due process" is less than one
hundred years old. A friend of judicial refashioning of the Constitution,
Charles Curtis, stated that when the Framers
put due process of law... into the Fifth Amendment, its meaning was as
fixed and definite as the common law could make a phrase. It had been
chiseled into the law so incisively that any lawyer, and a few others, could
read it and understand it. It meant a procedural due process, which could be
easily ascertained from almost any law book.
To illustrate, if the law provides that a defendant in a criminal trial is
1 Youngstown Sheet & Tube Co. v. Sawyer. 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153
(1952).
2 United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1945).
OKLAHOMA LAW REVIEW
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entitled to be represented by counsel, and counsel may cross-examine witnesses, a failure to accord those rights is a denial of procedural due process.
In the 1880's, those Justices who sought an instrument whereby to curb
popular attempts to regulate expanding business empires gave "due process" a substantive content whereby the Court could veto legislation which
ran counter to their economic and social predilections. This is not the place
to assay the legitimacy of such judicial transformations. I cite "due process" only as an instance of the tremendous and costly changes that can be
wrought under the guise of interpretation.
Here I would stress that because some words, such as "foreign commerce," are amorphous, that does not justify disregard of historical meaning when it is ascertainable and clear. Let it be admitted that the amorphous
provisions play a more significant role in the constitutional scheme than the
less important "specific" provisions, and it yet remains essential to discourage a free and easy approach to terms which have an unmistakable
common law meaning lest that approach conduce to across-the-board distortion of the interpreter's role. For the Founders, the words of Jefferson
were axiomatic:
It is jealousy and not confidence which prescribes limited constitutions to
bind down those whom we are obliged to trust with power.... In questions of
power, then, let no more be heard of confidence in man, but bind him down
from mischief by the chains of the Constitution.
Crucial links in those chains are the words employed by the Framers, and
where the common law meaning of those words is plain, we betray the purpose of a written Constitution when we alter them. Jefferson's great disciple, James Madison, clung "to the sense in which the Constitution was
accepted and ratified by the Nation . . .and if that be not the guide in
expounding, there can be no security for a consistent and stable government, more than for a faithful exercise of its powers."
It is the fashion to oppose to this a dictum by Chief Justice MarshallI borrow the paraphrase by Professor Eugene Rostow: "We should never
forget that it is a constitutionwe are expounding-a constitution intended
to endure for ages to come, and capable of adaptation to the various crises
of human affairs." This statement in McCulloch v. Maryland,8 was made in
course of a discussion of the means essential to execution of a granted
power; and Marshall stated that nothing less than a "legal code" would
have been required to prescribe all the means that in future would be essential to execution of the granted powers. When the decision came under
attack, Marshall repeatedly and emphatically disclaimed "the most distant
3
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,4 L.Ed. 579 (1819).
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allusion to any extension by construction of the powers of Congress." Not
for him a claim of power to revise constitutional grants of power to adapt
to future crises. "Virtually unlimited discretion... to meet twentieth century needs," as Professor Gerald Gunther noted, cannot be extracted from
Marshall's dictum.
The argument to the contrary proceeds from the premise that a nation
of 200 million people cannot be held in thrall by a document that was
framed for a little seaboard folk of 3 million; they cannot be enslaved by
"the words of the Constitution as timeless absolutes." Self-evidently there
must be room for change, but the key question is who is to make the change;
whence do those who arrogate to themselves the power to make such
changes derive their mandate? The Framers provided for change by submission of an amendment to the people. But scholars have argued that this
is too difficult, too cumbersome, for it requires submission by two-thirds of
Congress and ratification by three-fourths of the states and so "other
modes of change have emerged." Misconstruing Marshall's reference to
"adaptation" of the Constitution, they have formulated a doctrine called
"adaptation by usage," a euphemism for the proposition that because it is
difficult to procure the consent of the people to change, their servants may
informally amend the Constitution without consulting them. In short, the
President is free unilaterally to alter the Constitution because, as this
school maintains, amendment is difficult. We must deny to a single man
power to rewrite the Constitution.
Ours is a government by consent of the governed. Consent to the Constitution was hard won from the people. The people, said James Iredell, one
of the great Founders, "have chosen to be governed under such and such
principles. They have not chosen to be governed or promised to submit upon
any other." If that consent did not represent the broadest possible electorate, it yet represented a wider choice than is reflected by the attempt of
a single man to revise the Constitution. One of the important lessons of the
recent past is that the exercise of power must be confined within the terms
of the original grant, and that we must be ever vigilant to guard against the
violation of those boundaries.
Let me by a few examples illustrate how a succession of presidents
unilaterally revised the Constitution and undertook to exercise great powers
that were confided to Congress alone. The distribution of powers on the
face of the Constitution, and the explanation by the Founders of what they
intended by these provisions, makes plain that the vast bulk of the warmaking power was entrusted to Congress, not to the President, in order, as
James Wilson explained, to put it beyond the power of a single man to
"hurry" us into war. The Founders had observed, James Madison said,
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that the executive had a "propensity" for war-making, and they meant to
hobble that "propensity." The President's claim of power to make war
single-handedly was wrested from three little words-Commander-inChief. Alexander Hamilton, who sought to explain the Constitution and
defend it against those who tried to block adoption, stated that these
words merely constituted the President the "first General," who would lead
a war commenced by Congress. No general can make the political decision
to wage war; his is the task of conducting hostilities after the decision to go
to war is made in the council of the nation. Looking back, onetime warhawk
Senator John Stennis said, "Vietnam has shown us that by trying to fight a
war without the clear support of the American people we may not only risk
military ineffectiveness but we also strain, and can shatter, the very structure of the Republic." Happily, Congress, by the War Powers Act, spelled
the end of its acquiescence in presidential usurpation of the war-making
power. Though it is not the best possible statute, it clearly signaled Congress' intention to resume the powers exclusively vested in it. If we are to
restore healthy democratic processes, we must require consultation with
Congress before the nation is plunged into war.
Another return to the "original intention" of the Founders is called
for in the field of foreign relations. Through presidential conduct of foreign
policy we have become entangled in a succession of great wars. If we are to
forfend such catastrophes, we must begin by demanding to be consulted
about the foreign policy which leads to war. Why should secret agreements,
for example, committing the nation to expend hundreds of millions and to
supply troops, have been withheld from Congress and the people? Here, too,
Congress has made a fruitful beginning by requiring the President to report
all executive agreements to Congress.
It will be illuminating to dwell briefly on the constitutional provisions
respecting foreign relations. Of the three provisions, only one refers to the
President alone-it authorizes him to receive ambassadors. This, Hamilton
explained, is "more a matter of dignity than authority ... without consequence." The two other presidential powers-to appoint ambassadors and
to "make" treaties-are subject to the "advice and consent" of the Senate.
The records of the several Conventions show that the Senate was meant to
participate in the making and negotiation of treaties. To Congress alone
was given the power to regulate foreign commerce, to levy duties and control tariffs. Trade was at the heart of the early treaties, and here Congress
manifestly had the predominant role. These safeguards were employed because, in the words of Hamilton, it "would be utterly unsafe and improper
to entrust" the entire power of making treaties "to the sole disposal" of the
President. When the President excludes the Senate from its constitutional
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share in the making of treaties, he subverts the Constitution and exposes the
nation to perils of which the people are kept in the dark.
From time to time presidential proponents appeal to the grant of
"executive power" for extraordinary, unenumerated, and "inherent"
powers. The words "executive power" were no more than a label designed
to differentiate presidential from legislative functions and to describe
powers thereafter conferred and enumerated. All roots in the royal prerogative were cut. Madison stressed that the power "must be given," its
extent "fixed, ... confined and defined." This hardly squares with claims
to "inherent," unenumerated powers. In a classic concurring opinion, Justice Jackson dismissed such claims, noting their incompatibility with the
care the Framers took to authorize the President to require written opinions
from each of his department heads, a power, said Jackson, which "would
be inherent in the Executive if anything is." We cannot attribute to a
generation so in dread of executive tyranny an intention to give a newly
created executive a blank check at the very moment when it was enumerating the granted powers down to the veriest trifle.
Let me sum up on this score in the happy words of Professor Louis
Henkin, which my own independent studies abundantly confirm:
[U]nhappy memories of royal prerogative, fear of tyranny, and distrust of
any one man, kept the Framers from giving to the President too much
head.... In the end or overall, Congress clearly came first, in the longest
article, expressly conferring many important powers; the Executive came
second, principally as executive-agent of Congressional policy. Every grant
to the President, including those relating to foreign affairs, was in effect an
abrogation from Congressional power, eked out slowly, reluctantly, and not
without limitations or safeguards.
The presidential takeover of war-making and the progressive exclusion of the Senate from participation in foreign policy decisions constituted
a massive, unilateral reallocation of constitutional powers. If, as some
argue, the present state of the world necessitates instant decision by one
man, let this be explained to the people; let an amendment be submitted
which will grant him such power. But let us repudiate the notion that the
President may arrogate to himself on plea of emergency, by his own acts or
proclamations, power given by the Constitution to Congress. For the tripartite structure of our government, the careful division of powers, was
designed to check excesses that might flow from an undue concentration of
power. That structure complements the safeguards of our liberties embodied in our Bill of Rights.
By no means do I claim that at every juncture Congress is endowed
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with superior wisdom. But, by the same token, I would not concede that
the journey up Pennsylvania Avenue from the Capitol to the White House
clothes a President with wisdom that was withheld from him while a member of Congress. With Ben Franklin, I am inclined to believe that the collective judgment is apt to be more reliable than that of any one man.
Presidential decision-making does not really involve debate; it is more
likely to reflect the "aye, aye, sir" tradition to which acting FBI Director
Patrick Gray referred. Congress, on the other hand, is the national forum
of debate; there no man is cowed by the preeminence of another; there
every shade of opinion can be aired, every weakness of a proposed course
of action exposed. Such debate serves to educate and inform the public and
to create a consensus.
The "White House Horrors" concocted by a White House camarilla
should lead us to appreciate the wisdom of Sir Denis Brogan's remark that
the English experience with strong royalty taught that government by the
worst elected chamber is better than government by the royal antechamber.
By comparison with that camarilla, the members of the House Judiciary
Committee, debating the impeachment of President Nixon, emerge like
shining knights. The patent earnestness and high sense of responsibility
that animated the Committee should inspire fresh confidence in the congressional potential. If we are dissatisfied with the performance of Congress, the cure is not an unauthorized presidential takeover of its powers,
but rather to improve the caliber of the men we send to Congress and to
modernize its machinery.
Finally, we must once and for all dismiss attempts to identify the
President with the presidency. To reveal the tapes, Mr. Nixon maintained,
would deliver an irremediable wound to the presidency. Instead, when the
Supreme Court ordered him to deliver the tapes to Judge John J. Sirica, it
was the President who was wounded; the presidency emerged unscathed.
We must cease to regard the President with awe lest he be deluded into
considering himself awesome. We must see him as President Jefferson's
lawyers saw him: as "but a man, but a citizen." The times call upon us to
return to the egalitarianism of the Founders, to strip away the pernicious
mystique with which we ourselves have surrounded the President. Otherwise we abandon ourselves "to that slow erosion of responsibility which
turns citizens into subjects." It took a French Revolution to extirpate the
popular superstition that royal absolutism was based on the "indispensable
and inviolable paternity of one man." Washington warned against an inclination "to seek security or repose in the absolute power of an individual"
lest he "turn this disposition to the purposes of his own elevation on the
ruins of public liberty." The Founders rejected the indispensability of an
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105
all-wise Father figure; they postulated instead that sovereignty resided in
the people themselves, that all officers of the government were merely their
servants and agents. To that postulate we must return. Only thus can
democracy be secure.