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Evolution of the Presidency: Interpreting the Constitution

Explore the evolution of presidential interpretations of the Constitution from original intent to living meaning. Understand the strengths and weaknesses of different methods, including plain meaning and the living Constitution theory.

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Evolution of the Presidency: Interpreting the Constitution

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  1. Evolution of the Presidency From Constitutionalism to the Administrative State

  2. I. Interpreting the Constitution • Original Intent: What did the Framers intend the words to mean? • Method: Examine writings, speeches previous laws and precedents, context of adoption, etc. • Strengths • Constancy: Law retains same meaning over time • Legitimacy: The people’s representatives intended a particular reading

  3. 3. Weaknesses • Disagreements: Framers may not have shared common preferences or interpretation • Historical Indeterminacy: New data is discovered about old beliefs • Invites Distortion: Pick and choose between Framers

  4. B. Plain Meaning (Strict Constructionism) • Method: Examine text using “plain,” i.e. dictionary or legal definitions • Strengths • Consistency: Laws with similar phrases mean the same thing • Neutrality: In principle, plain meaning is not a value statement • Accountability: Public and Framers both know what has been adopted

  5. 3. Weaknesses • Overbroad Terms: Words like “liberty” and “right” can mean almost anything • Meaning Shifts: Often forced to examine “original intent” or “living meaning” to define words (see: Misdemeanor) • Risk of Activism: A single phrase may interact with hundreds of actions, so one wrong decision can have far-reaching effects

  6. C. Living Constitution • Method: Examine function that text currently serves in society • Strengths: • Response to Change: Constitution need not be rewritten every time society of technology advances, i.e. wiretaps • Preserves Core Values: Interprets words in a way that defends particular values, i.e. freedom, self-expression, etc.

  7. 3. Weaknesses • Judicial Policy-Making: Given judicial review, judges become the arbiters of which policy best achieves a particular goal • Unpredictability: Values differ over time and between judges, i.e. “our Judeo-Christian heritage” vs. “separation of Church and State”

  8. II. The Constitutional Presidency • Major provisions – Table 3-1 and discussion exercise • Inherent Power? 1st Sentence of Article II • Structural Power? Parallels to other branches • Notably Absent – • Executive Orders – Take care clause? • Executive Privilege – Opinion clause? • “National Security” – Only war/peace mentioned • “Separation of Powers” and “Checks and Balances” – The structure is there, but no such text

  9. III. The Traditional Presidency • Precedents • Advise and Consent – becomes consent by precedent (p.52) • Veto power – Evolves from “unconstitutional” to “bad policy” to “pocket veto”

  10. Expansion of the Veto Power

  11. III. The Traditional Presidency • Precedents • Advise and Consent – becomes consent by precedent (p.52) • Veto power – Evolves from “unconstitutional” to “bad policy” to “pocket veto” • Appointment Power • Does dismissal require consent? • From spoils system to civil service

  12. B. Key Pre-Modern Presidencies • Washington • Civilian control – Refusal to join coup attempt • Federal supremacy – Control over state militias • Limited power – Two terms • Jackson • Federal supremacy – Rejection of nullification • Spoils system – Open partisanship • Lincoln • Emergency powers – Suspension of habeas corpus • Federal supremacy – War to prevent secession

  13. IV. The Modern Presidency • Justifications • Expanded power needed in modern world. • Modernization = administrative expansion.

  14. IV. The Modern Presidency • Justifications • Expanded power needed in modern world. • Modernization = administrative expansion. • Increased global complexity = national security state

  15. 2. Nationalization of State and Private Efforts • Social Welfare – New Deal rather than state/local charities • Permanent Mobilization – Decision to retain large armed forces after World War II

  16. B. Elements of the Modern Presidency • Budget power: later in course • Bureaucracy and the EOP: later in course • Presidential program (legislative priorities): later in course • Media and Public Support: later in course

  17. C. Effects of the Expansion of the Presidency • Persuasion Key – Institutional power insufficient to pass agenda ( rhetorical Presidency) • Information = Power – Incentive to manipulate flow of information to public and other branches • Focus on Foreign Policy – Presidential power is greater, allowing expectations to be met

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