“The Politics of Constitution-Making” and The Federalist 21 – 28
Rakove’s fourth chapter takes up the critical issues surrounding the power and scope of the executive branch, primarily its method of election. The idea of allowing the national legislature to choose the executive – on the model of some contemporary parliamentary systems – was quickly rejected, indeed denounced, as a recipe for making such an election “the work of intrigue, of cabal, and of faction” (82). We are reminded of the Founders categorical distrust of factions (evidenced by their shared love of the word “cabal”) and deep reverence for the separation of powers, not to mention their keen desire to distinguish the republican system they were designing from its flawed European precedents.
Of course, our modern political parties serve to intertwine Congressional politics and presidential elections in ways the framers could not have envisioned and by which they would likely be appalled. We regularly see our presidents hitting the campaign trail on behalf of the party they represent, endorsing particular candidates not only for House and Senate races, but also gubernatorial contests. Even when specific candidates and elections are not at stake, the nearly constant fundraising that the executive spearheads in the course of a typical four-year term renders the early suspicion of collusion and cabal at the highest levels of national politics one of the framers soundest insights. It remains arguable whether the popular election – the electoral college is another matter – of the chief executive, given the party system the Founders tried to avoid but could not ultimately prevent from taking hold, is more or less successful in avoiding the pitfalls of “intrigue” and influence that the rejected, more aristocratic, model of legislative selection suggested in 1787.
Rakove properly notes the scant attention that a crucial August 17 revision to the clause in the draft constitution authorizing Congress to “declare” (and not “make”) war received – a very significant and loaded edit, whose implications we have lived with intimately in the 20th century and 21st centuries. Though even the tradition of Congress “declaring” war has since become quaint and old-fashioned (not employed since World War II), the modern executive’s nearly unchecked monopoly on warmaking powers is hardly questioned as right and proper. Given this contemporary context, the Founders delicate swapping of two active verbs for what became a very passive Congressional role in practice is fraught with both historical irony and imminent tragedy.
As was evident to all who suffered under the arbitrary and whimsical rule of European monarchs (and the framers had George III as their exemplar), grounding the country’s warmaking authority in republican representation allowed for the prevalence of caution, conservatism, and restraint in the deployment of military forces, necessitating a slow and deliberative process that would not be subject to the jealousies and fantasies of a single, all-powerful personality. Imagine if our wars were treated with the same kind of legislative scrutiny and technocratic debate that health care reform and carbon regulation are currently receiving. The image is not perfect, of course, but it’s certainly preferable to the cult of the commander in chief we seem to be stuck with since Eisenhower, the legalistic and informal trust we place in the president alone to make decisions about war and peace.
As a correction (or perhaps caveat) to our last posting, the framers did in fact show concern for the “moral dimensions” of slavery, and in fact, in ways we can relate to quite readily. Northern delegates to the Convention worried over the notion that slavery – as a debasing cultural force – inflicted harm on the free population but also constituted a crime against “the most sacred laws of humanity,” of infinite peril to all citizens of the republic (86). Nevertheless, there seemed to be agreement that these nuanced ethical and philosophical quandaries were not a Federal matter, that “the morality and wisdom of slavery are considerations belonging to the states themselves” (89). It’s not difficult to find comparable logic in the contemporary debates over issues such as abortion rights and same-sex marriage laws. Clearly, the option of deferring to state-level resolutions has always been an acceptable evasive tactic employed by national policymakers when it comes to the thorniest moral questions of the day.
In Federalist 24–28, Hamilton delivers a formal critique of standing armies in the republican system of government. He starts by rehearsing all the key arguments against the maintenance of a standing army (primarily, the opportunities it gives to executive corruption and demagoguery), then systematically destroys them all. For example, he roundly dismisses the prevailing notion that the states or local militias should bear the responsibility, and possess the requisite organization, efficiency, and might, for what we now call “national security”. The second amendment that later emerged granting citizens the right to bear arms as a political compromise and necessary appeasement to proponents of local defense leaves us with a very mixed legacy of wisdom.
But even Hamilton knew that he was on shaky ground, for the same reason many framers distrusted a strong executive, and concedes that the provision of a standing army should be “freshly” debated every two years. Again, a well-funded and increasingly adventurous standing army is such an integral component of the American status quo as to leave this debate hardly more than academic, something we gripe about in conversation from time to time but do little to change in practice. But as some excellent recent books on the subject, such as Eugene Jarecki’s The American Way of War and Andrew Bacevich’s The Limits of Power and The New American Militarism, make clear, we should all be taking a closer look at exactly what our defense establishment has done to the character of our civil society in the past few decades. The findings are not pretty, nor does the trajectory seem easy to alter.