A friend and colleague of mine just sent me a NY Times article by Robert Reich in which the latter contends that the Republicans are acting “unconstitutionally” by refusing hearings to any of Barack Obama’s Supreme Court nominees. I replied—admittedly, a bit too abruptly—that the Democrats feign concern about abiding by the Constitution only when it suits their purposes.
I stand by this position. But I know that the same can be said for Republicans.
Brion McClanahan’s latest book underscores in spades this bipartisan disregard of the Constitution. His 9 Presidents Who Screwed Up America and Four Who Tried to Save Her (Regnery: 2016) is a tailor-made book for the lover of American political history. Moreover, though a piece of scholarship of the first order, it is, refreshingly, written in prose that is accessible to any remotely curious reader.
Another welcoming feature of McClanahan’s analysis is its indisputably non-partisan tone. Unlike Robert Reich, McClanahan’s repulsion from unconstitutional governance is not selectively determined by ideological prejudice and political gain. It is principled. That this is so becomes obvious as soon as one begins thumbing one’s way through 9 Presidents.
McClanahan notes that the concerns of the anti-Federalists began to materialize as early on as George Washington’s tenure in office.
While “Washington’s first administration was a model for the constitutional exercise of the presidential powers,” his second administration was not. For starters, though he was constitutionally required to seek the “advice and consent” of Congress when it came to issues of war and treaties, in 1793, in the wake of the bloody French Revolution, Washington acted unilaterally by essentially breaking America’s treaty with France by issuing his “Proclamation of Neutrality.” James Madison and Thomas Jefferson were among those who viewed this move as the stuff of, not presidents of Constitutional Republics, but monarchs.
Washington also crushed the so-called “Whiskey Rebellion,” a move that was unconstitutional on multiple grounds.
Yet Washington is not among the cast of characters that McClanahan charges with having “screwed up America,” of having grossly, routinely undermined the Constitution. This ignominious distinction the author endows upon such worthies as Andrew Jackson; Abraham Lincoln; Theodore Roosevelt; Woodrow Wilson; Franklin D. Roosevelt; Harry Truman; Lyndon Johnson; Richard Nixon; and Barack Obama.
It would be a mistake, however, to think that McClanahan treats this list as exhaustive. Like Washington, there are several presidents—George H.W. Bush, Bill Clinton, and George W. Bush are three notable examples—who don’t have chapters reserved for them, but whose flagrant abuses of the Constitution the author meticulously documents.
McClanahan knows that by including Lincoln in his list of presidents who “screwed up America,” he will shock the contemporary sensibilities of many readers. Yet he also makes a compelling case that any such list that omitted “Honest Abe” would be downright dishonest, for Lincoln, “more than any president who came before him, created the blueprint for the modern presidency.”
If ever there was a “fundamentally transformative” president, it was Lincoln, the man who presided over the transformation of the American political system from “a federal republic to a consolidated nation.”
Through a chain of the most cogent reasoning, McClanahan reveals how and why the Southern states that formed the Confederacy were indeed justified, constitutionally speaking, in seceding from the Union. Lincoln, thus, acted unconstitutionally in treating secession as a “rebellion.” Yet even conceding, for argument’s sake, that Lincoln was right about this matter, he was, from the standpoint of the Constitution, terribly wrong in how he proceeded to address it.
“Lincoln,” McClanahan explains, “violated the Constitution and his oath by unilaterally calling up the ‘militia’ to subdue ‘combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshals by law.” The problem, here, is that the Constitution authorizes Congress—not the Executive branch—to do such things.
However, McClanahan remarks, “these violations of the Constitution were only the beginning.” The 16th president, he continues, “presided over the most oppressive and lawless general government in American history to that point, one that has only been surpassed by the imperial presidencies of the twentieth century.” Lincoln’s “unilateral suspension of habeas corpus was ruled unconstitutional by Supreme Court Chief Justice Roger Taney”—and yet “Lincoln ignored the ruling [.]” His administration “arrested over ten thousand Northern Americans for their opposition to the war, mostly newspaper editors and politically well-connected citizens” (emphases original) [.]
There are many more violations of the Constitution of which Lincoln was guilty, but space constraints preclude enumeration of them here.
“Progressive” Republican President Teddy Roosevelt, given “his belief that…the Constitution was an outdated piece of parchment subject to elastic interpretation and the will of the executive,” was the first of the 20th century imperial presidents. Even some of his fellow Republicans in Congress objected to his blatant subversion of the Constitution in executing his “Square Deal” agenda.
While Roosevelt was the first of the last century’s imperial presidents, he was far from the last. Woodrow Wilson, who “lamented that the founding generation did not have the foresight to call for a closer link between the executive and legislative branches” and who, to remedy this alleged weakness, regarded the Constitution as “organic,” “was a…pioneer in unconstitutional executive authority.”
Then, of course, Franklin Delano Roosevelt ratcheted things up considerably by ramming his “New Deal” “through Congress with a personal zeal unmatched by anyone who had held the office before him.” Yet FDR’s successor, Harry Truman, “had become the most progressive president in American history” by the time his nearly eight years in office had come to a close.
The four presidents who tried to “save” America by exercising admirable, if imperfect, constitutional constraint are Jefferson, John Tyler, Grover Cleveland, and Calvin Coolidge. Not unsurprisingly, though, and with the exception of that of Jefferson’s, the presidencies of these last three are ordinarily regarded by historians as either unremarkable or even failed. This, however, reveals more about the extent to which these same historians subscribe to the model of the imperial—to repeat, the unconstitutional—presidency than it speaks to these forgotten presidents themselves.
By the measure of the Constitution-as-ratified, Tyler, Cleveland, and Coolidge join Jefferson as among the best presidents in American history.
Brion McClanahan’s Nine Presidents Who Screwed Up America and the Four Who Tried to Save Her is must reading for everyone who is more interested in preserving the Constitution than in preserving their respective parties.
During this heated election season, it is also timelier than ever.