Given how intent the president is on expanding his authority, it is startling to recall how the Constitution’s framers viewed presidential power. They were revolutionaries who detested kings, and their great concern when they established the United States was that they not accidentally create a kingdom. To guard against it, they sharply limited presidential authority, which Edmund Randolph, a Constitutional Convention delegate and the first attorney general, called “the foetus of monarchy.” The founders were particularly wary of giving the president power over war. They were haunted by Europe’s history of conflicts started by self-aggrandizing kings. John Jay, the first chief justice of the United States, noted in Federalist No. 4 that “absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal…” The Constitution does make the president “commander in chief,” a title President Bush often invokes. But it does not have the sweeping meaning he suggests. The framers took it from the British military, which used it to denote the highest-ranking official in a theater of battle. Alexander Hamilton emphasized in Federalist No. 69 that the president would be “nothing more” than “first general and admiral,” responsible for “command and direction” of military forces.
An actual read of the Federalist Papers however, shows that the greatest concern the Founders had with regard to authority for the military was the possibility that the nation might maintain a standing army. And a broader read of Federalist 69 — cited by the Times — shows that the Times editorial board seems not to understand the text:
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.
Hamilton is clear that the essential difference between the power of the British King and that of the US president is that the latter cannot declare war, or raise and regulate the army. The president is ‘merely’ the supreme commander of the military and naval forces. And how would the Founders have felt about a war of pre-emption, undertaken without benefit of a Declaration of War by Congress? Federalist 25 is illustrative. In it, Hamilton warns against preventing the federal government from raising a peacetime army, saying it might lead to the following situation :
As the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the State. We must receive the blow, before we could even prepare to return it. All that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. We must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation.
It sounds as if Hamilton at least, might have been OK with pre-emptive attack against perceived threats. And he doesn’t seem too concerned about Congress declaring war, either. Contrary to the Times assertion, the Founders did not craft a document designed to prevent the sort of actions George Bush has taken. While they would have recoiled from the idea of a permanent, standing army, the use of that force would probably not have disturbed them much. However, if the Times wants to start parsing the Federalist Papers for ideas of how the federal government should be run, I’ll be happy to recommend text on the arming of state militias, the power of the states to counter federal authority, and the limits on the power of taxation. I look forward to the Times’ review of these papers, as well.
