Constitutions built upon a separation of powers were not made to last. The conceit that executive and legislative branches of government might be set in equipoise, and balance each other off over the decades, was amusingly mocked by Oliver Wendell Holmes, Sr. in The Deacon’s Masterpiece (1858):
Have you heard of the wonderful one-hoss shay,
That was built in such a logical way
It ran a hundred years to a day…?
The secret to building a carriage, the Deacon thought, was to make each piece as strong as the rest, so that no one part wears out first. And as there’d never be a weakest spot, the shay would go on forever, just like the imagined Madisonian Constitution. Well, it lasted and lasted, the talk of the town, until 100 years to the day it all collapsed at once and the new owner found himself sitting on a pile of ashes. No part wore out first. Everything went simultaneously. “End of the wonderful one-hoss shay. Logic is logic. That’s all I say.”
That’s how the Constitution looked to Holmes, a monument to the fallacy of logical principles, three years before the Civil War, when everything seemed to be turning into ashes. The country survived, but since then the expansion of executive power, which in many ways began with the Lincoln administration, has left the separation of powers in the dust.
That’s not surprising. Separationism could never go the distance. In the nature of things, one side—legislative or executive—will come out on top. In Britain, Billy Pitt’s constitution was one of separation of powers, but over time the legislature became supreme, while kings and the House of Lords became nothing. And in countries that copied the American model of presidential government, the President most often became everything and the legislature nothing. So far from preserving a balance of power between the branches, separationism today empowers the executive.
There are a good many reasons for executive branch dominance, and Heidi Kitrosser’s excellent new book, Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution, deals with one of them: the President’s control over the flow of information. A President minded to expand the power of his office can simply withhold information that might be damaging to his side, and conduct affairs (or fail to do so) without telling anyone outside of his closest advisors. Moreover, the secrets might not be the “shallow” ones whose existence is known but whose content is hidden. They might also be the “deep secrets” whose very existence is unknown.
Secret assertions of executive power became a scandal during the George W. Bush administration, and more recently President Obama’s exercise of executive power and his lack of transparency have taken concerns about executive secrecy to an even higher level. The administration has a secret “kill list” for its drone attacks. It stonewalled congressional attempts to find out what happened in the Benghazi attack three years ago, after the recent hearings in front of Trey Gowdy’s committee it seems like old news. The same strategy of withholding information was successfully employed in 1998 to preserve Bill Clinton’s presidency, and to make Independent Counsel Ken Starr the issue.
Recently, more than 50 intelligence analysts working with the U.S. Central Command filed complaints with the Pentagon’s inspector general, claiming that their analysis was manipulated by senior officials of the Department of Defense and National Security Agency to downplay the threat from ISIS. Their information didn’t fit the administration’s ludicrous narrative that the U.S. military strategy against ISIS was succeeding. But the senior DoD officials are highly political Obama appointees, and the NSA is staffed by another group of Obama loyalists with little experience in security matters. Congress is supposed to exercise oversight over the Pentagon and other parts of the government, but finds itself almost entirely shut out of the process.
While some have concluded that it’s time for milk biscuits and beddy-byes when it comes to separationism, Professor Kitrosser argues that an answer to the excessive presidential power may be found in what she calls the “substantive accountability framework” of the Constitution. This is a legal book, by a law professor (Kitrosser teaches at the University of Minnesota), and its principal aim is to vindicate the separation of powers as a legal question. The author’s concern, in other words, is with the courts rather more than with Congress, with abstract legal theories more than the politics of the country in which she is living.
That makes her project easier, for if she had had to examine the ways in which the legislative branch has acquiesced in the rise of executive power her job would have been harder. It’s all very well to remind readers of Congress’ power of the purse, but in practice this has proven a weapon that shoots blanks. When Congress takes on the President, it opposes the one person elected by the country as a whole, who has a democratic legitimacy no congressman can match. Presidents also command the allegiance of Americans as the symbol of their country, the head of state as well as the head of government. So long as he has the voters at his back, the President cannot realistically be resisted by Congress, and the American form of government has therefore become a plebiscitary presidency.
Nevertheless, Professor Kitrosser’s book will be enjoyed by everyone who is dismayed by conservative originalists who defended a virtually unrestrained presidential war power. More than they, she carefully marshals the evidence that the Framers feared an all-powerful President, one who would rule as what the never-too-much-to-be-praised George Mason called an “elective monarch.” Delegates to the 1787 Philadelphia Convention such as Mason, Benjamin Franklin, Edmund Randolph, and Roger Sherman would even have preferred a plural executive, with more than one President, an impossibly unworkable scheme but one which evidences just how much they would be shocked by American government today.
For good reason, Professor Kitrosser is unpersuaded by “Original Meaning” originalism, which tells us we can dispense with an examination of what the Framers intended by reading the words of the Constitution as a 1787 reader might have done, as though it were no great feat to think like the hypothetical reader of 228 years ago. But the past is another country; getting there requires real work, and the kind of historical empathy the Germans call einfühlung.
Of course, the great advantage of Original Meaning originalism is that it permits one to play fast and loose with history, to pretend to an understanding of the past which does not require the effort of paying close attention to how people of the time felt. For if that were to matter, the best way of understanding how the hypothetical 1787 reader interpreted the Constitution would be to consult what the Framers had to say about it. That is why historians such as Gordon Wood make Original Meaning theorists uncomfortable, and why their originalism collapses into an “Original Intent” originalism in which the Constitution is to be given the meaning the Framers intended.
Professor Kitrosser distinguishes between two forms that the originalist defense of executive power might take. Proponents of a “unitary executive” argue that the Framers’ decision to vest the presidency in a single person clothed its occupant with the plenitude of power over the executive branch. That doesn’t take us very far, however, if the question is whether the President may resist congressional oversight. In fact, it’s just the opposite, given the serious debate that took place over a plural executive. Nor was there much support amongst the Framers for what Professor Kitrosser calls “presidential supremacy,” the idea that Presidents are entitled to resist congressional investigators, and that they might operate in secret.
On the meaning to be given to the Constitution, Professor Kitrosser is a good deal more persuasive than the conservatives who have argued for an expansive executive power. As a matter of politics, one might put it even more strongly. No one, not since Joe McCarthy, has so discredited conservatism as those who advised George W. Bush that he could secretly wage war in a dishonorable manner.