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NOTE The American Presidency: Critical Episodes in Its Growth, Part I

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Well, this morning begins the last day, of course, of the seminar,

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which is probably just as well, since what's left of me

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is prepared to talk to you today about the presidency, the U.S. presidency.

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And I deliberately made the title of the two sessions today

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broad enough that when the time came I could treat whatever issues

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I found interesting at the time.

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And so today I'd like to start with just a few general comments on the presidency.

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And then talk about a particular villain in my telling of American history, Teddy Roosevelt,

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who was spared in the politically incorrect guide simply because of lack of space.

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So, we're going to rectify that oversight.

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And secondly, to say something about presidential war powers,

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and that issue will spill over into the session this afternoon,

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because one of the claims that was

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occupied that office.

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And then Lew Rockwell continues,

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In my daydream the president is mostly a figurehead and a symbol,

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almost invisible to myself and my community.

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He has no public wealth at his disposal.

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He administers no regulatory departments.

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He cannot tax us, send our children into foreign wars,

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pass out welfare to the rich or the poor,

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appoint judges to take away our rights of self-government,

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control a central bank that inflates the money supply and brings on the business cycle

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or change the laws willy-nilly according to the special interests he likes or seeks to punish.

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His job is simply to oversee a tiny government with virtually no power

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except to arbitrate disputes among the states which are the primary governmental units.

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He is head of state, though never head of government.

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His position, in fact, is one of constant subordination to the office holders around him

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and the thousands of statesmen on the state and local level.

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He adheres to a strict rule of law and is always aware that any time he transgresses by trying to expand his power, he will be impeached as a criminal.

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And then, so on. Then I like this particular one.

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For those who do not vote and do not care about politics, their liberty is secure.

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They have no access to special rights, yet their rights to person, property and self-government are never in doubt.

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For that reason and for all practical purposes, they can forget about the President and, for that matter, the rest of the Federal Government.

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It might as well not exist. People do not pay direct taxes to it. It doesn't tell them how to conduct their lives.

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It doesn't send them to foreign wars, regulate their schools, pay for their retirement,

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much less employ them to spy on their fellow citizens. The government is almost invisible because it just goes on and on.

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Of course, I'd just like to make this my own speech. But the conclusion of these remarks is that this, of course,

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is precisely the model of the presidency that people at least thought they were getting with the U.S. Constitution.

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Alexis de Tocqueville, who is regarded, of course, as among the most astute foreign observers of the United States in the 19th century, if not the most astute,

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described the presidential office this way.

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The president is the executor of the laws, but he does not really cooperate in making them, since the refusal of his assent does not prevent their passage.

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He is not therefore a part of the sovereign power, but only its agent.

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The president is placed beside the legislature like an inferior independent power.

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The Office of President of the United States is temporary, limited and subordinate.

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When he is at the head of government, he has but little power, little wealth, little glory to share among his friends.

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And his influence in the state is too small for the success or the ruin of a faction to depend upon his elevation to power.

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The influence which the President exercises on public business is no doubt feeble and indirect.

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Now, we can contrast this to more modern theories of the presidency, particularly beginning in the progressive era, though certainly not without 19th century precedents.

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For example, in Lincoln, I think we see some precedents for an expansion of the presidency, as well as in Andrew Jackson.

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of Jackson, but in looking over one of Lew Rockwell's essays, I came across some passages

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from a book by Woodrow Wilson that I'd forgotten about, but of course I did want to include

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in this, that I made reference to several years ago in my, when we had the History of

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Liberty conferences, I was quoting Woodrow Wilson, and these are some of the passages,

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or this is at least the section that I use, because it's fascinating. Woodrow Wilson,

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Who is supposedly so different from Teddy Roosevelt.

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So different that the election of 1912 was one of the most momentous in American history.

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In effect, gives voice to exactly the philosophy of the presidency as that of Teddy Roosevelt.

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The big difference, by the way, in 1912, in the election of 1912, was that Theodore Roosevelt

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wanted to just regulate big business, whereas Woodrow Wilson wanted to break it up into

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little bits.

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That's basically the difference between them, a huge, momentous difference between the two.

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And we're told that we have this quotation from Woodrow Wilson in which he said that

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he himself can't quite see what the difference is between himself, Democrat Woodrow Wilson,

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and the Republicans at that time, other than the Republicans seem to be more pro-tariff.

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Otherwise he couldn't really see the difference.

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So already we have the phony choice.

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Well here's Woodrow Wilson speaking about the U.S. presidency.

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There is something eerie about this.

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There can be no successful government without leadership or without the intimate, almost

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instinctive coordination of the organs of life and action.

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We have grown more and more from generation to generation to look to the president as

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the unifying force in our complex system.

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To do so is not inconsistent with the actual provisions of the Constitution, it is only

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inconsistent with a very mechanical theory of its meaning and intention.

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They're all just so darn mechanical.

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The president must be a man who understands his own day and the needs of the country,

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and who has the personality and the initiative to enforce his views both upon the people

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and upon Congress.

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He is the representative of no constituency but of the whole people.

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That's a key innovation.

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The country never feels the zest of action so much as when its president is of such insight

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and caliber.

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His instinct is for unified action, and it craves a single leader.

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And then finally, let him once win the admiration and confidence of the country,

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and no other single force can withstand him.

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No combination of forces will easily overpower him.

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His position takes the imagination of the country.

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All right, well, there you go.

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How many neoconservatives could object to that?

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And yet there was a time when conservatives considered Woodrow Wilson

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Thomas Jefferson initiated the practice of delivering his State of the Union Address through a written message to Congress rather than appearing with all the ceremony before them.

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And so the very idea that on a day-to-day basis

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we see footage on television of the president playing golf.

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Oh my goodness, the president is playing golf today.

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I wonder what his handicap is.

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It's exactly the opposite of how Jefferson would have thought

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the presidential office.

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Now, the progressive era is a period that I've discussed

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in the past here at the Institute.

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But one of the overlooked aspects of the progressive era

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Here is how it contributed to the expansion of the presidential office, both materially and philosophically.

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This is a factor in the progressive era that's not typically mentioned in a textbook.

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The textbooks talk about muckraking journalists and regulatory agencies.

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All those things are important, but at least as important is this expansion in the very idea of the presidency.

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And one of the people I think is largely responsible for this is Teddy Roosevelt, and arguably no president did more to institutionalize the activist presidency than Theodore Roosevelt.

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Roosevelt, as many of you know, became president after McKinley's assassination in 1901 and served two terms in that office, and he brought with him a thorough and consistent philosophy of the presidency.

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But yet, even apart from his philosophy of the presidency, we have the fact of Theodore Roosevelt's peculiar and celebrated personality.

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That personality very much helped to place his imprint on the presidential office.

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He was someone who needed activity all the time. He needed to be engaged in activity at all times.

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So I've cited Edward Corwin, who was a scholar of the presidency, who has spoken of the personalization of the presidency,

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in which what he means is he's speaking about the way in which the unique character of a particular individual places an indelible imprint, an identifiable imprint on the presidential office.

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And so, for example, I've noted in the past that Mark Twain, who met the president twice, later described him as, quote, clearly insane.

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Roosevelt himself, in 1884, told a friend that he had a special cowboy suit that he would put on and had a revolver and a rifle, and that when he had that special cowboy suit on,

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I feel able to face anything.

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He then went on and apparently when he did go down and fight in the Spanish-American War in 1898,

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and he managed to kill a Spaniard.

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He was just reacting with just a hysterical glee and joy,

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which was very much typical of his personality.

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When he was 20 years old and he had an argument with his girlfriend,

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he went home and shot and killed his neighbor's dog as a response to that.

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Now, during the 1880s, he had this brief moment

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where he decided that he was just going to relax for a while.

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He'd been working very hard and he wrote to a friend

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and that because he'd been working so hard lately, he was going to just take the next month off and just do not a thing

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other than write a biography of Oliver Cromwell.

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Now, a famous quotation attributed to one of his sons is that, quote,

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Father always wanted to be the bride at every wedding and the corpse at every funeral.

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So a presidential historian has summed up this aspect of Roosevelt.

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As no president in memory and probably none up to that time,

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T.R. became a personality, a politician whose every action seemed newsworthy and exciting.

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His family, his friends, his guests, his large teeth, his thick glasses, his big game hunting,

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and his horseback riding, all were sources of media attention and delight.

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In a way that Washington and Lincoln had not done, and even Jackson avoided,

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The EDR became a very visible tribune of the people, a popular advocate whose personality

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seemed immediate, direct and committed to their personal service.

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Now when I say that he's someone who needs constant activity, it shouldn't be surprising

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therefore that when he becomes president, he wants to involve himself as president in

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even the tiniest affairs of the nation.

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So I've spoken in the past of a conference that was held in 1903 at the White House over

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This is a question of excessively rough play in college football and what could the president

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help to do about this.

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Now of course on the face of it it's fairly well absurd that the U.S. president would

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need to intervene here and that the normal channels of civil society couldn't take care

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of this terrible crisis on their own.

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But this is I think a foreshadowing of the future where the president seems to be of

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course involved in everything and no one even bats an eye about this, that there's something

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Now, what exactly is Roosevelt's philosophy of the Presidency?

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Well, I identify three planks to it.

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The first plank is one that, in effect, he shares with Andrew Jackson.

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This is a theory that Andrew Jackson had put forward and that you can read in Woodrow Wilson's pre-presidential writings as well.

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The President, by virtue of having been elected by the nation as a whole, possesses a unique claim to be the representative of the entire American people in the aggregate.

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So unlike congressmen, who of course are elected only by their own districts or senators, elected by the people of their states, the President is elected by the whole people.

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So he has this special claim, he argues.

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Now, this is a claim that Andrew Jackson had tried to make, but at that time there were people like John C. Calhoun who argued that, of course, in effect there is no such thing in the original understanding as an American people.

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There's the people of Massachusetts, people of Vermont, the people of the states.

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And so the idea that there was one figure who represented the will of this single American people collapsed into a single aggregate was utterly foreign to the American constitutional order.

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But the president now, beginning with this philosophy of TR, draws conclusions from this.

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If I am the unique representative of the American people, then it's my responsibility to see that their will is put into effect.

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And so I therefore, in effect, have a moral and sort of quasi-legal ability to override whatever obstacle should appear in my path.

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Even if that should be a congressional obstacle, I will override that because, after all, I have to vindicate the will of the people.

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The second plank that you notice about Franklin Roosevelt, there's a slip, you know, tomato-tomato, I suppose.

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The second plank is his view that the President, in effect, can do anything that the needs of the nation demanded,

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those are his words, unless it is prohibited in the Constitution.

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Now, the older way of looking at things is that you can do things if they're stated in the Constitution,

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in the Constitution, but you can only do them if they're stated.

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Now we have this view that you can do them as long as it's not stated that you can't.

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Well, of course, obviously there are infinite things that are not stated in the Constitution.

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I mean, no one would say you can't run a house of ill repute out of the White House.

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It's not in the Constitution, but it would be sort of presumed.

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But according to TR, the President can do anything the nation demanded

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unless it's prohibited by the Constitution.

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and he said himself, under this interpretation of executive power,

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I did and caused to be done many things not previously done.

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I did not usurp power, but I did greatly broaden the use of executive power.

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He said on another occasion, he said,

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In the United States, this is a comment he made privately,

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as in any nation which amounts to anything,

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those in the end must govern who are willing actually to do the work of governing,

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and insofar as the Senate becomes a merely obstructionist body, it will run the risk of seeing its power pass into other hands.

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Which hands are those, I wonder?

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Well, the third plank involves the use of executive orders.

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And I should pause here for a moment because this reminds me of a more recent example.

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If you ask conservatives today what their opinion of Teddy Roosevelt is, it's usually quite positive.

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I'm not positive. They like him. And there are some aspects of him that are kind of cute and admirable, I suppose.

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I mean, he would make funny comments about not being a globalist and anyone who thinks other countries are as good as his own

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or like people who say that other women, they love as much as their own wife, and ha, ha, ha, that's cute and everything.

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But the thing is that I'm arguing that TR did a tremendous amount of damage to the country.

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It's not at all obvious why a conservative would like him,

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other than the fact that he wasn't a sort of manby-pamby, modern-day, you know, girly man.

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And so we naturally respect anybody who just is in any way virile.

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I guess that may be what they admire in him.

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But the one way that you can get through to conservatives on this issue

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is through the Bill Clinton angle.

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Because Bill Clinton has got this, you know, there's still Bill Clinton books coming out,

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people buying him like mad, and he's been out of office for years,

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Still getting attacked.

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Well, Bill Clinton was once asked,

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who is your favorite Republican president

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throughout all of American history?

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Who's your favorite Republican president?

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He said Theodore Roosevelt.

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So now you use that when you pull that out

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and say, hey, come on now, Bill Clinton likes him.

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Then they'll have to say, oh my gosh,

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my whole worldview is collapsing.

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My brain is just, smoke's coming out of my ears.

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I can't compute this.

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And I don't think it's a coincidence

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that TR is mentioned as Bill Clinton's

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favorite Republican president.

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and the third plank of his presidential philosophy involves the use of executive orders.

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Because it was Bill Clinton's aide, Paul Begala, when speaking of presidential executive orders,

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actually said in the 1990s, stroke of the pen, law of the land, kind of cool.

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Yeah, kind of unconstitutional, not that you'd care.

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Theodore Roosevelt was, in fact, a figure who he wasn't the first person to issue executive orders,

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but he issued them in numbers that were substantially greater than those who preceded him.

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Now, an executive order just simply means that it's a presidential measure

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that's taken by the president himself by virtue of his executive authority,

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which he undertakes without consulting Congress or feeling a need to consult Congress.

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Now, there are uses of executive orders that would be unobjectionable from any standpoint.

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For example, George Washington, when he took office as president,

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requested that the outgoing government prepare a report on the state of the country,

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and he did that by, in effect, executive order.

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I mean, nobody really has a moral problem with that.

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Or after the war between the states, or in other situations,

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the president can issue presidential pardons,

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and he can do that by virtue of his own executive authority.

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of Authority.

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So there are certain things that the president can do by means of an executive order that

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really are basically unobjectionable.

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The problem becomes the possibility that executive orders can be abused.

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What if the president uses an executive order to carry out something that clearly lay within

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the province of Congress?

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What if he becomes a lawmaker just by himself by virtue of just signing executive orders?

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This obviously disrupts the normal constitutional process.

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This is a usurpation of power, it violates the original understanding, and in fact, as

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early as the 1790s, we already see controversy about, but they wouldn't have used the term

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executive orders, but we already see controversy emerging over the president's use of his

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executive power when George Washington declared the United States neutral in 1793 in the

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wars of the French Revolution, and that seems harmless enough and perhaps even a wise policy,

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But the point was that the Congress argued that the President, in and of himself, does not have the authority to declare neutrality.

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The Congress would declare neutrality, which they, in fact, they retroactively gave their assent to what Washington had done,

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by themselves going on and declaring neutrality.

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But even there, there was already enough vigilance that people were concerned that this was an abuse of presidential power.

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And when I get into presidential war powers, I want to return to that issue.

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So already there was some controversy. Well, to appreciate the extent to which Theodore Roosevelt transforms the presidential office, we need to look at his use of executive orders.

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And it shouldn't come as a surprise to us that he should want to use them, because here's his governing style in a nutshell.

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My will be done. But of course, my will is the people's will. Don't ever forget that. It's the people's will.

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Well, consider the numbers. I cite in my book in the bibliography there's a citation to a Cato Institute study on the use of executive orders and yet in the book there's no reference to executive orders really or hardly any.

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And that's because the bibliography was done before we had to start cutting material for space reasons.

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So there are articles and books in there that have no connection to anything in the whole book.

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And so you can find the citation in there but there's not a word about it in the book.

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The number of executive orders issued by Theodore Roosevelt's predecessors and then by the man himself.

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President Hayes issued no executive orders, likewise for President Garfield,

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although he wasn't really alive long enough to issue many executive orders.

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But Chester A. Arthur issued three executive orders, six for Grover Cleveland in his first term,

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Now, all right, so he did serve nearly two terms, but nevertheless, what we're seeing here is not merely a quantitative difference, but a qualitative shift in the functioning of the executive office.

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Now, all right, so he did serve nearly two terms, but nevertheless, what we're seeing here is not merely a quantitative difference, but a qualitative shift in the functioning of the executive office.

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Now, I've often given as an example of President Roosevelt's use of executive power what he did in the Dominican Republic in early 1905.

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And the other day I was looking through Edmund Morris' book on, or most recent volume on Theodore Roosevelt, called Theodore Rex.

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And it's basically got every little detail of this guy's life, I mean, my gosh.

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And then, you know, his shoe got a tear in it and he decided to get a new one.

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And it's incredible, like, why we would, I mean, that, and it's, the fact that we would write that detailed a book,

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is itself a reflection of this deification of the, of the president.

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It's incredibly disturbing and eerie, as I say.

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He's got all the time in the world to tell you about every haircut the guy got, whatever, but nothing.

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Not a word, not a sentence, nothing about this.

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Yes, there is mention of Theodore Roosevelt and the Dominican Republic, but nothing about how he did what he did.

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The nutshell story goes as follows. In late 1904, Roosevelt in effect laid out what he called what became known as the Roosevelt corollary to the Monroe Doctrine.

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The Monroe Doctrine from 1833 had made clear that while the United States was not going to intervene in European affairs,

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It expected European powers to reciprocate, and that European powers should not intervene in our hemisphere because this would be considered a security risk to the US if there were European colonization going on in the Americas.

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Well, what Theodore Roosevelt did with his corollary was to say, well, if it seems as if there's going to be European intervention in our hemisphere,

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then the United States will intervene first so as to forestall the European intervention.

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And so this doctrine is first instantiated in the case of the Dominican Republic in early 1905

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because in the Dominican Republic they were in debt up to their ears

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and there was concern on the part of Roosevelt that at least one European power may use full power.

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So TR came up with the idea that the United States should intervene in the Dominican Republic and run the customs houses

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and, in effect, take some of the customs money and use it for domestic purposes in the Dominican Republic

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but take a fixed amount and apply it to debt repayment.

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So as to reassure European creditors that their debts would, in fact, be repaid.

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Well, he, of course, is going to want to establish a treaty to this effect with the Dominican Republic.

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in the Republic, but you can't establish a treaty as president, you can't establish a treaty just on your own, you know, ipsa dixit, it has to be done with the, with, the Senate has to, has to approve it, but it looked as if, for a while, at least several days, it looked as if Roosevelt was just going to go ahead and enforce this treaty without consulting the Senate at all, until a bunch of senators finally said, wait a minute, you are going to submit this to our vote, right, I mean, remember the, remember the Constitution, you know, I mean, you are going to

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In the days when the Senate actually cared about its prerogatives.

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And so finally, very frustrated, Roosevelt, okay, fine, go ahead and vote on it if you feel you must.

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But it's interesting that it's quite clear that he had not originally intended the Senate to have any voice in this

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because it was set to take effect about 11 days after they signed it.

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Needless to say, nowhere near enough time for there to be debate, discussion, everybody to read it, whatever.

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and so on.

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But finally, the Senate did force his hand, and so he submitted it to them.

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Well, the Senate ended up adjourning without taking any action at all on the matter.

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And so what did Theodore Roosevelt do?

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Well, he's frustrated by the Senate's inaction.

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So he simply declares that, all right, well, maybe you're right, it is a treaty.

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And so I can't just impose a treaty on both countries without the consent of the Senate.

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I haven't gotten the consent of the Senate.

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So I just won't call it a treaty.

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I'll call it an executive agreement, and that the authority to enact it just develops, comes

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right out of my inherent executive powers, and that's what he did.

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He said in his autobiography, I went ahead and administered the proposed treaty anyhow,

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considering it as a simple agreement on the part of the executive, which could be converted

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into a treaty whenever the Senate acted.

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So if the Senate later feels like ratifying what I've done, that's fine, but in the meantime

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I'm going to act as if it already exists.

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I would have continued it to the end of my term, if necessary, without any action, by Congress.

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Now, that to me, if you're going to write a 900-page book on Roosevelt, that would deserve at least a third of a page, right?

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I mean, doesn't that say something about the way the man governed? Not a word. Not a word on that.

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But there it is. There's the Dominican...

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The case of the Dominican Republic shows the use of presidential power, I think, very, very vividly and starkly.

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Now, as he looked back on his years in office, Roosevelt told his son,

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I have been a full president right up to the end,

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and that he had seized all the powers that he thought were inherent in the office

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and expanded those powers so that his successors would have much greater latitude.

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And he certainly was a full president, if by that you mean that he really did take every opportunity to expand the presidential office, not only in this case of the Dominican Republic, but also in other episodes.

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The United Mine Workers strike, for example, in 1902, involved unionized mine workers who were striking over...

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working over, they wanted their union recognized, they wanted higher wages, they wanted fewer

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working hours, and there was an impasse between the mine owners and the miners.

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And as the months progressed, Theodore Roosevelt finally intervened and said that he was going

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to impose arbitration on the two sides, and he was very upset at the mine owners.

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And in effect he said that if the mine owners do not agree, finally, on some arrangement

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with the miners, Theodore Roosevelt would basically seize the coal fields and run them

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with the army, have the army actually get the coal and carry out the function and in

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effect act as the owners of all the coal deposits.

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And this is sort of a surprising statement to make.

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And so someone said, are you sure that you have the right to seize all the U.S. coal

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like this, with the Army?

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I mean, what constitutional provision do you think empowers you to do that?

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And he said that, to hell with the Constitution when the people want coal.

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So if I want to grab the coal mines, I'll do it.

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Because to hell with the Constitution when the people want coal, that's...

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I have to do the will of the people.

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I'm the exclusive representative of the American people.

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Now, an often forgotten episode in Theodore Roosevelt's presidency again illustrates

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something about the nature of the man and what he was doing to the office.

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And that's something called the Perticaris Affair, which took place in 1904

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as the Republican Convention was set to renominate Theodore Roosevelt for a second term.

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Well, it involved a gentleman named Perticaris who,

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Apparently, the situation was that he was being held captive in North Africa.

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He was being held captive, and supposedly he was an American citizen being held captive by a foreign government.

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So Theodore Roosevelt comes out at the convention and he gets everybody riled up by making a very, very belligerent speech

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about the need to go get this man back and we'll do whatever we have to do

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and, you know, if we have to kill the leaders over there, we'll do it.

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Everybody's thrilled.

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Well, it so happens that there are two factors that T.R. was not mentioning in his speech.

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Number one, Perdikaris was not an American citizen.

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He was a Greek citizen. He had taken Greek citizenship for business reasons.

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Secondly, arrangements had already been made to free him at the time of Roosevelt's speech.

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and Roosevelt knew both of these facts and yet nevertheless went ahead and did that.

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Whipping the country into a jingoistic frenzy.

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Well, very significant, very significant.

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There's a little bit of an overview of Theodore Roosevelt.

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I think we can see the significance of that.

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Now, I think also Theodore Roosevelt would be somebody who,

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although during his terms in office, with the exception of the suppression of Filipino independence

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and his shenanigans regarding the Panama Canal.

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He was not nearly as belligerent in office as he was out of office.

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Before he got in office, Theodore Roosevelt was constantly making statements like,

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this country needs a good war.

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He made a statement once in which he said that, you know, we could use a good war with Germany

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because that would make German Americans, would force them into making ostentatiously

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patriotic displays of anger against Germany.

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And plus, if New York and a few of our other cities,

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if cities on the coast, like Boston or others,

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were just burned to the ground by a foreign invader,

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well, that would be a good object lesson to the American people

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in the need for a good system of coast defenses.

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I mean, he actually did say that.

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These are kind of odd statements.

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Well, then after he leaves the presidency,

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he's fanatically in favor of getting involved in World War I,

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like immediately, as quickly as possible,

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he wants to get right into it.

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And you can imagine that he would be somebody who would be very impatient

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with a very traditional understanding of president-scussing.

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Because, you know, I'm of the opinion that, you know, if they're...

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Given that American law, I think, makes quite clear, American constitutional law,

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that the initiative with regard to foreign policy obviously belongs in the hands of Congress,

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and that Congress is, I think, for reasons that we might discuss,

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less likely to embroil the nation in war,

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Well, given our current predicament, I think it's more and more necessary to talk about this history

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and what was the original intent and how in American history have war powers been exercised,

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both by Congress and by the President.

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Not because I actually expect a future President to say,

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you know what, I really need to restrain myself here.

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You know, I really don't have the authority to deploy troops anywhere I want.

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What kind of a mental case am I?

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I suddenly have a great reverence for the Constitution.

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I don't expect that to happen.

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But we can at least shame, well, no, we can't shame them.

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What am I saying?

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They have no shame.

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But we can at least let our fellow Americans know that these people have complete contempt

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for the Constitution.

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They have complete contempt for the law, and that's at least something.

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It helps to undermine their legitimacy, and you can't shake a stick at that.

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Well let's look at what the Constitution says on the matter of war.

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Now it's true that the President is under the Constitution declared to be the Commander-in-Chief.

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What does that mean?

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Well we know from endless commentaries by the framers of the Constitution and by people

400
00:33:02.200 --> 00:33:08.220
in the ratifying conventions that what's understood here is that the Congress has the power to

401
00:33:08.220 --> 00:33:14.260
declare war and the President, according to Alexander Hamilton, these are his words, the

402
00:33:14.260 --> 00:33:18.380
What would have quote the direction of war when authorized or begun?

403
00:33:18.380 --> 00:33:22.840
I always like to quote Hamilton whenever possible because you can always, you always perceive

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00:33:22.840 --> 00:33:28.280
that with even Alexander Hamilton said, okay, well even he said the president's power is

405
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restricted to the direction of war when authorized or begun.

406
00:33:32.980 --> 00:33:38.420
Now the Constitution did not in fact say Congress has the power to make war.

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It said Congress has the power to declare war and the difference was understood to mean

408
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The President was in fact empowered to repel sudden invasion, Iran nationalized an American company, therefore the President has to go to war with them.

409
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That's not exactly a full-scale assault on American soil.

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This is meant to be understood that in an emergency situation, the President could repel a sudden attack.

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But of course you recall that the Pearl Harbor attack was fairly sudden to most of the American population

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and yet the next day they were able to have a congressional declaration of war even in that circumstance.

413
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But overwhelming legal precedent dating from the earliest years of the republic supports this interpretation.

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Now I'm not one very often to quote Abraham Lincoln, but on this issue, at least prior to the 1860s, he's quite sound.

415
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Lincoln said this. I mean, Lincoln is speaking, by the way, during the, you know, at the time of the Mexican War, during his one, his one fairly undistinguished term in Congress.

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He says, allow the president to invade a neighboring nation whenever he shall deem it necessary to repel an invasion.

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And you allow him to do so whenever he may choose to say he deems it necessary for such purpose.

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And you allow him to make war at pleasure. And then he went on.

419
00:35:06.460 --> 00:35:13.460
The provision of the Constitution, giving the war-making power to Congress, was dictated, as I understand it, by the following reasons.

420
00:35:13.460 --> 00:35:22.460
Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object.

421
00:35:22.460 --> 00:35:34.460
This our Convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.

422
00:35:34.460 --> 00:35:44.460
But your view, speaking to an antagonist, destroys the whole matter and places our president where kings have always stood.

423
00:35:44.460 --> 00:35:51.460
Now, the framers of the Constitution were abundantly clear in assigning to Congress what one scholar has called

424
00:35:51.460 --> 00:35:56.460
senior status in a partnership with the president for the purpose of conducting foreign policy.

425
00:35:56.460 --> 00:36:01.460
So when you consider what the Constitution has to say about foreign affairs, it says as follows.

426
00:36:01.460 --> 00:36:13.460
Congress possesses the power to regulate commerce with foreign nations, to raise and support armies, to grant letters of mark and reprisal, to provide for the common defense and even to declare war.

427
00:36:13.460 --> 00:36:18.460
Congress shares with the President the power to make treaties and to appoint ambassadors.

428
00:36:18.460 --> 00:36:23.460
As for the President himself, he has assigned only two powers relating to foreign affairs.

429
00:36:23.460 --> 00:36:29.460
He is Commander-in-Chief of the Armed Forces and he has the power to receive ambassadors.

430
00:36:29.460 --> 00:36:39.460
At the Constitutional Convention, the delegates expressly disclaimed any intention to model the American executive after the British monarchy.

431
00:36:39.460 --> 00:36:44.460
James Wilson, for example, remarked that the powers of the British king did not constitute, quote,

432
00:36:44.460 --> 00:36:47.460
a proper guide in defining the executive powers.

433
00:36:47.460 --> 00:36:51.460
Some of these prerogatives, Edmund Randolph likewise contended that the delegates had, quote,

434
00:36:51.460 --> 00:36:56.460
no motive to be governed by the British government as our prototype.

435
00:36:56.460 --> 00:37:13.460
The executive branch of government was a deliberate and dramatic break with the British model of government with which they were most familiar, as well as with that of other nations, where the executive branch, in effect the monarch, possessed all such rights, including the exclusive right to declare war.

436
00:37:13.460 --> 00:37:20.460
The framers of the Constitution believed that history amply testified to the executive's penchant for war.

437
00:37:20.460 --> 00:37:23.460
As James Madison wrote to Thomas Jefferson,

438
00:37:23.460 --> 00:37:28.460
The Constitution supposes what the history of all governments demonstrates,

439
00:37:28.460 --> 00:37:33.460
that the executive is the branch of power most interested in war and most prone to it.

440
00:37:33.460 --> 00:37:39.460
It has accordingly, with studied care, vested the question of war in the legislature.

441
00:37:39.460 --> 00:37:41.460
Now at the Constitutional Convention,

442
00:37:41.460 --> 00:37:49.460
Piers Butler supported vesting the power of declaring war in the hands of the president.

443
00:37:49.460 --> 00:37:56.460
Well, that opinion stunned the other delegates, particularly Elbridge Gerry, who said,

444
00:37:56.460 --> 00:38:04.460
quote, never expected to hear in a republic a motion to empower the executive alone to declare war.

445
00:38:04.460 --> 00:38:11.460
Not only was there no support for Butler's position, there wasn't even a second.

446
00:38:11.460 --> 00:38:16.460
No one even seconded it when he proposed that this power should be held by the present.

447
00:38:16.460 --> 00:38:20.460
At the Pennsylvania Ratifying Convention, James Wilson said this,

448
00:38:20.460 --> 00:38:50.460
This system will not hurry us into war. It is calculated to guard against it. It will not be in the power of a single man or a single body of men to involve us in such distress, for the important power of declaring war is vested in the legislature at large. This declaration must be made with the concurrence of the House of Representatives. In this circumstance, we may draw a certain conclusion that nothing but our interest can draw us into war.

449
00:38:50.460 --> 00:38:57.460
The Presidential War Power is the indispensable single book on this, if you're going to read only one.

450
00:38:57.460 --> 00:39:03.460
Now, Alexander Hamilton, or shall I say, even Alexander Hamilton, says in Federalist No. 69,

451
00:39:03.460 --> 00:39:06.460
that the President's authority, quote,

452
00:39:06.460 --> 00:39:12.460
would be nominally the same with that of the King of Great Britain, but in substance much inferior to it.

453
00:39:12.460 --> 00:39:17.460
It would amount to nothing more than the supreme command and direction of the military and naval forces,

454
00:39:17.460 --> 00:39:26.460
John Bassett Moore was a great scholar of international law, who briefly served as Assistant Secretary of State, later as a professor at Columbia University.

455
00:39:26.460 --> 00:39:30.460
He was a prolific author, who was also the first American judge at the World Court.

456
00:39:30.460 --> 00:39:32.460
He said this,

457
00:39:32.460 --> 00:39:37.500
Bassett Moore was a great scholar of international law, who briefly served as Assistant Secretary

458
00:39:37.500 --> 00:39:41.980
of State and later as a professor at Columbia University. He was a prolific author who was

459
00:39:41.980 --> 00:39:45.940
also the first American judge at the world court, and he said this,

460
00:39:45.940 --> 00:39:50.560
There can hardly be room for doubt that the framers of the Constitution, when they vested

461
00:39:50.560 --> 00:39:54.380
in Congress the power to declare war, never imagined that they were leaving it to the

462
00:39:54.380 --> 00:39:59.780
executive to use the military and naval forces of the United States all over the world for

463
00:39:59.780 --> 00:40:15.780
and the purpose of actually coercing other nations, occupying their territory and killing their soldiers and citizens all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace.

464
00:40:15.780 --> 00:40:22.780
Now, in the history of the early republic, the intentions of the framers in this regard were by and large respected.

465
00:40:22.780 --> 00:40:39.780
For example, George Washington, in his operations on his own authority against various Indian tribes, he confined himself to defensive measures only, and understood that the permission of Congress would be necessary for any further action.

466
00:40:39.780 --> 00:40:54.780
The Constitution vests the power of declaring war with Congress, therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject and authorized such a measure.

467
00:40:54.780 --> 00:41:24.780
Now, I think it was probably with both the Korean War, starting in 1950, and then the Vietnam War, as it heated up in the 1960s, that we began to hear an alternative conception, or we began to hear that this is much too strict a reading, what I've told you is much too strict a reading of the historical record, and that in fact, historically, the presidents have been much more flexible. And so, for example,

468
00:41:24.780 --> 00:41:54.780
The State Department in 1966, an impartial body that could be counted on to give us a dispassionate overview of this matter, said since the Constitution was adopted there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior congressional authorization, starting with the Undeclared War with France, 1798 to 1800. Well, we'll have time later, probably this afternoon, to get into this.

469
00:41:54.780 --> 00:42:01.780
125 instances. That 125 instances more recently has turned into hundreds of instances.

470
00:42:01.780 --> 00:42:06.780
As I say, there was one particular critic of mine who used the phrase, hundreds of instances.

471
00:42:06.780 --> 00:42:13.780
It's sort of like the number of people that the atomic bombings of Hiroshima and Nagasaki allegedly saved.

472
00:42:13.780 --> 00:42:23.780
So first, you have estimates of 46,000, and then later, President George H.W. Bush was saying that millions of lives had been saved.

473
00:42:23.780 --> 00:42:53.780
I'm going to try to go through in chronological order and in particular I use this quotation right here because it makes specific mention of the Quasi-War with France and it says that, you know, this was done without prior congressional authorization, that's just not true at all, there was a congressional statute after statute after statute after statute

474
00:42:53.780 --> 00:43:01.780
after Statute authorizing Adams to do what he did in outfitting ships and in engaging in this

475
00:43:01.780 --> 00:43:05.780
and Adams was simply following those statutes.

476
00:43:05.780 --> 00:43:13.780
An interesting quotation that comes even from Alexander Hamilton comes in late April 1798

477
00:43:13.780 --> 00:43:17.780
when Congress passed a law increasing the size of the Navy

478
00:43:17.780 --> 00:43:21.780
and the Secretary of War who seemed to favor war

479
00:43:21.780 --> 00:43:27.060
War, asked Alexander Hamilton, did you think this legislation authorizes the president

480
00:43:27.060 --> 00:43:28.720
to initiate hostilities?

481
00:43:28.720 --> 00:43:30.900
And Hamilton replied by saying this,

482
00:43:51.780 --> 00:44:13.780
To deploy the ships as convoys with authority to repel force by force, but not to capture and to repress hostilities within our waters, including a marine league from our coasts, anything beyond this must fall under the idea of reprisals and requires the sanctions of that department which is to declare or make war, so in effect speaking of Congress.

483
00:44:13.780 --> 00:44:23.780
In the wake of the Quasi-War, the Supreme Court ruled that under the Constitution, the Congress could declare war because, of course, it says that Congress can declare war.

484
00:44:23.780 --> 00:44:31.780
The Congress can also give its authorization to hostilities that would not quite come up to the definition of a full-scale war.

485
00:44:31.780 --> 00:44:36.780
They could, by statute, authorize lesser hostilities in lesser wars.

486
00:44:36.780 --> 00:44:38.780
In effect, that was what happened in the Quasi-War.

487
00:44:38.780 --> 00:44:41.780
But here's something interesting that occurred during the Quasi-War.

488
00:44:41.780 --> 00:44:48.780
Congress at one point authorized the President to seize vessels that were sailing to French ports.

489
00:44:48.780 --> 00:44:53.780
But Adams, without consulting the Congress and entirely on his own authority,

490
00:44:53.780 --> 00:45:02.780
began to instruct American ship captains to capture vessels that were sailing to or from French ports.

491
00:45:02.780 --> 00:45:07.780
And so we have this interesting case of a Captain George Little who obeyed the President

492
00:45:07.780 --> 00:45:12.580
and in fact seized a ship that was sailing from a French port.

493
00:45:12.580 --> 00:45:17.380
It was a Danish ship sailing from a French port and he was sued for damages

494
00:45:17.380 --> 00:45:20.880
and eventually the case made its way to the Supreme Court.

495
00:45:20.880 --> 00:45:25.780
And there, John Marshall, who over time flip-flopped on this issue,

496
00:45:25.780 --> 00:45:28.680
I'm sorry, I hate that term, sorry, forget that, forget I said that,

497
00:45:28.680 --> 00:45:35.280
but John Marshall ruled that Captain George Little could be sued for damages

498
00:45:35.280 --> 00:45:58.280
I acquiesce, in the opinion of my brethren, which is, that the instructions by president Adams cannot change the nature of the transaction or legalize an act which, without those instructions, would have been a plain trespass.

499
00:45:58.280 --> 00:46:02.480
Now, Congress later reimbursed Captain Little because he had to pay damages.

500
00:46:02.480 --> 00:46:06.080
They reimbursed him for it, in effect saying, well, he was just obeying orders.

501
00:46:06.080 --> 00:46:12.080
But as Fisher points out, this means that congressional policy announced in a statute

502
00:46:12.080 --> 00:46:18.080
necessarily prevails over inconsistent presidential orders and military actions.

503
00:46:18.080 --> 00:46:21.680
Presidential orders, even those issued as commander-in-chief,

504
00:46:21.680 --> 00:46:26.880
are subject to restrictions imposed by Congress.

505
00:46:26.880 --> 00:46:29.600
Now, then we have George Washington. I'm backing up a little bit.

506
00:46:29.600 --> 00:46:33.280
I mentioned earlier on that there was a little bit of a controversy

507
00:46:33.280 --> 00:46:36.400
when George Washington issued his Proclamation of Neutrality

508
00:46:36.400 --> 00:46:41.920
because he had no statutory or constitutional authority to issue a Proclamation of Neutrality.

509
00:46:41.920 --> 00:46:46.480
And even though it seems innocuous enough, there was a concern about the separation of powers.

510
00:46:47.520 --> 00:46:52.720
In fact, James Madison took this position against George Washington and said this,

511
00:46:52.720 --> 00:47:04.720
In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war and peace to the legislature, and not to the executive department.

512
00:47:04.720 --> 00:47:12.720
War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created, and it is the executive will which is to direct it.

513
00:47:12.720 --> 00:47:18.720
In war, the public treasures are to be unlocked, and it is the executive hand which is to dispense them.

514
00:47:18.720 --> 00:47:25.720
In war, the honors and emoluments of office are to be multiplied, and it is the executive patronage under which they are to be enjoyed.

515
00:47:25.720 --> 00:47:30.720
It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle.

516
00:47:30.720 --> 00:47:37.720
Hence, it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war.

517
00:47:37.720 --> 00:47:43.720
Hence, it is the practice of all states in proportion as they are free to disarm this propensity of its influence.

518
00:47:43.720 --> 00:47:52.720
And so even the use of a proclamation of neutrality is an example of potential executive encroachment on congressional prerogatives.

519
00:47:52.720 --> 00:47:58.720
Well, here we have yet another interesting example. I think that George Little example is quite revealing.

520
00:47:58.720 --> 00:48:05.720
We have another example. We have an example of an American who disregarded George Washington's proclamation of neutrality

521
00:48:05.720 --> 00:48:14.720
and, in fact, violated the proclamation, because there were Americans who, in the 1790s, were capturing ships and whatever.

522
00:48:14.720 --> 00:48:20.720
A fellow named Gideon Henfield was prosecuted for violating Washington's proclamation of neutrality.

523
00:48:20.720 --> 00:48:26.720
But he was acquitted, even though he clearly was guilty. He was acquitted. Why?

524
00:48:26.720 --> 00:48:34.720
Because the jurors did not like the idea of convicting someone of a crime that had been established simply by executive proclamation.

525
00:48:34.720 --> 00:48:41.720
If there was no statutory authority behind that executive proclamation, then we have no basis on which to convict this man.

526
00:48:41.720 --> 00:48:50.720
Back when we had liberty-loving Americans who were sitting on juries.

527
00:48:50.720 --> 00:48:56.720
Not that I think Gideon Henfield was anybody to write home about, but it's quite an interesting point that they made.

528
00:48:56.720 --> 00:48:59.720
Now, Congress, as I said, later did declare neutrality.

529
00:48:59.720 --> 00:49:05.040
and so you know in effect it was undertaken in any in any event that by

530
00:49:05.040 --> 00:49:08.520
the way is a big problem with executive orders is that oftentimes the president

531
00:49:08.520 --> 00:49:13.320
will issue one Congress won't like it at all but then you know retroactively

532
00:49:13.320 --> 00:49:16.920
they'll give it their authorization by voting in favor of whatever the measure

533
00:49:16.920 --> 00:49:22.160
is and so you're only encouraging him unfortunately now what we hear I think

534
00:49:22.160 --> 00:49:27.640
the most common case that we hear in early American history of a president who

535
00:49:27.640 --> 00:49:30.440
who is, in fact, involving the country in war

536
00:49:30.440 --> 00:49:33.800
in the absence of congressional authorization to do so,

537
00:49:33.800 --> 00:49:37.320
involves Thomas Jefferson and his activity

538
00:49:37.320 --> 00:49:40.080
with regard to the Barbary pirates.

539
00:49:40.080 --> 00:49:42.800
There's just a little background here.

540
00:49:42.800 --> 00:49:45.520
The Barbary states of North Africa

541
00:49:45.520 --> 00:49:49.400
were, in effect, engaged in piracy for a very long time.

542
00:49:49.400 --> 00:49:53.160
And so, if you had ships sailing the Mediterranean,

543
00:49:53.160 --> 00:49:55.240
you would, in effect, have to bribe them

544
00:49:55.240 --> 00:50:03.240
The British government paid the bribes on behalf of Americans during the colonial period.

545
00:50:03.240 --> 00:50:08.240
In the early republic, George Washington just paid the bribes.

546
00:50:08.240 --> 00:50:10.240
John Adams just paid the bribes.

547
00:50:10.240 --> 00:50:12.240
Then you get to the early 1800s.

548
00:50:12.240 --> 00:50:16.240
Jefferson is not terribly enthusiastic about paying the bribes.

549
00:50:16.240 --> 00:50:24.240
By late 1801, some of the Barbary pirates are in fact increasing the amount of the bribe that would be necessary.

550
00:50:24.240 --> 00:50:54.240
Jefferson's inauguration, Congress had passed legislation that, among other things, provided for six frigates, that, to quote the legislation, shall be officered and manned as the President of the United States may direct, and so when Jefferson sent American ships to the Mediterranean, he was appealing to this. He said, well, these ships shall be officered and manned as the President of the United States may direct.

551
00:50:54.240 --> 00:51:09.240
Jefferson sends a small force to the Mediterranean to protect against any possible aggression on American ships and citizens.

552
00:51:09.240 --> 00:51:16.240
We can agree or disagree with that position, but it's interesting to note what Jefferson says here

553
00:51:16.240 --> 00:51:26.240
to show that this incident cannot be used to show that there's a general power for the president to initiate offensive military action on his own whim.

554
00:51:26.240 --> 00:51:34.240
Jefferson said that he was, quote, unauthorized by the Constitution without the sanction of Congress to go beyond the line of defense.

555
00:51:34.240 --> 00:51:39.240
He said that Congress alone could authorize, quote, measures of offense also.

556
00:51:39.240 --> 00:51:42.240
And so Jefferson went to Congress and said,

557
00:51:42.240 --> 00:51:46.240
I communicate all material information on this subject,

558
00:51:46.240 --> 00:51:48.240
that in the exercise of this important function,

559
00:51:48.240 --> 00:51:52.240
confided by the Constitution to the legislature exclusively,

560
00:51:52.240 --> 00:51:55.240
their judgment may form itself on a knowledge and consideration

561
00:51:55.240 --> 00:51:59.240
of every circumstance of weight.

562
00:51:59.240 --> 00:52:03.240
Now Fisher points out, pointing out that the Justice Department

563
00:52:03.240 --> 00:52:07.240
very often has made reports and in Congressional debate

564
00:52:07.240 --> 00:52:18.240
The Congressional Debate issued statements to the effect that Jefferson in fact just again behaved entirely on his own without really any regard for Congressional authority, but Fisher says,

565
00:52:18.240 --> 00:52:25.240
In fact, in at least ten statutes, Congress explicitly authorized military action by Presidents Jefferson and Madison.

566
00:52:25.240 --> 00:52:35.240
Congress passed legislation in 1802 to authorize the President to equip armed vessels to protect commerce and seamen in the Atlantic, the Mediterranean and adjoining seas.

567
00:52:35.240 --> 00:52:43.240
The Statute authorized American ships to seize vessels belonging to the Bay of Tripoli with the captured property distributed to those who brought the vessels into port.

568
00:52:43.240 --> 00:52:51.240
Additional legislation in 1804 gave explicit support for, quote, warlike operations against the regency of Tripoli or any other of the Barbary powers, unquote.

569
00:52:51.240 --> 00:52:56.240
Now understand the purpose of my bringing this up. It's not to say this is a wonderful decision, it should have been done,

570
00:52:56.240 --> 00:53:06.240
Jefferson said that in no way can you extrapolate from this to some general ability of the President to deploy American forces anywhere in the world for any purpose.

571
00:53:06.240 --> 00:53:11.240
Jefferson, by modern standards, was positively timid in his behavior.

572
00:53:11.240 --> 00:53:21.240
In fact, late the next year, in late 1805, there had emerged a dispute with Spain regarding the boundaries of Louisiana and Florida.

573
00:53:21.240 --> 00:53:28.240
Jefferson went to Congress and reported on that and said that it was his opinion that Spain revealed

574
00:53:51.240 --> 00:53:56.240
To them I communicate every fact, material for their information,

575
00:53:56.240 --> 00:53:59.240
and the documents necessary to enable them to judge for themselves.

576
00:53:59.240 --> 00:54:02.240
To their wisdom, then, I look for the course I am to pursue,

577
00:54:02.240 --> 00:54:07.240
and will pursue with sincere zeal that which they shall approve.

578
00:54:07.240 --> 00:54:12.240
Okay, again, this is like another planet, basically, this type of language.

579
00:54:12.240 --> 00:54:15.240
A couple of more quick ones before we stop and take some questions,

580
00:54:15.240 --> 00:54:19.240
and then I think the really interesting stuff actually comes later.

581
00:54:19.240 --> 00:54:27.640
At the time of the War of 1812, what did James Madison do?

582
00:54:27.640 --> 00:54:33.480
He went to Congress, gave his war message, and the Congress voted to declare war.

583
00:54:33.480 --> 00:54:39.000
At the time, in his discussion of the declaration of war, he referred to it as a solemn question

584
00:54:39.000 --> 00:54:45.800
which the Constitution wisely confides to the legislative department of the government.

585
00:54:45.800 --> 00:54:58.800
The last incident is very little known, but it involves an incident that in some way would be related to the Monroe Doctrine.

586
00:54:58.800 --> 00:55:07.800
The Monroe Doctrine had been laid out in 1823, and the following year, Colombia began to fear an attack from France.

587
00:55:07.800 --> 00:55:13.800
and they appealed, they inquired of the United States government, citing the Monroe Doctrine,

588
00:55:13.800 --> 00:55:16.800
you know, after all, isn't this something that you would want to repel,

589
00:55:16.800 --> 00:55:20.800
they inquired of the American Secretary of State, John Quincy Adams,

590
00:55:20.800 --> 00:55:23.800
who in effect composed the Monroe Doctrine,

591
00:55:23.800 --> 00:55:26.800
they asked, the Colombian government asked him,

592
00:55:26.800 --> 00:55:30.800
in what manner the government of the United States intends to resist on its part

593
00:55:30.800 --> 00:55:35.800
any interference of the Holy Alliance for the purpose of subjugating the new republics

594
00:55:35.800 --> 00:55:42.800
The Columbia Republic, to maintain its own independence, hope that France and the Holy Allies will not resort to force against it. If they should, the power to determine our resistance is in Congress. The movements of the executive will be as heretofore expressed. I am to draft an answer.

595
00:56:05.800 --> 00:56:11.800
I understand that by the Constitution of the United States, the ultimate decision of this question belongs to the Legislative Department of the Government.

596
00:56:11.800 --> 00:56:19.800
So in effect, I can't give you an answer. I don't know what the policy is. That would be something that would be decided by the Legislature.

597
00:56:19.800 --> 00:56:31.800
I think I will pause here, a bit unusually early, and take any comments or questions or frustrations you have about any issues relating to this.

598
00:56:31.800 --> 00:56:46.800
My recollection of the Petticaris affair was that Mr. Petticaris gave up his U.S. citizenship to protect property that his wife had in the Confederacy territory and denounced it afterwards and said that he was not going to do anything about it.

599
00:56:46.800 --> 00:57:15.800
One recollection of the Petticarris affair was that Mr. Petticarris gave up his U.S. citizenship to protect property that his wife had in the Confederacy territory and denounced it afterwards and there was a heavy discussion going on in the Department of State where he was a citizen and where he wasn't and the State Department decided to take the position he was in as a citizen on the fax reform and Roosevelt took the position he was.

600
00:57:15.800 --> 00:57:28.800
I don't think necessarily that he was a U.S. citizen. He was just trying to protect his property rights in the Confederacy over the white.

601
00:57:28.800 --> 00:57:33.800
The issue of his citizenship, I understand that point.

602
00:57:33.800 --> 00:57:38.800
He never went to court on the issue.

603
00:57:38.800 --> 00:57:45.800
There is, though, a reasonably good treatment of this issue by Ralph Reiko.

604
00:57:45.800 --> 00:57:50.800
I think it's in the Future Freedom Foundation has a book called,

605
00:57:50.800 --> 00:57:55.800
The Failure of America's Foreign Wars, and I think he discusses it there.

606
00:57:55.800 --> 00:57:58.800
Other things? Other things in people's minds?

607
00:57:58.800 --> 00:58:02.800
Oh, you're killing me, people. You're killing me. You're full of questions.

608
00:58:02.800 --> 00:58:04.800
Full of questions. Mark Thornton.

609
00:58:04.800 --> 00:58:09.600
Tom, what about the Presidents of the Articles of Confederation?

610
00:58:09.600 --> 00:58:12.900
We had a Presidency under that form of government.

611
00:58:12.900 --> 00:58:19.500
It seems odd to me that Americans are more or less required to memorize all the American Presidents,

612
00:58:19.500 --> 00:58:25.200
but hardly anyone can name one single President under the Articles of Confederation.

613
00:58:25.200 --> 00:58:31.600
Yeah, well, I think mainly because the President of the Articles of Confederation was largely a titular office

614
00:58:31.600 --> 00:58:38.900
who really, you know, who doesn't have anything like the executive authority that the president under the Constitution has.

615
00:58:38.900 --> 00:58:44.600
So he wouldn't have inspired the kind of adulation and awe that, you know, a Theodore Roosevelt would have had.

616
00:58:44.600 --> 00:58:47.500
A Theodore Roosevelt, my gosh, he would have hated that office.

617
00:58:47.500 --> 00:58:53.200
I can't do anything, you know. All I can do is sort of convene you people and sit around and debate would have frustrated him to no end.

618
00:58:53.200 --> 00:59:00.100
So I think it's just the feebleness of the office and the very, very limited purpose of it that accounts for that.

619
00:59:00.100 --> 00:59:14.100
Go back to Washington. I don't know how far it went that he certainly threatened Vermont as an invasion if they didn't join this new union.

620
00:59:14.100 --> 00:59:18.100
Do you want to flesh that out a little? It almost sounded like he was ready to declare war.

621
00:59:30.100 --> 00:59:55.100
My recollection was that it was a dispute between New Hampshire and New York, and the both were claimant, overlapping claims of territory.

622
00:59:55.100 --> 01:00:01.100
The Vermont was independent at that point. That's why they didn't want to join the union.

623
01:00:01.100 --> 01:00:05.100
And Washington said, I want you to force them.

624
01:00:05.100 --> 01:00:10.100
Well, that was not my reflection. But getting back to Mike, I just had one other point.

625
01:00:10.100 --> 01:00:15.100
I talked about presidency that didn't have teeth in it, basically.

626
01:00:15.100 --> 01:00:20.100
I thought William Hyde in California, the only time California had a presidency.

627
01:00:20.100 --> 01:00:25.980
And William Hyde needed to basically go on what was written at the time, go on progress.

628
01:00:25.980 --> 01:00:32.860
So the writer talked about Hyde needed to get down to Los Angeles.

629
01:00:32.860 --> 01:00:35.620
The California Treasury had no money.

630
01:00:35.620 --> 01:00:41.980
So I worked his way down the coast as a ship as an able-bodied citizen, a president of California.

631
01:00:41.980 --> 01:00:47.940
Get down to Los Angeles to extend his realm of government.

632
01:00:47.940 --> 01:01:08.940
The Frederic Garrison, sir, what was the theoretical motive in setting up all this, like, addressing the firmament on what he's already mentioned to make it free?

633
01:01:17.940 --> 01:01:27.940
I want to put a negative construction on it. It seems to me that this is the way the guy is.

634
01:01:27.940 --> 01:01:34.940
This is a guy who in effect believes war is a unifying force in the country.

635
01:01:34.940 --> 01:01:40.940
I think this is an example of a guy who is trying to whip up American patriotism.

636
01:01:40.940 --> 01:01:50.940
I mean, I can't prove that the way I can prove other things, but it seems entirely consistent with the man's character and the written record.

637
01:01:50.940 --> 01:01:57.940
So that's the, I think, not unjustified extrapolation that I'm reaching.

638
01:01:57.940 --> 01:02:26.940
You take the executive powers and the war powers up to the current time. A lot of conservatives who believe in Congress declaring war, once they find themselves in Congress, they say, well, we're just going to have to go along with this. We don't want to declare war, because if we do, then all these executive war powers go into effect that are already sort of sitting there, ready to take effect. And so it's sort of a modern conundrum.

639
01:02:27.940 --> 01:02:32.500
In fact, so many of these executive war powers are themselves usurped from the Congress.

640
01:02:32.500 --> 01:02:37.260
Because I mean, if Jefferson thinks that he can outfit ships and send them to the Mediterranean,

641
01:02:37.260 --> 01:02:40.880
but while they're out there, all he can do is repel attacks, he can't actually initiate

642
01:02:40.880 --> 01:02:41.880
offensive operations.

643
01:02:41.880 --> 01:02:47.140
I mean, that indicates he had a very narrow conception of what executive war powers were,

644
01:02:47.140 --> 01:02:50.100
that they were authorized, they were given to the executive, they weren't inherent to

645
01:02:50.100 --> 01:02:52.740
him, they were given by congressional statute.

646
01:02:52.740 --> 01:02:57.220
So if Congress really wanted to regain its powers, it would have to, as you say, Mark,

647
01:02:57.220 --> 01:03:27.220
I remember when Ron Paul has tried in this most recent war, you know, he's spoken in favor of reminding Congress that, you know, the responsibility of declaring war rests with them, and I'm pretty sure, wasn't it Henry Hyde who more or less told him that he had a very old-fashioned and outdated way of declaring war, that he was going to declare war, that he was going to declare war, that he was going to declare war?

648
01:03:57.220 --> 01:04:02.220
He tells a Teddy Roosevelt story that Roosevelt was always very arrogant.

649
01:04:02.220 --> 01:04:08.220
He visited Europe as a private citizen and he meets with the Emperor from the ocean, the elderly emperor.

650
01:04:08.220 --> 01:04:11.220
And he says to him, you know, aren't you just an antique?

651
01:04:11.220 --> 01:04:15.220
It could possibly be the role of a monarch in this modern world of ours.

652
01:04:15.220 --> 01:04:20.220
And by the way, Connolly had a very strong influence on Hans-Hermann Hoppe too.

653
01:04:20.220 --> 01:04:24.220
And the emperor said, protect my peoples from their governments.

654
01:04:24.220 --> 01:04:29.220
Wow. Interesting. Of course, you know, TR wouldn't have understood that either.

655
01:04:29.220 --> 01:04:37.220
Yeah, that's wonderful. Well, it's funny, just a month ago, I think somebody must have referred to

656
01:04:37.220 --> 01:04:43.220
Leftism Revisited by Eric von Connell-Ledeen, and I never actually read that book.

657
01:04:43.220 --> 01:04:48.220
So the unfortunate thing is it's out of print. I mean, this should be brought back into print.

658
01:04:48.220 --> 01:04:54.220
I had to get it online. There were like two used copies. One of them was like $1,000.

659
01:04:54.220 --> 01:05:00.220
I think I shelled out like $30 for this thing, but I feel like it's $30 well spent.

660
01:05:00.220 --> 01:05:05.220
And now that it turns out there may be a Theodore Roosevelt reference in it, I've definitely got to read this thing.

661
01:05:05.220 --> 01:05:13.220
I mean, talk about a guy who's just Cunard-Ledean, not Roosevelt, who's unbelievably learned and could just get like a graduate course reading one of his books.

662
01:05:13.220 --> 01:05:36.220
Well, I was just going to say the natural, I don't want to say the natural, but the evolution of the office of the Presidency and expansion, I don't know, I see a parallel between that and kind of what Hayek wrote in The Road to Serving, but the words get to the top.

663
01:05:43.220 --> 01:05:50.220
by an absolutely disgusting human being, you know, getting to this office, how could we even imagine, right?

664
01:05:50.220 --> 01:05:56.220
Yeah, I know, the worst getting to the top of that point by Hayek, it's absolutely true.

665
01:05:56.220 --> 01:06:02.220
You know, it's funny though, there's this quotation by Rutherford Hayes who said that, you know,

666
01:06:02.220 --> 01:06:07.220
up till now our presidential office has been occupied by and large by conservative men

667
01:06:07.220 --> 01:06:15.220
who are careful to confine themselves to precedent and traditional ways of acting.

668
01:06:15.220 --> 01:06:20.220
But if a Napoleon should take this office, then in effect it's malleable enough

669
01:06:20.220 --> 01:06:23.220
that he could make it into whatever he wills.

670
01:06:23.220 --> 01:06:29.220
And I think that's what started to happen with the 20th century.

671
01:06:29.220 --> 01:06:43.220
I think I'm reading David McCullough's book, 1776, and I'm at the spot where the British are occupying, it's after the choppers around the world,

672
01:06:43.220 --> 01:06:53.220
and the British are now occupying Boston, and George Washington has been made the commander of the Continental Army, and he's got them, in essence, blockaded.

673
01:06:53.220 --> 01:07:06.220
And he convenes a war council, and his war council suggests that they send some troops down to New York, to protect New York, and he feels that he does not have the power to do that.

674
01:07:06.220 --> 01:07:16.220
So he writes a dispatch to the Continental Congress, and John Adams actually intercepts it. And he writes back and says, absolutely, you have the power to do this.

675
01:07:16.220 --> 01:07:30.220
The point that I'm making is that there's already this idea that one person does not have the authority to just go willy-nilly off and do as they please.

676
01:07:46.220 --> 01:07:50.700
to New York and was told that, of course, you know, of course you do, but it's interesting

677
01:07:50.700 --> 01:07:55.380
that he would even hesitate. This is sort of unrelated, but on the George Washington

678
01:07:55.380 --> 01:08:00.380
front, if you haven't read volume four of Conceived in Liberty by Rothbard, it's quite

679
01:08:00.380 --> 01:08:05.060
interesting. I'm somebody who, I can't, no matter how I try, cannot get interested in

680
01:08:05.060 --> 01:08:08.780
military history. And unfortunately, this is the only history my students are interested

681
01:08:08.780 --> 01:08:13.980
in. They love Civil War battles, whatever. I've tried, you know, heaven knows I've tried.

682
01:08:13.980 --> 01:08:17.020
I sit there, I open the book, I get to page three and I'm just out.

683
01:08:17.020 --> 01:08:20.620
It just holds no interest for me. I don't understand why. I really don't.

684
01:08:20.620 --> 01:08:22.320
It just holds no interest for me.

685
01:08:22.320 --> 01:08:25.420
But when I read this stuff, when I read Rothbard's treatment

686
01:08:25.420 --> 01:08:26.780
of the

687
01:08:26.780 --> 01:08:29.180
American war for independence, I thought it was quite

688
01:08:29.180 --> 01:08:31.360
quite interesting, his thesis about

689
01:08:31.360 --> 01:08:34.120
the effectiveness of guerrilla fighting as opposed to

690
01:08:34.120 --> 01:08:36.020
conventional war.

691
01:08:36.020 --> 01:08:39.180
I was basically persuaded. I have no basis for judging because I'm a

692
01:08:39.180 --> 01:08:41.900
complete ignoramus when it comes to military history, but

693
01:08:41.900 --> 01:08:46.400
I was quite persuaded by that, and if you don't have Conceived in Liberty, then shame on you anyway.

694
01:08:46.400 --> 01:08:48.900
Is it still in print?

695
01:08:48.900 --> 01:08:50.900
Oh my goodness, gracious!

696
01:08:50.900 --> 01:08:57.900
Before you even can get lunch, go and spend your $100 on those four beautiful and handsome volumes.

697
01:08:57.900 --> 01:08:59.900
Okay, other thoughts?

698
01:08:59.900 --> 01:09:04.900
That's funny, because in the earlier talks, I figured, you know, I'm not leaving enough time for questions.

699
01:09:04.900 --> 01:09:10.900
There are like seven at the end, still unanswered, so I thought, well, today I'll be super nice and responsible.

700
01:09:10.900 --> 01:09:22.900
I was wondering on the issue of duplicity going on between the United States.

701
01:09:22.900 --> 01:09:33.900
I remember the issue of 1917 when the United States wanted to take in, for the second time,

702
01:09:33.900 --> 01:09:45.900
I'm wanting to take in the Virgin Islands and the Caribbean, and the undertakable deals of recognizing Danish control over

703
01:09:45.900 --> 01:09:59.900
agreement, basically wiping out the Norwegian territorial claims, at the same time Norway was fighting the United States in its

704
01:09:59.900 --> 01:10:29.900
Co-operations in Spitsbergen, in the Arctic, and I was wondering, if you're going to your lecture later, now, this undercover stuff of the State Department with the President's consent making determinations without Congress's authority to declare Greenland is all Danish, no Norwegian rights and in turn we acquire the Virgin Islands

705
01:10:29.900 --> 01:10:32.900
and it's all under the table because Congress never authorized it.

706
01:10:59.900 --> 01:11:18.900
But no, this won't be an incident that I'm going to do because I'm trying to, I've got, you know, in the one talk left, I've got, I want to do Mexican War and say something about Cuba at the end of the century and then talk about modern presidential war powers and where they come from.

707
01:11:18.900 --> 01:11:48.900
I mean, some of it's just, you know, just usurped, but there's an important Supreme Court case that I want to talk about that has given teeth to the bad people, and I wanted to dismantle that, but also I want to mention, I had a student once who asked me, what would happen if the Congress declared war, but the President didn't want to go to war? What would happen? And at first I didn't know how to answer that. I said, well, I just don't imagine that ever taking place.

708
01:11:48.900 --> 01:11:53.940
Nope, I have no interest in going to war and you people are a bunch of crazed warmongers

709
01:11:53.940 --> 01:11:55.980
and I'm going to...

710
01:11:55.980 --> 01:12:00.780
So I thought about it and it turns out that actually there was almost a case of that in

711
01:12:00.780 --> 01:12:06.220
the 1890s when there were some people who wanted to, some congressmen who wanted to

712
01:12:06.220 --> 01:12:11.580
go to war with Spain over Cuba even in the mid 1890s under Cleveland.

713
01:12:11.580 --> 01:12:15.900
And Cleveland said, well, you know, it's not going to happen.

714
01:12:15.900 --> 01:12:18.620
There will be no war with Spain as long as I'm president.

715
01:12:18.620 --> 01:12:24.620
So they came back and said, well, hey, wait a minute, wait a minute, we have the power to declare war, who are you to tell us whether there's going to be a war or not?

716
01:12:24.620 --> 01:12:32.620
And so Cleveland replied that, well, if you declare war, you know, I'm the commander in chief, I won't call out the armed forces, how do you like that?

717
01:12:32.620 --> 01:12:38.620
And I thought, now there's some presidential war power right there. Okay, yes?

718
01:12:38.620 --> 01:12:53.620
I do have one question. Just going back to Teddy Roosevelt, where he started issuing these volumes of executive orders and started grabbing every piece of power he can. What was the legislative body doing during this whole period of time?

719
01:13:08.620 --> 01:13:13.620
I think they were just caught off guard by this guy. He's super charismatic. Everybody's interested in him.

720
01:13:13.620 --> 01:13:25.620
You know, Wilson has helped, I think with some of his writing, has helped to pave the way for this charismatic figure to get the control of the American population and get their enthusiasm.

721
01:13:25.620 --> 01:13:30.620
And so he's a guy who knows what he wants. He's super organized, whatever.

722
01:13:30.620 --> 01:13:34.620
And I think the Congress was just caught unawares at this.

723
01:13:34.620 --> 01:13:39.100
and so you get a lot of griping about this guy is just running roughshod over all our

724
01:13:39.100 --> 01:13:45.220
prerogatives but you know in effect TR was able to wear this as a badge of honor to say

725
01:13:45.220 --> 01:13:49.620
well these are people who refuse to act but I'm a man of action and I think in all ages

726
01:13:49.620 --> 01:13:54.660
you get there's always this tendency at least in the part of some of the population to be

727
01:13:54.660 --> 01:13:59.660
swept away by a man of action I mean I think for example Franklin Roosevelt even though

728
01:13:59.660 --> 01:14:04.420
he doesn't get the country out of the depression obviously just look at the statistics nevertheless

729
01:14:04.420 --> 01:14:11.420
In the US he's perceived as being a man of action. He did something. It's sort of taken for granted that doing something is always better than doing nothing.

730
01:14:11.420 --> 01:14:17.420
And, of course, when it comes to the economy, that's of course exactly the opposite of the truth.

731
01:14:17.420 --> 01:14:26.420
But most people don't know that. Most people have this, I think, this instinct that action and the use of the will, this is always to be preferred to inactivity.

732
01:14:26.420 --> 01:14:33.420
And especially when the guy who's undertaking it is just so darn entertaining, I think people are easily swept up in it. Yes, Mark?

733
01:14:33.420 --> 01:14:43.420
Is there a correlation between the number of executive orders the president issues and their popularity amongst American historians?

734
01:15:03.420 --> 01:15:09.940
of Correlation, because I think for the historian, again, which presidents do they like, the

735
01:15:09.940 --> 01:15:14.540
ones who exercise all the authority that's coming to them, and much besides.

736
01:15:14.540 --> 01:15:15.540
Yes?

737
01:15:15.540 --> 01:15:23.540
Mark brought up some good ideas about these under-the-court turns that went on before World War I.

738
01:15:23.540 --> 01:15:31.540
Specifically, what was Congress' reactions to things going on, say, as Mexico and Haiti,

739
01:15:31.540 --> 01:15:36.540
both of which were action of some sort?

740
01:15:36.540 --> 01:15:40.540
I think Wilson started expanding this.

741
01:15:40.540 --> 01:15:44.540
Yeah, I know Fisher discusses that in his book.

742
01:15:44.540 --> 01:16:14.540
I mean he spends some time on Woodrow Wilson because he notes that even though Wilson did when it came to World War I he went and got his declaration of war and you know at least from that point of view was behaving you know in a way consistent with American tradition that doesn't mean that Woodrow Wilson overall was totally harmless and not in any way a villain in the development of modern presidential war powers but again I'm afraid I'd have to go back and look to double-check on that because I don't want to say something that I can't defend.

743
01:16:14.540 --> 01:16:16.940
Yes, and then I think we're coming up to the end?

744
01:16:16.940 --> 01:16:22.300
Anyway, I remember the time period of the 1820s,

745
01:16:22.300 --> 01:16:25.940
where the issue of Greece and the Ottoman Empire occurred.

746
01:16:25.940 --> 01:16:28.620
Congress was interested in helping the independence

747
01:16:28.620 --> 01:16:30.820
establishing of Greece and the State Department.

748
01:16:30.820 --> 01:16:32.620
That's right, that's a good point.

749
01:16:32.620 --> 01:16:38.180
And I remember pleas from Lafayette to the members

750
01:16:38.180 --> 01:16:40.460
writing personal letters to the members of Congress,

751
01:16:40.460 --> 01:16:42.820
asking them to assist Greece in helping them

752
01:16:42.820 --> 01:16:44.260
on their independence.

753
01:16:44.260 --> 01:16:48.340
And in the words, Lafayette was sitting, writing personal letters

754
01:16:48.340 --> 01:16:52.100
to congressmen, you know, because the executive didn't care

755
01:16:52.100 --> 01:16:53.540
what Lafayette thought.

756
01:16:53.540 --> 01:16:56.940
It's interesting that then 20 years later, the Hungarians,

757
01:16:56.940 --> 01:17:00.260
you know, want to get, you know, they want some, you know,

758
01:17:00.260 --> 01:17:04.420
either at least something in the Austrian Empire.

759
01:17:04.420 --> 01:17:07.580
They want maybe independence or whatever.

760
01:17:07.580 --> 01:17:09.860
And so they've got representatives coming over

761
01:17:09.860 --> 01:17:17.860
to the U.S. and they get tremendous ovations from the Congress, wonderful to see you and good luck with everything.

762
01:17:17.860 --> 01:17:22.860
And then the time comes to say, well, so how much are you going to give us or are you going to come help us?

763
01:17:22.860 --> 01:17:26.860
And the response was, well, no. I mean, why did you think we would?

764
01:17:26.860 --> 01:17:30.860
I mean, we've got our own country over here. We've got our own problems.

765
01:17:30.860 --> 01:17:36.860
And, you know, all we can do is be a good example to you and, you know, good luck and Godspeed.

766
01:17:36.860 --> 01:17:41.180
Godspeed, but that if we got involved with all these conflicts, we would risk, as Henry

767
01:17:41.180 --> 01:17:46.060
Clay put it, we would risk extinguishing the beacon that we are in the world and then,

768
01:17:46.060 --> 01:17:51.180
because we would just become indebted hopelessly, you know, we'd suffer many casualties and

769
01:17:51.180 --> 01:17:54.660
how would that be, how would that advance the cause of freedom in the world? I know

770
01:17:54.660 --> 01:17:59.260
that's not what you're supposed to say anymore, but that's what they said at that time.

771
01:17:59.260 --> 01:18:09.260
I just wondered, does any representative in Congress, other than Thomas from Ron Paul, take an exception to this?

772
01:18:09.260 --> 01:18:11.260
Is there anybody else in there?

773
01:18:29.260 --> 01:18:35.260
who has written articles along the lines of, you know, I'm a conservative and this war is not conservative.

774
01:18:35.260 --> 01:18:39.260
Like, there aren't that many congressmen writing articles like that, so maybe somebody might recognize,

775
01:18:39.260 --> 01:18:43.260
remember the guy's name, but I can't think of it, but there would be a few.

776
01:18:43.260 --> 01:18:46.260
I mean, I tend to think that there are, but they tend to be sort of on the fringes.

777
01:18:46.260 --> 01:18:49.260
I mean, they're not, I mean, certainly none of the mainstream people are.

778
01:18:49.260 --> 01:18:54.260
I mean, like Orrin Hatch is not losing any sleep over, oh my gosh, have we delegated too many war powers to the president?

779
01:18:54.260 --> 01:18:58.260
It always tends to be the ones who, you know, because I mean,

780
01:18:58.260 --> 01:19:03.260
If they had those opinions, they wouldn't be in positions of influence.

781
01:19:03.260 --> 01:19:05.260
They wouldn't have been appointed to major committees.

782
01:19:05.260 --> 01:19:07.260
They wouldn't have chairmanships or whatever.

783
01:19:07.260 --> 01:19:10.260
So it does seem like it's a very, very small group.

784
01:19:10.260 --> 01:19:16.260
What I am going to go into a little bit after lunch, though, is it's sort of quixotic,

785
01:19:16.260 --> 01:19:22.260
but there are examples of people in recent years, even just with the Iraq War,

786
01:19:22.260 --> 01:19:26.260
who have tried to initiate legal action against the U.S. government,

787
01:19:26.260 --> 01:19:33.260
I say anything that serves to embarrass a regime that has nothing but contempt for the law should be done.

788
01:19:56.260 --> 01:20:07.260
So, I totally support that. And I'm pretty sure it's a group of former veterans who brought the thing, so they couldn't be accused of just being, you know, pacifist pansies or whatever.

789
01:20:07.260 --> 01:20:15.260
They're actually people who have fought in the past, but just hold this judgment. Okay, I think that does it. So, thank you very much.