A review of Thomas Jefferson and Executive Power, by Jeremy D. Bailey
Reflecting on Thomas Jefferson’s accession to the presidency in 1801, John Marshall expressed his concern to Alexander Hamilton that Jefferson would “embody himself with the house of representatives. By weakening the office of President he will increase his personal power.” Marshall’s prediction was understandable. Jefferson, after all, had stood for office as the head of a political party that opposed concentrating power in the national government at the expense of the states and in the executive branch at the expense of the legislature.
Hamilton, however, had served with Jefferson in George Washington’s administration and possessed a perspective that most lacked. Hamilton denied that Jefferson was “an enemy of the power of the Executive.” Indeed, while serving as Washington’s Secretary of State, Jefferson “was generally for a large construction of the Executive authority, & not backward to act upon it in cases which coincided with his views.” We now know from Jefferson’s notes of cabinet meetings that Hamilton was right. Especially in separation of powers disputes, such as contests over executive privilege, Jefferson supported a broad understanding of the president’s constitutional powers. Nor was Jefferson a legislative supremacist during his service as war-time governor of Virginia (1779-1781). Indeed, in hisNotes on the State of Virginia he denounced the legislature’s frequent interference in the operation of the executive branch. Legislative tyranny was no less dangerous than executive tyranny: “One hundred and seventy-three despots would surely be as oppressive as one…. An elective despotism was not the government we fought for.” Moreover, Jefferson apparently found little fault with Hamilton’s case for a strong and independent presidency in The Federalist (especially Nos. 67-77) because after reading the work in Paris he pronounced it “the best commentary on the principles of government which was ever written.” Decades later he made it one of the few required texts at the University of Virginia.
Yet Marshall’s fears that Jefferson would scale back executive power were not entirely misplaced. In 1787 Jefferson had written his friend James Madison that he was “not a friend to a very energetic government” for it is “always oppressive.” Then, in 1793, when President Washington declared American neutrality in the new European war, despite a treaty that seemed to commit the United States to defend French possessions in the Caribbean, Jefferson urged Madison to refute the broad public defense of presidential power mounted by Hamilton on behalf of the administration. After the election of 1800, Jefferson, in stark contrast to his two predecessors, dressed down for his own inaugural, wearing no sword and eschewing a formal carriage and attendants. Once in office he broke precedent by sending his annual message to Congress only as a written document, not as a speech before a joint session of Congress. The prior practice, he believed, bore too much the trappings of monarchy.
All this is well known and helps to explain why modern scholars have trouble sorting out Jefferson’s understanding of the executive power vested by the U.S. Constitution.
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There is, in fact, no systematic treatment of executive power in Jefferson’s voluminous writings-nothing, for example, to match Hamilton’s defense of executive energy in The Federalist. Instead, what we have are mainly Jefferson’s proposals for the Virginia constitution and isolated (and usually private) letters that touch on executive power, some written after he had retired from public office.
Of course, we also have Jefferson’s actions as president of the United States, which, presumably, speak even louder than words. And here no one would accuse him of neglecting to exercise executive authority. Without asking Congress for approval, he sent a naval squadron to the Mediterranean to undertake offensive actions against the Barbary pirates; despite constitutional qualms, he supported the purchase of the Louisiana Territory and asked Congress to approve the treaty and appropriate the necessary funds; to pressure European nations to respect American neutrality he called for an embargo on commerce that vastly expanded the reach of executive power; and, fearing war with Britain, he ordered the fortification of coastal cities and the building of gunboats without a congressional appropriation.
What to make of all this? Was Jefferson actually a Hamiltonian in his embrace of a powerful presidency, despite his symbolic efforts to drain it of some of its majesty? Was he simply inconsistent, favoring a more ministerial presidency as party theorist but a more autonomous, energetic presidency as the occupant of the office? Was he, as Henry Adams argued, essentially a hypocrite? It “was hard to see,” Adams wrote, “how any President could be more Federalist than Jefferson himself.” In Thomas Jefferson and Executive Power, Jeremy Bailey challenges Adams’s interpretation and the modern “scholarly consensus.” Jefferson, according to Bailey, possessed and acted upon a coherent, comprehensive understanding of executive power that revolutionized the relationship of the presidency to American democracy.
To be specific,
Jefferson’s understanding of democratic energy requires a president who will use declarations to articulate the principles of his administration in order to direct national aspirations, present a standard by which the administration can be judged, and, most important, bring the opinions of citizens together under a single head.
In this way, argues Bailey, a professor of political science at the University of Houston, “Jefferson transformed presidential speech in order to energize the presidency, and Jefferson transformed the presidency in order to bring energy to declarations.”
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Bailey develops these points with great care in detailed discussions of Jefferson’s proposals for the Virginia constitution; his service as governor; his reactions to the proposed new national executive and early debates over executive power under the Constitution; his transformation of the inaugural address into an instrument for articulating principles and fostering change; his removals of Federalists from executive offices to enhance public confidence in the administration of government; his endorsement of the Louisiana Purchase despite constitutional misgivings; his support of the 12th Amendment (separating the votes for president and vice president) to help democratize the presidency; his embrace of the two-term limit to enable new presidents to reenergize the office; and his use of proclamations and special messages to promote his educational project. Each of these discussions is a valuable contribution to our understanding of the American Founding, American political development, and executive power in the constitutional order. Together they constitute an original and provocative interpretation of Jefferson’s democratic statesmanship and constitutionalism.
Perhaps most challenging are Bailey’s arguments that in Jefferson’s view the president “alone could claim to represent [the majority will]” because “he alone was nationally elected”; that Jefferson “deliberately transformed the inaugural address into a regular opportunity for announcing change”; and that, more generally, “Jefferson transformed presidential speech in order to energize the presidency” by uniting “public opinion and executive discretion.” Regarding the first claim, Bailey’s Jefferson sounds strikingly like Woodrow Wilson, who in his later writings expressly defended the superior representational qualities of the presidency. Yet Jefferson made no such overt claim. He perhaps came closest in his First Inaugural when he warned of future critics “whose positions will not command a view of the whole ground.” Bailey makes much of this statement, citing it numerous times. But to say that some critics will lack the president’s comprehensive view is not to say that every member of Congress, much less Congress as a whole, will. Indeed, as Whig Congressman Abraham Lincoln later argued in the House of Representatives, Congress may better represent public opinion across a range of issues than any single president could. Bailey’s case would be stronger if he could adduce some evidence of Jefferson’s reservations about the representational character of Congress.
On the partisan reinvention of the inaugural address, Bailey does not address the alternative thesis, perhaps best articulated by James Ceaser of the University of Virginia, that Jefferson did not intend to institutionalize party competition in American national government but saw the election of 1800 as an exceptional opportunity to refound the regime on proper republican principles (hence Jefferson’s later description of the election as the “revolution of 1800”). Thus, for Jefferson the lengthy list of “essential principles” that he detailed in the First Inaugural was not the equivalent of a party platform subject to revision or replacement by future presidents. On the contrary, as he put it, these principles were so fundamental—”the creed of our political faith, the text of civic instruction”—that any “wander[ing] from them” should be corrected by “retrac[ing] our steps and…regain[ing] the road which alone leads to peace, liberty, and safety” (emphasis added).
This, then, leads to Bailey’s broader argument about Jefferson’s transformation of political speech. While it is certainly true that Jefferson used his two inaugural addresses, official proclamations, and some important open letters to reach a broad audience—note that while Washington’s First Inaugural addressed “Fellow Citizens of the Senate and of the House of Representatives,” Jefferson’s addressed “Friends and Fellow Citizens”—Jefferson, like all the early presidents, made little effort to speak directly to the American people. As Jeffrey Tulis has shown in The Rhetorical Presidency (1987), for example, Jefferson as president made only three public speeches other than his inaugural addresses, all to leaders of Indian tribes. The founding generation had a healthy skepticism of popular rhetoric, seeing it as a demagogue’s tool. Bailey himself points out that Jefferson “believed [Patrick] Henry’s talent for speech provided a dangerous example of the sway that demagogues could hold in democratic government.”
Moreover, as Bailey indicates, Jefferson made no public appeal on behalf of the 12th Amendment, despite its centrality to his plan to make the president the genuine choice of the people, and he “publicly defended the Louisiana Purchase only in a few short sentences in his Second Inaugural.” He went further in defending the controversial embargo by writing replies to addresses from state legislatures. And when he received hundreds of critical addresses from groups in Massachusetts, he “had a reply printed and distributed.” But still, there was no major public speech defending the embargo, no address before a joint session of Congress, no essay in the public press. While Bailey acknowledges that Jefferson did not “usher…in the rhetorical presidency” or “rel[y]…on popular leadership,” it is difficult to square these concessions with his broader theory of Jefferson’s democratic statesmanship.
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What, then, of Jefferson’s understanding of executive power under the Constitution? Strikingly, despite service in Washington’s cabinet, four years as vice president, and two terms as president, Jefferson had almost nothing to say in his own writings about the meaning and extent of the powers and duties vested in the president by Article II of the Constitution. Bailey shows that Jefferson only once recurred to the oath of office as a ground for asserting authority: to defend removing “monarchist[s]” from executive offices. But here, tellingly, Jefferson wrote not in his own name, but under a pseudonym. And later, in an important letter encouraging the Virginia governor to act aggressively to prepare for possible war with Britain, Jefferson referenced “our constitutional powers, to carry the law into execution” to justify a broad understanding of executive responsibilities.
As a rule, however, Jefferson did not discuss the president’s constitutional authority and conspicuously avoided connecting his assertions of power—such as challenging the Barbary pirates, purchasing the Louisiana Territory, and spending unappropriated funds to prepare for war—to provisions in the Constitution. (For more on these episodes and what they say about Jefferson’s deeper understanding of executive power, see Gary Schmitt’s important essay in Thomas Cronin’s book, Inventing the American Presidency, 1989.) Typically, Jefferson simply acted, providing neither a constitutional defense for his bold moves nor some other public justification on grounds of necessity or national interest. Here Jefferson differed markedly from Presidents Washington, Jackson, and Lincoln, all of whom grounded vigorous assertions of executive power on the Constitution’s actual words, especially the vesting clause (“The executive Power shall be vested in a President”), the presidential oath (to “preserve, protect and defend the Constitution”), the commander-in chief power, and the duty to “take Care that the Laws be faithfully executed.”
Instead, Jefferson wrote a handful of letters, most not intended for public consumption, in which, following John Locke’s defense of “executive prerogative” in the Second Treatise of Government, he defended the need for executives sometimes to act outside the law for the public good. Jefferson elaborated his position most fully while in retirement in an 1810 letter to John Colvin. “A strict observance of the written laws,” wrote Jefferson,
is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.
Although this formulation ties prerogative tightly to self-preservation, later in the letter Jefferson argued the propriety of a president purchasing Florida from the Spanish, in some circumstances without Congress’s prior approval. As Bailey notes, “[t]he hypothetical presents wider latitude for executive prerogative” than examples of self-preservation in wartime. Here Jefferson seemingly embraces Locke’s broader defense of prerogative, which ties executive discretion not simply to self-preservation but to “the public good.”
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As Bailey shows, Jefferson’s defense of prerogative was closely connected to his doctrine of strict construction of the Constitution. As Jefferson wrote to a senator during congressional debate on the Louisiana Purchase, “Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction.” Yet the more narrowly one interprets or defines the powers of government, especially the executive powers, the more often it will be necessary for executive officials to go beyond the letter of the law to meet necessity or promote the public good.
In The Federalist, Alexander Hamilton had rejected such an approach because of its dangers to constitutional government. “The circumstances that endanger the safety of nations are infinite,” he wrote, “and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” Later, after detailing how the ancient Spartans used a subterfuge to twice vest the powers of command in their best admiral in violation of Spartan law, Hamilton concluded:
Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.
For Hamilton, the Jeffersonian prescription is the more dangerous one because it too often severs executive power from law, thereby undermining reverence for the Constitution and ultimately encouraging unjustified breaches of the fundamental law. Perhaps even Jefferson understood this at some level, for he never argued his case for prerogative publicly. Indeed, his view never caught on as a public doctrine in American politics, despite its rediscovery by scholars in recent decades. Instead, we expect our presidents to make a constitutional case for their actions, and they have lawyers aplenty to help them do so. When they make their constitutional case, they expose themselves to contrary interpretations from the other branches, the bar, the academy, and ultimately the people.
Though well written, Thomas Jefferson and Executive Power is not an easy read. There is much going on here and much to learn. It requires close attention throughout to plumb the subtleties of Jefferson’s words and actions and to fully appreciate Bailey’s sensitive and nuanced interpretation. Readers will find it well worth the effort.