Welcome back to our tour of America's Unwritten Constitution. One of the reasons we kind of need an unwritten constitution to supplement the, the terse text of the written constitution is that there are places where this document, really important places, where the text kind of gives out very quickly. The Ninth Amendment signals that there are these unenumerated rights. Unspecified, they are not textualized. And the Fourteenth Amendment privileges or immunities clause echoes that idea that there are these rights But then neither the Ninth nor the Fourteenth tells us exactly where to find them and how to find them. So we've got to in order to, to do a justice to text we, we have to take the idea of unenumerated rights seriously. But we're going to have to go outside the texts to to find those rights. I suggested one easy way is to go look at actual lived customs and practices of ordinary Americans. To find the privileges and immunities of citizens in actual citizen practices. To find the rights of the people in how the people actually lived their lives. Now here's another patch of text that, where the words give out very quickly, and don't really give us enough guidance. It's Article Two of this document. The article about the executive branch, about the presidency in particular. It's very terse. And there are lots of things that presidents do today and have always done that don't really seem to be itemized in this, this text. [COUGH] Excuse me. The, the language of Article One, about Congress, specifies all sorts of powers that the Congress has. It's a sort of a long laundry list and, and Article Three identifies for federal courts the, the different cases over which the, and controversies, over which the court is supp-, the courts, the federal courts, are supposed to have judicial power, have jurisdiction. Article Two contains a list of certain executive functions. But executives have always really done more than on that list. Now there's a way you can read actual practice, unwritten practice so to speak, our, our traditions to cohere with the text. And that's by reading the first sentence of Article Two as a kind of residual catchall. Okay, there's some more powers above and beyond the things that are itemized. Here's the first sentence. The executive power shall be vested in the President of the United States of America. So the idea is there is this kind of free floating executive power that goes beyond some of the specific itemized things, Commander in Chief, pardon power take care that the laws be faithfully executed give the State of the Union address, and so on. There's these specific items and then there's this overall residual, catchall oh, and you're generally vested with the executive power of the United States. But the question is well, why were they so, unspecific about what that executive power should mean, does mean, and should mean. And how are we supposed to go about figuring out what a president properly does and properly does not, does do and properly does not do? to, to discharge this executive power of the United States. So why are they so vague and what's a president supposed to do today? And I think the answer to both of these questions is a quite simple one. The answer is George Washington. So, why didn't they specify more specifically in, in the Constitution all the the obligations and duties and powers of the president. I think there are two or three reasons. First they didn't have lots of clear historical models for the presidency that they were imagining. They wanted, 225 years ago, they wanted a president to be much more powerful than a typical state governor most of whom didn't even have a veto power. They, most of whom were not independently elected men of whom were going to command a continental armed force structure. None of whom had four year terms perpetually re-eligible. They wanted the, the, their chief executive to be much more powerful than the puny governors that typically existed at the time. Governors today are a lot stronger. They've been reinvented in the image of the presidency over the years. They wanted the president to be stronger than a governor, but obviously much weaker than George the Third. They didn't want to create a tyrant. But there's such a vast difference between royal executive power in the United Kingdom in Great Britain and state executive power at the state level. Sort of exactly where in between, you know, they had difficulty specifying precisely because they didn't have any clear historical model. So that's one problem that they had. Now here is a second problem that they had. The executive just has to do a lot of stuff and lot of varied stuff. It's not so easy to come up with a comprehensive job description. Let me just identify, and then here I'm just going to just read uh.uh for a very short bit, Here, basically, this is what Congress does. The legislature has actually just a few basic items that it, it needs to do. It has to pass laws, authorize expenditures, organize itself you know, as a, as a legislative body and police its own membership, sort of decide who's going to sit in Congress and how Congress is going to, sort of, operate procedurally. So, pass laws, authorize expenditures, organize itself, police its own membership and oversee the other branches via investigations and impeachments. So, that's a pretty limited set of job descriptions job functions for the, for the Congress. Here's what judges do. They decide cases under law and they monitor subordinates within the judicial branch. They keep an eye on their law clerks, or higher judges on higher courts monitor judges on inferior courts. So, pretty simple job descriptions for the legislature, and for the judiciary. Now this is just a partial list of the wide range of multifarious tasks that, that, that presidents undertake. They promulgate rules between the lines much like a legislature, regulations, administrative regulations. They find facts, construe laws, and apply laws to facts in the first instance, much like judges. The laws say a certain thing, we don't have a court case yet, the executive has to figure out what the law means, what the facts of the world are, apply the laws of the facts, at least in the first instance, until someone say comes to court and says no you've gotten it wrong. So they have to kind of act like mini legislatures because sometimes the laws are unclear and in between in the gaps in the laws they have some regulations. They have to kind of be a little bit like mini legislatures, a little bit like first cut judges, sort of in the first instance, trying to figure out what the law means and apply it. But they do so much more than just that. They officially presents, officially propose new legislation. They define national reform agendas. They participate in the passage of federal statutes through the veto power. They pick federal judges. They directly communicate and coordinate action with state governments. They stand atop a vast bureaucratic pyramid filling and sometimes thinning the ranks of federal executive officialdom. They collect revenues and disperse funds. They manage federal properties. They file and defend lawsuits on behalf of the nation. They prevent, investigate, and prosecute civil and criminal misconduct. They ponder mercy for miscreants, the pardon power. They command armed forces in both war and peace. They respond to large scale disasters and crises. They direct diplomacy and international espionage, and they personify America on the international stage. And that's not even the entirety of what they do. That's just, you know, some of the things that, that capture the, the historical facts of the matter about what presidents do today and pretty much have always done from the beginning. Even today, very sophisticated lawyers and judges often define executive power residually saying, well executive power is anything that's not legislative or judicial. Executive is kind of what's leftover. Or maybe put it another way. One of the main functions of the president is to, to just kind of keep the system afloat. To do whatever needs to be done. When there are unique opportunities or unique crises. He's maybe the only guy in session. Remember that Congress goes in and out of session. The president, one person selected by the whole nation, on the job 24/7/365, do at least temporarily what needs to be done to respond to the exigencies of, of affairs. Just stuff happens. Good stuff and bad stuff. And the president is there to, to keep the, the he's the officer on deck. He's the guy there to keep the system running. And it's not so easy to specify in advance all of the things that he might not, he might need to do. So one thing I said is the founders didn't have a clear model of they wanted more a president to be more than a governor and less than a king. And secondly, it's hard even today to specify all the things that a proper president does. And third and here is now the point coming to George Washington. If they tried to be too specific at the founding, they might come up with a job description that didn't quite fit the person that they wanted to be the first president. Everyone wants Washington to be the president. They designed it for him and the precisely, they, they, they in effect, the, the Constitution is a play written around the leading man. There, there, there, he's the guy that has to be there and, and if they're too specific about the presidency, it actually, the, the their, their potential specificity sort of might not sort of fit his persona. So they actually under-textualize Article Two with the knowledge and the expectation that he'll be the first president, he'll establish all sort of precedents and principles, he'll define by his very conduct and action what a proper president does. So, in effect, Article Two, although it's not written, but it's best read I think, it's most sensibly read because otherwise the, the, the textual lack of specificity seems really hard to understand. But I think it's, it's best read as a kind of implicit delegation. Implicit, unwritten delegation to George Washington to basically make concrete and specific the rather vague job description that the text gestures towards. In effect, the Constitution is a two act a kind of, of, of, of, of play or performance. First the script is adopted by the American people and then actually the actors sort of appear and they act it out. They, they embody it and George Washington, he is the leading man. And he strides on stage and he gives three dimensions to the presidency which is only sketched out in a two-dimensional way on this piece of paper. And they are expecting that. They are drafting article two with George Washington in mind. Every single elector votes for George Washington. Remember he's the presiding officer both in 1789 and then again in 1792 when he stands for reelection. He doesn't run, he stands. They come to him he doesn't campaign or do anything either time. He was, remember, the presiding officer at the Philadelphia Convention. In fact they probably came up with the word president because he was the president of the convention. And so they called the chief executive a president, not a governor, because they had gotten used at Philadelphia to calling him Mr. President. The fact that he's supporting it along with the fact that Ben Franklin is supporting it is probably decisive for many people in the ratification process. If it's good enough for Washington and Franklin, it's good enough for us. Why is he, far and away the indespensible man, the preeminant man of the American Revolution? Well because that we, he's, we talked way back when about the geo-strategic situation and how the Constitution is a national security document, he is a general who can beat the British and did. He can protect us against the British, and he won't threaten us. And we know he won't threaten us because he had an army at his command, the only army on the continent, and he disbanded it when he could have made himself king or czar or emperor and he didn't. He gave up the army and went back to his farm as promised. Americans insisted that. So you can trust him because he's strong enough to go up against George the Third without becoming another George the Third. And he's from Virginia which is sort the, the middle of the union. It's the strong, it's the biggest state, the most populous. Probably the wealthiest at the time, and includes what's now Kentucky and West Virginia. There are folks to the north. There are folks to the south. It's kind of a central spot. And remember slavery gives it a certain strength to both politically and economically but also legally through the three fifths clause. So, remember also you can trust wash, and all your, almost all your early presidents are Virginians. Thirty-two of the first 36 years the presidency is occupied by a Virginian. So, Washington, he's a military figure, he's a general understands diplomacy and the world stage. He's from the big state in the middle and he has no sons of his own who will want to succeed him. You can trust him. He's not going to create a throne. So, it's over and determined. It's going to be Washington. He's the guy we trust for a whole bunch of reasons. He's not going to try to found a dynasty. He's he's the person that we want and we are drafting Article Two, and in fact the entire constitution, around George Washington. So we don't want to get so specific here when it comes to the presidency that Washington's going to say, forget it I can't do that. So it's drafted loosely with the idea that Washington will come in and establish by his actions the, the, the dos and donts for the presidency. So here's basically the point that I'm making, because I said I was going to answer two questions. Why is Article Two so nonspecific and what is a president today to do? And like I said my answer to both of those was George Washington. The reason they drafted it so loosely is they were drafting it for Washington. And they wanted to have some sort of give in, in the garment that they were, they were drafting for him. So it would fit him, they wanted it not to be too tight and pinch. Then he'd, he'd adjust it as the first president. And so that's why it was drafted loosely because of Wash, they were expecting Washington to concretize it. And what is a president to do today? The president is to do what George Washington did. To follow George Washington's example on issue after issue today. Executive power is an exercise not based on what the text says but on what George Washington did. So presidents ask themselves, in the same way that Christian might ask himself, what would Jesus do? Presidents probably ask themselves, what would George Washington do? What did George Washington do? Because the things that George Washington did, I'm claiming, count for more in our actual constitutional system, unwritten as well as written, count for more than the text. Because the text actually doesn't specify much. Let me give you two examples in this lecture and then I'll give you some more background in the next lecture. So today let's talk about foreign affairs, just for a minute. Because there isn't textually, in Article Two, a clear embodiment of the foreign affairs power of the president. where, for example, does the president get the right to recognize a foreign government? Remember that Jimmy Carter, at a certain point, recognizes the People's Republic of China as the legitimate government of China. In fact severs our diplomatic relations with Taiwan with, who had been a treaty partner before that and had before that been recognized by, as by the United States as the, the lawful government of China. So where does it say that Jimmy Carter unilaterally can in fact abrogate our treaty with Taiwan and recognize the People's Republic of China? The answer is the text isn't so clear on that. You could try to tease it out of a clause that says the present has the power to receive ambassadors. And to receive an ambassador you have to decide on who's an ambassador in the first place. Then you have to decide which regime is really the regime you recognize. But, boy, the text is not at all clear about that. The Federalist Papers do not defend this as a great presidential power. They say, oh, it's just a matter of courtesy and etiquette. You gotta, the ambassador when he arrives in the United States has to present his credentials to someone and maybe the president is the only one around. Congress might not be in session. So, it's just the ceremonial etiquette, politeness thing. That's how the Federalist Papers describes this power to the American people during the ratification process. That's not what we have today. We have a much bigger, powerful presidential recognition power. President Obama gets to decide at what point we no longer rep, we in the United States, no longer recognizes the Libyan Gaddafi regime and instead we recognize the Libyan rebels as the lawful government of Libya. At what point we no longer recognize the Syrian government of, of Assad and instead we recognize some, some government or some governments in exile. Presidents make those decisions. And the text doesn't say so clearly, but here's what you do need to know. Washington made that decision. Early in his presidency we have the French Revolution and America had made all these treaties with the King of England, you know, who had, had bankrolled the American Revolution. But now the king is basically out. He's been deposed. The French revolutionaries are in place. And at what point are we going to say, actually, the French revolutionaries, they are the government of France. They are entitled to all the rights of the French government under this pre-existing treaty that we made with Louis, by the way, not with the French revolutionaries. Washington makes that call. He makes it unilaterally, Congress isn't quite in session. So he's the one who decides that, and thereby establishes the recog, what we call the recognition power. Which you won't quite see in the text of the Constitution, but I promise you, is accepted by everyone today. Left, right, and center, judges from all parts of the spectrum, politicians from all parts of the spectrum. And it's unwritten, it's because of what George did, not because of what the text says. Let's think about a related matter of foreign affairs. Where does the text say that presidents can send secret envoys to, to negotiate, or to talk with, with foreign leaders? The text doesn't without getting the Senate's approval and in fact without even telling the Senate. Because remember the Senate is a treaty partner. According to the text treaties have to be ultimately ratified by the Senate. And yet presidents have one their own sent secret envoys and done secret negotiations. And then only afterwards brought the results of those negotiations to the Senate. So for example I mentioned Jimmy Carter and recognizing the Chinese government. That built on earlier presidential actions by Richard Nixon who sent a secret envoy, Henry Kissinger, to China at a time when we didn't actually have formal diplomatic relations with them. now, what was Nixon doing? Nixon was merely echoing what George Washington did. Early on he sent a secret envoy to Great Britain to feel them out at the time when they didn't have formal the kind of formal diplomatic relations quite what we wanted with them. We had the Treaty of Peace, but not really fully cordial relations. So Washington sends a secret envoy first Gouverneur Morris, without getting the Senate's pre-clearance on all that. He negotiates a treaty. And then only with secret provisions. Without getting the Senate's pre-approval sends John Jay to do that. And only then presents the treaty for the Senate's approval. He, he, had done the same thing with some Indian tribes, done some secret negotiations and then gotten the Senate to agree afterwards. Remember Thomas Jefferson will build very famously on this. Napoleon at a certain point lets it be known that he might be willing to sell all of the what we call the Louisiana Territory from New Orleans up to Minnesota and Congress isn't in session. Jefferson through his diplomats James Monroe and, and others, seizes the deal. He unilaterally negotiates the Louisiana Purchase without getting the Senate's pre-approval and then gets the Senate to ratify and the House to fund the whole thing. So, presidents today have the power to recognize foreign governments, to send secret envoys without Senate pre-approval or even foreknowledge. To negotiate treaties without Senate pre-approval or even foreknowledge. And they have all of these things, these powers, not because the text clearly says so. Because it doesn't clearly say so. Not because the American people clearly understood that in the process of ratification. Not so clear that they understood the recognition power, for example. Presidents have these powers because there's an unwritten constitution whose most important aspect on presidential power is not what the text says but what George Washington did. And in our next set of lectures I'll give you a few more examples of this basic fact about America's Constitution. Stay tuned. [MUSIC]
