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The Forgotten Presidents: Their Untold Constitutional Legacy$

Michael J. Gerhardt

Print publication date: 2013

Print ISBN-13: 9780199967797

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199967797.001.0001

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(p.xi) Introduction

(p.xi) Introduction

Source:
The Forgotten Presidents: Their Untold Constitutional Legacy
Publisher:
Oxford University Press

Faced with one of the worst economic downturns in American history, the nation turned to the new president for leadership. As a senator, he had left little mark and seemed to have studiously avoided controversy, but hopes were high. The president’s fellow Democrats quickly rallied to his side, while opposition leaders vowed to do everything they could to ensure that he was a one-term president. To the surprise of many, he promised bold, radical reform. His plan divided Americans and encountered stiff resistance in Congress. But, by a largely party-line vote, Congress eventually approved it. Furor over the plan intensified, as its fate became a major issue in the midterm elections. The president’s critics denounced him as elitist and arrogant and his plan as extreme, unprecedented, dangerous, despotic, un-American, and plainly unconstitutional. While one might have expected the conservative Supreme Court to strike the plan down, it did not. Throughout his bid for reelection, his opponents railed against the radicalness of his plan, which they vowed to repeal.

Someone reading this description might think that the new president was Barack Obama, though it best fits Martin Van Buren. As the second Democrat elected president, Van Buren entered office in the midst of the nation’s first great depression. His bold plan required reorganizing federal depositories and opposing the production of paper money. He based the plan on his conviction that the federal government had very limited authority to address a national economic crisis and had the power to coin money only in the form of gold or silver. But his plan did little to ease the nation’s economic woes, and Van Buren became the first president to lose reelection because of the economy. Subsequently, every president, including the next four Democratic presidents who entered office in the midst of economic crises—Grover Cleveland, Franklin Roosevelt, Bill Clinton, and Barack Obama—understood that, as an adviser to Clinton famously said, “It’s the economy, stupid.” Each (p.xii) avoided Van Buren’s example and read the Constitution as investing the national government with sufficient flexibility to address economic—and other national—crises.

In the more than a century after Van Buren’s death, Americans have often forgotten that the Supreme Court is not the only institution that routinely grapples with constitutional questions and that the crises the nation confronts are rarely unprecedented. Harry Truman’s observation that “the only surprises are the history we do not know” applies to a wide swath of constitutional activity, including the constitutional impact of Van Buren and many other presidents whom we have largely forgotten.

This book tells the stories of Van Buren and these other presidents. Their stories enrich our understanding of the relationship between the presidency and the Constitution. Most importantly, they show that the Constitution really matters. While many social scientists do not believe that the Constitution constrains courts or elected officials, forgotten presidents’ stories illustrate how, by constitutional design, the office of the presidency draws its occupants into performing the role of president and asserting presidential prerogatives, often at the expense of the political support needed to maintain power. For instance, all four Whig presidents, who had pledged as candidates to weaken the presidency and secure congressional supremacy over domestic policymaking, actually fortified presidential prerogatives and buried their party’s governance principles—and ultimately their party.

The stories of forgotten presidents illustrate how presidential power expands over time because the presidency’s unique capacity for flexibility, determination, efficiency, and energy works to its advantages in protracted contests with other branches and the states. Forgotten presidents’ tales dispel the popular myth that nineteenth-century presidents except for Jackson and Lincoln were weak or ineffective. The opposite is true: In the nineteenth century, forgotten presidents’ strong assertions of their prerogatives provoked bold, often overwhelming political opposition. Forgotten nineteenth-century presidents lost power partly because their strong constitutional commitments alienated critical constituencies they needed to maintain power, often cost them reelection, placed them frequently on the losing side of history, and branded them as failures unworthy of study in constitutional law.

The stories of forgotten presidencies expand upon the insights of a group of social scientists known as historical institutionalists, including Stephen Skowronek, who analyzed how presidents have shaped and been shaped by the presidency.1 In “assess[ing] presidents as agents of change,” Skowronek (p.xiii) examined “the different premises which presidents bring to the challenge of orchestrating political change, [the] capacity of the American presidency to deliver on these different premises, and [the] systemic political effects of presidential efforts to do so.”2 Skowronek developed a typology for understanding presidential leadership in light of “political time” or “the historical range of political possibilities for presidential leadership.”3 My focus is on the constitutional impact of certain presidents, who can best be understood in light of how they adapted (or did not adapt well enough) to the Constitution’s demands, their office, and the peculiar legal, historical, cultural, and economic challenges of their times.

Forgotten presidents’ stories dispel another popular misconception that constitutional change primarily results from the actions of the Supreme Court or a few great leaders. Constitutional scholar Bruce Ackerman constructed one such theory positing that constitutional law developed at special times called “constitutional moments,” during which the leaders of the federal government’s three branches interacted with each other and the American people to alter constitutional law in enduring ways.4 Ackerman identified three such moments—the founding, Reconstruction, and the New Deal. He told the story of American constitutional law from the vantage point of its vistas, but the forgotten presidents’ stories show that what is happening on the ground is essential for connecting the terrain and ensuring constitutional understandings and practices gain traction. They endure because of the commitments of national leaders working in conjunction with the American people over time, including forgotten presidents. Constitutional construction develops incrementally through collective, coordinated action, including national leaders interacting with each other and the public, to reinforce, revise, or extend constitutional judgments. Constitutional law develops through a series of commitments over time—not in a day.

This development is similar to common law made by courts. Like common law, the powers of the presidency have developed incrementally, one decision at a time, and depend on precedent made by presidents, not courts. Yet not everything presidents do counts as precedent. To be precedents, constitutional judgments must be discoverable, that is, they are past actions or judgments that subsequent authorities have invested with special normative force or power. The development of presidential power differs, however, from judge-made common law in that presidents do not issue judgments as courts do in the form of elaborate, self-identified opinions. Presidential judgments take many forms (often difficult to find); and because presidents are elected and subject to political reprisals, they are not bound by the evidentiary and (p.xiv) procedural rules required by courts. Their judgments may be expressed informally and sometimes with little thought or input from others.

Obviously, this book relies on the premise that some presidents are forgotten. It focuses primarily not on why some presidents are forgotten but rather why forgotten presidents are worth studying in constitutional law. There are many ways to measure which presidents are “forgotten,” such as the numbers of schools or streets named in their honor, their papers’ economic value, the sales of presidential biographies and memoirs, or how often their names appear in constitutional law textbooks. After finding many of these measures are unworkable because their relevance is dubious or cannot be precisely determined, I developed a quantitative analysis to inform my determination of the forgotten presidents in constitutional law. This analysis measured (1) how often presidents are mentioned in the most popular American history textbooks used in middle and high schools; (2) how long ago presidents served; (3) biographies and other books about particular presidencies in the nation’s largest university libraries; (4) presidential personalities based on their creativity and charisma; (5) rhetorical impact; (6) experts’ rankings; and (7) presidential libraries. In the appendix, I explain in detail each of these factors and my quantitative analysis.

These factors are all pertinent to public familiarity with presidents’ constitutional legacies. For instance, popular history textbooks and books about presidents in major university libraries reflect priorities in academic and popular research and education that are likely to shape the attitudes and knowledge that educated people have about presidencies.

Besides the empirical analysis described in the appendix, I employed some qualitative measures. First, I recognized that while the objective assessments of presidential scholars indicate some presidents did not accomplish much along standard lines of interest (such as handling wars or crises), their actions teach lessons that still resonate today. Second, I analyzed presidential rhetoric beyond quantitative measures. I assessed the quality of presidents’ constitutional discourse based on its clarity, coherence, appeal, and influence over time. Quality, not just quantity, counts. In his Gettysburg Address, President Lincoln ironically declared, “The world will little note, nor long remember what we say here.”5 As we know, he was wrong. In fact, the world remembers Lincoln more than most other presidents partly because of the extraordinary eloquence of this speech. Even though many forgotten presidents gave longer speeches than Lincoln did in his less-than-270-word masterpiece at Gettysburg, none of their speeches matched the forcefulness or lyricism of his rhetoric. Subsequent generations have found more to admire in Lincoln than in the rhetoric or actions of most other presidents.

(p.xv) Using my criteria, I identify thirteen presidents as largely forgotten in constitutional law. This figure is remarkable, since it suggests we may have forgotten, insofar as constitutional law is concerned, almost 25 percent of the forty-three different men who have been president. While it may seem odd that Americans have forgotten so many people who occupied the most powerful office in the world, the list could be longer. The thirteen presidents whose stories I tell are representative of forgotten presidents. I devote a chapter each to Martin Van Buren, William Henry Harrison, John Tyler, Zachary Taylor, Millard Fillmore, Franklin Pierce, Chester Arthur, Grover Cleveland (twice), Benjamin Harrison, William Howard Taft, Calvin Coolidge, and Jimmy Carter. Each chapter focuses on a forgotten president’s most significant constitutional judgments and consequences.

The conclusion reviews the themes connecting forgotten presidents. One of the most important is that presidents cannot wage war on the presidency. It has shaped and been shaped by them. They have adapted their constitutional convictions to comport with the Constitution and their office, and they have battled with Congress to protect their prerogatives. But forgotten presidents demonstrate the risks of entering office with unrealistic or untested notions of executive power and without the flexibility and imagination to adapt creatively and constructively to unforeseen crises. Forgotten presidents may differ from memorable ones, at least in part, because of their overabundance of caution and lack of imagination in pushing the boundaries of executive powers. Generally, more inventive, daring exercises of power, particularly when they have produced positive, politically popular outcomes, have drawn attention away from less creative, anachronistic, unimaginative exercises of presidential authority.

Being forgotten does not turn merely on the range or number of a president’s constitutional activities. Some presidents are forgotten in part because they lost control of their narratives and had them tossed aside or left to the dictates of indifferent or hostile storytellers. Moreover, public familiarity with their stories depends on other factors, some of which are beyond presidents’ control: Forgotten presidents often seem to have been leaders who failed to complete their terms or to face or solve memorable crises, were overshadowed by more charismatic or colorful leaders or dramatic events before or after their presidencies (indeed, nineteenth-century forgotten presidents often appeared in the background or margins, rather than at the center, of the political cartoons lampooning them), had limited rhetorical skills, and failed to capture the public’s imagination during and after their presidencies. Forgotten presidents have not cultivated or maintained enduring popular support or adulation, (p.xvi) inspired the investment of subsequent leaders, or championed constitutional commitments consistent with the American people’s evolving values.

A few remaining clarifications are in order. First, some readers may wonder why focus on forgotten presidents? Why not write about presidential power generally and discuss forgotten presidents to the extent of their relevance? The focus on forgotten presidents is useful for several reasons. To begin with, I tell the stories of forgotten presidents to preserve them. Otherwise, their stories are lost, because conventional narratives on the rise of presidential power overwhelmingly pay attention to the more successful, popular, charismatic, creative chief executives. Focusing on forgotten presidents underscores how presidential power develops and continues to expand even at unexpected times. The stories of these presidents also remind us, as I have suggested, of how the Constitution constrains, or channels, its occupants into performing various tasks. These presidents often sacrificed political support for the sake of doing what they believed their office or the Constitution demanded of them.

The second, important clarification is that the proliferation of news outlets and archives makes forgetting presidents increasingly difficult. The Internet, the twenty-four-hour news cycle, smart phones, Wikipedia, systematic archiving, and standardizing presidential libraries ensure posterity will have ample records for future presidents, though the challenge will be clarifying their constitutional legacies. It is conceivable the proliferation of information about presidents might actually make it more difficult for them to control their narratives.

Third, I employ throughout the book an expansive view of the Constitution. On my view, anything counts as constitutional if it has some constitutional impact or is informed by or reflects constitutional attitudes. Thus, I treat as constitutional a wide range of presidential decisions, including White House staffing and executive branch reorganization, pardons, vetoes, and support of, or opposition to, important pieces of legislation and suggested constitutional amendments, to the extent that they have had discernible constitutional consequences or reflect, reinforce, undermine, or are driven by particular constitutional outlooks, philosophies, or modes of interpretation.

Fourth, being forgotten is relative. The term “legacy” refers to presidential actions that meant something important to subsequent leaders and generations, while “significance” conveys the normative force that subsequent authorities have invested in some prior action(s).

My purpose is not, however, to rate presidents or analyze the vast academic literature on the presidency. Rather, I seek to illuminate interesting but (p.xvii) underappreciated patterns in presidential decision-making that have shaped various constitutional developments, including the increase in federal power at the expense of states, the constant growth of presidential power, and the persistent efforts of Congress to maintain equilibrium of power with the presidency. Throughout, I pay attention to primary materials and the consequences of various decisions and occasional incompleteness of historical records.

Nevertheless, some readers may quarrel with my choices of which presidents I deem forgotten. I excluded other, arguably deserving presidents because constitutional scholars evidently pay more attention to them—James Monroe because he was the last of the Virginia dynasty of presidents and gave name to America’s long-standing promise to regard any European interference with the independence of existing states in North or South America as an act of hostility against the United States; James Buchanan because he rates among the worst presidents—if not as the worst—and set the stage for Lincoln’s presidency; Rutherford Hayes because he won the controversial 1876 presidential election and dismantled Reconstruction; James Garfield and William McKinley because of their tragic deaths and lost promise; John Quincy Adams because of his involvement with the controversial 1824 election and his having been the first son of a president to win the presidency in his own right; James Polk because of his leadership in realizing the nation’s manifest destiny and winning the Mexican War that secured Texas and set a precedent for a preemptive war to protect American interests; Warren Harding because of the unprecedented extent of his administration’s corruption; and Gerald Ford because the story of Watergate cannot be told without him. While there is much to learn from these presidents’ constitutional activities, this book focuses on thirteen other presidents to demonstrate what can happen when we include them in the conversation over constitutional law.

I further appreciate that telling these presidents’ stories chronologically is hardly the only way to illustrate their constitutional impact. At the end of this introduction, I have therefore assembled a table showing in which chapters and on which page(s) I discuss various recurring subjects.

Finally, some readers may believe that characterizing presidents as forgotten is impossible or makes no sense. They may dispute that some presidents are really forgotten or that we can learn anything useful or meaningful from them. If you think this, you should consider which presidents significantly influenced Lincoln’s thinking about the scope of presidential powers to preserve the Union. If you know the answer, I commend you. If you do not, read on. (p.xviii) (p.xix) (p.xx) (p.xxi)

Table I.1 Table of Recurrent Themes

Appointments

Congressional Powers

Constitutional Interpretation

Federalism, State Sovereignty

Foreign Affairs

Misconduct

Judicial Review

Presidential Administration, Powers

Rights

Slavery

Territories

Martin Van Buren

14, 19, 20

6, 7, 8, 9, 12, 15, 16, 18, 21

5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18

3, 4, 5, 6, 8, 9, 11, 12, 15

13, 14, 16, 17

19, 20

4, 7, 9, 14, 21, 22, 23

3, 4, 7, 10, 13, 14, 15, 16, 17, 18, 19

20,

3, 4, 11, 12, 13, 14, 15

23

William Henry Harrison

26, 28, 29, 31, 32, 33

26, 30

26,

25, 62

26, 30, 32, 34

John Tyler

48, 49, 50, 58, 59, 60, 62

38, 44, 45, 46, 47, 50, 53, 55, 56, 57, 60

38, 44, 45, 46, 50, 52, 53, 57, 64, 65, 66

38, 44, 62

40, 61, 62, 63, 64

42, 53

39

38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 57, 61, 66

63

63, 64

Zachary Taylor

73, 74

68, 76, 77

72, 73, 74

74, 77

67, 69, 71, 72, 73

78

69, 70, 71, 78

69, 70, 71, 78

Millard Fillmore

89, 90

83, 84, 86, 88

82, 83, 84, 85, 86, 88, 89, 90

83, 85, 88, 92

92

90

82, 83, 84, 85, 86, 89, 90, 91, 92

85

82, 83, 84, 85, 86, 87, 88, 89, 91

82, 83

Franklin Pierce

99, 100, 110

99

96, 97, 98, 99, 104, 105, 106, 108

97, 98, 106

101, 102

99, 103, 109

96, 98, 99, 100, 102, 103, 104, 107, 110, 112

99

96, 97, 98, 103, 104, 105, 106, 107, 109, 110, 111, 112

104, 105, 106, 110

Chester Arthur

116, 117, 118, 119, 120, 123

116, 117, 122, 123, 124, 125, 126

116, 120, 122, 123, 125, 126

113, 117, 118

125

113, 115, 116, 117, 118, 120, 122, 123, 124, 125

115, 116

124

Grover Cleveland

133, 134, 135, 136, 137, 138, 139, 140

128, 129, 130, 131, 132, 133, 135, 136, 137, 138

128, 129, 130, 132, 133, 135, 137

129

160

134, 139

129, 140

127, 128, 129, 130, 131, 132, 133, 135, 136, 137, 138

140

Benjamin Harrison

141, 142, 143, 144, 145, 149, 150, 151, 154

146, 147, 148, 151, 152

145, 152, 153, 154

147, 148, 149, 151, 152, 153, 154

141, 142, 143, 146, 152, 153, 154

152

Grover Cleveland

155, 156, 157, 167, 168, 169

155, 156, 157, 158, 160, 161, 163

155, 156, 157, 158, 163, 164, 165, 169, 170

163, 164, 165

155, 159, 160, 161, 162, 163

158, 164, 165, 166, 169, 170

155, 156, 157, 158, 160, 161, 163, 164, 165, 166, 167, 169, 170

170

160, 161, 16

William Howard Taft

171, 172, 176, 184, 185, 186, 189

171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 182, 186, 187, 188, 189

171, 172, 173, 174, 177, 178, 179, 180, 182, 185, 186, 187, 188

187

186, 187, 188, 189

171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 189

182, 185, 186

Calvin Coolidge

191, 196, 198, 199, 205, 206

192, 193, 195, 199, 200, 201, 202, 203, 204, 206, 207, 208, 209, 210, 211, 212, 213, 214

191, 192, 193, 194, 195, 199, 200, 201, 202, 204, 208, 209, 210, 211, 212, 213, 214

193, 194

191, 212, 213, 214, 215

196, 197, 198, 199, 200, 201, 202, 203, 204

199, 201, 202, 203, 208

191, 192, 193, 195, 196, 197, 200, 201, 202, 206, 207, 208, 209, 210, 213, 214

192, 193

Jimmy Carter

217, 219, 220, 221, 223, 224, 225, 226

223, 231, 233, 234

218, 221, 231, 232, 233, 234, 235, 236

234

218, 220, 228, 229, 230, 231

232, 233, 234

224, 229, 232, 233, 235, 236, 237

218, 219, 220, 221, 222, 223, 224, 228, 230, 231, 232, 233, 234, 236, 237, 239

218, 235, 236, 237, 239

Note: This table lists major recurring themes in the book. A detailed index is at the back of the book.

(p.xxii)

Notes:

(1.) Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (Cambridge: Belknap Press of Harvard University Press, 1997).

(2.) Id. at xi.

(3.) Stephen Skowronek, Presidential Leadership in Political Time: Reprise and Reappraisal vi (2nd ed., Lawrence: University Press of Kansas, 2011).

(4.) See, e.g., 2 Bruce A. Ackerman, We the People: Transformations (Cambridge: Belknap Press of Harvard University Press, 1998).

(5.) Abraham Lincoln, the Gettysburg Address, November 19, 1863.