THE INAUGURAL ADDRESS AS CONSTITUTIONAL
STATESMANSHIP
J. Richard Broughton*
I.
INTRODUCTION
When President Obama delivered his inaugural address on January
20, 2009, he focused on what he described as the dark but recoverable
state of the union.'
He lamented the Nation's difficult economic
conditions but, using the collective "we" and reiterating popular themes
of his successful presidential campaign, expressed faith in America's
promise and the Nation's capacity to overcome the current challenges"[o]n this day, we gather because we have chosen hope over fear, unity
of purpose over conflict and discord.", 2 He emphasized the "indicators
of crisis" and the "sapping of confidence across our land," and noted,
"[t]he state of our economy calls for action, bold and swift," promising
job creation, new infrastructure, lower health care costs, the restoration
of science "to its rightful place," and an end to failing programs and poor
management.3 He further trumpeted America's opposition to both
global terrorism and to official corruption, and promised aid for the
impoverished around the globe.4 He also called upon a uniquely
American spirit that would help to achieve these goals, invoking
founding principles and a fortitude to match the "winter of our
hardship." 5 Unlike many other Presidents, however, President Obama
failed to discuss one especially notable feature of American government:
the Constitution.
* Visiting Professor of Law, University of Detroit Mercy School of Law. I am
grateful to David Marion, Richard Albert, and Paul Horwitz for their helpful comments. I
thank Wendy and Blair for their support.
1. Barak Obama, Inaugural Address (Jan. 20, 2009), in The Address: "All This We
Will Do, " N.Y. TIMEs, Jan. 21, 2009, at P2.
2. Id.
3. Id.
4. Id.
5.
Obama, supranote 1.
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The omission is not his alone among recent occupants of the
presidential office. Modem Presidents, like their early predecessors,
have employed the inaugural address to state the present conditions of
American life; to highlight important social, political, and economic
challenges; and perhaps most importantly, to announce their views on
issues of public policy to which they intend to devote their
administrations. 6 Unlike the early Presidents, modem chief executives
have not, despite the constitutional significance of the oath they took
only moments earlier, taken the opportunity in their addresses to
articulate or reflect upon their understanding of the nature and scope of
constitutional powers. They have not reflected meaningfully upon
executive power, the executive's constitutional relationship to the
Congress, the extent of permissible judicial intervention in political
disputes, or important constitutional rights that they intend to promote or
defend that legislative action could jeopardize. Until the twentieth
century, Presidents regularly used the inaugural address to reflect on the
formalities of the constitutional order, to promise adherence to
constitutional forms, and even to offer their interpretations of important
constitutional issues.7
Scholars of the American executive have not overlooked the
relationship, or the absence of one, between presidential
communications and constitutionalism. Jeffrey Tulis's ground-breaking
work in political science on what he called "The Rhetorical Presidency"
directly confronts the problem of a presidency that operates through
popular leadership-that is, contrary to constitutional design and the
founding generation's fear of demagoguery, a presidency that eschews
the formalities of constitutional governance in favor of direct appeals to
the masses for the purpose of gaining popularity and winning public
support for a political agenda. 8 Tulis argued that American political
6.
See infra Part III.
7.
See, e.g., John Quincy Adams, Inaugural Address (Mar. 4, 1825), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES 53, 53-55 (1989) (discussing
constitutional principles); William Henry Harrison, Inaugural Address (Mar. 4, 1841), in
INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra, at 79, 79-86
(discussing, for example, his view of the constitutional defect of presidential re-eligibility, of
the concentration of constitutional power, and of the veto power); Franklin Pierce, Inaugural
Address (Mar. 4, 1853), in INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED
STATES, supra, at 115, 122 (arguing that the Compromise of 1850 is constitutional and that
the federal government must respect the rights of southern states to hold slaves just as it would
respect any other "legal and constitutional right").
8.
See JEFFREY K. TUL1S, THE RHETORICAL PRESIDENCY (1987). This book followed
a 1981 article in PresidentialStudies Quarterly in which Tulis, James W. Ceaser, Glen E.
2010]
CONSTITUTIONAL STATESMANSHIP
development has witnessed the existence of two presidencies: a
constitutional presidency, grounded in the formal institutional
arrangements of the constitutional text; and a rhetorical presidency,
prominent since Woodrow Wilson, grounded in efforts to shape public
opinion in support of a presidential policy agenda through often
informal, often extra-constitutional, mechanisms. 9 Wilson announced a
revised understanding of the constitutional order, one that identified the
President as the singular voice of democratic action and that rejected the
formalities of the original constitution that he believed stood in the path
of social progress. 10 The "second constitution," as Tulis calls it, satisfies
this contemporary impulse for presidential "leadership," understood as
directly seeking and securing public support for specific policies that the
President wishes to advance and assuming a predominant role for the
President in ordinary domestic policy-making and governance it is "a
view of statecraft that is in tension with the original Constitutionindeed, is opposed to the founder's understanding of the political
system."1 1 Professor Tulis highlights the nineteenth century inaugural
addresses as examples of devotion to constitutional form and principle in
presidential communications, though he ventures far beyond the
inaugural address to consider the historical significance of other forms of
presidential rhetoric. 12
Tulis's criticism countered much of the presidential scholarship that
has developed since the publication of Richard Neustadt's Presidential
Power, a supremely influential work in the modem study of political
science and American politics.' 3 Neustadt posited that the American
President's real power was one of persuasion and one that ultimately
favored the President in conflicts among institutions, (what Tulis
Thurow, and Joseph M. Bessette introduce the idea. See James W. Ceasar et al., The Rise of
the RhetoricalPresidency, PRESIDENTIAL STUD. Q., Spring 1981, at 158.
9. See TULIS, supra note 8, at 17-23.
10. See Glen E. Thurow, Dimensions of Presidential Character, in BEYOND THE
RHETORICAL PRESIDENCY 15, 22-24 (Martin J. Medhurst ed., 1996).
11.
TULIS, supra note 8, at 18; see also TERRY EASTLAND, ENERGY IN THE EXECUTIVE:
THE CASE FOR THE STRONG PRESIDENCY 29-30 (1992) (observing that Wilson's view of
"'constitutional government' was not government according to the original Constitution," and
that "Wilson also is the source of problems that have plagued the presidency especially in
more recent decades"). For a different perspective on Wilson's impact, see Terri Bimes &
Stephen Skowronek, Woodrow Wilson's Critique of Popular Leadership: Reassessing the
Modern-Traditional Divide in Presidential History, in SPEAKING TO THE PEOPLE: THE
RHETORICAL PRESIDENCY IN HISTORICAL PERSPECTIVE 134 (Richard J. Ellis ed., 1998).
12. TULIS, supra note 8, at 47-51.
13. RICHARD E. NEUSTADT, PRESIDENTIAL POWER (1960).
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describes as "institutional partisanship" 14) institutions that are not
actually separated by constitutional function or power but rather share
powers even as they are separate.15 Pursuant to Neustadt's paradigm,
Presidents exercise their persuasive powers in aggressive ways through
personal, as opposed to formal constitutional, bargaining methods,
ultimately placing the President in a preferred position among the other
institutional bargainers. 1 6
This paradigm further spurred the
development of a behavioralist approach to studying the presidency and
political institutions more generally; the notion that informal, even extraconstitutional, acts of "leadership" mean more than formal ones in terms
of political causation. 7 Subsequently, some, like Samuel Kemell, have
distinguished Neustadt's bargaining presidency with another modem,
extra-constitutional development: that of appealing directly to the
masses for support of a presidential initiative, what Professor Kemell
has called "going public." 18 Against these approaches to popular
rhetorical leadership in the presidency, Tulis (among others 19) set his
sights on restoring presidential devotion to the formal duties of, and
limits on, the office.
Since The Rhetorical Presidency, scholars in political science and
public communication have debated the merits of Tulis's assertions and
his description of the two presidencies, and particularly his assertion that
the nineteenth-century presidencies (save for Andrew Johnson) best
reflect the Framers' design of an executive whose governance would be
driven by constitutional formalities rather than popular appeals and
advocacy of specific policy preferences. 20 David Nichols, for example,
argues that Tulis's construct fails to account for the contentions of
constitutional framers like James Wilson and Gouverneur Morris, whose
work at the Constitutional Convention reveals the desire for a President
who would engage in some form of popular leadership that would be
consistent with the constitutional presidency that Tulis identifies.21
14.
15.
16.
Id. at 9-13.
See generally id. at 33-57.
See id.
17. See, e.g., ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY (1956).
18. SAMUEL KERNELL, GOING PUBLIC: NEW STRATEGIES OF PRESIDENTIAL
LEADERSHIP 1-2 (4th ed. 2007). In Professor Kernell's view, going public is fundamentally
incompatible with presidential bargaining. Id. at 4-5.
19. See, e.g., EASTLAND, supra note 11, at 7 (arguing that although Neustadt proposes a
realist understanding of the presidency, the approach "needs to be more securely grounded in
the Constitution").
20. See TULIS, supra note 8, at 27-33.
21.
See David K. Nichols, A MarriageMade in Philadelphia:The Constitution and the
2010]
CONSTITUTIONAL STATESMANSHIP
Other political scientists have suggested that the nineteenth-century
Presidents more often engaged in political advocacy to popular
audiences than Tulis admits.22 Still others have used Tulis's construct to
evaluate trends in presidential rhetoric related to style and usage,23 or
cited the construct approvingly to analyze particular instances of
contemporary presidential oratory.24
In addition, communication
experts, tracing rhetorical theory to Aristotle-including Aristotle's
description of the three sources of persuasion that speakers may employ
(ethos, logos, and pathos) and of the ways in which rhetoric "is deeply
implicated in how human beings come to know and act upon their
world" 25-have considered and challenged Tulis's thesis by focusing
instead on the broader impact of presidential communications and the
ways in which language, rhetoric, and new media shape the presidency
and presidential action.2 6
Even if we accept the very plausible notion that the constitutional
Rhetorical Presidency, in SPEAKING TO THE PEOPLE: THE RHETORICAL PRESIDENCY IN
HISTORICAL PERSPECTIVE, supra note 11, at 16, 19-34. Tulis responds that, in both design
and subsequent practice, the American presidency owes more to Hamilton than to Wilson and
Morris. See Jeffrey K. Tulis, Reflections on the Rhetorical Presidency in American Political
Development, in SPEAKING TO THE PEOPLE: THE RHETORICAL PRESIDENCY IN HISTORICAL
PERSPECTIVE, supra note 11, at 211, 212-14. Tulis, in The Rhetorical Presidency, worries
that a more robust conception of popular leadership is inconsistent with the Founders' fear of
demagogues. See TULIS, supra note 8, at 27-33.
22.
See, e.g., MEL LARACEY, PRESIDENTS AND THE PEOPLE: THE PARTISAN STORY OF
GOING PUBLIC 122-71 (2002); Richard J. Ellis & Alexis Walker, Policy Speech in the
Nineteenth Century Rhetorical Presidency: The Case of Zachary Taylor's 1849 Tour,
PRESIDENTIAL STUD. Q., June 2007, at 248. I also note that Professor Tulis asserts in The
Rhetorical Presidency that Zachary Taylor did not mention the Constitution in his inaugural
address. See TULIS, supra note 8, at 51. This, however, is not accurate; Taylor mentions the
Constitution at least four times. See Zachary Taylor, Inaugural Address (Mar. 5, 1849), in
INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 111,
111-14.
23. See, e.g., Chad Murphy, The Evolution of the Modern Rhetorical Presidency: A
Critical Response, PRESIDENTIAL STUD. Q., June 2008, at 300; Ryan L. Teten, Evolution of
the Modern RhetoricalPresidency:PresidentialPresentationand Development of the State of
the Union Addresses, PRESIDENTIAL STUD. Q., June 2003, at 333.
24. See, e.g., George F. Will, Rhetorical Presidency, NEWSWEEK, Feb. 8, 1993, at 74
(evaluating Tulis's work and applying the construct to President Clinton's initial State of the
Union Address).
25. Martin J. Medhurst, Afterword: The Ways of Rhetoric, in BEYOND THE
RHETORICAL PRESIDENCY, supra note 10, at 218, 221.
26. See, e.g., Thomas W. Benson, Desktop Demos: New Communication Technologies
and the Future of the Rhetorical Presidency, in BEYOND THE RHETORICAL PRESIDENCY,
supra note 10, at 50; Roderick P. Hart & Kathleen E. Kendall, Lyndon Johnson and the
Problem of Politics: A Study in Conversation, in BEYOND THE RHETORICAL PRESIDENCY,
supra note 10, at 77.
270
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framework supports or encourages some limited, moderate form of
popular leadership,2 7 the problem against which Tulis and other
followers of a constitutionalist presidential construct chiefly inveigh is
the more extreme form of popular leadership that is not tethered to
constitutional text or structure, or to legitimate efforts at civic education
about republican principles. Rather, it is one that Presidents employ in
order to persuade, to amass legislative and political achievements,
appear sensitive to public needs and desires, and ensure a positive
reputation and legacy. Of course, the problem is not limited merely to
presidential speech making. It rears its head in other contexts. Modem
presidents have used the veto power not simply as a shield to raise
constitutional objections to legislation or to protect the prerogatives of
the presidency, but as a sword to dictate the content of legislation and to
satisfy the President's policy preferences-his "agenda" or "program"-and as leverage to compel obedience to those preferences by Members
of Congress who for political reasons may need the public support of the
President. 28 The presidency now occupies not just an important role but
also a preferred place in the creation, development, and enactment of
national legislation, and presidents typically enter office with a detailed
legislative agenda that they actively promote by "going public" and by
27. See infra Part II.A. David Nichols's argument concerning a constitutional basis for
popular presidential leadership based on the work of Wilson and Morris is persuasive, as far
as it goes. See Nichols, supra note 21, at 19-34. To be sure, Nichols is correct that Wilson
and Morris were leaders at the Convention and their service on the Committee of Detail gave
them some influence in the final wording of the constitutional text. See id. at 28. But Nichols
perhaps overstates this influence, and he undervalues important moments at the Convention
when their proposals for a much stronger President-and a President more prone to popular
leadership-were defeated. For example, Wilson (along with Hamilton) supported an
absolute, rather than qualified veto; it was rejected. See 2 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787, at 586-87 (Max Farrand ed., 1966). Wilson also supported a proposal
for the Council of Revision, which would have joined the president and the judiciary in
evaluating legislation before its enactment. See I THE RECORDS OF THE FEDERAL
CONVENTION OF 1787, at 97-98, 105 (Max Farrand ed., 1966). This proposal, too, was
defeated. Id. at 104, 140; 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra, at
80. This is not to diminish the significance of Wilson's work at the Convention or his
importance to the Founding generation, which is substantial; it is, rather, to say that despite his
influence, Wilson did not really get the presidency he sought. Of course, neither did
Hamilton, for that matter, but Hamilton did not assert his views nearly as often as Wilson
during the Convention, and during ratification and thereafter, it was Hamilton who came to
define the character of the American executive. See Tulis, supra note 21, at 212-14. In this
sense, then, I think Tulis has the better of the argument.
28. See KERNELL, supra note 18, at 62-65; J. Richard Broughton, Rethinking the
PresidentialVeto, 42 HARV. J. ON LEGIS. 91, 131-33 (2005).
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CONSTITUTIONAL STATESMANSHIP
making the institution appear more democratic than it is. 2 9 The
phenomenon has become so powerful that some scholars have referred
to the President as the "legislator-in-chief," language that suggests
Congress has been displaced in this regard.3 ° Still others have explained
the phenomenon as the "deconstitutionalization" of the presidency,
attributable in significant part both to the Wilsonian rejection of formal
separated powers and to the proclivity for mass appeal to public
sentiment that characterizes the modem presidency and distinguishes it
from the formal, constitutional presidency that the Framers designed.3 '
Still, particularly in an age in which Presidents can not only travel
the Nation and the world easily to speak directly to the public, but can
have those speeches made instantaneously available to the remainder of
the country through modem technology, it is unlikely that presidential
speech making to mass, non-governmental audiences will fade away.
This is especially true when one considers the influential role of modem,
professional communications and speech-writing staffs in the White
House, who carefully craft a democratic presidential "message" to assure
its appeal to American voters and to legitimize a President's boast of
providing "leadership." '32 The trick, then, is to accept the reality of a
rhetorical presidency, and yet to constitutionalize (or perhaps reconstitutionalize) the rhetoric. But it would be a neat trick, for reconstitutionalizing the presidency means making it less democratic,
increasing the distance between the President and the Congress and
between the President and the people; 33 yet a strategy of mass public
communication seems necessarily to close that distance (indeed, closing
that distance seems to be among the very purposes of the strategy).
Modem Presidents, keen on the allure of public opinion and the
anticipated blessings it has in store for their sense of reputations and
29. See generally KERNELL, supra note 18.
30. See Vasan Kesavan & J. Gregory Sidak, The Legislator-in-Chief,44 WM. & MARY
L. REV. 1 (2002).
31.
See ROGER M. BARRUS ET AL., THE DECONSTITUTIONALIZATION OF AMERICA:
THE FORGOTTEN FRAILTIES OF DEMOCRATIC RULE 105-09 (2004).
32. See TULIS, supra note 8, at 184-86. For excellent scholarly coverage of speechwriting and communications in the modem White House, see generally PRESIDENTIAL
SPEECH-WRITING (Kurt Ritter & Martin J. Medhurst eds., 2003).
33. Harvey Mansfield describes this as "constitutional space," which is necessary to
avoid the extremes and dangers of democracy. See HARVEY C. MANSFIELD, JR., AMERICA'S
CONSTITUTIONAL SOUL 16 (1991). In addition, as Glen Thurow writes, "[r]eplacing the
Constitution by a direct relationship between the president and the people has been intended to
perhaps superficially strengthen the presidential office. In fact, however, it has undermined
it." Thurow, supra note 10, at 29.
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success of their preferred program, have forgotten Alexander Hamilton's
observation that while republicanism requires "the deliberate sense of
the community" to govern the people, "it does not require an unqualified
complaisance to every sudden breeze of passion, or to every transient
impulse which the people may receive from the arts of men, who flatter
their prejudices to betray their interests., 34 Ultimately, only when their
leaders have acted upon "cool and sedate reflection," the people may be
grateful for men "who had courage and magnanimity enough to serve
them at the peril of their displeasure. 35
Tulis, clarifying and revising his original construct, sees
possibilities for "reconstitutionalizing political discourse., 3 6 He urges,
for example, that Presidents: use their rhetoric to hold Congress
accountable for driving a domestic legislative agenda and for engaging
in greater deliberation (Tulis suggests that "[t]he State of the Union
address would be an especially apt vehicle"); encourage Congress to
respond to presidential rhetoric in formal writings; and raise
constitutional questions about particular policies or proposals.
These
suggestions, Tulis explains, are simply a desirable course for pursuing "a
new kind of presidential rhetoric and [a] new civic education. 3 8 Indeed
they are.39
34.
THE FEDERALIST No. 71, at 459 (Alexander Hamilton) (Benjamin Fletcher Wright
ed., 1961).
35. Id. at 459-60.
36. Jeffrey K. Tulis, Revising the RhetoricalPresidency, in BEYOND THE RHETORICAL
PRESIDENCY, supra note 10, at 1, 13. Kevin Yenerall has also suggested that the rhetorical
presidency is not inconsistent with the constitutional presidency, though his analysis is
somewhat different from the one I urge here. Professor Yenerall argues that there are events
that occur in political life that require the President to marry action with public speech, and
cites events that implicate constitutional issues. See Kevin M. Yenerall, Executing the
Rhetorical Presidency: William Jefferson Clinton, George W. Bush, and the Contemporary
Face of PresidentialPower, in EXECUTING THE CONSTITUTION: PUTTING THE PRESIDENT
BACK INTO THE CONSTITUTION 127 (Christopher S. Kelley ed., 2006). More recently,
Jedediah Purdy has thoughtfully explained the role of presidential rhetoric in constitutional
interpretation. See Jedediah Purdy, PresidentialPopular Constitutionalism,77 FORDHAM L.
REv. 1837 (2009).
37. See Tulis, supra note 36, at 10-13.
38. Id. at 13.
39. I am grateful to David Marion for his repeated, sage reminder that leading Founders
were in the business of both institution-creation and civic education, as indicated, for
example, by George Washington's Farewell Address, John Marshall's biography of
Washington, and Ben Franklin's Autobiography. See George Washington, Farewell Address
(Sept. 17, 1796), in PRESIDENTIAL DOCUMENTS 18 (J.F. Watts & Fred Israel, eds., 2000);
JOHN MARSHALL, THE LIFE OF GEORGE WASHINGTON (Robert K. Faulkner & Paul Carrese,
eds., Liberty Fund 2000) (1850); BENJAMIN FRANKLIN, THE AUTOBIOGRAPHY OF BENJAMIN
FRANKLIN (Louis P. Masur, ed., Bedford Books 1993) (1793).
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CONSTITUTIONAL STATESMANSHIP
In light of the reality that modem Presidents speak publicly and
often, and in light of the (at least potential) connection between
presidential speech-making and constitutionalism, this subject matter
ought to have a place not simply in the scholarship of political science
and rhetoric but also in legal scholarship, where it deserves greater
attention and development. In addition to its consideration in legal
scholarship, the literature needs an affirmative call for constitutional
reflection, discourse, and even interpretation in the inaugural address, a
call that finds justification in the specific provisions of the Constitution
that support and compel constitutional deliberation and interpretation by
the President, and in a structural theory of the energetic executive.
Developing this kind of scholarship related to the rhetorical presidency
in the legal literature not only serves to highlight the importance of the
connection between rhetoric and constitutionalism, it also serves to put
the legal profession in greater touch with the deliberative processes of
constitutional reflection and interpretation that occur outside of the
judiciary.
Although some excellent recent legal scholarship has
developed around this notion, 40 American constitutional law remains
dominated by a focus on courts and adjudication. This is particularly
visible in the constitutional law canon, which overwhelmingly gives its
attention to judicial review and the role of courts in determining
constitutional meaning. 41 Perhaps this is unremarkable. Perhaps it is a
product of the persistence of judicial supremacy theory, or the increasing
prevalence of the Supreme Court's unabashed assertions of its core
review function, which have diminished the strength of those doctrines
40. See, e.g., NEAL DEVINS & Louis FISHER, THE DEMOCRATIC CONSTITUTION (2004);
MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); Larry
Alexander & Frederick Schauer, On ExtrajudicialConstitutionalInterpretation, 110 HARV. L.
REV. 1359 (1997); Scott E. Gant, Judicial Supremacy and Nonjudicial Interpretation of the
Constitution, 24 HASTINGS CONST. L.Q. 359 (1997); Neal Kumar Katyal, Legislative
Constitutional Interpretation, 50 DUKE L.J. 1335 (2001); Gary Lawson & Christopher D.
Moore, The Executive Power of ConstitutionalInterpretation,81 IOWA L. REV. 1267 (1996);
Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial
Supremacy, 92 CAL. L. REV. 1027 (2004); Purdy, supra note 36, at 1838-39.
41.
A review of the leading casebooks in Constitutional Law shows that although some
of the texts now devote a small portion of materials to constitutional interpretation by
nonjudicial actors (perhaps as a response to the increased literature in this area), this treatment
still does not approximate the frequency with which the political branches engage in
constitutional review. See generally, e.g., DANIEL A. FARBER ET AL., CASES AND MATERIALS
ON CONSTITUTIONAL LAW: THEMES FOR THE CONSTITUTION'S THIRD CENTURY (4th ed.
2009); RONALD D. ROTUNDA, MODERN CONSTITUTIONAL LAW: CASES AND NOTES (9th ed.
2009); JONATHAN D. VARAT ET AL., CONSTITUTIONAL LAW: CASES AND MATERIALS (13th
ed. 2009).
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designed to limit judicial review.42 Alternatively, perhaps it is simply a
reflection of Tocqueville's dictum that in America all political questions
ultimately become judicial ones.43 Yet many important issues of
constitutional meaning are analyzed and debated in the political
branches long before they ever appear in the four comers of a judicial
opinion or case reporter. A court-centered canon may ultimately be
appropriate, but lawyers and law teachers must better appreciate and
convey to new generations of lawyers the ways that political actors
deliberate, and reach conclusions, about the Constitution and about the
allocation of constitutional power.
This Article seeks to add this new dimension to the scholarship on
this subject and place it within the lawyer's scholarly toolbox, where it
ought to command greater attention. This Article therefore argues that,
in light of its connection to the presidential oath and the conferring of
formal constitutional power, the presidential inaugural address can serve
as an important constitutional moment in the life of a presidency.
Drawing on literature from the fields of political science and public
communication, this Article seeks to engage the construct of The
Rhetorical Presidency, and the plausible constitutionalism of the
presidential inaugural, within the realm of legal scholarship by
advocating a constitutionalized and constitutionalist model for these
unique moments. Presidents should seize the opportunity at the outset of
their administration, through the inaugural address, to reflect on formal
constitutional arrangements and articulate their understanding of the
nature and scope of their constitutional powers, and of the President's
institutional relationship to the other branches of government and to the
people. In this way, the inaugural address becomes more than just a
national rhetorical exercise designed to arouse public support for an
administration's priorities or to employ historically significant language.
42. I have referred elsewhere to the Court's sense of its own "omnipotence" in
connection with aggressive judicial review in some prominent areas of constitutional
adjudication. J. Richard Broughton, JudicializingFederativePower, 11 TEX. REV. L. & POL.
283 (2007); see Rachel E. Barkow, More Supreme Than Court? The Fall of the Political
Question Doctrine and the Rise of JudicialSupremacy, 102 COLUM. L. REv. 237, 335 (2002)
(arguing that the Court's diminution of the political question doctrine threatens to "disrupt our
constitutional order and turn the Framers' vision of a constitutional conversation among three
coordinate branches into a monologue by the Supreme Court"); Richard A. Posner, Foreword:
A Political Court, 119 HARV. L. REv. 31, 56 (2005) (remarking on the lack of judicial
modesty in the contemporary Court).
43.
See I ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 248 (J.P. Mayer & Max
Lemer eds., George Lawrence trans., Harper & Row 1966) (1835) ("There is hardly a political
question in the United States which does not sooner or later turn into a judicial one.").
2010]
CONSTITUTIONAL STATESMANSHIP
Rather, it becomes a highly public and highly visible institutional tool
for instantiating executive energy and for engaging in a responsible form
of civic education. Consequently, though not itself a formal power
identified in or required by the constitutional text, the inaugural address
can invigorate the modem presidency's devotion to the forms of the
Constitution, transforming the address from an important rhetorical
moment into a constitutional one and demonstrating that constitutional
discourse is compatible with the rhetorical realities of modem political
life.
II.
CONSTITUTIONAL DISCOURSE IN THE INAUGURAL ADDRESS
It is hardly remarkable to observe that Presidents ought to
deliberate, and offer conclusions about, the meaning of the Constitution
(even if some do it better and more often than others), or that the
presidency should be energetic. These characteristics of the presidency
are core features of my proposal here, because they are core features of a
constitutional presidency that I (and other like-minded scholars) seek to
reinvigorate; but they are not the sum of it. Rather, when we talk about
an energetic executive and about constitutional deliberation, reflection,
and interpretation in the presidency, we tend to talk about them in terms
of official presidential action, for example, when the President exercises
the veto, or asserts executive privilege, or makes decisions concerning
the exercise of war or foreign affairs power. We tend not to talk about
this aspect of presidential structure and function, at least not
substantively, in the context of presidential rhetoric or communication.
We should, and we should start with the first and one of the most
significant of all rhetorical moments in the life of a presidency: the
inaugural address. Constitutional deliberation in the inaugural address
can demonstrate the President's understanding of his powers, as well as
those of the coordinate branches, and thus publicly acknowledge formal
constraints on presidential power, as well as formal bases for robust
presidential action.
History, as I explain later, provides ample
precedent." More importantly, elevating presidential inaugural rhetoric
to constitutional discourse promotes the President's obligation to
preserve, protect, and defend the Constitution, instantiates the kind of
energetic executive that leading Framers contemplated, and enhances the
public's understanding and appreciation of constitutional government.
44.
See infra Part III.A.
276
A.
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The InauguralAddress as a ConstitutionalMoment
Although Bruce Ackerman has described "constitutional moments"
as rare, extraordinary occasions in American political life (the Founding,
the Civil War and Reconstruction, and the New Deal),45 Paul Horwitz
challenged that notion by concluding that constitutional moments are
"momentous, but they are not irregular. 4 6 Professor Horwitz identifies
presidential transitions as constitutional moments, whereby the new
President takes the constitutional oath and thus creates "a moment in
which at least one branch of the federal government must consider anew
what the Constitution means and what it demands, and ratify or rescind
the constitutional readings that have come before., 47 Although he
concedes that Professor Ackerman may have been describing a different
kind of phenomenon-one transformative of constitutional meaningHorwitz explains that the distinctions between his understanding of
presidential transitions and the rare Ackermanian moments exist but do
not undermine his conclusions.48 Perhaps, then, we can simply call
them what we will: constitutional moments, constitutional minimoments, or constitutional momentettes. Descriptive labels aside,
Professor Horwitz's point is well taken: instances of constitutional
significance are frequent in American political life.
I would add the following contributions to this important
conversation: those instances should occur even more frequently, they
should occur more frequently in the political branches, and Presidents
can contribute to such increased frequency by using the inaugural
address-one of these moments-as an initial statement of constitutional
understanding and principle that will guide that President's
administration.
Unlike the oath, the Constitution does not require the inaugural
address. But every President who has held a formal inauguration has
joined an address to the taking of the oath, at which point constitutional
power is vested in the oath-taker. As Jedediah Purdy has recently
described the inaugural addresses, they "form a genre-specific time-slice
of presidential popular constitutionalism as old as the Constitution
45.
1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS
ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998).
(1991);
2
BRUCE
46. Paul Horwitz, Honor's Constitutional Moment: The Oath and Presidential
Transitions, 103 Nw. U. L. REV. COLLOQUY 259, 259 (2008).
47. Id.
48. Id. at 260-61.
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CONSTITUTIONAL STATESMANSHIP
itself."49 William Henry Harrison said he was about to give a speech "in
obedience to a custom coeval with our government." 50 His grandson
Benjamin Harrison famously said that although the Constitution does not
require a public oath, "there is so manifest an appropriateness in the
public induction to office of the chief executive officer of the nation that
from the beginning of the Government the people ... have been called
to witness the solemn ceremonial.'
Hamilton, in a letter to George
Washington dated just after Washington's inauguration, described a plan
for presidential entertainment that highlights the significance of the
event. He wrote that the President should "give formal entertainments"
only two or four times a year, and if twice, to include Independence Day
and Inauguration Day "which completed the organization of the
Constitution."5 2
Although Hamilton makes no reference to a
presidential speech, and it is unremarkable today that he viewed
Inauguration Day as a special ceremonial time, what is noteworthy is
that his letter connects the inauguration ceremony to the Constitution.
Given its temporal connection to an oath that substantively requires the
President to "preserve, protect and defend the Constitution, '5 3 and its
historical place in a formalized process of conferring constitutional
power, then, we can say that the inaugural address, though not a
constitutional mandate, ought at least to be viewed as a constitutional, as
well as political, tradition-and a constitutional
moment, as scholars like
54
Professor Horwitz understand the notion.
In this context, a highly public one, the inaugural address represents
a unique opportunity for the President to assert his understanding of
constitutional prerogatives and limits. It is televised to the Nation and
world, delivered before hundreds of thousands of onlookers in
Washington, and perhaps most importantly, represents the culmination
of a public constitutionalprocess by which the newly elected President
obtains the full force of his constitutional powers. Following on the
heels of completing the oath, there is no better time-indeed, this is the
ideal time-for the President to clarify his understanding of the
governing instrument he has just sworn to preserve, protect, and defend.
49. Purdy, supra note 36, at 1844.
50. Harrison, supra note 7, at 79.
51. Benjamin Harrison, Inaugural Address (Mar. 4, 1889), in INAUGURAL ADDRESSES
OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 175, 175.
52. Letter from Alexander Hamilton to George Washington, President (May 5, 1789), in
ALEXANDER HAMILTON: WRITINGS 515, 516 (Library of America 2001) (1961).
53. U.S. CONST. art. II, § 1, cl. 8.
54. See Horwitz, supranote 46.
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In other words, the inaugural address is the ideal time for the President
to clarify his understanding of the powers the Constitution has now
conferred upon him and those that belong to the other branches of
government with which he will work and against whose encroachments
he will fight. A constitutionalized inaugural address would also serve
the interests of responsible civic education, in the sense that it could
cultivate the public's attachment to constitutional rule and inform the
citizenry of the necessity of formal arrangements designed to avoid the
pitfalls of democracy.5 5
This is not to say that the inaugural address is the only way for a
President to assert a constitutional vision or engage in the process of
constitutional interpretation. There are other methods, as well. Some
occur in the course of official acts-for example, exercising the veto
power,56 presidential signing statements,57 delivering messages to
Congress,5 8 asserting executive privilege,5 9 and appointing judges.60
55.
See BARRUS ETAL., supra note 31, at 7-8.
As I have previously argued, the veto is an especially important institutional tool for
presidential constitutional interpretation and must be employed when a President objects to
legislation as unconstitutional. See Broughton, supra note 28, at 110-15. Article I, Section 7
explicitly requires the president to give his reasons for the return of legislation, so the veto
operates naturally as an example of how presidential constitutional interpretation can occur in
the course of fulfilling an official institutional function. See U.S. CONST. art I, § 7, cl. 2.
57. For excellent discussions of signing statements and their constitutional significance,
see Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive
Power, 23 CONST. COMMENT. 307 (2006); Neal Devins, Signing Statements and Divided
Government, 16 WM. & MARY BILL RTS. J. 63 (2007); Christopher S. Kelley, The
Significance of the Presidential Signing Statement, in EXECUTING THE CONSTITUTION:
56.
PUTTING THE PRESIDENT BACK INTO THE CONSTITUTION, supra note 36, at 73.
The
Constitution does not direct the President to give his reasons for signing a bill. See U.S.
CONST. art I, § 7, cl. 2. Yet the presidential signing statement, which Presidents of both the
Republican and Democratic parties, and Presidents since James Monroe, have employed as a
regular part of the presidency, has become the subject of much controversy in recent years.
See, e.g., Bradley & Posner, supra, at 308, 312-13. This controversy has derived chiefly from
using the signing statement to identify portions of the signed legislation that the president will
not enforce either because he objects to them as a matter of policy or because he believes
them to be unconstitutional. See, e.g., id. at 313. Putting aside the ongoing debate over the
propriety of this practice, what is significant for our purposes here is that the signing statement
has become a modem device for active presidential assertion of constitutional meaning.
58. Primarily I have in mind here the annual State of the Union message. See TuLIS,
supranote 8, at 55-59.
59. See Mark J. Rozell, Executive Privilege in an Era of Polarized Politics, in
EXECUTING THE CONSTITUTION: PUTTING THE PRESIDENT BACK INTO THE CONSTITUTION,
supra note 36, at 91.
60. See generally HENRY J. ABRAHAM, JUSTICES, PRESIDENTS, AND SENATORS: A
HISTORY OF THE U.S. SUPREME COURT APPOINTMENTS FROM WASHINGTON TO CLINTON
(1999) (explaining how Presidents express constitutional views though judicial appointments).
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Others, as Jedediah Purdy has elegantly explained, occur in the ordinary,
and sometimes extraordinary, courses of presidential communication in
modem America.6 1 Constitutional deliberation and interpretation by
non-judicial actors has been the subject of substantial scholarly attention
in the last two decades, particularly after Attorney General Edwin
Meese's speech and law review article in 1987 that rejected the notion of
judicial supremacy in the enterprise.62 Today scholars often refer to the
phenomenon as "popular constitutionalism. ' 63 Of course, it is "popular"
only in the sense that it is performed by actors in the elected branches of
the government, not in the sense that it is subject to plebiscite. How well
those actors in the political branches reflect upon and interpret the
Constitution is an important question, but one for another time, and one
that other scholars have addressed.64 For present purposes, the more
important observation here is that the Constitution provides a basis for
presidential constitutional interpretation, that the President has a special
constitutional obligation to do it, and that the inaugural address is, and
ought to be, a unique platform for performing it.
The Constitution provides in the Take Care Clause that the
65
President shall "take care that the laws be faithfully executed.,
Writing as Pacificus in defense of President Washington's declaration of
neutrality in the war between France and England, Hamilton posited
that, "[t]he President is the constitutional executor of the laws .... He
who is to execute the laws must first judge for himself of their
,,66
wsi
meaning.
Hamilton was, in this context, referring specifically to
international law and treaties, but his contention applies equally to any
other "law of the land," including the Constitution. 67 Perhaps, though,
the Oath Clause provides the most important source of authority for
61. See Purdy, supra note 36, at 1842-63 (giving examples of constitutional discourse in
presidential rhetoric beyond the inaugural).
62. See Edwin Meese III, The Law of the Constitution, 61 TUL. L. REv. 979 (1987). For
a thoughtful account of the scholarly and political responses to Meese's view, see DEVINS &
FISHER, supra note 40, at 3-7, 26-28.
63. See, e.g., Purdy, supra note 36, at 1839.
64. See, e.g., Louis Fisher, ConstitutionalInterpretationby Members of Congress, 63
N.C.L. REv. 707 (1985); Katyal, supra note 40, at 1335.
65. See U.S. CONST. art. II, § 3.
66. See Alexander Hamilton, Pacificus No. 1 (June 29, 1793), reprinted in ALEXANDER
HAMILTON: WRITINGS, supra note 52, at 801, 809 (emphasis omitted).
67. See Saikrishna Bangalore Prakash, The Executive's Duty to Disregard
UnconstitutionalLaws, 96 GEO. L.J. 1613, 1617 (2008) (stating that the Constitution is a law
for Take Care Clause purposes, as it is elsewhere recognized as "the Supreme Law of the
Land").
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presidential constitutional deliberation and interpretation. To put it more
accurately, perhaps the Oath Clause read in conjunction with the Take
Care Clause signifies fully the justification for a President's efforts to
understand and articulate the meaning of the Constitution.68
Some worthwhile scholarship on the meaning of the presidential
oath exists, and commentators have ascribed diverse purposes to it.
Robert Blomquist has neatly surveyed the competing visions of the oath,
explaining that scholars had concluded, for example, that the oath: gives
the President special responsibility to preserve the Union; represents a
limit on presidential power, as opposed to an affirmative grant of power;
permits the President to protect the institution of the presidency from
encroachments; and, gives the President a limited power to refuse
enforcement of federal laws. 69 More recently, Professor Horwitz
thoughtfully analyzed the competing visions of the oath, including the
view that it enables the President to preserve the nation even by the use
of prerogative and the alternative view that the oath does not permit
suspension of the Constitution in order to save it. 70 Horwitz concludes
that the presidential oath "like all constitutional oaths, ties [the
President's] personal and professional honor to the Constitution,
individually and indefeasibly., 71 Whatever the precise function of the
oath, though, leading scholars now agree that it offers a textual
justification, indeed obligation, for Presidents to grapple with
constitutional meaning. 72 Moreover, there does not appear to be any
scholarly commentary to suggest that it is to occur only in the course of
the President's official acts.
Constitutional forms, then, justify discourse and reflection about
constitutional forms. Just as the inaugural address is connected in time
68.
See id.
69. Robert F. Blomquist, The PresidentialOath, the American National Interest, and a
Callfor Presiprudence,73 UMKC L. REV. 1, 37-41 (2004).
70. See Horwitz, supra note 46, at 261-62 (comparing the views of Michael Stokes
Paulsen with that of Sai Prakash and Thomas Crocker).
71. Id.at 271.
72. See id. at 264; Gary Lawson, Everything I Need to Know About Presidents I
Learnedfrom Dr. Seuss, 24 HARV. J. L. & PUB. POL'Y 381 (2001); Lawson & Moore, supra
note 40, at 1287; Sanford Levinson, ConstitutionalProtestantism in Theory and Practice:
Two Questionsfor Michael Stokes Paulsen and Onefor His Critics, 83 GEO. L.J. 373 (1994);
Michael Stokes Paulsen, The Constitution of Necessity, 79 NOTRE DAME L. REv. 1257
(2004). The conclusion may seem pedestrian today, but it is worth recalling, as do Professors
Lawson and Moore, that not so long ago a defense of presidential constitutional interpretive
power (which was Attorney General Meese's view) was ridiculed as inconsistent with the rule
of law and the special province of the judiciary to decide the Constitution's meaning. See
Lawson & Moore, supra note 40, at 1268.
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and space to the constitutional oath of office, so, too, can it be connected
to the very authority that the oath confers. In addition, like official
presidential acts and other presidential speeches, the inaugural address
ought to command the same recognition as a moment of constitutional
deliberation and interpretation pursuant to the Oath and Take Care
Clauses. Through a constitutionalized inaugural address, the President
can tell the other institutions and the American public how he
understands the word "faithfully" in the oath he just took and in the
Constitution's provision that he execute federal laws. He can elaborate
upon his view of what it means to "preserve, protect and defend" the
Constitution.73 He can articulate his understanding of the limits on
Congress's legislative powers, or his understanding of the scope of those
powers and the circumstances under which his Administration will stand
behind the constitutionality of a particular congressional enactment, or
alert the Congress as to the justifications he may find for refusing to
enforce a particular enactment.
Just as a constitutionalized,
constitutionalist inaugural address serves to make real the kind of
executive energy that both supports and moderates presidential action, so
too does constitutional discourse in the inaugural address give public
rhetorical dimension to a President's understanding of his duty to
safeguard the Constitution and to faithfully execute the laws.
Of course, in light of these other instances of presidential
constitutional interpretation, one may therefore object to the instant
proposal on the ground that the inaugural address is unremarkable as a
vehicle for constitutional discourse, no more significant than any of
these other moments in which the President articulates his understanding
of the Constitution. Therefore, the argument goes, the inaugural is better
spent on important policy goals, and promoting amity with political
rivals, and in inspiring public confidence in the new administration.
The response to this critique is two-fold. First, the timing
(contemporaneously with the taking of the constitutional oath) and
modem ubiquity (thanks to mass communication technology) of the
inaugural address set it apart from most other moments of constitutional
significance. Although many presidential communications today are
televised or otherwise instantly available to members of the public who
are not necessarily present when the communication occurs, most of
these moments are far less formal and less public, and do not gamer, or
73.
U.S. CONST. art. II, § 1, cl. 8; see Horwitz, supra note 46, at 271 (concluding that
"the new President must decide for himself what the oath means and what it requires of him").
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command, the same popular attention that the inaugural does. Under
these circumstances of publicity, the constitutionalized-inaugural-ascivic-education model takes on special significance. Second, these
Employing constitutional
moments are not mutually exclusive.
discourse in the inaugural does not mean the President should not
employ it in other venues, and employing it in other instances does not
preclude its employment in the inaugural. The President should engage
in constitutional deliberation and reflection in all of his formal speeches
and communications, where appropriate to the occasion and subject
matter. If the modem presidency is to remain an institution that is
characterized by mass public communication that serves the rhetorical
presidency (as I believe it will) then Presidents should employ those
public communications more often to serve the interests of the
constitutional presidency, as well.74
Still, by acknowledging and
affirmatively conducting a dialogue about the formal institutional
arrangements of the presidency and of the constitutional system, and by
beginning that dialogue from the outset of the Administration in the
highly public setting of the inaugural, the President sets a tone and a
theme for his presidency that is less likely to undermine those
arrangements or that system. Therefore, my proposal is that the
inaugural address marks an important beginning of a constitutionalized
presidential rhetoric, not an end.
Another objection to this proposed inaugural model is one of style,
or perhaps tone, rather than substance. One might argue that the
inaugural address is meant to be humble, conciliatory, and diplomatic.
Particularly when a new President is elected, the taking of the oath and
presentation of the inaugural address highlight the peaceful transfer of
power. This, one may argue, is hardly the moment for bold assertions on
weighty and usually debatable constitutional questions that may alienate,
even offend, the coordinate branches, and thereby spoil whatever
goodwill the newly elected President has amassed during the campaign
and transition. Better, the argument goes again, to leave those battles for
another day.
The model I propose here, however, need not be offensive or
confrontational toward the other branches, the opposing party, or a prior
administration. As previous executives have shown, the President can
use language that is respectfil of the Congress, the judiciary, and the
previous administration while still articulating his own understanding of
74.
See Tulis, supra note 36, at 5-6.
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constitutional principles, his constitutional role, and theirs.7 5 Indeed,
such a model places the other branches on notice of the President's
intentions and enables the Congress-the Nation, no less-to reflect
upon and ultimately respond to the President's assertions. There is no
intrinsic constitutional value in merely avoiding conflict between
Congress and the President for the sake of avoiding conflict or in
promoting amity simply for the sake of promoting amity; because it
seeks equilibrium among the powers and promotes, as Madison
described it, ambition counteracting ambition, the Constitution actually
encourages conflict between them and does not regret a stalemate.76
Therefore, under the proposed model, a respectful but open dialogue
about constitutional forms can begin, and it can begin at the appropriate
moment-upon the President's highly public affirmation of his duty to
faithfully execute his office and to preserve, protect, and defend the
Constitution. It is a model for civic education on a grand scale.
B. Forms, Leadership, and the Civic Virtues of Constitutional
Discourse
In calling for a constitutionalized and constitutionalist inaugural
address, I do not mean to say that the act becomes part of the
Constitution or that the Constitution demands it, but rather that it
invokes, that it is grounded in, the Constitution and the President's
particular vision of constitutional meaning. Of course, I defend the
notion that the address has become a constitutional tradition, and thus
stands apart from other presidential addresses (except the State of the
Union) in the sense that it is connected to the constitutional oath and is
highly public. This is not the same, however, as arguing that the
Constitution requires the address in the first instance, which, of course,
it does not. Thus, it is constitutionalized in the sense that it invokes the
language of the Constitution, and constitutionalist in the sense that it
advocates formal constitutional authority and restraint as bases for
political action and decision-making.
While I have in mind primarily the President's invocation of and
75. See infra Part 111.
76. See THE FEDERALIST No. 51 (James Madison), supra note 34, at 356-57. As
Professor Mansfield describes the notion, Madison's argument demonstrates that ambition is
"useful, perhaps indispensible" to republican government, and that ambition actually vies
with, but does not try to thwart, ambition in the constitutional scheme. See MANSFIELD, supra
note 33, at 123.
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reliance upon formal institutional powers and arrangements, and of the
republicanism that the Constitution explicitly protects,7 7 this model may
certainly also encompass a defense of certain rights that a President
understands to be protected by the Constitution, for these also are
constitutional forms. President Jefferson, for example, devoted his first
inaugural to recognizing rights as well as to republican virtue. 78 Why
are forms so important? The law, Justice Scalia reminds us, is about
form. 79
Despite this, legal scholarship, political science, and
constitutional adjudication have debated for years the competing notions
of formalism and functionalism in separation of powers theory.8 °
Students of constitutional law are, in fact, introduced every year to the
leading "formalist" cases and the leading "functionalist" cases as
described in the constitutional law canon. 81 I propose not (so much) that
the President actively articulate and defend the formalist theory of
separation of powers, as that theory has been developed among lawyers
and legal scholars. Rather the President's focus should be upon giving
meaning to, and an understanding of, the hard powers with which the
Constitution invests his office (as opposed to the soft powers of public
advocacy and bargaining). Why defend the formal in constitutionalism,
and in presidential rhetoric in particular, at all?
Tocqueville offers a persuasive explanation. Forms, Tocqueville
explains, stand in the way of the immediate satisfaction of human wants
and, for this reason, men tend to look at forms with skepticism, even
83
rejection. 82 It slows, even prevents, the processes of gratification.
"Forms," Tocqueville says, arouse the "disdain" and "hatred" of people
77.
78.
See U.S. CONST. art. IV.
See Thomas Jefferson, First Inaugural Address in the Washington, D.C. (Mar. 4,
1801), in INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7,
at 13.
79. ANTONIN SCALIA, A MATTER OF INTERPRETATION 25 (1997).
80. Compare Harold H. Bruff, PresidentialPowers and Administrative Rulemaking, 88
YALE L.J. 451 (1979) (advocating functionalist theory), and Martin S. Flaherty, The Most
DangerousBranch, 105 YALE L.J. 1725 (1996) (same), with Steven G. Calabresi & Kevin H.
Rhodes, The Structural Constitution:Unitary Executive, PluralJudiciary, 105 HARV. L. REV.
1153 (1992) (advocating formal theory), and Gary Lawson, The Rise and Rise of the
Administrative State, 107 HARv. L. REV. 1231 (1994) (same).
81. These cases traditionally tend to include, for example, Clinton v. City of New York,
524 U.S. 417 (1998); Mistretta v. United States, 488 U.S. 361 (1989); Morrison v. Olson, 487
U.S. 654 (1988); Bowsher v. Synar, 478 U.S. 714 (1986); and IN.S. v. Chadha, 462 U.S. 919
(1983).
82. TOCQUEVILLE, supra note 43, at 673.
83. Id. at426-31.
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in democratic societies. 84 "As they usually aspire to none but facile and
immediate pleasures, they rush straight at the object of each of their
desires, and the slightest delay exasperates them., 85
And yet,
Tocqueville understands, "it is just this inconvenience, of which
democracies complain, which makes formalities so useful to freedom.
For their chief merit is to serve as a barrier between the strong and the
weak, the government and the governed. 8 6 Thus, he concludes,
"democracies by their nature need formalities more than other peoples
and by nature have less respect for them.",87 Following Tocqueville's
premise, Professor Harvey Mansfield further reflects on the importance
of form to constitutionalism. Institutions like the presidency are forms
that "give characteristic dignity, or plain stubbornness, to whomever
their incumbents may be." 8 8 These forms promote, among other things,
what Mansfield calls "constitutional space," the distance between
institutions and between institutions and the people. 89 That distance is
necessary for the preservation of safe government in a republic. 90
By elevating extreme versions of popular leadership--the modem
presidency's persistent bargaining, legislative maneuvering, and direct
appeals to the public to satisfy both public wants and the President's
legislative agenda-the presidency eschews forms and narrows the
distance between itself, the people, and the legislature. David Nichols
identifies the President as legislative agenda-setter, a role that requires
the President to not only articulate constitutional principles "but also a
set of policies that respond to the problems of contemporary society." 9'
There is both historical evidence, which Nichols persuasively describes,
and textual evidence for the proposition that a constitutional presidency
can support some kind of presidential popular leadership. 92 Perhaps the
State of the Union and Recommendation Clauses of Article II and the
veto power described in Article I provide a formal constitutional basis
for this. These provisions, however, should not be read in isolation; they
84.
85.
86.
87.
88.
Id. at 673.
Id.
TOCQUEVILLE, supra note 43, at 673.
Id.
See MANSFIELD, supra note 33, at 16. Mansfield's further reflections on the formal
in American politics are brilliant, and well worth study by scholars and jurists alike. See, e.g.,
id. at 137-54.
89.
90.
91.
92.
Id. at 16.
See id.
See Nichols, supra note 21, at 33.
Id. at 33-34.
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are only a portion of a larger constitutional structure that seems not to
prefer presidential dominance in determining the content of federal
legislation, yet the extreme modem form of popular presidential
leadership (of which legislative agenda setting is an important
component) accomplishes just that.
The founding generation understood that legislative power would
predominate in a republic. 93 Of course, they feared legislative
encroachments and the danger that Congress would draw the other
branches into its "impetuous vortex." 94 The answer, however, was not
to provide for presidential dominance in setting and carrying out
legislative agendas. Rather, it was to create a divided Congress with
distinct electoral systems and distinct responsibilities, as well as a
constitutional presidency that would counter potential legislative
domination in order to give the scheme of government equilibrium
(toward the end of promoting competent government). The Framers
cared little about efficiency and functionality for the sake of solving the
problems of the day; rather, they wanted safety and competence, which
is provided by creating institutions with distinct spheres of authority and
by cultivating in institutional actors the kind of ambition that would find
expression in those spheres and culminate in the responsible use of
power. 95
The constitutional text and structure thus provide for barriers
against legislative encroachment without inviting presidential dominance
in determining the content of national legislation: the division of
legislative power into two distinct houses of Congress, the qualified
veto, the absence of the Council of Revision, the vesting of enumerated
legislative powers in Congress (including power to make all laws
"necessary and proper" to carrying constitutional powers into
execution), and the vesting of "executive" power (the power to carry
out) in the President, along with limited quasi-legislative authority. This
is a far cry from a regime in which the President would have
predominance in legislative affairs or even in determining the course that
legislation should take in Congress. 96 The State of the Union,
93. See, e.g., THE FEDERALIST No. 51 (James Madison), supra note 34.
94. THE FEDERALIST NO. 48 (James Madison), supra note 34, at 343.
95. See I.N.S. v. Chadha, 462 U.S. 919, 958-59 (1983).
96. See Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L.
REv. 735, 759 (1993) (arguing that the Constitution does not favor the president in creating
national legislation "as he was not even given equal legislative power with the houses of
Congress").
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CONSTITUTIONAL STATESMANSHIP
recommendation, and veto powers are thus important exceptions to the
general form of legislative predominance (including "agenda-setting") in
the Congress, exceptions designed to promote executive energy,
stability, and ultimately safety in the government. And because the
Framers understood that the Congress would serve as the deliberative
branch while a unitary president would have the capacity to act quickly,
it is only sensible that they would have given favorable position to
Congress in setting legislative agendas, a process that seems to require
some significant measure of deliberation. 97
Finally, there is an argument that if the President's "agenda-setting"
and other quasi-legislative powers, combined with the use of informal
power that could be used to persuade Members of Congress not only to
support him but also to squelch a veto override, came to predominate by
allowing him to dictate the content of national legislation, he could
virtually destroy the essential role of the Congress in the constitutional
scheme. One could argue that it is no more legitimate for the President
to accomplish this than for the Congress to destroy the essential role of
the Supreme Court in the constitutional scheme pursuant to the
98
Exceptions Clause of Article 1II.
The President is no clerk of the Congress, but the Congress is no
errand boy of the President, either. As I have argued elsewhere, we need
not choose between a strong president and a weak Congress, or a weak
president and strong Congress; each branch can robustly assert its
constitutional prerogatives as well as its understanding of constitutional
limits. 99 Again, conflict between the political branches is no vice.
So perhaps the better understanding here is to say that the
constitutional scheme (and particularly its devotion to energy in the
executive), 10 0 supports a moderate form of popular leadership in the
presidency, but one always anchored to constitutional text and structure
and mindful of the excesses that characterize the problem of
demagoguery in a democracy.10 1 If we are to rescue the presidency from
97.
See THE FEDERALIST No. 70 (Alexander Hamilton), supra at 34, at 451.
98. This is Henry Hart's famous formulation concerning congressional power to take
jurisdiction from the federal courts. See Henry M. Hart, Jr., The Power of Congress to Limit
the Jurisdictionof Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1365
(1953).
99.
See Broughton, supra note 42, at 315.
100.
101.
excellent
CEASER,
See infra Part II.C.
See TULIS, supra note 8, at 27-33. Professor Tulis describes James Ceaser's
account of demagogues, which Ceaser categorizes as soft and hard. See JAMES W.
PRESIDENTIAL SELECTION: THEORY AND DEVELOPMENT (1979); TULIS, supra note
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the authoritativeness with which modernity has imbued the extreme
version of popular presidential leadership, with its presidential
dominance in bargaining, law-creation, and law-making-the soft
powers of the modem presidency-while still acknowledging the
realities of modem presidential rhetoric in a government whose
legitimacy depends upon consent, then we must restore a presidential
rhetoric that invokes and meaningfully reflects on the hard powers that
the Constitution provides for the presidency and other institutions,
powers that make the process of governing more deliberate, less
democratic, and less likely to hastily satisfy the instinct for immediate
satisfaction and public approbation.10 2 Such a rhetoric may be
unappealing to those who prefer such gratification, as well as the
comfort and sense of control that comes with an increasingly intimate
relationship with elected officials. Yet it is far more likely to serve the
interest of responsible civic education by reminding the people of the
fragility of democracy and the virtue of constitutional forms that
mitigate democratic dangers and provide for safe government. This kind
of civic education is not one in which political authority attempts to
shape the moral character of citizens in order to assure their obedience to
law. Rather, it is one that, to preserve stability and order in a democratic
society, soberly assesses human nature, the necessity of institutional
arrangements, and the responsible exercise of authority. Moreover, it
requires a President who sets an example of, and who publicly
articulates, devotion to constitutional rule.
C. InstantiatingEnergy in the Executive
To understand the presidency, it is most important to understand
Hamilton. 103 Ron Chernow's excellent biography of Hamilton rightly
8, at 28. As Tulis reads Ceaser, the common characteristic of all demagogues "seems to be an
excess of passionate appeals." TuLIs, supra note 8, at 28. Tulis's understanding of Theodore
Roosevelt's presidency arguably reflects the kind of moderate version of popular leadership
that avoids demagoguery, although Tulis concedes that Theodore Roosevelt set a precedent
that has devolved into the more extreme version. See id. at 114-16.
102. For Professor Tulis's suggestions as to how this can happen, see Tulis, supra note
36, at 5-6, 10-13. Cf Yenerall, supra note 36, at 134-48 (disagreeing that the rhetorical
presidency is always detached from constitutional moorings, and describing how recent
presidents have used the rhetorical presidency to fulfill institutional duties).
103. On this point, I agree with Karl Walling, who also identifies Edward Corwin and
Clinton Rossiter as others who share this view of Hamilton's significance to the presidency.
See KARL-FRIEDRICH WALLING, REPUBLICAN EMPIRE: ALEXANDER HAMILTON ON WAR
AND FREE GOVERNMENT 123 (1999).
2010]
CONSTITUTIONAL STATESMANSHIP
asserts that "[i]f Washington was the father of the Country and Madison
the father of the Constitution, then Alexander Hamilton was surely the
father of the American government."'' 0 4 Hamilton not only authored all
of the essays in which Publius explains and defends the executive in the
new Constitution, he penned numerous other noteworthy writings on
executive power, including the Pacificus essays and advice to
Washington on the Whiskey Rebellion. 105 In many of these moments,
Hamilton was also President Washington's voice, a kind of Federalistera communications manager. Hamilton thus is an ideal figure to
consult in studying the confluence of constitutional structure,
presidential rhetoric, and civic education.
In Federalist 70, Hamilton makes his famous call for "energy" in
the executive, which he says is "a leading character in the definition of
good government." 106 While Hamilton was keenly aware of the colonial
experience with monarchy and of the objections that were raised to a
powerful executive, he was also aware of the failures of the Articles of
Confederation, which lacked a national executive. 107 Hamilton therefore
seeks to show how an energetic, or "vigorous," executive is consistent
with the "genius of republican government."10 8 The key ingredients for
an energetic executive are unity (a single executive), duration
(substantial time in office and reeligibility), adequate provision for
support of the executive (compensation), and competent powers (formal
institutional authority vested in the President). 10 9 Hamilton thus sees a
vigorous executive as essential to avoiding feeble administration (bad
government), but must be careful not to place the President beyond the
reach of prudent limits (which Hamilton accomplishes by repeatedly
assuring readers that the American President is easily distinguishable
from the British monarch). 110
104. RON CHERNOW, ALEXANDER HAMILTON 481 (2004).
105. See id. at 243-69; WALLING, supra note 103, at 123; Letter from Alexander
Hamilton to George Washington (Aug. 2, 1794), in ALEXANDER HAMILTON: WRITINGS,
supra note 52, at 823. As Professor Walling states, Hamilton "wrote more of enduring
relevance about the theory and practice of the presidency than any other Founder." WALLING,
supra note 101, at 123.
106. See THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 34, at 451.
107.
Consider, for example, Hamilton's many essays critical of the Articles of
Confederation, see, e.g., THE FEDERALIST NO. 22 (Alexander Hamilton), supra note 34, at
143-52, as well as his defense of the new executive against charges of monarchism, see, e.g.,
THE FEDERALIST NO. 73 (Alexander Hamilton), supra note 34, at 444.
108.
109.
Id.
Id. at451-52.
110.
See id. at 451, 456-57.
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What, exactly, does Hamilton's energetic executive look like?
What does he mean by "energy" (or "vigor")? With "energy," Hamilton
is using the language of natural science, in which "energy" would be
understood as action or alacrity. Hamilton, however, is applying the
language of natural science to politics, which suggests that its
application is more nuanced than the dictionary definition of the term.
David F. Epstein elaborates on the scientific origins of energy in
Federalist 70, explaining that "its scientific flavor suggests less the aweinspiring omnipotence of a king or god than the application of a certain
quantity of force to create a specific motion.""'' But what quantity is
sufficient to be truly energetic? Also recognizing Publius's placement of
science's "energy" in political discourse, Harvey Mansfield argues that
energy "is not something good in itself; it is not virtue," not a claim to
rule.112 Rather, it, along with stability, serves as a mode of governing
that is regime neutral--"it answers the necessities that any government
must face."' 1 3 Still, in our constitutional scheme energy leads to virtue
because it helps to make republican government good, as opposed to
feeble, as Hamilton describes a government without an energetic
To ensure this kind of energetic executive, the
executive. 114
Constitution creates an executive that can protect the Constitution in
times of emergency and act independently to counter the ambitious
encroachments of the other branches (which is to say, the Congress),
thus guaranteeing not merely separated political power but safe, stable,
and competent government. A certain kind of energy used in a certain
kind of way, then, helps to "republicanize" the executive, in Mansfield's
words.' 15
Consistent with the idea that there is a close connection, rather than
a tension, between constitutionalism and energy, Karl Walling offers an
even more comprehensive explanation of Hamilton's energetic
executive. Professor Walling explains how Hamilton's defense of an
energetic executive--one that had to respond to and answer the
complaints of the Anti-Federalists, who feared the new executive would
be indistinguishable from a monarch-is consistent with constitutional
111.
DAVID F. EPSTEIN, THE POLITICAL THEORY OF THE FEDERALIST
171 (1984).
Epstein also offers a compelling look at the way that Publius used "energy" in other contexts,
outside of reference to the executive. See id. at 35-58.
112.
MODERN
113.
114.
115.
See HARVEY C. MANSFIELD, JR., TAMING THE PRINCE: THE AMBIVALENCE OF
EXECUTIVE POWER 267 (1989).
Id.
See THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 34, at 451.
MANSFIELD, supra note 112, at 274.
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CONSTITUTIONAL STATESMANSHIP
limits, with republican safety: energy, understood in this context, is not
16
aggression or vigorous action at the extremes, but moderation.'
Drawing on Machiavelli's prescription for a robust executive capable of
responding to the dictates of necessity, but careful to note that Hamilton
did not endorse Machiavelli's preference for a Roman-style dictatorship,
Walling explains that Hamilton joined with Machiavelli in
understanding that in a republic executive power must avoid the
extremes of constitutional weakness and unrestrained prerogative.'7
"Executive energy was the mean between impotence and usurpation, the
extremes that Hamilton believed would necessarily result from a strict
construction of executive power."1 1 8 Although Professor Walling uses
Hamilton's perspectives on war and foreign affairs-Locke's federative
power 9-to clarify this understanding of executive energy," 2 the
theory certainly applies in other presidential contexts, particularly when
we understand Hamilton's explanation of the ingredients of executive
energy.
Unity, for example, helps to produce moderation in the executive
by enabling the President to protect the Constitution without acting ultra
vires. Because action is more important in the executive than in the
legislature, Hamilton explains that executive vigor requires decisionmaking by a single individual.12 1 A plural executive would create the
danger of differences of opinion, dissent, even civil war. 122 Ever the
shrewd student of human nature, Hamilton understood the "danger of
personal emulation and even animosity" among men given equal
responsibilities, the danger that their sense of personal honor and
personal interest would lead them to interfere with the success of the
other man. 123 Hamilton calls this a "despicable frailty, or rather
detestable vice, in the human character," but one that could frustrate the
executive branch in times of necessity. 124 In addition, as Professor
Walling explains Hamilton's argument, although in republican
government power is generally safer in the hands of many men than of
116.
117.
See WALLtNG, supra note 103, at 125.
Id.
118.
Id.
119. See JOHN LOCKE,THE SECOND TREATISE OF GOVERNMENT 74 (J.W. Gough ed.,
Macmillan Co. 1980) (1690).
120. See WALLING, supra note 103, at 141-53.
121. THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 34, at 452.
122.
123.
124.
Id.at 452-53.
Id. at 453.
Id. at 454.
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one, the executive required a different theory: "[w]hen there is only one
executive, there is only one to watch. He therefore cannot hide in the
anonymity of a crowd."' 125 The President's responsibility, and thus his
accountability both to the people and to the Constitution, increases when
there is only one. 126 Therefore, unity enhances the "due dependence"
that Hamilton described as necessary to republican safety "because it
enables the
people to hold the executive accountable for the public
27
welfare." 1
Like unity, substantial duration in office is also an ingredient of a
moderated, republicanized, constitutionalized executive.
Duration,
according to Hamilton, connects ambition to the great public purposes of
the presidency. 28 The longer the term, the more likely that the person
holding the office will dedicate themselves to significant achievements
that serve the public interest, projects that will require time to develop,
manage, and blossom. 129 "To attract energetic statesmen capable of
building America's republican empire, national office had to become13a
prize worthy of extraordinary political ambition," Walling writes. 0
This same stability, though, which promotes great action and ambition,
also promotes moderation and respect for the Constitution and laws.
First, duration promotes executive independence, and here Hamilton
invokes the forms of the Constitution.
Because in republican
government, the tendency is for legislative power to absorb all other
power, an executive truly independent of the legislature is necessary to
supply the kind of ambition that will be necessary to check that of the
legislature, the kind of ambition that animates the formal separation of
powers. 131 Second, if ambitious men are unable to remain in office, they
13 2
may seek their achievements in illegitimate or unlawful ways.
Hamilton wonders whether peace and stability would be best served by
many highly accomplished men, former presidents, "wandering among
the people like discontented ghosts, and sighing for a place which they
were destined never more to possess?" ' 133 Such a man might convince
the people that it is in their interest to give him power in any event, even
125.
WALLING, supra note 103, at 130.
126.
Id.
127.
128.
Id.
THE FEDERALIST No. 71 (Alexander Hamilton), supra note 34, at 458.
129.
Id. at 458-59.
130.
131.
132.
WALLING, supra note 103, at 131.
THE FEDERALIST No. 71 (Alexander Hamilton), supra note 34, at 460.
THE FEDERALIST No. 72 (Alexander Hamilton), supra note 34, at 466.
133.
Id. at 465.
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CONSTITUTIONAL STATESMANSHIP
34
unlawfully or in corrupt ways. 1
Finally, Professor Walling describes how the provision for
competent powers serves to constitutionalize executive energy, a state of
moderation. The Constitution seeks a balance that avoids the extremes
of a President who is completely independent of Congress, and thus
unaccountable, and one who is completely dependent, and thus unable to
act responsibly in asserting his powers, checking congressional
ambition, and protecting the Nation in times of emergency or
necessity. 135
The qualified veto power, for example, allows the President to
exercise independent judgment as to the legality or constitutionality of
legislation, and thus to act as a restraint upon popular will and defective
or inadequate deliberation; yet his judgment is not absolute and 1is
36
subject to congressional override and makes him publicly accountable
(recall that Congress went so far as to censure President Jackson over his
exercise of the veto137 ). In giving the pardon power to the President, to
cite another example, the Constitution gives additional support to the
virtues of unity, as a single person is, according to Hamilton, "better
fitted, in delicate conjunctures, to balance the motives which may plead
for and against the remission of the punishment."' 38 Because, as
Walling observes, Hamilton believed that the pardon power was
designed to put an end to revolts, a single executive would be in the best
position to "act quickly to end a revolt and thereby restore the rule of
law."' 139
Walling then cites the Whiskey Rebellion in western
Pennsylvania as an example: President Washington employed a show of
force to quell the rebellion, granted a general amnesty for those who
pledged their allegiance to the American government, and pardoned the
two insurgents who were not protected by the amnesty and who were
subsequently convicted of treason, thus ending the rebellion. 40 The
pardon power thus gives the President authority to promote, not subvert,
reverence for law and civil social order.
134.
Id. at 467.
135. See WALLING, supra note 103, at 134.
136. See THE FEDERALIST No. 73 (Alexander Hamilton), supra note 34, at 468-69.
137. See 10 REG. DEB. 58-59 (1834) (statement of Sen. Henry Clay). The censure was
later expunged on constitutional grounds. 13 REG. DEB. 503-04 (1837).
138. THE FEDERALIST No. 74 (Alexander Hamilton), supra note 34, at 474.
139. WALLING, supra note 103, at 138.
140. Id. at 138-39. Hamilton's advice to Washington regarding the Whiskey Rebellion is
worth careful reading. See Letter from Alexander Hamilton to George Washington, supra
note 105, at 823-26.
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In addition, with regard to the powers of war and foreign relations,
the Constitution emphatically does not adopt the Lockean taxonomy of
power which distinguished federative and executive power yet placed
them both in the hands of the executive-some of Locke's federative
power was placed in the hands of Congress, such as the power to declare
war, to grant letters of marque and reprisal, and to ratify treaties. 141 Yet,
as I have previously argued elsewhere, Article II is more Lockean than it
may appear at first blush, allowing the President sufficient latitude to act
in response to the vicissitudes of chance and necessity and to do so
within the framework of republican legality. 142 Hamilton's Pacificus
essays demonstrate that he understood this aspect of political and
constitutional theory, and give us a much greater window into his
understanding of the core meaning of "executive power" than did any of
his essays in The Federalist. Countering Madison's fear that Hamilton's
understanding of executive (which included federative) power might be
used to swallow the powers of war and peace given explicitly to the
Congress, and thus was simply a recipe for prerogative or lawlessness, 143
Hamilton grounds his defense of executive powers not on Lockean
prerogative but on constitutional text, structure, and theory.' 44
When we examine the ingredients of executive energy, then, and
evaluate the presidency in the context of existing forms and institutional
responsibilities, we see strong and persuasive support for Professor
Walling's conclusion that a truly energetic executive is consistent with
Hamilton's
(one prone to) constitutionalism, not prerogative.
explanation of the ingredients for executive energy "showed that
executive energy and republican safety are mutually dependent. No
republic can be safe without an energetic executive ....45[Hamilton]
made executive energy both constitutional and republican." 1
What, then, is the connection between executive energy, properly
understood, and executive rhetoric, particularly in the form of the
inaugural? "For the sake of preserving the constitutional rule of law,"
Walling explains, "one often wishes presidents would not only act but
also speak like Hamilton, who preferred for the president to act
141. Compare JOHN LOCKE, Two TREATISES OF GOVERNMENT (Peter Laslett, ed.,
Cambridge Univ. Press 1993) (1690), with U.S. CONST. art. I, § 8.
142. See Broughton, supra note 42, at 314-16.
143. James Madison, Letters of Helvidius No. 1 (Aug. 24, 1793), reprinted in THE
POWER OF THE PRESIDENCY: CONCEPTS AND CONTROVERSY 59, 64 (Robert S. Hirschfield
ed., 3rd ed., 1982).
144. See Hamilton, supra note 66, at 803-09.
145. WALLING, supra note 103, at 152-53.
CONSTITUTIONAL STATESMANSHIP
2010]
energetically within rather than outside the law."' 146 The Constitution's
support for executive energy enables Presidents to simultaneously use
their energy to act aggressively in fulfilling specific duties and in
protecting the Nation, and to assert limits on their own power, and to
bolster the enumerated powers of the Congress. The inaugural address
offers a unique opportunity to employ executive energy understood in
this way, as enabling vigorous action but doing so within the framework
of formal proscriptions and arrangements; indeed, to sound like, and to
be, constitutionalists. The need for energy in the executive, in fact,
arguably supports an inclination toward some moderate form of
rhetorical leadership. 147 Again, the question today is not whether
Presidents will or ought to speak about their actions. Rather the question
is how will they speak? The inaugural address presents an opportunity
for the President to be active, to directly assert his independence from
the Congress, the projects he will pursue, the legislation he will
recommend, and the kind of administration he will direct, and yet to
place those aspects of his presidency in the context of constitutional
authority. Just as certain aspects of executive energy (such as secrecy
and dispatch) are especially useful in meeting the necessities that
accompany war and foreign affairs, Presidents can emphasize these
characteristics of the office in articulating an approach to issues of
federative power, such as by explaining the President's understanding of
his commander-in-chief authority, or the extent of his responsibility to
defend the Constitution. Moreover, through use of the language of the
Constitution, the President can make clear that his view of the office is
not unrestrained or lawless, but anchored by specific limitations or
grants of power. In this way, the inaugural address can instantiate the
energetic executive that the Constitution formalizes and republicanizes,
an independent executive who demonstrates both by action and by his
popular rhetoric that he takes seriously the formalities of the office.
III. THE INAUGURAL ADDRESS IN HISTORICAL PERSPECTIVE
It is no fantasy to suggest that the inaugural address can support
constitutional discourse and promote a certain kind civic education. The
early presidencies, through the Civil War, managed to do so to varying
degrees. Of course, some Presidents simply referred to the Constitution
146.
Id. at 152.
147.
See supra Part II.B.
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briefly or invoked it solely for the purpose of making a general
observation about American government or to laud the mechanism for
the transfer of power, rather than offer serious reflections on the nature
and scope of powers that the Constitution confers. Still, a terse
invocation of the Constitution is better than none at all. Moreover,
whether Presidents ultimately live up to their constitutionalist rhetoric,
or follow their own initial interpretations, remains a different matter.
Having advocated a model for the inaugural address that is predicated
upon a return to a more faithful commitment to formal constitutional
arrangements, it is useful at this point to briefly examine the historical
uses of the inaugural address and to highlight the ways in which
Presidents have employed, or failed to employ, constitutional discourse
in their inaugural addresses.
A. The Early Inaugurals and Constitutional Rule as Inspiration and
Anchor
Quite apart from the mass public delivery of most inaugurals,
President Washington delivered his first inaugural address to a joint
session of Congress at Federal Hall in New York. 148 After a few moving
remarks about the honor that had been bestowed upon him, and in light
of the circumstances of his address, Washington referred to his
constitutional obligation to recommend legislation to the Congress and
to the Constitution's description of legislative powers vested in
Congress, demonstrating his understanding of the boundaries that
separate executive and legislative power in the Constitution. 149 Rather
than take the opportunity to recommend any specific measures, he
reiterated his deference to the character and talents of the Congress and
expressed hope and confidence that Congress would act to protect the
"characteristic rights of freemen" and to promote "the public
harmony." 150 Glen Thurow, who has evaluated the relationship of the
early and modem inaugurals to presidential character, notes
"Washington's first inaugural may be said to contain the most open
display of character and virtue of any inaugural address."1 51 Notably,
148.
See George Washington, First Inaugural Address in the City of New York (Apr. 30,
1789), in INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7,
at 1, 1.
149.
150.
151.
See id. at 1-4.
Id. at4.
Thurow, supra note 10, at 18.
20l1
CONSTITUTIONAL STATESMANSHIP
Professor Thurow sees a connection between Washington's portrayal of
virtue and his commitment to constitutional arrangements. Indeed,
Thurow explains, Washington wholly subordinates himself to the
Constitution and, in so doing, shows the Constitution is the basis for
presidential power and obligation, not the virtue of the individual
occupying the office. 152 The claim to rule is formal, not personal. So
"Washington seeks to transfer the esteem in which he is held to the new
Constitution"
and to make the new Constitution stronger by elevating its
53
forms.
Washington's second inaugural address was considerably shorter
and actually preceded the oath.15 4 Yet Washington took the opportunity
to state, at the outset, "I am again called upon by the voice of my
country to execute the functions of its Chief Magistrate."' 155 Note the
use of the phrase 'functions of its Chief Magistrate"-a direct reference
to the formal constitutional duties of the institution, with no mention of
the accomplishments of his first administration, no detailed political
agenda, and no public appeals regarding his goals for the second
administration. He went on in the next paragraph of the address to
mention that the Constitution requires the oath and explained, "if it shall
be found during my administration of the Government I have in any
instance violated willingly or knowingly the injunctions thereof, I may
(besides incurring constitutional punishment) be subject to the
upbraidings of all who are now witnesses of the present solemn
ceremony."' 156 This concluded the speech, yet even in such a brief
address, Washington was able to remind listeners of his constitutional
obligations and the constitutional consequences for violating them.
Washington's inaugurals do not possess the historic impact of some
of his other speeches and writings, most notably the Farewell
Address. 157 They do, however, set an early precedent for an inaugural
address devoted meaningfully to elevating the formal arrangements of
the constitutional system, particularly formal institutional powers of the
152.
Id. at 19.
153.
Id.
Professor Tulis explains that Washington had prepared a lengthy set of
recommendations for Congress, which was his original inaugural draft, but thought the
occasion inappropriate for such a presentation. TULIS, supra note 8, at 48.
154. George Washington, Second Inaugural Address in the City of Philadelphia (Mar. 4,
1793), in THE INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra
note 7, at 6, 6.
155. Id.
156. Id.
157. See Washington, supra note 39.
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presidency. Some, like President Jefferson, followed a somewhat
different model. Jefferson's references to the Constitution in each of his
inaugurals are relatively few but, when they occur, they tend to concern
individual rights rather than structures or specific governmental powers,
executive or otherwise. Following the bitter and divisive election of
1800, President Jefferson's famed first inaugural is best known for its
conciliatory spirit ("We are all Republicans, we are all Federalists" and
"peace, commerce, and honest friendship with all nations, entangling
alliances with none") and libertarian spirit ("a wise and frugal
Government... shall leave [men] otherwise free to regulate their own
pursuits of industry and improvement, and shall not take from the mouth
of labor the bread it has earned").1 58 Still, Jefferson explains what he
deemed "the essential principles of our Government, and consequently
those which ought to shape its administration," and included in his list "a
jealous care of the right of election by the people," "freedom of religion;
freedom of the press, and freedom of [the] person under the protection of
the habeas corpus, and trial by juries impartially selected." 159 Therefore,
although Jefferson is not chiefly devoted to explaining his understanding
of executive or other constitutional powers (an explanation that could
have proven useful in light of Jefferson's subsequent enlargement of
federal power), his speech nonetheless respects the constitutional
formalities of individual rights and republican virtue. As Thurow
describes it, the Jefferson first inaugural expressed virtue "as a result
of
160
Constitution."'
the
serves
it
because
noble
be
to
and
the Constitution
As the nineteenth century presidents emerged, it became common
to invoke the Constitution during the inaugural as a way of reassuring
listeners that the constitutional text and its forms would bind the
President. Of course, some did not elaborate upon their view of its
meaning but instead referred to it, or its specific provisions, only
generally, leaving at least the impression of respect for constitutional
forms, though without adding much to the substantive constitutional
understanding regarding the scope of political powers. President
Madison, for example, vowed in his first inaugural to "support the
Constitution, which is the cement of the Union, as well in its limitations
as in its authorities."' 6 1 President Monroe's first inaugural, which
158. Jefferson, supra note 78, at 15-16.
159. Id. at 16.
160. See Thurow, supra note 10, at 21.
161. James Madison, First Inaugural Address (Mar. 4, 1809), in INAUGURAL ADDRESSES
OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 25, 27.
CONSTITUTIONAL STATESMANSHIP
2010]
toasted the "happy state" of affairs in the country and which was the first
to be given outdoors, reminded listeners that internal improvements
would always proceed "with a constitutional sanction."' 162 President
Jackson, whose assertions of his own understanding of the Constitution
engendered great controversy during his two terms, stated in his first
inaugural that "[i]n administering the laws of Congress I shall keep
steadily in view the limitations as well as the extent of the Executive
power, trusting thereby to discharge the functions of my office without
transcending its authority." 163 Like Monroe, Jackson, whose address
appears to be deliberately vague about the constitutional concerns he
raises, also advocated internal improvements but only insofar "as they
can be promoted by the constitutional acts of the Federal
Government."' 164 Indeed, the language of constitutional limitation is
useful to observe here because both Monroe and Jackson ultimately
exercised a constitutional veto of internal improvements legislation,
declaring the legislation to exceed congressional authority.' 65 President
Van Buren declared "that the principle that will govern me in the high
duty to which my country calls me is a strict adherence to the letter and
166
spirit of the Constitution as it was designed by those who framed it.'
Van Buren further explained that he would refer to the Constitution for
"direction in every action," and that he would "zealously devote"
himself to those domestic and foreign affairs governed by the
Constitution, yet "beyond those limits I shall never pass."' 167 Finally,
John Quincy Adams was somewhat more elaborate in his invocation of
the Constitution than his predecessors or immediate successors. He
actually devoted the first several paragraphs of his inaugural to citing the
general operation and purposes of the constitutional scheme,
acknowledging the role of the judiciary in interpreting the Constitution
consistent with "legislative will" and asserting that the Constitution was
"founded upon the republican principle of equal rights."' 168 He saved
162.
James Monroe, First Inaugural Address (Mar. 4, 1817), in INAUGURAL ADDRESSES
OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 33, 36, 38.
163. Andrew Jackson, First Inaugural Address (Mar. 4, 1829), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 61, 62.
164. Id. at 63. According to Robert Remini, Jackson's first inaugural "was a model of
political adroitness. It was short, vague, and contained nothing to frighten his friends."
ROBERT V. REMINI, ANDREW JACKSON 107 (1966).
165. See Broughton, supra note 28, at 120-22.
166. Martin Van Buren, Inaugural Address (Mar. 4, 1837), in INAUGURAL ADDRESSES
OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 69, 76.
167.
Id. at 76-77.
168.
Adams, supra note 7, at 53-55.
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room toward the end of his speech for a more specific discussion of
internal improvements, which, Adams says, precipitated "[r]epeated,
liberal, and candid discussions" about whether Congress enjoyed
constitutional authority to enact provisions for such improvements,
hoping that "all constitutional objections will ultimately be removed"
and that "[t]he extent and limitation of the powers of the General
Government
in relation to" internal improvements will be finally
69
1
settled.
One of the most noteworthy of the constitutionalized presidential
inaugurals, but one neglected by legal scholars, is that of William Henry
Harrison. His inaugural address is best known not for its content but for
its length: an eight thousand five hundred word speech delivered with
neither hat nor coat for nearly two hours in the bitter cold and snow of
Washington in March of 1841.170 Infamously, President Harrison
developed pneumonia and died a month later. 7 1 If, however, we
dismiss Harrison as foolish and ignore his remarks simply because he
served only thirty-one days as President, we miss a meaningful
discussion about the Whig view of the presidency and the Constitution
in an intriguing but under evaluated speech, one that differs in important
ways from its predecessors. Indeed, Harrison's inaugural is largely a
lesson in constitutional theory and interpretation; though he differs with
Publius in some particulars (such as duration in the office of the
President), and does not hesitate to identify flaws in the Constitution's
text,' 72 the address reads much like Publius's defense of the new
Constitution. In addition, it begins with a simple statement about the
role of the address in the life of a constitutional presidency: "I proceed to
present to you a summary of the principles which will govern me
in the
173
perform."'
to
upon
called
be
shall
I
which
discharge of the duties
Harrison spends considerable time throughout the address
drawing lessons from Roman political history and explaining generally
that the American Constitution imposes limits on governmental power to
assure the protection of personal liberty. 74 His assertions for the first
few paragraphs are unremarkable, but then Harrison notes that "disputes
169. Id. at 59.
170. See Harrison, supra note 7, at 79.
171. William
Henry
http://www.whitehouse.gov/about/presidents/willianbenryharrison
2009).
172. Harrison, supra note 7, at 83-84.
173. Id. at 79-80.
174. Id. at 80, 81, 88, 94, 96.
(last
Harrison,
visited Nov. 21,
2010]
CONSTITUTIONAL STATESMANSHIP
have arisen as to the amount of power which [the Constitution] has
actually granted or was intended to grant," and acknowledges the
difficulty in ascertaining the intentions of the Constitution's framers. 175
Harrison states that the problem with the abuse of power in American
government is not chiefly that institutions exercise power they have not
received; rather, the chief danger is that the formal separation of powers
have not been observed, resulting in the accumulation of the powers in
one branch that belong to another branch. 76 He then explains that he is
determined "to arrest the progress of that tendency if it really exists and
restore the government to its pristine health and vigor"'177 and later states
the "necessity of keeping the respective 8 departments of the
17
Government ...within their appropriate orbits."
To achieve this end, Harrison offers both a critique and defense of
the Constitution's formal arrangements. Notably, he first promises he
will serve only a single term. 179 He argues that the Constitution
defectively permits Presidents to serve a second term, thus creating the
danger that the President will, over time, be corrupted by his power and
forget that "he is the accountable agent, not the principal; the servant,
not the master."' 180 Harrison next explains his whiggish view of the
President's role in legislative affairs under the Constitution. He rejects
the notion that the Recommendation Clause is a legislative power and
explains his view that the veto is a "conservative power" to be employed
in only three instances: "to protect the Constitution," to prevent the
enactment of "hasty legislation," and to protect the rights of
minorities.18 1 "To assist or control Congress, then, in its ordinary
legislation could not, I conceive, have been the motive for conferring the
veto power on the President."'8 2 Next, Harrison states that the executive
has become too dangerous because of both excesses in patronage,
claiming that the Constitution should have made certain government
officials, such as the Treasury Secretary, independent and removable
only upon request of Congress; and because Presidents now not only
recommend legislation to Congress, they have become the source of
legislation, particularly public finance bills: "the delicate duty of
175.
Id.at 82.
176.
177.
Harrison, supra note 7, at 82.
Id.
178.
179.
Id.at 91.
Id.at 84.
180.
Harrison, supra note 7, at 83-84.
181.
182.
Id. at 86.
Id.at 85.
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devising schemes of revenue should be left where the Constitution
has
1 83
people."'
the
of
representatives
immediate
the
placed it-with
The next portion of the address is devoted to general observations
about another formal constitutional arrangement: American federalism
(and clearly, though slavery is not mentioned by name, the remarks
constitute an expression of concerns about domestic violence regarding
slavery). Harrison advocates the importance of a united confederacy of
the states and of respect for the sovereignty of each, fearing that if their
sovereignty is not respected, the result will be "disunion, violence, and
civil war." 184 Afterward, Harrison devotes a single paragraph to foreign
affairs in which he simply gives his assurance to "preserve the friendly
' 85
intercourse which now so happily subsists with every foreign nation."'
Finally, Harrison concludes with a criticism of parties, or factions,
vowing that "[a]ll the influence that I possess shall be exerted to prevent
the formation
at least of an Executive party in the halls of the legislative
18 6
'
body."
The Harrison inaugural is arguably excessive not only in its length
but in the detail that Harrison devotes to constitutional theory. My
proposal does not go as far as Harrison does. Still, even when he is
critical of the constitutional text, Harrison is at least engaged in the
serious business of discussing constitutional meaning. Moreover, he is
doing so publicly, to a mass audience, conveying an earnest effort at
civic education. In this context, it is also interesting that Harrison
devotes so much time to the ancients. The Framers understood the
tragedies that befell the ancients and were careful to construct a system
with forms that would avoid the problems of popular government that
plagued, and ultimately destroyed, ancient regimes like Athens. 187 By
invoking the ancients as he does, Harrison, like Publius and others of the
founding generation, invites a deeper contemplation of the significance
of our constitutional formalities and the ways in which they are designed
188
to avoid the dangers of democracy and republican government.
183.
Id. at 88, 89-90.
184.
Harrison, supra note 7, at 92.
185.
Id. at95.
186.
187.
188.
Id. at 97.
See BARRUS ET AL., supra note 31, at 2-7.
See, e.g., THE FEDERALIST No. 9 (Alexander Hamilton), supra note 34, at 124
(stating "[i]t is impossible to read the history of the petty republics of Greece and Italy without
feeling sensations of horror and disgust at the distractions with which they were continually
agitated, and at the rapid succession of revolutions by which they were kept in a state of
perpetual vibration between the extremes of tyranny and anarchy"); THE FEDERALIST No. 63
2010]
CONSTITUTIONAL STATESMANSHIP
Again, this enhances the Harrison inaugural address as a civic education
model. The Harrison inaugural address thus remains a historically
meaningful effort to employ the inaugural address for purposes chiefly
related not to policy preferences and self-serving political advocacy, but
to reflection about the forms of the Constitution and to engaging in
public dialogue about the significance of those forms. Though its detail
perhaps sits at the extreme, and its view of executive power more
whiggish than the one I would endorse, it is an early example of how a
President can reconcile mass public oratory with the constitutional
presidency.
After Harrison's, (President Tyler did not give an inaugural
address, nor did President Fillmore, who ascended to the presidency
upon Zachary Taylor's sudden death 189 ) the mid-nineteenth century
inaugural addresses continued to invoke the Constitution but tended to
focus on the Constitution's federalism, which was significant in light of
westward expansion and the effort to emphasize national unity despite
the discord over slavery. At times, these inaugural addresses plainly fail
to acknowledge the moral, political, and legal consequences of
defending slavery or rationalizing its perpetuation through an often
vague defense of federalism. Yet, it is worthwhile to study each of these
speeches, some of which are useful examples of what may charitably be
described as the sometimes ugly side of employing constitutional
discourse in the inaugural to define the expectations and priorities of the
new administration-ugly in the sense that Presidents, like courts, can
view the Constitution in unfortunate, even mistaken, ways.
President Polk, whose lengthy address did not hesitate to announce
policy preferences, particularly those related to the annexation of Texas
and his obsession with Manifest Destiny and the development of western
territory, combined his policy advocacy with substantial constitutional
rhetoric. 90 Polk stated that "[t]he Constitution itself, plainly written as
it is, the safeguard of our federative compact, the offspring of concession
and compromise, binding together in the bonds of peace and union this
great and increasing family of free and independent States, will be the
(James Madison), supra note 34, at 415 (stating that "history informs us of no long-lived
republic which had not a senate"); THE FEDERALIST No. 70 (Alexander Hamilton), supra note
34, at 452 (stating that the experience of other nations "teaches us not to be enamoured [sic] of
plurality in the Executive").
189.
at iv.
190.
INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7,
James Knox Polk, Inaugural Address (Mar. 4, 1845), in INAUGURAL ADDRESSES OF
THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 99.
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chart by which I shall be directed."' 9' He followed by promising that
"[i]t will be my first care to administer the Government in the true spirit
of that instrument, and to assume no powers not expressly granted or
clearly implied in its terms."' 92 His successor, President Taylor, a
military hero (like Polk) who was a poor public speaker, similarly
invoked the Constitution and the significance of precedent in the search
for constitutional meaning: "[i]n the discharge of these duties my guide
will be the Constitution" and "[f]or the interpretation of that instrument I
shall look to the decisions of the judicial tribunals established by its
authority and to the practice of the Government under the earlier
Presidents, who had so large a share in its formation."193
Polk went on to discuss the importance of a limited national
government and the sovereignty of the states, the attachment of the
people to the union and the "moral treason" that would accompany any
efforts to dissolve the union, but also warned that the states had only
limited powers reserved to them as well. 194 He also, like William Henry
Harrison, noted his view that the executive's veto was a "conservative"
power that he would exercise against "hasty, inconsiderate, or
unconstitutional legislation." 195 Even his discussion of westward
expansion was qualified by his acknowledgement of constitutional
constraints (as to the receipt of Texas into the union and the acquisition
of lands "beyond the Rocky Mountains," Polk promises these will occur
only by "constitutional means"), and near the conclusion of his remarks
he quotes the Take Care Clause in promising the accountability
of public
96
officials, especially those who manage public money. 1
Taylor, whose whiggish view of the presidency more readily
complements that of Harrison, discussed the importance of American
neutrality in foreign affairs and also emphasized a few preferred
domestic policies-agriculture, commerce, and manufacturing; internal
improvements related to waterways; elimination of public debt;
accountability of public officials-but noted "it is for the wisdom of
Congress itself, in which all legislative powers are vested by the
Constitution, to regulate these and other matters of domestic policy." 197
191.
192.
Id. at 100.
Id.
193.
194.
Taylor, supranote 22, at 111-12.
Polk, supra note 190, at 100, 104.
195.
196.
Id. at 102.
Id. at 109.
197.
Taylor, supranote 22, at 113.
2010]
CONSTITUTIONAL STATESMANSHIP
305
Taylor's reference to potential discord among the states over slavery was
limited to a single vague line: "I shall look with confidence to the
enlightened patriotism of [Congress] to adopt such measures of
conciliation as may harmonize conflicting interests and tend to
perpetuate [the] Union ....
,,198
In contrast, the invocation of the Constitution as a formal means of
protecting the union was much stronger in Franklin Pierce's address.
Moreover, Pierce's references to his views on slavery, troubling though
they are, are stated with much greater clarity. His address warns
generally, seemingly benignly, against an omnipotent central
government: "[y]ou have a right, therefore, to expect your agents in
every department to regard strictly the limits imposed upon them by the
Constitution of the United States."' 199 Pierce, who was a Northerner,
continually sought to appease Southern interests, and his address
distinctly employs the Constitution for this purpose:
The great scheme of our constitutional liberty rests upon a proper distribution
of power between the state and federal authorities .... If the Federal
Government will confine itself to the exercise of powers clearly granted by the
Constitution, it can hardly happen that its action upon any question should
endanger the institutions of the States or interfere with their right
2 0 0to manage
matters strictly domestic according to the will of their own people.
Pierce then becomes clear:
I believe that involuntary servitude, as it exists in different States of this
Confederacy, is recognized by the Constitution. I believe that it stands like
any other admitted right, and that the States where it exists are entitled to
efficient remedies to enforce the constitutional provisions. I hold that the laws
of 1850, commonly called the "compromise measures," are strictly
constitutional and to be unhesitatingly carried into effect. I believe that the
constituted authorities of this Republic are bound to regard the rights of the
South in this respect as they would view any other legal and constitutional
right ....
201
Whether Pierce truly misunderstood the moral, political, and legal
consequences of his unfortunate construction of the Constitution with
regard to slavery, or whether his articulation of this construction was
198.
199.
200.
201.
Polk, supranote 190, at 113.
Pierce, supra note 7, at 121.
Id.
Id. at 122.
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designed simply to appease southern interests in an effort to stave off
further conflict, the Pierce address-like those of his predecessors who
broached the subject with less clarity-serves as a model for the ways in
which Presidents can use the inaugural address to articulate and defend
even a misguided or objectionable interpretation of the Constitution,
rather than deferring constitutional deliberation and construction to the
courts or the Congress.
Even President Buchanan, who noted in his address that the
Kansas-Nebraska Act was a "judicial question" pending before the
Supreme Court and appeared convinced that the slavery matter ought no
longer to pose a reason for discord in the union,2 °2 repeatedly offers his
views on constitutional meaning and theory. As to slavery, he says, "all
agree that under the Constitution slavery in the States is beyond the
reach of any human power except that of the respective States. 20 3 As to
the method of discerning constitutional meaning, he explains, "I desire
to state at the commencement of my Administration that long experience
and observation have convinced me that a strict construction of the
powers of the Government is the only true, as well as the only safe,
theory of the Constitution', 20°4 As to the policy of adopting military
roads through the territories to California, he concludes "[i]t is
impossible to conceive that whilst the Constitution has expressly
required Congress to defend all the States it should yet deny to them, by
any fair construction, the only possible means by which one of these
states can be defended. 2 °5
When Abraham Lincoln took the oath, it was not immediately clear
from his first inaugural precisely how aggressive his administration
would be in acting to preserve the Union and to eradicate slavery.
Indeed, Lincoln stated explicitly in the address that he did not have a
"lawful right" to interfere with the institution of slavery and had "no
inclination to do so. '' 2° 6 Later in the speech, he even states that he has
no objection to a constitutional amendment that would prevent federal
interference with "domestic institutions of the States, including that of
persons held to service. ,,207 His many invocations of the Constitution
202.
James Buchanan, Inaugural Address (Mar. 4, 1857), in INAUGURAL ADDRESSES OF
THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 125, 126.
203.
Id. at 127.
204.
Id. at 130.
205.
Id.
206.
Abraham Lincoln, First Inaugural Address (Mar. 4,
1861), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 133, 134.
207.
Id.at 140.
CONSTITUTIONAL STATESMANSHIP
2010]
appeared to reflect caution in his understanding of the scope of his
authority, and the authority of the federal government with respect to the
states, but Lincoln's first inaugural was still a substantial foray into
presidential constitutional deliberation that demonstrated an effort to
assure constitutional equilibrium by avoiding the language of weakness
on the one hand and prerogative on the other. Apart from its assurance
not to interfere in the South's domestic policies, Lincoln's speech is
devoted chiefly to his highest priority of saving the Union, and the
listener cannot help but feel that Lincoln's tone suggests he would take
extraordinary measures to do so. Yet the address that Lincoln gives is
somewhat softer than his original draft, a result of suggestions he
received from William Seward, who feared that a more confrontational
address would only exacerbate secession.20 8 Thus, not unlike his speech
to the Young Men's Lyceum at Springfield in 1838 in which he argued
that reverence for the Constitution and laws should be our political
religion, 20 9 Lincoln's first inaugural address is impressive in its ability to
strike the proper tone, all while remaining faithful, indeed absolutely
committed, to constitutional forms. Moreover, it is an example of a
President employing the inaugural to express the national-preservation
view of presidential power under the oath.
"[T]he intention of the lawgiver is the law," Lincoln announced in
referencing the Fugitive Slave Clause. 210
He recalled that "[a]ll
members of Congress "swear their support to the whole Constitution,"
and indicated that this ought to ensure that fugitive slaves be delivered,
whether by state or federal enforcement.2 1
Lincoln then asks,
rhetorically (and surely with the DredScott case in mind), whether a free
man should be delivered as a slave, and whether the law should provide
for the enforcement of the Privileges and Immunities Clause of Article
1I.212 At this point, his attention turns from reassuring listeners that he
would respect the Fugitive Slave Clause to his concerns for the
preservation of the Union and, more broadly, for preservation of the
Constitution. He sees a connection between respecting the forms of the
Constitution and protecting the Union, which existed before the
208. See DAVID HERBERT DONALD, LINCOLN 283-84 (1995).
209. See Abraham Lincoln, The Perpetuation of Our Political Institutions (Jan. 27, 1838),
in SELECTED WRITINGS OF ABRAHAM LINCOLN 10, 15 (1992).
210. Lincoln, supra note 206, at 135.
211. Id.
212.
Id.
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Constitution.2 13 Lincoln declared:
I hold that in contemplation of universal law and of the Constitution the Union
of these States is perpetual.... Continue to execute all the express provisions
of our National Constitution, and the Union will endure forever, it being
impossible to destroy
it except by some action not provided for in the
214
instrument itself.
Consequently, no state can escape the Union and any effort to do so
is void, for in this case, the Union would be less perfect because not
perpetual. 215 Lincoln continued:
I therefore consider that in view of the Constitution and the laws the Union is
unbroken, and to the extent of my ability, I shall take care, as the Constitution
itself expressly enjoins upon me, that the laws of the Union be faithfully
executed in all the States ....
I trust this will not be regarded as a menace, but
only as the declared purpose of the Union that it will constitutionally defend
and maintain itself.
Lincoln says that "[a]ll profess to be content in the Union if all
constitutional rights can be maintained" and says no one has been
deprived of his rights.217 The Constitution, Lincoln explains, does not
answer every question and it is in the Constitution's silence, rather than
its express provisions, that constitutional controversy arises, for it is in
these moments that majority and minority factions appear and divide
over the unanswered questions.2 18 To prevent anarchy, we must retain
the constitutional form, with the majority governed by constitutional
checks; secession is, Lincoln explains, tantamount to anarchy.2 19
Lincoln then completes his defense of constitutional forms by turning his
attention from federalism and rights to the separation of powers and his
understanding of constitutional limits on those powers, particularly those
of the judiciary.
He agrees that the Supreme Court decides
constitutional questions in specific cases and its decisions are worthy of
"very high respect and consideration" by the political branches, even
when the Court errs and even when the error produces an evil (for the
213.
214.
215.
216.
217.
218.
219.
Id. at 135-36.
Lincoln, supra note 206, at 135-36.
Id. at 136.
Id.
Id.at 137.
Lincoln, supra note 206, at 138.
Id.
20101
CONSTITUTIONAL STATESMANSHIP
error can be corrected in future cases). 220 Lincoln, though, rejects the
notion that the Court's view renders an issue "irrevocably fixed"; he
says he does not mean this as an "assault upon the court or the judges,"
and "it is no fault of theirs if others seek to turn their decisions to
political purposes. ' '2
Here Lincoln appears to imply that others can discern the
Constitution's meaning as well, but he stops short of asserting this.
Rather, his speech constantly raises ongoing constitutional controversies
without expressly urging an interpretation that would cause discord
between his administration and the other branches of government. His
caution seems to be a deliberate effort, consistent with his theme and
with the changes he made from the original draft, to avoid provocation
and confrontation, preferring instead to speak generally of respect for
existing institutions and constitutional forms, perhaps even as a reminder
of the need for unity and of the principles that bind Americans. 222 "We
are not enemies, but friends. We must not be enemies," Lincoln says.223
"Though passion may have strained it must not break the bonds of our
affection., 224 He concludes with hope that the memory of those bonds
will "yet swell the chorus of the Union, when again touched, as surely
225
they will be, by the better angels of our nature.
Although the post-Civil War presidencies were hardly monuments
to executive energy, Lincoln's was not the last inaugural to delve
substantially into the meaning of the Constitution and the scope of
constitutional powers. To be sure, most of his immediate successors
certainly referenced the Constitution, but those references tended to look
very much like those of most nineteenth century presidents who invoked
the Constitution to reassure listeners that the President would be
anchored and not prone to the sense of prerogative that many feared
when the American presidency was created. President Hayes, for
example, whose controversial election itself raised constitutional
concerns, announced his view that the government must submit "loyally
and heartily to the Constitution and the laws-the laws of the nation and
the laws of the States themselves-accepting and obeying faithfully the
220. Id. at 138-39. Lincoln, of course, publicly rejected the Supreme Court's decision in
the Dred Scott case, most notably in his Senate campaign against Stephen Douglas in 1858.
See BARRUS ET AL., supra note 31, at 36-42.
221. Lincoln, supra note 206, at 139.
222. See DONALD, supra note 208, at 283-84.
223. Lincoln, supra note 206, at 141.
224. Id.
225. Id.
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whole Constitution as it is. ' ' 22 6 He further expressed his view that the
American South "now needs and deserves the considerate care of the
National Government within the just limits prescribed by the
Constitution and wise public economy., 227
Similarly, President
Cleveland's first inaugural explained that he would "endeavor to be
guided by a just and unstrained construction of the Constitution," by
observing the distinction between federal and state powers, and by a
"cautious appreciation of those functions which by the Constitution and
laws have been especially assigned to the executive branch of the
Government., 228 Of all the nineteenth century president who followed
Lincoln, it was President Garfield who elaborated somewhat further on
constitutional meaning. He stated that it is the "paramount duty of the
executive" to interpret and execute the people's will "in accordance with
the Constitution"; 229 assured Americans that the Supremacy Clause of
the Constitution binds the States and the people but does not "disturb the
autonomy of the States nor interfere with any of their necessary rights of
local self-government," though, harkening back to Lincoln, it does
establish the Union's "permanent supremacy"; 23° and explained that
with regard to blacks, "[s]o far as my authority can lawfully extend they
shall enjoy the full and equal protection of the Constitution and the
laws.",23 1 Garfield further expressed his support for the right of black
suffrage (as did Cleveland); acknowledged the constitutional question
regarding Congress's power to make paper money legal tender; and
explained, in referring to the Mormon Church's support of polygamy,
that although "[t]he Constitution guarantees absolute religious freedom,"
Congress had a duty to "prohibit within its jurisdiction all criminal
practices, especially of that class which destroy the family relations and
endanger social order., 232 Nearing the conclusion of his remarks,
Garfield assured his audience that he would always act "within the
authority and limitations of the Constitution. 23 3
226.
Rutherford B. Hayes, Inaugural Address (Mar. 5, 1877), in INAUGURAL ADDRESSES
OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 153, 153, 155.
227.
228.
Id. at 156.
Grover Cleveland, First Inaugural Address (Mar. 4,
1885), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 169, 171.
229.
James A. Garfield, Inaugural Address (Mar. 4, 1881), in INAUGURAL ADDRESSES
OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 161, 162-63.
230.
231.
232.
233.
Id. at 163.
Id. at 164.
Id. at 164-167.
Garfield, supra note 229, at 168.
20101
CONSTITUTIONAL STATESMANSHIP
From these early inaugural addresses we see popular presidential
rhetoric that is at once designed to promote action (or at least to reserve
the authority to act), either by the President himself or by the Congress,
while commanding respect for constitutionalism, and most often for
formal constitutional arrangements related to the allocation of powereither the horizontal allocation of power among the three branches of the
federal government or the vertical allocation of powers among the states
and the federal government. Of course, this is not to say that the early
inaugurals were wholly, or even overwhelmingly, devoted to
constitutional discourse.
Rather, Presidents increasingly saw the
inaugural address as a way not simply to discuss general principles of
government but to promote particular domestic or foreign policy
concerns. Yet, even this kind of rhetoric was usually presented in the
broader context of a formal constitutional system that either supports or
forbids political action to meet those concerns. The most notable
common theme among the pre-twentieth century inaugurals, then, is not
advocacy of a particular policy or even an assertion of presidential
leadership in the making of public policy; rather, it is a moderate form of
leadership invoking some measure of reflection, however general, upon
the scope of constitutional authority for the political action that
presidents contemplated. These addresses thus show that even as later
Presidents were increasingly advocating their policy preferences they
were at the same time acknowledging and contemplating the
significance of the Constitution's provisions for both executive and
legislative power. That a President articulates a disagreeable, even
morally repugnant, vision of the constitutional order is a matter worthy
of considerable study but another matter still; after all, Presidents are no
different from courts in this regard. Rather, what is significant about
these speeches for present purposes is that they employ the rhetoric of a
presidency anchored by the formal constitutional arrangements and,
particularly as to those in the middle and latter years of the nineteenth
century, that they demonstrate that a President need not forego
constitutional reflection even as he promotes a domestic or foreign
political agenda.
B.
The Modern Inauguralsand Wilsonian Theory in Practice
It takes considerably less time to survey the constitutional discourse
in the inaugural addresses beginning in the twentieth century. That is
because modern Presidents have increasingly avoided invoking the
Constitution during their addresses. Instead, the inaugural addresses
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since 1901 have been overwhelmingly devoted to the political objectives
of the new administration and to describing national conditions, without
placing those discussions in the context of constitutional forms.
The first address of the century was President McKinley's second
inaugural, which briefly cited the words of the oath and the Take Care
Clause in expressing McKinley's encouragement that he had support of
the public. 234 President Taft used his inaugural address to advocate a
number of new policies, and particularly to discuss foreign affairs, but
devoted a portion of his address to the progress of racial integration into
American society in light of the Reconstruction Amendments. 23 5 Most
pressing for Taft was enforcement of the Fifteenth Amendment, which,
he observed, had not been adequately enforced but was slowly becoming
a reality as more Southern states enacted laws regarding voter
qualifications.236 Taft expressed his view that the Fifteenth Amendment
"never ought to be repealed," but as long as southern legislation satisfied
the Constitution and federal law, "it is not the disposition or within the
province of the Federal Government to interfere with the regulation by
Southern States of their domestic affairs. 237 President Harding refers to
"[o]ur fundamental law" as recognizing "no class, no group, no
section .... The supreme inspiration is the common weal. 23 8 He went
on to add that "[o]urs is a constitutional freedom where. .. minorities
are sacredly protected., 239 Calvin Coolidge, urging tax reform and
security for property rights, stated that "[u]nder this republic the rewards
of industry belong to those who earn them. The only constitutional tax
is the tax which ministers to public necessity., 240 He subsequently
explained that "[i]t is ... the right to hold property, both great and small,
which our Constitution guarantees,, 24 1 and, in urging obedience to the
law, stated that "[t]hose who want their rights respected under the
Constitution and the law ought to set the example themselves of
234. See William McKinley, Second Inaugural Address (Mar. 4, 1901), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 203, 203.
235. See William Howard Taft, Inaugural Address (Mar. 4, 1909), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 213.
236. Id. at 222.
237.
Id. at 222-23.
238. Warren G. Harding, Inaugural Address (Mar. 4, 1921), in INAUGURAL ADDRESSES
OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 237, 243.
239.
Id.
240. Calvin Coolidge, Inaugural Address (Mar. 4, 1925), in INAUGURAL ADDRESSES OF
THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 247, 253-54.
241. Id. at 254.
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CONSTITUTIONAL STATESMANSHIP
observing the Constitution and the law., 242 In addition, President
Hoover, who devoted most of his inaugural address to crime, invoked
the Constitution when discussing federal regulation of monopolies, as
well as later in the speech when he listed "maintenance of the integrity
of the Constitution" as the first in a list of mandates flowing from his
election. 243
Perhaps the most notable of the twentieth century inaugural
addresses are those of Theodore Roosevelt, Woodrow Wilson, and
Franklin Roosevelt, each of whom has contributed, in varying degrees,
to the development of modem presidential leadership. Professor Tulis
identifies Theodore Roosevelt's administration as beginning a shift in
presidential power toward popular leadership, but both Tulis and the
Deconstitutionalization scholars maintain that Theodore Roosevelt
differed from Wilson in the important sense that Theodore Roosevelt
anchored his "stewardship theory" of the presidency in constitutional
forms. 244
Still, his single inaugural address did not mention the
Constitution. 245 Wilson's impact on presidential leadership, described
earlier, is to some extent reflected in his two inaugural addresses, both of
which charted his new vision for the government and the Nation's future
246
but neither of which mentioned the Constitution.
In faimess,
Wilson's first inaugural was an example of constitutional reflection, but
in the sense that it announced a revised understanding of the President's
role in American political life, one in which "[t]he President was to be a
kind of democratic oracle, tasked with giving voice to the people's
power to redefine public life through democratic action-a power which,
he implied, would remain mute unless it found its presidential voice. 247
His understanding, however, explicitly rejected the formal arrangements
of the constitutional text and structure.
Franklin Roosevelt, facing dire economic conditions in the country,
was the first President of the last century to use the inaugural as a
242.
Id. at 255.
243. Herbert Hoover, Inaugural Address (Mar. 4, 1929), in INAUGURAL ADDRESSES OF
THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 257, 260-61, 265.
244. See BARRUS ET AL., supra note 31, at 105; TULIS, supra note 8, at 113-16.
245. See Theodore Roosevelt, Inaugural Address (Mar. 4, 1905), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 209.
246. See Woodrow Wilson, First Inaugural Address (Mar. 4, 1913), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 227; Woodrow
Wilson, Second Inaugural Address (Mar. 5, 1917), in INAUGURAL ADDRESSES OF THE
PRESIDENTS OF THE UNITED STATES, supra note 7, at 232.
247. Purdy, supra note 36, at 1849.
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platform for invoking the Constitution to advocate enhanced presidential
powers. "Our Constitution is so simple and practical that it is possible
always to meet extraordinary needs by changes in emphasis and
arrangement without loss of essential form," Roosevelt explained.24 8
According to Roosevelt, the existing balance between legislative and
executive power could prove inadequate in light of national conditions
and the administration's ideas for improving them. 249 So Roosevelt
claimed he was "prepared under my constitutional duty to recommend
the measures that a stricken nation in the midst of a stricken world may
250
require" and to adopt them "within my constitutional authority.,
Roosevelt went on to make clear that if Congress failed to work with the
administration to adopt measures necessary to meet national exigencies,
"I shall ask the Congress for the one remaining instrument to meet the
crisis-broad Executive power to wage a war against the emergency, as
great as the power that would be given to me if we were in fact invaded
by a foreign foe.,
251
Roosevelt's frank assertion of the need for greater
presidential authority seems at once innovative and audacious.
Moreover, students of law and political history know well the
constitutional controversies that emerged because of Roosevelt's New
Deal, cases that created conflict with the Court that lasted until 1937 and
precipitated Roosevelt's proposal to increase the number of Justices on
the Court.2 52 Still it is important to remember that Roosevelt forecasted
these momentous constitutional controversies in his first inaugural
address, thus demonstrating the power of popular presidential rhetoric to
not only assert a need for exercising a particular kind of constitutional
authority but to employ that rhetoric to advocate a change in our
understanding of the existing constitutional order.
After Roosevelt, however, presidential inaugural addresses have
barely referenced the Constitution or otherwise reflected on federal
powers. For example, President Reagan's first inaugural address
referenced federalism and the Tenth Amendment by "demand[ing]
recognition of the distinction between the powers granted to the Federal
Government and those reserved to the States or to the people, 25 3 while
248.
Franklin D. Roosevelt, First Inaugural Address (Mar. 4, 1933), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 269, 272-73.
249.
250.
251.
252.
Id. at 273.
Id.
Id.
For a good summary, see BERNARD SCHWARTZ, A HISTORY OF THE SUPREME
COURT 231-38 (1993).
253.
Ronald Reagan, First Inaugural Address (Jan. 20, 1981), in INAUGURAL ADDRESSES
20101
CONSTITUTIONAL STATESMANSHIP
his second inaugural address proposed to "make it unconstitutional for
the Federal Government to spend more than the Federal Government
takes in," a reference to the proposed balanced budget amendment to the
25
Constitution. 25
More commonly, modem inaugural addresses tend
overwhelmingly to invoke soaring language to capture a distinctly
American spirit (for example, Bill Clinton's "[t]here is nothing wrong
with America that cannot be cured by what is right with America" 255 and
John Kennedy's "ask not what your country can do for you-ask what
you can do for your country" 256). They describe national conditions and
offer promises of improvement through new policies, or they speak
generally about the role of government in satisfying public needs and
desires (Reagan's "[i]n this present crisis, government is not the solution
to our problem").25 7 They even commonly invoke an appeal to
religion.258 The modem inaugural addresses, like the early ones, is
conciliatory, friendly both to the Congress with (or against) whom the
President must work as well as to the opposing political party. 25 9 The
modem inaugural addresses, though, tend not to invoke or rely upon
constitutional premises for presidential and other political action. They
do not even offer the traditional reassurance to be bound by the
Constitution that we see in so many of the nineteenth century inaugural
addresses.26 ° Instead, they assume Wilson's style, the more extreme
OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 331, 333.
254. Ronald Reagan, Second Inaugural Address (Jan. 21, 1981), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 339, 341.
255. William J. Clinton, First Inaugural Address (Jan. 20, 1993), in "We Force the
Spring": Transcript ofAddress by President Clinton, N.Y. TIMES, Jan. 21, 2007, at A 15.
256.
John F. Kennedy, Inaugural Address (Jan. 20, 1961), in INAUGURAL ADDRESSES
OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 305, 308.
257. See, e.g., Reagan, supra note 254.
258. See Dwight D. Eisenhower, First Inaugural Address (Jan. 20, 1953), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 293, 293-94;
Richard Milhous Nixon, Second Inaugural Address (Jan. 20, 1973), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF TE UNITED STATES, supra note 7, at 321, 325; George
Bush, Inaugural Address (Jan. 20, 1989), in INAUGURAL ADDRESSES OF THE PRESIDENTS OF
THE UNITED STATES, supranote 7, at 345, 346.
259. See, e.g., Bush, supra note 258, at 348; William J. Clinton, Second Inaugural
Address (Jan. 20, 1997), in Transcriptof President Clinton'sSecond InauguralAddress to the
Nation, N.Y. TIMES, Jan. 21, 1997, at A14.
260. The first inaugural addresses of Richard Nixon and Ronald Reagan, and the second
inaugural address of George W. Bush may be considered exceptions, although none of them
engaged in deeper reflection about constitutional forms or anchored their programs to
constitutional powers. Nixon recalls that he has taken an oath "to uphold and defend the
Constitution of the United States," to which he adds "this sacred commitment: I shall
consecrate my office, my energies, and all the wisdom I can summon, to the cause of peace
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form of popular leadership, invoking the language of vigorous action,
presidential dominance, and, most notably, intimacy with the electorate,
but not within the context of constitutional rules or forms. As Elvin Lim
has written upon studying presidential rhetoric, including the inaugural
addresses, the rhetoric has become more informal (Lim describes this as
61
anti-intellectual), abstract, assertive, democratic, and conversational.
This is not a trend that bodes well for the constitutional presidency,
constitutional discourse, or responsible civic education.
C. A Short Critique of the Obama InauguralAddress
Much ink has been spilled concerning President Obama's
2 62
considerable rhetorical gifts, of his eloquence and his skillful delivery.
Nevertheless, it is important to separate articulateness and skill from
content and message, at least for purposes of refining the rhetorical
presidency and reconciling it with the constitutional presidency.
President Obama's inaugural alludes to constitutional principles, though
only in the most general and vague ways and never by name: he refers to
"a charter" and "founding documents. ' ' 263 Moreover, his nameless
references to founding documents and principles do not approach the
kind of constitutional reflection and assertiveness that the presidential
oath justifies and that would be worthy of executive energy under these
among nations." Richard Milhous Nixon, First Inaugural Address (Jan. 20, 1969), in
INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra note 7, at 315,
320. Reagan began his first inaugural address with his observation of the "orderly transfer of
authority as called for in the Constitution." Ronald Reagan, supra note 254, at 331. Finally,
President George W. Bush began his second inaugural address-the first inaugural address
after the September 11 th attacks on America-with a reminder that "[o]n this day, prescribed
by law and marked by ceremony, we celebrate the durable wisdom of our Constitution and
recall the deep commitments that unite our country." George W. Bush, Second Inaugural
Address (Jan. 20, 2005), in The InauguralAddress: "The Best Hopefor Peace in Our World
is the Expansion ofFreedom in All the World, " N.Y. TIMES, Jan. 21, 2005, at A12.
261. See Elvin T. Lim, Five Trends in PresidentialRhetoric: An Analysis of Rhetoric
from George Washington to Bill Clinton, PRESIDENTIAL STUD. Q., June 2002, at 328.
262. See, e.g., Caren Bohan, A Gifted Orator,Obama is on an Historic Path, RUETERS,
Oct. 31, 2008 (noting Obama's reputation for "stirring eloquence"); Dean Reynolds, Obama:
Extremely Gifted and Also
Very Lucky, CBS NEWS, Nov. 5, 2008,
http://www.cbsnews.com/blogs/2008/l 1/05/politics/fromtheroad/entry457271 1.shtml (noting
descriptions of Obama as "gifted and inspiring speaker"); Michael Useem, The Gifted
Speaker,
WASH.
POST,
Jan.
12,
2009,
http://views.washingtonpost.com/
leadership/panelists/2009/01/the-gifted-speaker.html (describing President Obama's speaking
style); Peter Wehner, The Wright Stand, NAT'L REV. ONLINE, Mar. 20, 2008 (stating that
Obama is a "gifted writer and speaker").
263. See Obama, supra note 1.
2010]
CONSTITUTIONAL STATESMANSHIP
circumstances. It is an excellent but unfortunate example of the extreme
form of popular presidential leadership that has prevailed in the modem
presidency.
President Obama's constant use of the term "we" in advocating
particular political goals is, at least potentially, troublesome. As a
rhetorical device, "we" is most useful when referring to those goals or
aspirations reasonably understood as common to Americans. It conveys
a kind of unity and public spiritedness appropriate for a moment that
transcends political affiliation. The use of "we" or "our" also suggests
an inclusiveness and intimacy with the listener that is inconsistent with
the distance that constitutional formalities provide for the President,
even when he is speaking to the public.2 6 Moreover, does his repeated
use of "we" refer always to Americans broadly, or to the Obama
Administration? "We," then, becomes especially problematic when
describing specific policies; vowing that "we" will enact some policy
assumes the support of the Congress and the people, and implies that the
President is the de facto architect of all national policy. Nevertheless,
this seems contrary to the formal arrangements of the Constitution,
which give the President a role in formulating national legislation but a
role that is neither primary nor preferred. Institutionally, the President's
use of "we" appears to suggest that the Congress either has no say in the
particular matter or will simply blindly follow the President's
preferences.
President Obama's is a distinctly Wilsonian approach to defining
the scope of presidential responsibility, for it is not one that he attempts
to defend on any formal constitutional ground. 265 Moreover, the use of
"'we" to enumerate specific policy preferences captures a sense of
closeness between the President and the people that assumes they are
complicit in his political endeavors. This further complicates the formal
features of the constitutional presidency, which, as I explained earlier,
aims to increase, not decrease, the distance between the President and
the public.266 In addition, even when President Obama uses "we" in
referring to more general or aspirational notions, the listener is left to
wonder whether "we" really would agree. For example, President
264,
See Lim, supra note 261, at 339-43.
Professor Lim's research indicates that
"contemporary presidential rhetoric contains five times as many references to the inclusive
self than the rhetoric of the patrician presidents." Id. at 341. Therefore, the practice is
certainly not unique to President Obama, though it was emphatic in his address.
265. See Thurow, supra note 10, at 22.
266. See supra part II.B.
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Obama says "we... have chosen... unity of purpose over conflict and
discord., 267 What purpose, exactly, have "we" chosen? Perhaps he is
referring to broader purposes more readily identified as the common
good, as republican virtue, or perhaps something akin to "a more perfect
union," but the catalogue of more specific policies he promotes later in
the speech suggest that he may see little difference between the
"purposes" "we" have chosen and the legislation and regulations his
Administration intends to seek: among other things, to build roads and
bridges; "restore science to its rightful place"; use alternative fuels for
automobiles and factories; "responsibly
leave Iraq"; and "roll back the
268
specter of a warming planet.
The problem is not that President Obama highlights preferred
public policies-all Presidents have their preferences, and as described
here, many have used the inaugural address to articulate those
preferences. Rather, it is that he offers no reflection on the constitutional
basis for the leadership he asserts, possibly leaving the listener, the
citizenry, with the unexplained impression that the Constitution and its
provisions for the exercise of federal power offer no constraints on the
fulfillment of his promises. President Obama exacerbates the problem
by closing the distance between him and the public, distance that is
necessary to ensure safe government and deliberate, sober judgment
about the public good. Yet even as he becomes closer to the people, he
is not forthright with the people about the constitutional contours of
federal power to do what he is so passionate about doing. This is
precisely the kind of problem that drives the need for a new political
education through presidential rhetoric.269
Quite apart from President Obama's collectivism and democratic
appeals, perhaps the chief indication of the problem-his inattention to
formal constitutional arrangements-is that President Obama never once
mentions the Congress in his address. One might imagine that a
President, "true to our founding documents," committed to a "charter
[that] assure[s] the rule of law," with previous experience teaching
constitutional law, and a former Senator and state legislator with no prior
executive branch experience, would, at a minimum, acknowledge
Congress. 270
That is to say, recognize the governmental branch
constitutionally responsible for deliberating upon and enacting the very
267.
268.
269.
270.
Obama, supra note 1.
See id.
See Tulis, supra note 36, at 13.
See Obama,supra note 1.
CONSTITUTIONAL STATESMANSHIP
2010]
proposals that the President claims "we" need so desperately, those
things he maintains "we will do.", 271 (Again, to whom is he referring
when he emphasizes "we"?) This is particularly true where, as here, the
President faces a politically friendly Congress. Constitutionalizing this
rhetoric would not take a great feat of speech-writing acumen. President
Obama could simply have listed his desired policy goals, explained that
it is within his constitutional power to recommend these measures to
Congress, and stated his fervent hope that the Congress would join him
in making them a reality, or that he would use all of his constitutional
power to bring them to fruition, all while being mindful of the
Constitution's limits and of Congress's importance in the constitutional
scheme.
In a speech heavily-laden with policy aspirations, his failure even to
acknowledge Congress's constitutional role in the policy-making
process raises concerns about his views of the presidency, more
generally, and more specifically, about his intention to use popular
rhetoric to undermine formal constitutional arrangements and the filters
of congressional, and constitutional, deliberation. President Obama's
predecessor in the office was subjected to substantial criticism for what
was perceived as a grandiose, even "unprecedented," vision of
presidential power, and for failing to acknowledge constitutional limits
and congressional prerogatives. 272
President Obama's inaugural
address, however, provides no evidence that he views the presidency as
more constrained, that he views the Congress as the institution with
primary responsibility for deliberating upon and crafting national
legislation, or what he views as the precise constitutional bases for
271.
See id.
272. See, e.g., Dan Froomkin, White House Watched, WASH. POST, June 26, 2009,
http://voices.washingtonpost.com/white-house-watch
(describing
President
Bush's
"fundamentally cancerous expansion of executive power that led to violations of our laws and
our principles"). Some of this kind of criticism came from President Obama himself. See
Editorial, Promises, Promises;Is Obama Backsliding on His Pledges, or is He Just Balancing
Politics and Principle?, L.A. TIMES, Mar. 22, 2009, at A27 (noting Obama's criticisms of
President Bush on executive power); Charlie Savage, Candidates On Executive Power: A Full
Spectrum, BOSTON GLOBE, Dec. 22, 2007, at Al (quoting Senator Obama's responses in
survey on presidential powers, including "[t]he American people need to know where we
stand on these issues before they entrust us with this responsibility-particularly at a time
when our laws, our traditions, and our Constitution have been repeatedly challenged by [the
Bush] administration") (internal quotations omitted); Wendell Goler, Obama'sArmy of Czars
Raises
Concerns
About
Executive
Power,
FOX
NEWS,
July
16,
2009,
http://www.foxnews.com/politics/2009/07/16/obamas-army-czars-raises-concerns-executivepower (stating that "Barack Obama criticized President Bush for trying to increase executive
power").
320
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asserting the president's dominance, in the alternative. His rhetorical
skill and inspiring language do not overcome these deficiencies, nor do
they sufficiently mask his failure to remain mindful of the sober realities
of governing a democratic republic.
IV.
CONCLUSION
Rhetoric can be-indeed, has become-a powerful tool of the
presidential office. It is used to persuade political actors and the
citizenry, to define the goals of an administration, and to assert the
interests of the United States government. Presidential rhetoric can be a
force for shaping both the substance and procedures of presidential
governance. To a large extent, however, it has become a weapon to
enable the president to creep closer to the public and, ultimately, to get
what he wants.
Presidents do not employ their rhetoric in a vacuum. They speak
within the context of a political system of rules, of lines, of divided
institutional responsibilities and guarantees for certain individual rights.
In such a system, it is not only desirable that Presidents do not always
get what they privately want; it is also desirable that they do not always
publicly seek those wants. In addition, when they do, it is desirable that
they place their interests within the framework of responsible use of
authority (which also requires good judgment, or Lockean right reason,
about the use of authority). In such a system, then, presidential rhetoric
can be an equally powerful tool for articulating the contours of a
constitutional presidency, and thus contributing to the civic education of
the public by promoting the peoples' attachment to constitutional rule
while mitigating their expectations of direct influence on official action.
The President can assert a vision of his constitutional duties that clarifies
his own views of the powers that the Constitution confers upon him, but
he can also clarify his understanding of the limits on his power and of
the prerogatives of other institutions in the system. The inaugural
address, unique in the world of presidential rhetoric, allows the President
to do this to an enormous public audience and to do it
contemporaneously with the conferral of his constitutional authority.
Consequently, even in a time when presidential rhetoric and oratory is
subject to the carefully orchestrated and all-too-democratic strategies of
communications professionals in the White House, modem presidential
rhetoric can be compatible with the constitutional presidency the
founding generation created, and with a sober civic education mindful of
leading founders' trepidation toward democratic rule and human nature.