No CrossRef data available.
Article contents
Theory and Practice of the American Presidency*
Published online by Cambridge University Press: 05 August 2009
Extract
The relative as well as absolute aggrandizement of the executive branch of the national government is the outstanding single fact in the political experience of the United States. The Presidency today is not only stronger in relation to Congress and the Supreme Court but its role in the whole life of the nation has become much larger than apparently envisaged by the Founders. This development, however, is not considered a departure from the original scheme of government because the Constitution is held to be a “living document.” The intermittent but cumulative growth of the Presidency has been absorbed into current constitutional theory on the general principle laid down by Justice Holmes deciding a question of federal-state relations: “This case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.” This unity of theory and practice constitutes, indeed, the genius of American politics to which Professor Daniel Boorstin has applied the term “givenness.” The two components of this “givenness,” according to Professor Boorstin, are the idea of a preformed original theory given to the nation by the Founding Fathers and adequate to all its future needs, and the idea of an implicit theory forever embodied in American institutions. Combined, these two tenets produce a sense of continuity — “homogeneity,” “seamless web” — in which past and present, tradition and progress, constitutional law and political practice, are blended into that peculiar American optimism, at once reverent and practical. Since the Presidency participates in this “givenness,” it also constitutes an indestructible composite of constitutional interpretation and history. It is a “living institution.”
- Type
- Research Article
- Information
- Copyright
- Copyright © University of Notre Dame 1961
References
1 “With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.” Missouri v. Holland, 252U.S. 416 (1920)Google Scholar.
2 The Genius of American Politics (Chicago, 1953), pp. 9–10Google Scholar.
3 The American Presidency (New York, 1956), pp. 20, 29Google Scholar.
4 Ibid., 62.
5 Ibid., 64.
6 Ibid., 63.
7 Ibid., 65.
8 (Baltimore, 1932), Johns Hopkins University Studies in Historical and Political Science, ser. L, No. 2, 197.
9 Democracy in America, Henry Reeve text, revised by Bradley, Phillips, (New York, 1945), I, 124 ffGoogle Scholar.
10 Constitutional Government in the United States (New York, 1908), p. 60Google Scholar.
11 The American President (New York, 1954), pp. 11–12, 14Google Scholar.
12 The President and the Presidency (Chicago, 1949), pp. 136–37Google Scholar.
13 The Genius of American Politics, pp. 133–34.
14 The Federalist (Modern Library Edition), No. 70, p. 454.
15 Ibid., p. 462.
16 Ibid., pp. 454–55.
17 Second Treatise, No. 150.
18 Ibid., No. 147.
19 Ibid., No. 143, No. 144.
20 Ibid., No. 151.
21 Ibid., No. 159.
22 Cf. “The Executive in seizing the fugitive occurrence, which so much advances the good of their country, has done an act beyond the Constitution. The Legislature in casting behind them metaphysical subtleties and risking themselves like faithful servants, must ratify and pay for it, and throw themselves upon their country for doing for them unauthorized, what we know they would have done themselves had they been in a situation to do it.” The Writings of Thomas Jefferson (Ford Edition), VIII, 244Google Scholar; quoted in Small, , op. cit., p. 23Google Scholar.
23 Cf. “I understand that my oath to preserve the Constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government, that Nation, of which that Constitution was the organic law. Was it possible to lose the Nation and yet to preserve the Constitution? … I felt that measures, otherwise unconstitutional, might become valid, by becoming indispensable to the preservation of the Union. Right or wrong, I assumed this ground, and now avow it.” Raymond, Henry, State Papers of Abraham Lincoln, p. 767Google Scholar; quoted in Small, , op. cit., p. 35Google Scholar.
24 Cf. “My view was that every executive officer, and above all every executive officer in high position, was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin. I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it.” Roosevelt, Theodore, Autobiography, pp. 388–89Google Scholar; quoted in Small, , op. cit., p. 42Google Scholar.
25 A useful survey of the law on the subject is found in Schubert, Glendon A. Jr, The Presidency in the Courts (Minneapolis, 1957)Google Scholar.
26 See, for instance, Corwin, Edward S. and Koening, Louis W., The Presidency Today (New York, 1956), p. 7Google Scholar.
27 Second Treatise, No. 160.
28 Summa Theologica, I-II, q. 90, a. 4. Pegis translation.
29 Simon, Yves R., “Common Good and Common Action,” The Review of Politics, Vol. 22 (1960), 221–22CrossRefGoogle Scholar and footnote.
30 This quotation is taken from a page elaborating on the proposition that “law is a work of reason” in an as yet unpublished essay on natural law by Professor Yves R. Simon of the University of Chicago. The “General Theory of Government” expounded by ProfessorSimon, in his Philosophy of Democratic Government (Chicago, 1951)Google Scholar, is the general reference for the thesis of this article.
31 The Genius of American Politics, p. 186.
32 Pragmatism (New York, 1908), p. 127Google Scholar.