The Imperial Presidency and the Word

How we abolished a king and slowly built another, one stroke of the pen at a time.

Transcript

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In the spring of 1783, the war was all but won, and it nearly ended with an American army marching on its own government. The soldiers had not been paid in months. Congress was broke and could barely be troubled to answer their letters. And in the camp at Newburgh, up the Hudson, a paper began to move quietly from officer to officer, furious and reasonable at once, that said the time for patience had passed, that the men who had won this country should now turn their swords on the Congress that would not pay them. These were not hired foreigners. These were the men who had been told to hold their fire until they could see the whites of the enemy's eyes. The men who had frozen at Valley Forge and held the line at Monmouth, and buried their own from one end of the colonies to the other. Men who had taken up arms against the nation that was their father, and the nation of their fathers, for the chance at something better than living out their days under another man's boot, and they had come to the very edge of doing what soldiers in every other republic before them had eventually done, which is to take the country they had saved and keep it for themselves. Washington walked into their meeting uninvited. He stood before men who had followed him for eight years, and now could not quite meet his eye. He began to read them a letter, and then he stopped and reached into his coat for a pair of spectacles that almost none of them had ever seen him wear. Gentlemen, he said, you will permit me to put on my glasses, for I have not only grown grey, but almost blind in the service of my country. And that was all it took. Men who had stood in front of cannon fire without flinching began to weep. The mutiny died there in that room, killed by nothing grander than the sight of a tired man who had given everything he had, asking them gently to be brave one more time, and not to throw it all away in a single bitter afternoon. It was not the first time the crown had been held out to him, and it would not be the last. A year earlier an officer had written to him, carefully, to suggest that what this ragged new country truly needed was a king, and that no man alive was better suited to the throne than Washington himself. Washington answered with cold fury. He told the men he had done him a greater injury than nearly anything the enemy had managed in eight years of war, and asked him never to let such a thought cross his mind again. And when the fighting was finally over, he did the strangest thing of all, the one the watching world could not understand. He gave the power back. In December of seventeen eighty three, he stood before the Congress at Annapolis, a general who could have been whatever he wished to be, and he resigned his commission, and laid his authority down at the feet of a handful of civilians who had no army, and no means to make him do anything at all, and then he rode home to Mount Vernon to be a private man again before the winter was out. Across the ocean, they say King George heard that Washington meant to simply hand it all back and go home to his farm. He refused to believe it, and said that if a man actually did such a thing, he would be the greatest man in the world. The Romans had a name for what Washington was reaching toward, and Washington knew it, because he had read his Plutarch like every schooled man of his age. Cincinnatus, the farmer called from his plough to take command of Rome in her hour of danger, who took it and won, and then gave the power back and walked home to finish the furrow he left standing in the field. Washington loved that old story so well that he let his officers name their society after the man. He was not, in the end, beholden to power or to money. No avarice ever clutched his soul the way it had clutched and squandered so many great men before him, men who held an entire nation in their hands, and could not bear to open them. Of all that a man may hunger for, this was his hunger, to hold absolute power in his hand, and open the hand, letting it fall. We built the presidency in the long shadow of that open hand, an office we told ourselves, a servant of the law, never a throne. I write to you under a borrowed name. You may call me Discus, and this is dear Uncle Sam. Dear Uncle Sam There is a pen lying on a desk in a White House, and I would like to talk with you about it, because I think we have both forgotten what it is for. A pen is a small and honest thing. It holds no power of its own. All it can do is lay down words, and a word is only ever as strong as the truth beneath it. A lying word is a weak thing in the end, however loudly it is spoken, and a true word is a strong thing, even in a whisper, because it is fastened to something that does not move. The men who wrote this country into being believed that. They believed there was a word above all our words, an order older than any parliament, a truth we did not invent, and are not in, and are not free to edit, and that every law a man sets down is answerable to it. In the beginning, the gospel says, was the word, not the pen, not the king, the word. And every pen that ever scratched a law onto a page is a small and borrowed thing, held up for a moment against something that stood before the page and will stand after it burns. The danger is never the pen. The danger is the man who forgets that his pen must serve the word, and decides instead that the word must serve his pen, who stops writing down what is true, and starts bending what is true to match what he has already written. He has mistaken the borrowed pen in his hand for the eternal word above his head, and there is an old name for that mistake, older than this republic, older than Rome. The name is pride. It was the first sin, and it is the father of all the rest. The pen on that desk grew heavier than the sword Washington laid down, and the man who holds it has come to believe it was his. We fought a revolution to be rid of a king, and over the century and more since, quietly, a little at a time, by our own hand, we have made ourselves another. He wears no crown, he does not need one. We handed him a pen instead and called it progress. The crown we would never have suffered on a man's head, we let him carry in his pocket. Begin with how small they meant the office to be, because the smallness was not an accident, it was the entire design, the foundation stone, the whole house was set on. The men in that hot Philadelphia room in the summer of seventeen eighty seven had just spent the better part of a decade bleeding to be free of one man's rule, and they had no intention of conjuring another and handing him the country. So they made the president something narrow and plain. He would carry out the laws, not compose them. The Congress would write the law, the slow branch, the arguing branch, the many voices seated closest to the people, and the president would take what the people decided and see it is faithfully done. They gave him a veto, but only as a break, a break the Congress could push straight through. Even the word they chose for him is a humble word, if you stop and listen to it. To preside is to sit at the head of a table for a while and keep the peace. It is not to own the house. It is certainly not to be the house. Not everyone trusted even that much. When the new constitution went out to the states to be fought over, some of the sharpest men in America looked hard at this new office and did not like the cut of it. Patrick Henry rose in Virginia and said it without flinching, that the presidency squinted toward monarchy, that a man could feel the pull of a throne in it if he looked with honest eyes, and that a free people had better be careful. The men who answered him swore the office was too fenced in, too watched, too bound on every side to ever grow into the throne Henry feared. And both sides spoke true. The office was well bound at the start, and the pull toward the throne was real, but it was patient and it was willing to wait a hundred years. There was a warning older than Philadelphia that these men carried in their blood, because most of them had been raised on scripture, and it is one of the strangest and most honest passages in all of it. The people of Israel came to the prophet Samuel, and told him they were weary of being governed the hard way, by judges and by conscience, and by the slow, difficult labor of answering to God, with no crown standing between them and him. They wanted a king, like all the other nations had, and God told Samuel to give the people their king, but first to tell them the price of him. So Samuel told them, A king will take your sons, he said, and set them running before his chariots. He will take your daughters, he will take the best of your fields and your vineyards and your olive groves, and give them to his favorites. He will take a tenth of your grain and a tenth of your flocks, and in the end he will take you, and you will be his servants. And on that day Samuel said, You will cry out, because the king you begged for, and heaven will be silent, because you chose him with your eyes wide open. The people listened to all of it, every item on the bill, and they wanted the king anyway. They were told exactly what he would cost, down to the last sun and the last field, and they said yes. The founders heard that warning and built against it, and for a long while the walls they raised held true. Then the office began slowly to swell. It did not happen in one reign, and it did not happen by one man. It did not happen by conquest or by any single stroke you could point to in name. It happened by a long chain of small and reasonable surrenders, each one sensible on the day it was made, each one leaving the pen a little heavier than it found it. The president began to make what were laws in all but name, signing orders that bound the whole country, and we gave the practice a mild administrative title and let it pass. He began to sign the bills the Congress sent him, while pinning to them little notes that explained which parts of the law he meant to honor and which parts he considered beneath him, which is nothing on this earth but a man taking his pen to the word and editing it, rewriting by his own declaration what the many had written by their votes, and we gave that a mild title too, and let it pass. Beneath the office there grew a vast thicket of departments and agencies and bureaus, throwing out its runners and its vines until itself around every corner of American life, and begun quietly to choke the ground it grew in, staffed by people no citizen ever chose, and no citizen can turn out, writing rules by the tens of thousands that carry the full force of law, rules that no one you have ever voted for has so much as read, and we call that the plain necessity of a complicated age, and we let that pass as well. A historian who watched it happen gave it the truest name anyone has found. He called it the Imperial Presidency, and the word imperial is exact, because an empire is precisely what you are left with when every form of a republic still stands in its place, but the power that once filled those forms has quietly drained into a single pair of hands. Hear the root beneath the particular sins, because the particulars will change and the root will not. Every one of those surrenders was made for a reason, and the reason was not stupid and it was not cowardly. The world is fast and it is often cruel, and there are mornings when long deliberation is not wisdom but suicide. When the enemy is across the border by dawn, a debating hall of five hundred voices is not a safeguard, it is a grave. Lincoln reached past the Congress and past the courts to hold the Union together, and history has thanked him for it. A single will that can act between sunrise and noon has saved this country more than once, and only a fool waves that away. Most of us have felt the pull of it ourselves, in some hard and frightening season, the quiet wish that one strong hand would simply cut through all the arguing and set it right. The longing for a king is not born in a palace, it is born in the tiredness in your own chest. And beneath the tiredness there is something newer, an impatience we have let grow monstrous. We are a people who once waited months for a single letter to cross the country, and who now cannot wait a day for anything, and we have begun, without quite noticing, to want our government instant too. Self government is the slowest thing a free people ever does. A king is quick. That was always his whole appeal. But here is what the longing leaves out. Yes there was a war, or a crash, or an emergency, or only a Congress too slow and too split to move while the country stood shouting that somebody had to, and so the many, tired, went on handing small pieces of their birthright to the one, because the one was quick. And then the emergency ends, and the power does not go home. The quick hand is borrowed for one dark morning and kept for a hundred years. Washington reached past the ordinary rules in the field too, and then he walked to Annapolis and gave it all back. The office since has learned only the reaching and forgotten the giving back, so the oldest bargain in the story of the nation was the face of a bargain, and it never is one. It is a sale, paid in coins so small that no single payment ever feels like much. Right up until the morning you lift your head and find the deed to the house signed over to someone else, one penny at a time, in your own hand. This was not the crime of one party, and if I let you walk away believing it was, I would be lying to you. And I did not put on a borrowed name in order to tell you comfortable lies. Reach back and count them. One president signed away the freedom of a hundred thousand of his own citizens with a stroke of the pen, and penned them behind wire for the country their grandfathers had come from, and his admirers called it wartime prudence. One refused flatly to spend the money Congress had already voted, as though the power of the purse were his to edit line by line. One kept a secret machine, running for years to listen in on Americans in their own homes without a warrant. One boasted out loud and to applause that he had a pen and a phone and would govern with them alone if the Congress would not move at his pace. Two of them wore one party's colours, and two the others, hero and villain, trading masks with every election, and every one of them was cheered by his own people for reaching and cursed by the other half for the very same motion, right up until the office changed hands, and the cheerers and the cursors traded their lines without so much as a pause for breath. The pen grew heavier, no matter whose fingers closed around it, because the growing was never truly about the man. The man is only the newest hand. The office is the mouth that hungers, and we have been feeding it faithfully for a century. Rome walked this road ahead of us and left the map lying open, if we would only stoop to read it. When Augustus made himself the master of the Roman world, he was far too clever to call himself a king, because the Romans had cut the throat of their last king centuries before and still spat at the word. So he left every form of the old republic standing exactly where it was. There was still a Senate, there were still consuls and elections, and the ancient offices wearing their ancient names. Picture the day he stood before the Senate and read them in his modest and unhurried voice, the long list of all the powers he was nobly handing back to them, a simple citizen restoring the Republic to the people, wanting nothing at all for himself, and picture the senators, who know exactly what he is, and know exactly what waits for any man who says so out loud, rising from their benches to applaud him, thanking him, pressing more honors on him than he pretended to want. Every man in that chamber understood it was theater. Every man played his part beautifully. The Republic had not died that afternoon. It had died years before, on a riverbank, when Caesar led his army across a little stream called the Rubicon, that no general under arms was permitted by law to cross, and the law simply failed to stop him, and every Roman alive learned in a single day that the law had become a suggestion. By the time Augustus was modestly restoring a republic to a Senate too frightened to refuse it, the republic had been hollow for a generation. He did not knock the house down, he moved into a house whose beams had already been drawn out from the inside, and hung heavy curtains over the empty places where they used to be. An English Catholic named Lord Acton left us the one sentence everyone half remembers about all of this, and then a second sentence that almost no one remembers, which is the one that matters. Power tends to corrupt, he wrote, and absolute power corrupts absolutely. And then he wrote this Great men are almost always bad men. He was not calling them monsters, he meant something colder and more useful than that. He meant that the power itself does the corrupting, that it works its slow acid on the honest man and the scoundrel with equal patience, that a good soul handed enough of it will curdle by the plain chemistry of power, and that the safety of a free people can therefore never rest on the hope of turning up a good enough king. There is no good enough king. The answer Acton points toward is the answer Washington lived out his whole life. Do not go hunting for a better man to hand the crown, refuse to forge the crown at all. That is what the pen on the desk has quietly become. A crown we have agreed to call a desk, worn by a man we have agreed to call a servant, and house we still, from old habit, call a republic. The heaviest thing that the pen can do is make war. Of all the powers they were parceling out in that room, the founders guarded none so jealously as this one, because they had read enough history to know that the power to make war is the power that has drowned more republics than any other has. A free people can survive bad laws and lean harvests and foolish kings. What it rarely survives is a ruler who can march it into war on his own word, because war swells the one and shrinks the many every single time it comes. War gathers every eye toward the leader. It turns the men who doubt into traitors overnight. It hands on whoever holds the sword a standing reason to keep holding it. So they took that power and they set it down on purpose, in the most crowded and quarrelsome room they had. The Congress shall have power to declare war, not the president. Him they made the commander once a war is lawfully begun, because an army in the field must have a single head. But the decision to begin it, the decision to spend the blood of a nation's sons that they locked inside the whole assembly, where it would have to be argued in daylight before it could be done. One man can be flattered into war, or frightened into one, or may need one to save his own sinking fortunes. A whole Congress made to stand up in public and be counted is far harder to stampede. That was the design, that was the last and heaviest lock, set on the heaviest door in the house. The Church had reached the same conclusion long before America, coming at it down another road entirely. When Augustine and Aquinas after him set down the conditions under which a war could be called just, the very first condition they named was not a regular. righteous cause, and it was not a fair chance of winning. The first condition was proper authority. A private man may not make war, they said, however deep his grievance and however right he believes himself to be. Because a war made by private will is only violence wearing a flag. Nothing but the lawful authority of the whole community may draw the sword. And in a republic the lawful authority of the whole community is not one man in one office. It is the people, speaking through the branch the people chose to speak for them. So a president who marches the country into war on his own signature does not merely break the constitution the founders wrote in Philadelphia. He fails the older tests the church laid down in Rome. He has made himself a private war and called it a public one. That lock is broken now, not repealed, not argued down in the open, not struck out by any court, simply abandoned quietly, by both parties across the better part of a century. The last time the Congress of the United States of America declared war in the full and formal way the Constitution describes was 1942. Everything since has gone by another name. Korea was a police action we were told, a phrase built for the precise purpose of dodging the word the Constitution requires. Vietnam ran for years on a single resolution the Congress passed in a fright over a clash in the Gulf of Tonkin that turned out not to have happened the way the country was told it did. There was Kosovo, there was Libya, there have been strikes and raids and long campaigns of drones over a dozen countries, whose names most Americans could not find on a map, and in almost none of them did the president trouble himself to walk to the crowded room and ask. The Congress noticed the drift once and tried to nail a fence across it. After Vietnam it passed a law over the president's veto meant to force any president to come and get its leave within a set count of days or else bring the men home. And every president since of both parties alike has treated that law the way a man treats a fence on land he has already decided is his. He steps over it or walks around it or looks straight through it as though it were not there and dares anyone to come and make him stop. Here is the newest key on the ring and the cleverest one. After the towers came down in the autumn of two thousand one the Congress passed one authorization a bare few dozen words giving the president the power to make war on the men who had done it and the men who had sheltered them. One vote, one war, one enemy with a face. That authorization has since been stretched by presidents of both parties in their turn across a quarter of a century into countries that had nothing to do with that morning against groups that did not so much as exist when the words were written by one simple trick you call the new enemy a terrorist and a permission slip signed for a different war and a different decade swings open to cover him. Terror has become the skeleton key. Name it terror and the war pen falls free of its lock without another vote, because who in his right mind will stand up and be recorded for all time as the one man who would not fight terror. It is a beautiful machine for a president and a ruinous one for a republic. The word we meant to keep for our gravest and most particular enemy has been filed down into a master key that opens the one door the founders bolted the hardest. And it turns the key without ever troubling to wake the Congress and ask. And so I ran understand first what this is because the word strike will not carry it. This is a war, and it is five months old it began on the last day of February when American and Israeli aircraft went in together and killed the man who ruled that country. Iran answered by closing the Strait of Hormuz and the world shipping with it. We answered with a blockade There have been ceasefires since in the spring and again in the summer and every one of them has been broken and patched and broken again, the last of them collapsing straight back into open fire. American service members are dead eighteen of them by the time I set this letter down with more falling as the war spreads out across the region. And in all those five months the country itself was never once asked not one declaration not one authorization not one hour of open argument ending in a recorded yes or no before the first plane crossed the line or in the long war since on whether this country should be at war at all. The next part is not about Iran The Congress noticed the Congress tried over and over. On the third day of June the House of Representatives did the very thing we have been told for fifty years it no longer had the nerve to do. It voted two hundred fifteen to two hundred eight to order the president to bring the men home. Four Republicans crossed the aisle to do it against the president of their own party. Weeks later the Senate stirred and passed one of its own, and in the last days of July after the summer ceasefire had collapsed and the war had come roaring back worse than before, the House rose and did it a second time two hundred fourteen to two hundred and eight. The same four Republicans held the line. Both chambers, both parties, again and again the branch the founders trusted with the sword stood up on its feet and said no. And nothing happened. Nothing happened because the paper the House passed both times was what is called a concurrent resolution, which never goes to the President's desk and does not carry the force of law, and is, in the plainest English I can find for it, a letter. Twice now the Congress of the United States, holding the one power the Constitution hands to it alone and no one else on earth could find no better use for that power than to write the man a strongly worded note. And when the Senate had its chance to pass the other kind, the binding kind, the kind that would have actually made him stop, it came up to vote short and let it die. As for the president, he restarted the war and told the Congress about it afterward, when the planes were already over around and the argument was moot. I am not asking you tonight to settle whether Iran is friend or foe, because there is much to be said there and it is not what this letter is about. I am asking you to look at the shape of the conflict and not at the target of it. Look hard at what those votes really were. That was not a Congress robbed of its power by a tyrant. Nobody took the sword out of their hands. The Constitution says today exactly what it said in 1787 The war power still sits in that crowded room precisely where Madison set it down. Not one dollar that pays for a single ship or a single sortie can be spent without their names on it. They could have ended it in an afternoon. They wrote a note instead That is not a branch that was disarmed. That is a branch that has forgotten it was ever armed. The gravest choice a nation can make the one the founders sealed inside an entire Congress for the express purpose that it could never hang on the mood of a single man on a single morning now hangs on exactly that. That is not the key that Madison cut. That is the key Madison built the whole door to keep out. We knew how to do this rightly once, at the very beginning, and the memory is worth the keeping. When the Barbary pirates along the coast of North Africa were seizing American ships off the open water and dragging American sailors into the slave markets and demanding year upon year that we simply pay them to be left in peace, the young Republic did not leave the answer to the whim of one man in one chair. Jefferson sent the fleet across the ocean yes. But the war it fought was fought under the authority the Congress granted, argued out and voted in the open light, a whole people resolving together that it would no longer buy its safety by the pound and would defend it by the deck instead. Millions for defense, that generation cried, but not one cent for tribute. Hear what that is that is force wielded by a republic. The many decided through the branch the many elected and then and only then was the sword drawn. What we do now is a different creature wearing the same coat. What we do now is a force wielded by a crown, drawn on one will alone and dressed up afterward in the borrowed language of a republic that was never asked. And it is not the war pen only, though the war pen is the heaviest of them. Watch the same hand at work in the smaller things in these same months and you will catch the same music running under all of it. A housing bill he dislikes he simply declines to sign, letting it fall into law without him while he holds his signature out over a different bill he wants, keeping the ordinary business of the country hostage to a private demand, treating the pen not as a duty laid on him, but as a lever to pry loose whatever he has decided he is owed. The officials we deliberately set at arm's length from him so that they might watch the very elections that keep his own party in its seats, he signs out of their posts the moment they cross him, and does it months before the country votes. His own face is being printed onto the passport a citizen carries to prove who he is. The plane that bears the office through the sky arrives as a gift from a foreign king. Not one of these is war. Each of them on its own is a small thing, but they are all the same note struck on the same instrument. The sound of the man who has quietly stopped believing the office was only ever lent to him and has begun to wear it as though he had owned it all along and always would. Every last one of these has been done or defended or cheered by serious men of both parties somewhere inside living memory. That is not the alibi that is the alarm itself a wrong that belongs to everyone is a wrong that no one is left to name because the instant you raise your hand to point at it the man you are pointing at points calmly back at your own side doing the same. And both of you are correct and nothing changes and the pen grows heavier in the long, comfortable silence. There was a man in England once, a lawyer and a scholar and at the last a saint, who served his king faithfully and even lovingly for years, until the day the king demanded of him the one thing a man may hand to no ruler on this earth, which is his conscience and his witness to the truth. Thomas Moore would not give it. He would obey his king gladly in every lawful command, but he would not stand up and say that a lie was true because a crown man commanded him to say it, and for that refusal alone he laid his head down on the block. The words he spoke at the end have outlasted every law that king ever set his seal to he died, he told them the king's good servant, but God's first. He understood what our age has worked so hard and so long to forget, that there is always a word standing above the man with the pen, and the office stands under the law and never over it, under the truth and under God, and that a free people is simply the people who still remember which of them sits on top and which sits beneath, and will not let the order be turned over by any man, however powerful, however cheered, however sure of his own righteousness. We began with Washington, let us end where he ended at the plough. He held the crown in his open hand more than once in a country far too weak to stop him closing his fingers around it, and every time he opened the hand and let it fall, at the last he gave all of his power back to a room of ordinary men who could not have wrested it from him, and he rode home through the winter to be an ordinary man himself, because he had understood all the way to the bottom of himself that a republic is not a thing you rule and then keep. It is a thing you serve and then leave, so the next man may serve it, and the man after him on and on down the years for as long as the people keep faith with the keeping. The most powerful man in the new world spent the last and best of his strength on the hard labor of making himself a common man again, on purpose and counted it the finest thing he ever did. The crown was always ours, Uncle Sam. That is the part we let ourselves forget we are the ones who lend the office every ounce of power it has, and we are the ones, the only ones in all the world who can call the loan back home. We can tell the Congress to take back up the war it let slip through its own fingers and to stop hiding behind a permission slip gone yellow with age and a word worn smooth from overuse. We can tell the man with the pen, whoever he is, whatever party sent him to that desk, that what he holds in his hand is a pen and not a scepter, and that the law he holds is not his to rewrite to fit his wanting. A free people does not need a better king. There is no better king. The crown itself is the poison and the man is the only cup we poured into and here is the one promise I cannot make you I do not know whether we still want it broken. The people in the old story were read the full price of their king every son and every field and every daughter and they wanted him anyway because being ruled is restful and ruling yourself is labor that never ends. I cannot stand here and swear to you that we are wiser than they were. What I know is only this the choice is still ours and no one on earth will make it for us. What a free people needs is the nerve to go on governing itself the hard way, the slow way, the arguing and disappointing and gloriously difficult way the founders left to us, and the long memory to keep the crown exactly where they left it, which is nowhere, which is broken, which is scattered in its thousand pieces among all of us, the farmer and the sailor and the shopkeeper and the soldier come home, each of us holding one small shard of it in his own hand, exactly as they meant us to, so that no single grip could ever gather it whole I will keep writing, you keep reading, and between us, God willing, we keep the house yourself