Interesting article in Sunday’s Boston Globe about the relationship between the Bush administration’s view of executive power during wartime and an “originalist” approach to interpreting the Constitution. Some legal scholars, including the conservative-libertarian Richard Epstein, say that in making its case the administration is neglecting Federalist 69, a crucial document for understanding the framers’ intentions about the scope of presidential power.
"Man is but a reed, the most feeble thing in nature, but he is a thinking reed" – Blaise Pascal
4 responses to “Originalism and executive power”
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I may be misreading Hamilton there (and misunderstanding the history involved), but what seems to be envisioned is a union without a standing army. Hamilton seems to be saying that the President is commander-in-chief when the army or navy is called up into existance by the Congress. So it seems unclear as to whether that would apply to the present situation of a standing U.S. army. Another reason why a new constitution might be a good idea.
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I’m not sure if that’s what he had in mind – he does seem to distinguish between the “army and navy of the United States” and the militia(s) that may be called into action.
Either way, though, I think the relevant point is that the President is not to have the kind of executive discretion in matters of war & peace that, say, the King of England had. It’s a long way from there to the idea that the President is invested with some kind of plenary power in times of war. (And, one should also point out that Congress hasn’t actually declared war in our present conflict.)
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Absolutely. I think I wasn’t careful enough about that distiction when I read it and at any rate, the country was frequently (if not perpetually) at war with various native groups over the early years of the constitution so there would have been an army standing at all times.
I agree that the intention seems to be that the congress should not have that kind of executive discretion but that he still has much too much discretion, and I would go further, in saying that the Presidency in its current form has outlived its usfulness (if it ever really was of use) and should be reduced to an office like that of the German or Israeli Presidents. The Legislative branch is the most democratic and most responsive to the will of the people and should be running the show in war AND peace.
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substitute president for congress in that first sentence.
A Thinking Reed 
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