U.S. Presidency Was Imperial From Start, Professor's New Book Reveals

Saikrishna Prakash

A new book by professor Saikrishna Prakash says the office of the president was conceived by the founders in many ways to have king-like authority.

June 10, 2015

The modern president is often criticized when he wields executive power without seeking congressional approval, but a new book by University of Virginia School of Law professor Saikrishna Prakash says that type of autonomy is very much in keeping with how the role of the executive was conceived.

"The presidency established by the Constitution was really quite regal in the sense that it was really a quite powerful office," said Prakash, author of " Imperial from the Beginning: The Constitution of the Original Executive. " Published by Yale University Press, the book offers the most comprehensive study of the origins of the American presidency to date.

"Though the founders were concerned about excessive presidential power, or more precisely excessive executive power, they nonetheless created a very strong institution — stronger than any that existed in America prior to 1787," Prakash said.

In 13 chapters, the book traces the origins of Article II of the Constitution, which establishes the presidency, and tries to explain the legal traditions behind each provision and what people of the time period took the provisions to mean. Prakash, who has written extensively on presidential power, drew upon well-known and obscure sources to reconstruct the understood powers, duties and responsibilities of the office.

While other authors have noted the similarity of the presidency to a monarchy, his goal was to compile an authoritative source for the rationales behind this view, he said.

"The name 'presidency' today certainly doesn't conjure up in our minds a monarchy," he said. "But one of the interesting things in the book is that a dictionary of the era defined 'monarch' with the word 'president.' This suggests that 'president' had some connection to 'monarch.'"

Prakash said the founders were influenced by their historic milieu, so the English crown was a natural influence.

Prakash Cited in U.S. Supreme Court Case Zivotofsky

Supreme Court justices cited Prakash's work in the case Zivotofsky v. Kerryin opinions released on June 8.

The case involved a request to designate "Israel" as the place of birth on the passport of a U.S. citizen born in Jerusalem, in accordance with a congressional statute passed in 2002. The secretary of state denied the request, however, because it conflicted with U.S. policy that the status of Jerusalem must be resolved through negotiations between the Israelis and Palestinians. The court's decision said that the statute infringed on the president's power to recognize foreign states.

The majority opinion and Justice Clarence Thomas' concurrence cited Prakash's work more than a half-dozen times, including his articles "The Executive Power Over Foreign Affairs" (with Michael D. Ramsey) and "The President's Power to Execute the Laws" (with Steven G. Calabresi), both published in the Yale Law Journal.

The majority cited the proposition that President George Washington unilaterally recognized the Revolutionary French Government as the government of France.

"This was meant to show that recognition was a presidential power," Prakash said.

The Thomas concurrence cited the contention that the grant of executive power included authority over foreign affairs and hence encompassed questions of recognition."Because the president had power over foreign affairs, power to pardon, authority over law execution, the power to appoint, lots of people thought the president was a limited republican monarch," he said. "We tend to think of hereditary monarchy when we think of the institution, but the founders were familiar with the category of elected monarchy."

Many people even had kind words for the English system of the era, he said.

Prakash also looked closely at accounts of the Philadelphia Convention — the convention that established the Constitution and, by extension, the presidency — to identify arguments that were made for and against establishing an executive whose powers might be comparable to a king's.

"The people who wanted a weak executive wanted to create a plural executive, a triumvirate of people from throughout the country," he said. "The idea was that if we have a triumvirate, no one person can become dominant."

Prakash argues, however, that dissatisfaction with weak American executives led many to support a powerful federal executive. Proponents of a strong president wanted a single executive who would be largely unencumbered to execute a wide range of domestic and foreign tasks, and who could serve numerous terms. While the Declaration of Independence and its reaction to kingly abuses weighed on the founders' minds, he said, so did the ineffectiveness of the state governors, who often faced term limits as short as one year and councils designed to check their actions.

Prakash said proponents of a strong executive also were boosted by the confidence the founders had in their shoo-in candidate for the job, Gen. George Washington. The commander-in-chief of the Continental Army had led the fledgling country to victory over the British, and was widely known as a virtuous man. He also presided over the Philadelphia Convention.

Opponents of a strong president later expressed regret about the effect that Washington had, he said.

"Delegates were, in part, voting thinking Washington can be trusted with these sorts of powers," he said. "Some lamented that fact because, they said, 'Well, Washington is not always going to be president.'"

Washington himself helped limit presidential power. He stepped down from office after two terms, establishing the tradition of term limits and the process by which peaceful succession occurs.

Prakash's scholarship extends beyond the presidency to also encompass the separation of powers among the branches, and he teaches courses on constitutional law and foreign relations law, in addition to a class on presidential powers. A graduate of Stanford University and Yale Law School, Prakash is the James Monroe Distinguished Professor of Law and the Horace W. Goldsmith Research Professor at UVA.

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