Jeffrey Tulis, in “The Two Constitutional Presidencies,” argues that there is a formal presidency and an informal presidency.  As a result, he states, “many of the dilemmas and frustrations of the modern presidency may be traced to the president’s ambiguous constitutional station, a vantage place composed of conflicting elements.”  What follows is an exploration of these “two constitutional presidencies”, their significant differences, the development of the informal presidency in relation to Woodrow Wilson, and some thoughts on why this divergence exists.

The “two constitutional presidencies” put forth by Tulis consist of a formal presidency and an informal presidency.  Following is a breakdown of their several aspects.

Formal Presidency:

  • Rooted in the Constitution (big “C” constitutional powers)
  • Explicit or enumerated powers
  • Understood in relation to the powers of the other government branches
  • More static (settled)

Informal Presidency:

  • Power and authority rooted in popular opinion (little “c” constitutional powers)
  • More fluid; shifts with the people
  • Events that tend to cause fear in the populous, such as war, have been utilized to garner popular support leading to the expansion of executive powers
  • Largely seen as beginning with Woodrow Wilson (1913-1921), though examples can be supplied that predate Wilson.

In short, Tulis has drawn attention to a political shift in the source of the executive powers.  In his own words: “For the Founders, presidents draw their energy from their authority, which rests on their independent constitutional position.  For Woodrow Wilson and for presidents ever since, power and authority are conferred directly by the people.”  The former is a written constitution, whereas the latter is an unwritten constitution.

In seeking to make clear the differences between these presidencies, Tulis first goes on to establish the principles of the Constitution.

Representation

This first principle is opposed to direct or pure democracy which is more susceptible to tyranny by majority rule.  He notes that “the Founders established differing lengths of tenure for officeholders in the major national institutions, which corresponded to the institutions’ varying ‘proximity’ to the people,” of which the “president was given a four-year term, sufficient time, it was thought, to ‘contribute to the firmness of the executive’ without justifying ‘any alarm for the public liberty.’”

Independence of the Executive

This principle establishes executive authority from the Constitution itself, rather than another government branch.  Tulis elaborates on this principle and its prudence.

Independence from Congress was the immediate practical need, yet the need was based on the close connection between legislatures and popular opinion.  Because independence from public opinion was the source of the concern about the legislatures, the Founders rejected James Wilson’s arguments on behalf of popular election as a means of making the president independent of Congress.

Understanding that the legislatures had a close connection to popular opinion, it was seen as prudent that the executive authority was to be independent of Congress (and therefore of popular opinion).

Separation of Powers

It is often thought that this implies a sharing of power between the three branches; however, Tulis asserts that the intended meaning is that each branch is superior in its own sphere, with the constitutional boundaries of each sphere limiting the power of each.  He notes, “powers were separated and structures of each branch differentiated to equip each branch to perform different tasks….  The purpose of separation of powers was to make effective governance more likely.”

Woodrow Wilson and the Rise of Little “c” Constitutional Powers

These big “C” principles, just succinctly expressed, differ in several respects to the little “c” principles that have developed over the history of America’s presidents but is understood as being largely rooted in Woodrow Wilson, our 28th president.  Tulis notes how Woodrow Wilson sought to essentially combine or mix the duties and powers of the executive and legislative bodies.

Wilson did not wish to bolster structures to thwart the legislature.  He preferred that the president and Congress be fully integrated into, and implicated in, each other’s activities.  Rather than merely assail Congress, Wilson would tame or, as it were, domesticate it.  Separation would be replaced by institutionally structured cooperation.

Whereas the Founders sought to distance the executive branch from the sway of popular opinion, Wilson sought to leverage it.  Madison, in Federalist No. 45, remarked: “The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security.”  It is likely that Wilson utilized the fear and insecurity of Americans during World War I to further this expansionary power.  This is suggested by Wilson’s own words, quoted by Tulis:

Crises give birth and a new growth to statesmanship because they are peculiarly periods of action…[and] also of unusual opportunity for gaining leadership and a controlling and guiding influence….  And we thus come upon the principle…that governmental forms will call to the work of the administration able minds and strong hearts constantly or infrequently, according as they do or do not afford at all times an opportunity of gaining and retaining a commanding authority and an undisputed leadership in the nation’s councils.[1]

I do not intend to communicate that Wilson’s intentions were necessarily nefarious.  Tulis himself notes that Wilson had good intentions.  I simply aim to state the matter.

Conclusion

In reading this brief sketch, it is likely that many will begin to see just how far our political environment has drifted from its big “C” constitutional founding and strangely looks a lot more like the little “c” constitutional system put forth by Woodrow Wilson.  Some may even call it demagoguery.

Tulis essentially saw this as a “major shift, indeed a reversal, of the founding perspective,” and I must agree.  There is certainly a danger here of the breakdown of the restraints established by the Constitution of government power.  The expansion and mixing of any of the branches is sure to throw off the intended administration of our governmental system and encroach upon the rights and liberties the Founders sought to protect.  In other words, this issue goes beyond the approach to which a president is, or attempts to be, elected.

As an aside, I think this shift has been largely influenced by the invention of media, specifically television, and the significant place it has in many people’s lives.  While the Federalists spoke of the federal government as a distant government, with state and local government being of more concern to the average citizen due to proximity, t.v. has practically altered this reality.  The politics of Washington are certainly more entertaining than the politics of your state, much less your county.

Carrying on this thought between federal vs. state government, is this confusion of the president’s power perhaps due to a misunderstanding, if not purposeful neglect, of big “C” constitutional intent regarding the superiority of government by the states?  In other words, have we come to believe that federal government is superior to state government, therefore leading to ill-placed weight and reliance on the presidency?  Have we come to believe that federal government’s powers are more numerous than the Constitution allows, thereby opening the door for this confusion and rise of the little “c” constitutional presidency? If there is doubt to the notion that the Founders intended the states to be superior to the federal government, or that the state governments were to at least have significant powers, with the federal government’s powers limited to what is expressed in the Constitution, their own words should remove all doubt:

The superiority of influence in favor of the particular governments [the state governments] would result partly from the diffusive [not localized] construction of the national government, but chiefly from the nature of the objects [what they govern] to which the attention of the State administrations would be directed. [Federalist No. 17, Hamilton]

The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former…. The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. [Federalist No. 45, Madison]

That the Federalists desired a stronger federal government did not mean they desired it to be stronger or more powerful than the states; they simply desired it to be stronger than it was at present.   So, let us return to the big “C” constitutional roots of our Founding Fathers and become more enamored with our state and local governments, and less enamored with the man who happens to occupy the Oval Office.


[1] Ellipses and brackets are Tulis’s.