The scandals plaguing President Obama's administration have given his critics more ammunition to sarcastically disparage his “constitutional law professor” background. However staying within the confines of the constructionist “plain English” interpretation of the constitution is easier said than done. Even the founders of the nation that went on to become President found it easier to “teach” the lessons of constitutional law than it was to govern by them. Here are five examples where each of the founding five presidents found it difficult to govern absolutely within the letter of the constitutional law once they were sitting in the big chair.
1. George Washington – The Whiskey Rebellion:
With the nation $80 million is debt, Washington approves a tax hike on domestically produced spirits. The majority of the country is made up of farmers and most of them produced their own whiskey and bourbon. They can ill afford the ten-a-gallon tax hike. Violent protests erupt in Pennsylvania. Washington leads a militia of 13,000 men into western Pennsylvania to squash the riots. When word spreads that Washington is personally leading the troops, the rioters disband peacefully and go home. Washington’s men begin to search for the ringleaders but without any cooperation they begin rounding up random farmers without due process. They drag the “suspects” back to Pennsylvania where they arrive bedraggled and half starved. They are paraded in front of Washington who does and says nothing.
Today that is called a “sin-tax” and politicians that implement such things are often accused of running a nanny state.
2. John Adams – Alien and Sedition Act:
Freedom of speech and freedom of the press are the hallmarks of democracy. All freedom starts and begins with the ability to freely express oneself. It is at the heart of the IRS and AP scandal currently being investigated by Congress, the FBI and the Department of Justice. Adams’ Alien and Sedition Act was a series of law designed to squelch any possibility of “rebellion” against the American government.
The sedition part made any conspiracy against the government including riots and interference with officers a “high misdemeanor.” Conspiracies included speaking in a "false, scandalous and malicious" manner against the government. Individuals who published anything intended to hold the government up to “contempt and disrepute” risked fine and imprisonment.
The alien part gave the president the right to deport any immigrant that he thought was a danger to the security of America. The president did not have to hold a hearing or give a reason for the deportation.
In today’s 24/7/365 Internet-fueled environment the prisons would be overflowing and Guantanamo would be full.
Probably no founder is quoted as much as Jefferson. However he struggled to govern by the words embodied in the Constitution by which he sought to live. Jefferson authorized the Louisiana Purchase even though there is no constitutional provision that allows the President to acquire territory. Jefferson said he stretched the Constitution so far that it cracked. He went to Congress and had them enact the Embargo Act, which forbade international trade. Jefferson was not a proponent of a central government but when it came time to govern, he partially endorsed it with his actions. Jefferson’s Embargo Act crippled the economy. It put over 30,000 sailors out of work overnight, ruined personal fortunes and destroyed private businesses. American exports dropped from $108 million to $22 million.
If Jefferson tried to restrict free trade and use taxpayer funds for an unconstitutional acquisition of land today, conservatives and constitutional scholars would be lining up to run him out of the country.
4. James Madison – War of 1812:
Madison was a key collaborator of the Federalist Papers and is hailed as the “father” of the United States Bill of Rights. He was professionally trained as a lawyer and was a career politician. Even with this resume he was said to have never held a job and was known as “Little Old Apple Jack.” Madison’s scholarly knowledge of the country’s operating framework did not make it any easier for him to always comply with its tenets. He too had to find a way to govern within, if not around the Constitution. To support the War of 1812, Madison raised money through the sale of bonds, foreign loans and deficit spending to triple the defense budget. The war also influenced his beliefs about the need for a national government and a standing army. Madison doubled the size of the Army and dramatically increased the size of the Navy. He helped to create the two-party political system, advocated for a federally funded infrastructure bank, supported the three-fifths compromise that allowed three-fifths of the enumerated population of slaves to be counted for representation, and ceded to the creation of a second national bank in order to fund the war. Congress authorized the War of 1812 with one of the narrowest votes in American history.
Madison used deficit spending to fund an unpopular war. Where have we heard that before? A federally funded infrastructure bank also sounds vaguely familiar.
Monroe was the last of the presidents who had a direct role in the founding of the nation. He had to deal with the central paradox of a nation founded on and dedicated to the principles of freedom that also had an enslaved population. That paradox became quite the political conundrum when Missouri petitioned for statehood as a slave state. A compromise was reached. Missouri would be allowed statehood as a slave state and Maine would join as a free state. Thus was slavery legally introduced into the new Louisiana territory and a virtual “slavery boundary line of demarcation” was created for the nation. The Missouri Compromise endorsed “one nation divisible, with liberty and justice for some but not for all.”
Monroe’s greatest contribution has been his lasting impact on foreign policy. The Monroe Doctrine has been used to justify every American war effort and/or intervention in North, South and Central American politics from the Spanish-American War to the Panama Canal; from the Cuban missile crisis to the Iran-Contra affair; from the expansion into the western US territory including the Republic of Texas to the annexation of Hawaii.
If you want to know why America does not have a non-interventionist foreign policy you may well start with the Monroe Doctrine and its offspring, Manifest Destiny.
Being President is a tough and complex job, the complexity of which we can only imagine. We don’t even know what we don’t know. The founding five found it difficult at times to stay within the enumerated powers of the constitution in a less complex/simpler time. It is not surprising that every subsequent President, including Obama has had just as much, if not more difficulty.