The law: connecting presidential power to public law.

Author:Fisher, Louis

The first American graduate school of political science, established at Columbia College in 1880, concentrated on the study of history, law, and philosophy. Students took classes in constitutional history, comparative constitutional law, comparative jurisprudence, private international law, comparative administrative law, and public international law (Hoxie et al. 1955, 305-6). The college created a department called Public Law and Government. It kept that name for years until the late 1960s and early 1970s, when it became the Department of Political Science. Political Science Quarterly, America's first journal of political science, invited manuscripts that explored the "Historical Statistical and Comparative Study of Politics Economics and Public Law" (Political Science Quarterly, 1886, front cover). The introductory essay treated politics, economics, and law as "interdependent." Investigating one, it advised, required investigating the others. "Choose which you will, the others are necessary auxiliaries" (Smith 1886, 8). A research project on government and public policy could not be pursued by excluding law.

The American Political Science Association, founded in 1903, adopted as its mission the scientific study of government, law, and administration. Of six distinct topics identified, two focused on comparative legislation and political theory. The other four were issues of law: international law, including diplomacy; constitutional law, including law making and political parties; administrative law, including colonial, national, state, and local; and historical jurisprudence (Proceedings of the American Political Science Association, 1905, 11).

Edward S. Corwin

As an undergraduate at the University of Michigan, Edward Corwin studied European politics and history, economics, Latin, French, mathematics, and constitutional studies. After taking a few years off to teach high school and work with Professor Andrew McLaughlin at the University of Michigan, he accepted a fellowship at the University of Pennsylvania to study under Professor John Bach McMaster and received his PhD in history in 1905 (Crews 1985, 4-6). From there he joined Princeton University as one of the new "preceptors" to teach students. At that time Woodrow Wilson served as president of the university. From 1909 to 1911, Corwin with his doctorate in history published articles in the Michigan Law Review and the Harvard Law Review. By 1911, he had become full professor and the highest-paid preceptor (Crews 1985, 11).

Among nonlawyers, Corwin's scholarly record in the field of public law and constitutional law is unparalleled. His 20 books include National Supremacy: Treaty Power vs. State Power (1913), The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays (1914), The President's Control of Foreign Relations (1917), John Marshall and the Constitution (1919), The Constitution and What It Means Today (1920, but reprinted and updated regularly after that), The President's Removal Power under the Constitution (1927), The Twilight of the Supreme Court (1934), The Commerce Power Versus States Rights (1936), Court Over Constitution (1938), Total War and the Constitution (1947), The "Higher Law" Background of American Constitutional Law (which appeared in the Harvard Law Review in 1928-29 before being published in 1955), and The Presidency Today (with Louis W. Koenig, 1956).

Corwin's major work, The President: Office and Power, first appeared in 1940. A second revised edition appeared a year later. The third and fourth editions were published in 1948 and 1957. As he explained in the preface, the book "is primarily a study in American public law" (Corwin 1957, vii). He expressed concern about "a long-term trend at work in the world that consolidates power in the executive departments of all governments, first in the person of one individual, then in an 'administration' " (Corwin 1957, 304).

In addition to numerous articles in Harvard Law Review and Michigan Law Review, Corwin published in the Yale Law Journal, University of Pennsylvania Law Review, Columbia Law Review, Virginia Law Review, Cornell Law Quarterly, New York University Law Quarterly Review, Boston University Law Review, American Bar Association Journal, Washington Law Review, New Jersey Law Journal, Notre Dame Lawyer, and New York University Law Review. He wrote regularly for political science journals, magazines, and newspapers. In addition, he turned out 58 letters to the editor (Crews 1985, 77-130).

Corwin's major difficulty in upholding scholarly standards involved his decision in 1937 to defend President Franklin Roosevelt's court-packing plan. In previous years, Corwin had opposed adding justices to the Supreme Court as a means of shifting constitutional doctrine. Yet when Roosevelt submitted his court-packing plan to Congress in 1937, Corwin offered "immediate and outspoken support" and became identified as "a Roosevelt loyalist" (Crews 1985, 28). His constitutional analysis could be seen as offering a personal benefit because the addition of six justices "increased Corwin's prospect for joining the Court" (Crews 1985, 28).

On March 17, 1937, the Senate Judiciary Committee called Corwin to testify on Roosevelt's plan. Over a three-hour period, committee members probed Corwin's analysis and paid particular attention to his shift in positions. They wanted him to explain why he had changed his views. His initial statement and responses to questions are available in a book published by Richard Loss (1987, 218-77). The experience of being repeatedly grilled by informed and knowledgeable lawmakers marked a "deep personal, professional, and scholarly disappointment" (Crews 1985, 31).

From Arthur Schlesinger to James McGregor Burns

Corwin's dedication to public law in his study of the presidency was followed by scholars who paid little attention to legal and constitutional principles. From the 1940s to the 1960s, Arthur M. Schlesinger, Jr., Henry Steele Commager, Clinton Rossiter, Richard Neustadt, and James McGregor Burns argued that it was politically necessary and desirable to transfer ever-greater power to the president. They wrote about presidential power in personal terms, generally seeing in the office unique qualities beneficial for the country in combating international fascism and communism. The framers' aspiration for self-government--operating through Congress--held little interest for them.

Schlesinger's book, The Age of Jackson (1949 [1945]), looked to Andrew Jackson as a model for preserving democracy against the 1940s threat of world fascism. He praised Theodore Roosevelt for "usher[ing] in a period of energetic government" and paid tribute to Woodrow Wilson for understanding "the need for executive vigor and government action" (Schlesinger 1949 [1945], 188). The emphasis on executive energy, vigor, and action left little room for Congress, the courts, or the system of checks and balances. Schlesinger's three books on The Age of Roosevelt applauded the activism and leadership of Franklin D. Roosevelt (Schlesinger, 1957, 1958, 1960). To Schlesinger, the eighteenth-century Constitution of the framers needed to be replaced by a twentieth-century model supportive of presidential government.

Truman's unilateral war against North Korea in June 1950 was quickly defended by Schlesinger and fellow historian Henry Steele Commager. With partisan motivations, they made short work of those who raised constitutional concerns. In a letter published in the New York Times, Schlesinger attacked Senator Robert Taft for claiming that Harry S. Truman "had no authority whatever to commit American troops to Korea without consulting Congress and without congressional approval." Taft's statements, Schlesinger said, "are demonstrably irresponsible." Until Taft "and his friends succeed in rewriting American history according to their own specifications these facts must stand as obstacles to their efforts to foist off their current political prejudices as eternal American verities" (Schlesinger 1951, 28). In his book The Imperial Presidency, Schlesinger acknowledged that his own statements about Taft and Truman were "demonstrably irresponsible" and that he had "foisted off" his own political and partisan prejudices (1973, 139, 286). The imperial presidency was fine with Schlesinger in the hands of Roosevelt and Truman. It did not look as good under Richard M. Nixon.

Commager joined Schlesinger in opposing Taft and other critics of the war against North Korea. Writing for the New York Times on January 14, 1951, Commager rebuked members of Congress for claiming that Truman had "usurped" power and "violated the laws and the Constitution of the United States." Those attacks against Truman, he said, had "no support in law or in history" (Commager 1951a, 11). He described these critiques as "so hackneyed a theme that even politicians might reasonably be expected to be familiar with it" (Commager 195 la, 11). What was hackneyed, as will be explained, was Commager's willingness to let his partisan beliefs push aside the professional duties of a scholar.

For the New York Times, on April 1, 1951, Commager dismissed apprehension about presidential power as "misguided and pernicious." It arose "not out of real but out of imagined dangers. It is rooted not in experience but in fears." Strong presidents, he insisted, had used executive power boldly but without threatening democracy or impairing the constitutional system. "There is, in fact, no basis in our own history for the distrust of the Executive authority" (Commager 1951b, 15). He looked to "long-established traditions of Presidential control," referring to the president "as the sole organ of the Government in the conduct of foreign relations" (Commager 1951b, 33). As a historian, he should have known that the sole-organ speech by John Marshall in 1800 did not advocate plenary, independent, exclusive, or inherent...

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