Opposition to the theory of presidential representation: federalists, whigs, and republicans.

Author:Bailey, Jeremy D.
 
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Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations.

--Justice Robert Jackson, concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952, 654)

Robert Jackson's statement points to an enduring difficulty for scholars of presidential power. It argues that, in addition to formal sources of constitutional authority and in addition to the emergence of the president as party leader, there is a third source of presidential power, and that source is public opinion. Scholarship on the presidency has documented the importance of each of these three sources, and the emphasis on the one or the other has ebbed and flowed much like Jackson's description of executive power itself. In the last decade, scholars have variously rediscovered the formal powers of the unilateral presidency, expanded on continuing debates about the constitutionality of prerogative, and found new ways of measuring the extent to which presidents represent their parties or the whole.

The problem is that simply reiterating and expounding upon each of the old arguments does little to clarify the nature of presidential representation. Some scholars today emphasize the legal and philosophic grounds for the arguments made by presidents and their opponents. This is especially true among scholars of executive prerogative, who have distinguished several models of prerogative, usually around the question of its constitutionality or extraconstitutionality. Other scholars emphasize the connection between the president and public opinion. For them, the essential point is that the appeal to public opinion has become a fundamental feature of the modern presidency. These different emphases are fine as far as they go, but in large part they talk past one another, and anyone who tries to navigate between them might be forgiven for coming away with a sense of crossed purposes.

To be sure, some of the confusion derives from the nature of scholarly investigation and is the result of necessary specialization. But the larger obstacle to understanding presidential representation stems from our insistence on the "modern presidency" as an organizing concept. This is a historical construct, and in our search for the precise date of its appearance, we end up imputing to history a before-and-after moment. Looking for the moment of change, we risk missing what endures and misunderstanding the fruits of victory enjoyed momentarily by one or another set of winners.

This article examines the development of the theory of presidential representation between 1800 and 1864. It does so with particular attention to the opposition to various presidential embellishments of the theory. My argument is that opposition responses were not just losers but integral parts of the development in view, that the theoretical and developmental linkages made between claims of executive power and claims of representation carry forward elements of the resistance encountered along with the new assertions. I find that by 1864, the question of presidential representation had become more complicated and more entangled with rival claims of authority, not less. But before I turn to the nineteenth century, let me consider recent scholarship on presidential representation in more detail.

Foundations of Presidential Power

The precise nature of the relationship between the presidency and the public remains a central concern of political science. Presidency scholars still disagree about whether the framers of 1787 designed the president to be democratic (Alvis 2013; Nichols 1994; Tulis 1988); whether going public actually works (Edwards 2006; Kernell 1997); whether the president follows or leads public opinion (Canes-Wrone 2005); and whether presidential mandates exist (Dahl 1990; Heidotting Conley 2001). There is wide disagreement as well about the character of presidential representation. One group of scholars finds that presidents are more centrist in the policies they promote, while another finds that they are more partisan in the views they represent (see Eshbaugh-Soha and Rottinghaus 2013 for a recent review of this debate). Although students of the presidency have made tremendous headway in understanding presidential representation in partisan terms, there is still much work to be done. In a recent article published in Presidential Studies Quarterly, Lawrence Jacobs (2013) surveyed the research on the linkage between the president and the public and concluded not only that the subject was still "undertilled" but also that its study would be enhanced by "cross-field" research, particularly, but not exclusively, with reference to political theory.

In a recent book, B. Dan Wood (2009) goes farther, arguing that scholars of the presidency need to move beyond what he calls the "myth of presidential representation." In his view, the myth takes two different forms by two very different groups. The first form, most frequently stated by presidents, is that the president represents the national interest as opposed to local interests. The second form, elaborated by one school of political science, is that the president is pulled by electoral self-interest to the median voter. But according to Wood, presidents appeal to fellow partisans rather than to the median voter. Specifically, Wood's president campaigns and governs with an eye on "potential" support, that is, a coalition of the committed and the persuadable. Wood concludes,

Indeed, one is led to question whether modern presidents and presidential candidates even understand what it means to be "enlightened statesmen" in the sense intended by Madison in Federalist 10. Rhetorically, they consistently claim to put the nation or "Country First!" At the same time, they consistently pursue policies directed at supporting the interests of the few, rather than the community of the whole. (2009, 200) Wood's formulation here is revealing in that it indicates just how underdeveloped the current examination of representation remains. In Wood's view, early Americans considered representation only in terms of partisanship, and because they created a presidency without accounting for political parties, they failed to foresee that presidents might be partisans.

What is important to notice is that Wood is not content with his empirical claim about how presidents behave today. Rather, he explains this empirical claim by invoking a broader understanding of the constitutional design and of American political development, namely, that parties changed everything. In this he is not alone. Though research into American political development is very different from Wood's analytically, it, too, sees the emergence of parties as the critical factor in changing presidential representation. As Ellis and Kirk (1995) point out in an article on the development of the theory of presidential mandates, the Whigs were "modern," only to the extent that they anticipated the political scientists' critique of contemporary practices. Like Dahl (1990) and others, Whigs argued that it was implausible that a majority on a certain policy could be discerned from an election. But this is to say that Wood (2009) and Ellis and Kirk (1995) both agree with respect to the essential developmental question, namely, Jackson eventually won, and the Whigs eventually lost (see also Ceaser 1979). Or, as Ellis (2012, 92) puts it in his recent textbook on the presidency, because the Whigs could not articulate a coherent alternative to Jacksonian democracy, the question moved from whether the president works for the people to the way the president relates to the people.

Because both Wood (2009) and Ellis and Kirk (1995) consider presidential representation in partisan terms simply, their accounts are incomplete at best. Contests over executive power and the nature of presidential representation have endured, and they continue because of the imprecise wording of the Constitution. Moreover, this imprecision grows out of the nature of executive power itself. There are two rival arguments for executive power in republican constitutionalism. Or, to put it differently, and to redeploy James Ceaser's (2006) call for examination of foundational arguments in American political development, there are two different foundations for executive power. One is formal law, and the other is public opinion. Each foundation provides an attractive normative argument from republican political theory while at the same time moderating some of the other's excesses. The argument from law appeals to our desire for equality (all are equal under the law) and promotes stability (the rule of law). The argument from public opinion appeals to our desire for democracy (the majority must govern) and promotes progress (the earth belongs to the living). These rival foundations ensure that power remains contested both as a matter of formal law and as a matter of informal opinion. The separation of powers under the Constitution further complicates these struggles by mingling them with rival claims of representation with respect to public opinion. As James Madison conceded in Federalist #37 (Scigliano 2000, 224), the delegates to the Convention of 1787 encountered the difficulty of balancing the requirements of energy and stability with the desire for republican principles. They attempted to solve this not by creating a mixed constitution, based on economic class, but rather by attaching a different principle to the House, Senate, and presidency. These different principles would, in turn, be harnessed by different "wills," and these wills would include different constituencies.

The emergence of parties altered this framework but did not replace it. In fact, the first parties explicitly took sides on the contest between law and opinion. The Federalists represented the party of law and the Republicans the party of opinion (see Estes...

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