Untrodden Ground: How Presidents Interpret the Constitution.

• Author: Krent, Harold J.
• Position: Book review

UNTRODDEN GROUND: HOW PRESIDENTS INTERPRET THE CONSTITUTION. By Harold H. Bruff. (1) Chicago: University of Chicago Press. 2015. Pp. 557. $55.00 (cloth), $35.00 (paper).

Harold H. Bruff's book, Untrodden Ground: How Presidents Interpret the Constitution, is a must read for those interested in understanding the myriad dynamics that shape presidents' impact on constitutional interpretation. The author examines each administration in chronological fashion to shed light on our understanding of the U.S. Constitution. No other book to my knowledge has been so ambitious in assessing each president's contributions to constitutional interpretation, and few other books are infused with such lively prose.

Bruff summarizes well the influences that mold presidential interpretation of the Constitution: "the president's character, experience, and values; the incentives that the office and current politics create; the practical problems that must be solved; and an awareness of the actions of their own predecessors" (p. 457). From President George Washington's exercise of the treaty power to President Andrew Jackson's supervision over the executive branch, and from President Abraham Lincoln's view of his emergency powers to President Harry Truman's understanding of the Commander-in-Chief Clause, the book examines circumstances that forced presidents to take action or make statements reflecting interpretation of the Constitution. These include decisions implicating constitutional interpretation, such as the use of military force, as well as interpretations of the text as justifications to refuse to enforce laws or turn over information to Congress. Presidents affect our understanding of the Constitution by both words and deeds.

Judicial interpretation of the Constitution is studied in every law school and in many political science departments. Much ink has been spilled by legal academics and political scientists to generate theories on how judges should approach that critical task. Clashes between originalists and interpretivists take place on and off the bench. And, there are widely divergent views held by those in each interpretive camp. No consensus, for instance, has been reached as to the degree that originalism even is possible given the lapse of time or to whether interpretivism permits objective constraints.

Irrespective of the ongoing originalist/interpretivist debate, Bruff is correct that legal and political science scholars have devoted relatively sparse attention to how members of the coordinate branches interpret the Constitution. (3) As have others within the last generation, (4) Bruff rejects the conventional notion that constitutional interpretation is within the exclusive province of the judiciary. The author makes a strong case that presidential interpretation of the Constitution matters more in the real world than judicial decisions. (He brushes aside the parallel question of constitutional interpretation by members of Congress.) When presidents sign executive agreements or break treaties, in a sense they interpret the Constitution, as they do when they fire subordinates, exercise the recess appointment power, and impound funds. Accordingly, his book examines the issues arising in each administration that impact the Constitution's reach.

Untrodden Ground eschews a normative account of presidential interpretations. For instance, does it matter if the presidential interpretation is reflected in deed, such as in President Thomas Jefferson's Louisiana Purchase (pp. 68-72), or rather in a statement such as Jefferson's justification for pardoning those convicted of Sedition Act violations (p. 64)? Should less precedential weight be accorded presidential actions manifesting constitutional positions as opposed to more reflective articulation of constitutional values? Possibly, but on the other hand, presidents are not judges, and they are held accountable by the people principally for their conduct in office, not their constitutional analysis. (5)

Moreover, should presidents defer to interpretations of coordinate branches and, if so, under what conditions? Should they defer to interpretations of prior presidents more than to coordinate branches? Does the extent to which the constitutional provision implicates presidential power as opposed to the rights of individuals matter? These and other questions can be studied by examining the steps presidents have in fact taken and what justifications they have used over time.

In the pages that follow, I tackle one piece of the puzzle, charting the degree to which presidents should factor in the prior actions and statements of predecessors implicating constitutional views. I argue, first, that such precedents matter, and second, perhaps more controversially, that contemporary constitutional justification of actions is more salient than either unexplained presidential actions bearing on constitutional interpretation or standalone executive interpretations of the Constitution untethered to particular presidential conduct. The union of word and deed cements the precedential force of the constitutional interpretation.

1. DO PRESIDENTIAL PRECEDENTS MATTER?

   As an initial matter, some may question whether presidents should care about any precedents--executive, judicial, or legislative--before taking action that manifests a particular interpretation of a constitutional provision. Under the Constitution, presidents must ensure that their actions are consistent with what they (and their advisors) believe to be the constitutional commands, (6) but need not be bound by what their predecessors believed. Nor, in fact, need presidents be bound-except perhaps in a particular case or controversy (7)--by how judges have interpreted the Constitution. Presidents, in other words, must use their best judgment in taking care to enforce the law and in acting as Commander-in-Chief based on their own understanding of the constitutional text. Indeed, President William H. Taft rightly insisted that a president "does not consider himself bound by the policies or constitutional views of his predecessors" (p. 206).

   Nonetheless, as Professor Bruff implicitly asserts in the book, the precedents of prior presidents matter. George Washington famously related that "[t]here is scarcely any part of my conduct which may not hereafter be drawn into precedent." (8) Thus, he knew that every step he took, from dispatching troops to quell the Whiskey Rebellion (p. 49) to announcing the Neutrality Proclamation (p. 42), likely would shape the conduct of future presidents by defining the scope of a president's power under Article II. Many presidents thereafter self-consciously have defended their stances by referring to actions of predecessors. For instance, when President Andrew Johnson vetoed the Tenure in Office Act, he stated that a ban on any Senate role in removing executive branch officials was "settled by precedent, settled by the practice of the Government" (p. 169). When President Harry Truman resolved to intervene in Korea, he considered prior historical examples and. "impressed by the appearance of precedent" (p. 273), moved forward. (9) When President Richard Nixon vetoed the War Powers Resolution for infringing on his Commander in Chief powers, he decried Congress's effort to take away "authorities which the President has properly exercised under the Constitution for almost 200 years" (p. 338), and he later asserted that he was following his predecessors in impounding funds (p...