The Conservative Sensibility Read online

  Today the rhetorical presidency is an instrument incessantly used to incite and inflate. The Founders would be appalled. They believed presidential appeals to, and manipulation of, public opinion would be an anti-constitutional preemption of deliberate processes. Thus there was, until this century, a “rhetorical common law.”22 Presidents spoke infrequently and about little. Washington averaged just three popular speeches a year; Adams, one; Jefferson, five. Madison, president during a war that burned his house, gave none. The twenty-four presidents prior to Theodore Roosevelt gave about one thousand speeches, but more than half of these were by three presidents (Hayes, Harrison, McKinley). Until the twentieth century, presidents communicated primarily with the legislative branch, not “the people,” and communicated in written messages suitable for deliberative reasoning. Then modern technologies of transportation and communication gave presidents new capacities, and Woodrow Wilson supplied a theory for using them.

  Presidents, Wilson said, should engage in “interpretation,” meaning the discovery of what is in the hearts of the masses—or would be there if the masses were sensible. Soon presidents were everywhere, moving about, by railroad and then airplane. They were on the air by radio, then television. America was on its way to today’s notion of the president as tribune of the people, constant auditor of the nation’s psyche, molder of the public mind. Logically—not that logic has much sway in such matters—this is odd. Logically, executive power is secondary, having as its primary duty the execution of the result of the primary power, that of the legislature. The US Constitution is remarkably—given what the presidency has become since 1787—reticent about presidential duties, the essence of which is in the Take Care Clause: The president shall “take care that the laws be faithfully executed.” The idea of direct election of the president received short shrift from the Constitutional Convention, which more seriously considered but also rejected election of the president by Congress, upon which the president would then have been dependent and to which the president would have been subordinate. With this rejection, the die was cast: Political dynamics would trump logic, and the presidency would eventually eclipse Congress. When Hamilton, in Federalist 68, foresaw a “constant probability” of the presidency being occupied by “characters pre-eminent for ability and virtue,”23 he was, as Harvey Mansfield says, assuming that the people would have “the virtue to appreciate virtue.”24 Hamilton, who wrote this before the emergence of political parties, could not have anticipated the sequence of presidential methods of selecting the parties’ presidential candidates, methods that are not overly focused on virtue.

  American politics, always a form of entertainment and always entertaining, used to be far from president-centric. Once upon a time, Americans’ zest for politics at more local levels astonished the world. In Jules Verne’s Around the World in Eighty Days (1873), the Englishman Phileas Fogg, passing through San Francisco, gets swept up in a tremendous election hullabaloo. Fogg asks if the awesome commotion is for “the election of a general-in-chief, no doubt?” He is told, “No, sir; of a justice of the peace.” In 1858, the first of seven Lincoln-Douglas debates, in Ottawa, Illinois, a city of about 7,000, was witnessed—you cannot say heard—by about 20,000, none of whom, in those days before direct election of senators, could vote for either candidate. At that time, American politics was the best entertainment money did not have to buy, and it was entering its era of maximum popular participation. Soon, however, “progressive” high-mindedness would help to put a stop to that.

  Michael Schudson argues that politics from the colonial period through the Revolution was a “politics of assent.” Elections were acts of deference, ratifying rule by the gentry, which regarded political office as an obligation connected with social standing. But urbanization produced heterogeneous populations. The spectacular growth of newspapers, fueled by cheap newsprint and mass literacy, stimulated argumentativeness in a society where immigration was producing fierce rivalries among ethnic communities. Soon mass-based parties replaced the politics of deference with the “politics of affiliation.” Between Lincoln and Theodore Roosevelt, writes Schudson, no president captured the public’s imagination, yet “these were the years of the highest voter turnout in our entire history. Americans of that era enjoyed politics.” It was not elevated politics, it was a sport of rival social groups organized into teams (parties) around “ethnocultural” issues—immigration, church schools, temperance—that were at least as bitterly divisive as today’s social issues.25

  In the late nineteenth century in the North, 70 percent or more of those eligible usually voted in presidential elections. This was partly a tribute to political machines: Pennsylvania’s Republican organization had 20,000 wage-earning workers—more employees than most of the state’s railroads. And Schudson says that during the Gilded Age as many as 20 percent of New York City voters may have been paid in some form or other as Election Day workers. Then righteous reformers and caring government took much of the fun, and many of the voters, out of politics. Reformers wanted fewer parades and more pamphlets—voting should be not an act of group solidarity but an individual act of informed competence. Parties, said well-bred reformers, should not just rally committed followers, who often were, well, not the sort of folks who knew which fork to use with the fish course. Rather, parties should persuade the uncommitted. The progressive aspiration, says Schudson, was a “citizenship of intelligence rather than passionate intensity.” The coming of solicitous government gave people rights to things they once received for services rendered to the party. In the nineteenth century, Schudson says, people could “smell and taste the material benefits in politics,” such as turkeys at Christmas.26 Under the twentieth century’s sanitized, omnipresent, and omniprovident government, services became less connected with elected officials than with bureaucracies.

  The nationalization of governance made presidential politics the sun around which America’s political solar system orbits. Because of the swollen place the presidency now occupies in the nation’s consciousness, we are never not preoccupied with presidential campaigning. The Constitution’s Framers would be mystified and dismayed. The nation reveres the Framers but long ago abandoned the presidential selection process that, James Ceaser says, they considered so important that they made it one of the four national institutions created by the Constitution.27 Three are the Congress, the Supreme Court, the presidency; the fourth is the presidential selection system based on the Electoral College. This system, wherein the selection of candidates and election of a president by each state’s electors occurred simultaneously—they were the same deliberation—soon disappeared. Since the emergence of the party system in the 1790s, and the ratification of the Twelfth Amendment in 1804, candidates have been selected by several different processes: First by their party’s congressional caucuses. Then by nominating conventions controlled by the party’s organizations. Then by conventions influenced by primaries and caucuses. (Vice President Hubert Humphrey won the 1968 Democratic nomination without entering any primaries.) And since 1972, entirely by primaries and caucuses that have made conventions merely ratifying, not deliberative, bodies.

  So many things, including the evolved party system and the myriad functions of the federal government, have made the modern presidency that it is possible to lose sight of one more thing: war. In 1918, Randolph Bourne, whose pacifism cost him much of his journalistic career, many of his friends, and, hence, perhaps his health, became, on December 22, one of the more than 600,000 Americans killed by the influenza unleashed by the war that he strenuously opposed. An unpublished manuscript, rescued from his wastebasket after his death, contained his most famous words: “War is the health of the State.” And of the executive.

  Madison had said as much, less pithily but more informatively, 123 years earlier: “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes
; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people.”28 The colonies’ pre-Revolutionary experience with the costs and other inconveniences of the British army’s presence in North America had given rise to some of the complaints recorded in the Declaration of Independence. Hence the most interesting, because most resonantly modern, aspect of Madison’s warning about war is his reference to executive aggrandizement.

  It is, however, in domestic policy that a disproportionate presidency is most alarming, because there it disrupts Madison’s intended equilibrium between the three branches. Today’s disequilibrium results from Congress’ forfeiture of its natural advantages, its inherent supremacy. As Madison wrote in the Pacificus-Helvidius debates with Hamilton, “All [the president’s] acts, therefore, properly executive, must presuppose the existence of the laws to be executed.”29 There are other acts that are not so strictly executive, such as those taken in his capacity as commander-in-chief of the military. Madison’s sound point, however, is that the president’s core function is to execute the will of others, the legislators.

  Back in the day, not many people were eager to come to Congress, and fewer were willing to linger there. In the first half of the nineteenth century, Washington was difficult to get to, its climate was insalubrious, and living accommodations were uncongenial. This helps explain why “between 1800 and 1830, two-thirds of congressmen served two terms or less, two-thirds of senators lasted for one term or less. More than half of the 242 members of the Twenty-fourth Congress (1835–37) were not around in the Twenty-fifth.” And during the next three decades “the average congressman served for only four years. The senatorial average was a bit over five, less than a full term.”30

  Today, Congress has more permanence—too much of it; read on—but is swamped by the growth of government that Congress itself mandates and funds. The First Congress had more senators (twenty-six) and representatives (sixty-five) than there were members of the entire federal bureaucracy. For many decades, until civil service reform in the second half of the nineteenth century, the bureaucracy was not the formidable presence that it has become. In 1861, when the first Republican president took office, what we today refer to as “the permanent government”—the bureaucracy—was not only small but was highly impermanent. After the 1860 election, all but 300 of the 1,500 most important officeholders resigned or were fired by Lincoln or his appointees.31 For more than a century now, Congress has been living in the deepening shadow cast by the rest of the federal government.

  As far back as Woodrow Wilson’s presidency there were already almost as many members of the national legislature—531—as there are today. Since the admission to statehood of Hawaii and Alaska in 1959, there have been 535. It is difficult to precisely quantify the increase in the business—and the busy-ness—of Congress since then. It is, however, reasonable to assume that the increase is at least fifty-fold. The federal budget has increased much more than that. Congress has been a participant in the government’s growth, but Congress also has been a victim of it, although often a willing, accommodating victim. This is so because the expansion of the regulatory, administrative state necessarily means the marginalization of the legislative branch. As a symptom and symbol of this, consider the consequential matter of working space.

  In Congress’ early years, the senators’ offices were their desks. By the 1830s these were inadequate to the exigencies of the growing federal agenda, so mahogany writing boxes, three inches high, were added to the desks. To be precise, they were added to all the desks but one. New Hampshire’s Daniel Webster said that his predecessors had managed without this superfluity and so could he. To this day, Webster’s desk, which always is assigned to New Hampshire’s senior senator, remains unblemished by a writing box. However, the Iron Law of Emulation soon was at work. Daniel Patrick Moynihan named that law, drawing upon the work of his former Harvard colleague James Q. Wilson. Wilson studied the dynamics and cultures of bureaucracy and concluded that organizations in conflict with one another come to resemble one another. Moynihan applied this insight to government: “Whenever any branch of the government acquires a new technique which enhances its power in relation to the other branches, that technique will soon be adopted by those other branches as well.”32

  It is not surprising that, regarding working space, the first move was made on behalf of the presidency, and by Theodore Roosevelt, who gave Woodrow Wilson ideas. Until the turn of the twentieth century, presidents had done much of their work in the living quarters of the White House, which must have been inconvenient, not to mention annoying, to their wives. So in 1902, TR built the West Wing, where the Oval Office is. As Moynihan noted, “Of a sudden, the President was an executive. He no longer worked in his living room, but had an office building in the manner of the business leaders of the age. (Here one observes the federal government as a whole adopting the techniques of the business world with which it was then increasingly in conflict.)” So, in 1903, the House of Representatives voted to construct an office building, which is now called the Cannon Building. In 1904, the Senate, emulating the House, voted for what now is the Russell Building. What Moynihan called “the migration of technique from the executive to the legislative” had begun.33 The House opened the Longworth and Rayburn buildings in 1933 and 1965, respectively; the Senate opened the Dirksen and Hart buildings in 1958 and 1982, respectively. The judicial branch was watching when the legislature’s building spree began. Chief Justice of the Supreme Court William Howard Taft, who had been president, and who did not cotton to being housed in Congress’ space, in the Capitol, saw to the building of a temple across the street. It opened in 1935.

  Until 1906, no president had left the country while in office. That year, TR—yes, him again—went to Panama. In 1909, TR’s successor, Taft, went there, too. Taft’s successor, Woodrow Wilson, went to Paris. Congress took note. In 1954, it began to provide ample and easily accessible resources to make foreign travel routine for its members. In 1921, the executive branch created the Bureau of the Budget (which became the Office of Management and Budget in 1971); in 1975, after Congress’ conflict with a Watergate-weakened President Richard Nixon over presidential impoundment of appropriated funds, Congress created the Congressional Budget Office. In 1962, there came a new appendage of the presidency, the Office of Science and Technology, successor to a 1957 creation, the President’s Science Advisory Committee. In 1974, Congress created its Office of Technology Assessment. And so it goes, still.

  This is not to disparage any of these developments; each may have been wise and necessary. But Congress does seem to be reactive and emulative. And it cannot keep up. In an intragovernmental arms race, for space or expertise, the legislative branch will always lose. One measure of how much ground it has already lost is apparent in the limited, but less limited than it used to be, presidential participation, through the conditional veto, in the making of laws. In the beginning, presidents cast vetoes primarily, or only, when they deemed the legislation in question to be unconstitutional. Presidents have, however, long since adopted the practice of vetoing bills for purely policy reasons, thereby asserting for themselves at least parity with Congress in setting the national agenda. Franklin Roosevelt was president for 4,422 days, during every one of which his party controlled both houses of Congress, yet he still vetoed 635 bills.

  All of America’s era-defining national agendas—Theodore Roosevelt’s New Nationalism, Woodrow Wilson’s New Freedom, Franklin Roosevelt’s New Deal, Harry Truman’s Fair Deal, John Kennedy’s New Frontier, Lyndon Johnson’s Great Society, the Reagan Revolution—have been summations of presidents’ agendas. This helps to explain why, James Ceaser notes, there is no Mount Rushmore celebrating congressional stalwarts. And it is interes
ting that the four men celebrated on Mount Rushmore together had just one congressional term—Lincoln’s two years in the House. This is acknowledgment in stone of what Andrew Jackson claimed.

  Until the late 1820s, presidential elections were doubly indirect. Presidents were elected by electors chosen not by voters but by state legislatures. But after Jackson’s election in 1828, he became the first president to argue that presidents, the only officials elected by national votes, necessarily acquire mandates that put them at least on a par with Congress, which is a conglomeration of representatives of lesser constituencies. Prior to Jackson and for most of the nineteenth century after him, the prevailing doctrine was that Congress is the principal representative of the people. Jefferson’s first message to Congress was couched in language of a nonpartisan executive: “Nothing shall be wanting on my part to inform, as far as in my power, the legislative judgment, nor to carry that judgment into faithful execution.” According to Edward S. Corwin, the constitutional historian, “The tone of [Jefferson’s] messages is uniformly deferential to Congress.”34 So totally did Monroe subscribe to the doctrine of congressional supremacy, he was utterly silent on the burning issue of the day, the admission of Missouri to statehood and the status of slavery in Louisiana Territory.

  In the second half of the twentieth century, Republicans fully embraced the presidential supremacy that had so irritated them during the New Deal. Between 1952 and 1988, Republicans controlled both houses of Congress for only two years (1953–54) but won six of ten presidential elections. Between 1968 and 1988, Republicans won five of six presidential elections, while controlling the Senate for just six years (1981–86). Republicans held the presidency for all but twelve of the forty years prior to 1992. As a result, conservatives became fixated on the presidency and opportunistically adopted the vocabulary of president-centrism, arguing that social progress is a measure of, because it is a consequence of, presidential aptitudes. The unconservative premise of this—its pedigree traces to turn-of-the-century Progressives—is that government, particularly the executive branch of the federal government, is the most important creative agency in society.