The Authoritarian Foundations of the Presidential Office

The age of kings is past because the peoples are no longer worthy of them.
– Friedrich Nietzsche

I. Introduction

Giovanni Gentile, ghostwriting for Benito Mussolini in The Doctrine of Fascism, observed that in “studying a sample of monarchies past and present, of republics past and present, it appears that the concepts of monarchy and republic are not to be judged sub specie aeternitatis, but that each represents a form in which it expresses the political evolution, the history, the tradition, the psychology of a given country.”[1] As opposed to the climate in which our Constitution was drafted, modern political discourse lacks such a sense of history. What was more than obvious to the Framers – that all forms of government are transient and that no nation can escape history – is a lesson lost on those politicians and scholars today who lament what they suppose tobe abuses of the Executive power.

For instance, while the image of the Roman Republic is often evoked as the precursor to our government, the vast majority of Americans today are unaware of the role of Dictators in our ancient antecedent. Similarly, while the historic ties of the United States with Britain are often extolled as the cultural and legal heritage of our nation, most Americans deny any relation between the Executive Branches of our respective governments. Certain historical legacies are lost and forgotten, such as the fact that our system of common law was created by King Henry II; or that our Bill of Rights originated from the constitutional monarchy of England; or that our modern concept of the separation of powers was originated not by those fearful of monarchical tyranny, but as a result of abuses by the Long Parliament of 1640[2]; or that the very concept of a separate Legislature and Executive is derived from British law. The willful neglect of the essential role of history in the shaping of our government is perhaps a distinctive mark of modern liberalism.

It may seem counterintuitive to begin a paper on the American Presidency by quoting approvingly the central document of Italian Fascism. Yet while modern liberalism may abhor authoritarianism, the Framers were well aware of the necessity of both monarchs and dictators in the preservation of nations.[3] The insight of the Fascist philosopher Gentile as to the impermanent and particular nature of governmental form is deeply relevant to our republic; in fact, James Madison, too, made the observation that the word “republic” does little in the way of defining a government.[4] Today we believe in mass democracy, racial egalitarianism, the popular election of Senators, and two-term presidencies. Thus we stand today in an entirely different political reality than did our forefathers, who restricted citizenship to propertied white males, subjected entire races, elected Senators by way of the State Legislatures, and saw the President as eligible for reelection for as long as the American people wished. Judicial activists and originalists alike are reticent to admit that we have today, not just a different perspective, but an altogether different republic than was ever envisioned by the Framers of the Constitution.

Past scholars have sought to discover the original intent of the Framers in order to “throw essential light” on constitutional questions.[5] In contrast, the point of the present essay is not to argue in favor of a certain method of constitutional interpretation or to justify or to condemn certain actions of modern Presidents but is, rather, an attempt to distinguish the republic of our forefathers as a distinct form of republic from our own. In our republic, the President is likened to a CEO; in their republic, the President was likened to a king.[6] Nor is this essay to be construed as exaggerating the authoritarian leanings of the Framers at the expense of the liberal values embedded in our national mythos. While the President was likened to a king, his was an Office of restrained powers, in the tradition of the English constitutional monarchy.

The Framers intended to create a monarchical republic in which the President would be granted powers resembling those of a king or dictator, albeit with certain specified limitations. This is contrary to what is generally perceived to have been the intent of the Framers, namely that they had attempted to break free from anything resembling a monarchy, and that they valued liberty at the cost of Presidential authority. The President was intended to be an elective monarch, such that the people of the United States would elect him until they no longer wished him to be the head of the nation. Like the British King, he was given the power of the veto that he might protect the prerogative of his Office and otherwise influence the Legislature. He was given the power to appoint and to remove government officials so that the execution of government functions would be more thoroughly within the purview of his power. He was to have the power of the Roman Dictators in times of war, which meant, necessarily, the suspension of liberties in furtherance of the reestablishment of order. The Executive Power was vested in one, singular person, who was to embody the will of the nation and to act as the sole representative of the nation in foreign affairs.

Modern perceptions of our constitutional system do not recognize such extensive authority on the part of the President. As we shall see, this present reality is not a contradiction to my thesis, but rather an affirmation of Gentile’s observation of governmental form: Our modern Presidency is but a result of the “the political evolution, the history, the tradition, [and] the psychology” of our country. If we have moved away from the concept of an elective monarch, it is because our society is no longer worthy of such a leader. America has fallen from its Golden Age.

II. Origins of the Monarchical Republic

It is important to establish at the outset that a tendency toward monarchy in the Framers does not imply a tendency toward ancient, medieval, or Renaissance paradigms. The term “monarchy” in the public mind evokes a static, well-defined political state implying nothing more than government by a king or queen. Yet the justifications for and the foundations and functions of monarchical government altered throughout time: Whereas the force of conquest alone proved the favor of the gods and the right of the king to rule in ancient societies, the monarchy in Medieval and Renaissance Europe required far more elaborate justifications, perhaps more theological than political.[7]

It is certain that the Framers did not mean by implying kingship in the Constitution also to imply the theory of the Divine Right of Kings. This theory, popular in the sixteenth and seventeenth centuries, has been summarized by historian John Neville Figgis as being composed of four propositions: “(1) Monarchy is a divinely ordained institution; (2) Hereditary right is indefeasible; (3) Kings are accountable to God alone; and (4) Non-resistance and passive obedience are enjoined by God.”[8]

The first, third, and fourth of these propositions had long been discarded by the Anglo-American world by the time of the Constitutional Convention. Such views had lost their currency, or at least their legitimacy, thanks to philosophers like Locke and Milton, who reinterpreted the message of Christianity such that moral worth became equivalent to political worth, an interpretation that necessarily equalized kings and subjects. The timing of Locke’s Second Treatise basically coincided with the Glorious Revolution, which saw the end of the theory of Divine Right in practice, at least in England.

Heredity was perhaps the easiest aspect of monarchy to legitimate by reference to Divine Right, as a less legalistic form of the concept had existed since pre-Christian times[9] and primogeniture had been a de facto practice since the thirteenth century.[10] Yet Locke, observing that monarchy was simply paternalism writ large, denied any divine interpretations and asserted that monarchies were based on the model of the family, not on the model of God’s kingdom.[11] He wrote that the original creators of monarchy “never dreamed of monarchy being Iure Divino,” sarcastically noting that this truth was not revealed to the English “till it was revealed to us by the divinity of this last age.”[12]

Though the monarchy continued to be hereditary, this was more in furtherance of political stability than it was a recognition of Divine Right. In fact, elective monarchy was not unheard of, having been seen in ancient Rome, where kings had been elected by assembly. It might also be important to note that kingship in early England had been decided not by primogeniture but by election within the royal family.[13]

A final aspect of monarchy to be considered is the veneration of the king as the embodiment of sovereign power. This was the concept immortalized in the words of France’s Sun King: Je suis l’etat. L’etat, c’est moi. Yet, across the Channel, it was the government in toto, and not the monarch alone, which came to be seen as the embodiment of the sovereign power.[14] Like all other components of the concept of monarchy, this also evolved, even unto the time of King George III.

It was a different English-born George – a certain Justice Sutherland of the United States Supreme Court – who asserted some time later that with the Revolution the sovereignty embodied in the Crown of England was passed “not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America.”[15] This was both a denial by Sutherland of the sovereignty of the States and an affirmation of the sovereignty of the federal government. Whereas the federal government became the embodiment of the will of the nation, the President, as the analogue of the king, became the embodiment of sovereignty only in respect to dealings with foreign nations.

This was actually the same basic idea of the British constitutional monarchy. It cannot be denied that even less than a divine monarchy did the Framers wish or intend to create a true, classical democracy. Unlike the Revolution in France some years later, the American Revolution “had been a purely political change-over.”[16] There was no cry for liberty, fraternity, and equality, but rather for self-government; and that new government proved to be remarkably similar to the very government against which the Americans had been fighting.

III. Establishment of the Presidency

Rather than a pure monarchy or a pure democracy, the Framers intended to create with the Constitution a new form of government that would blend “all the internal advantages of a republican, together with the external force of a monarchical government.”[17] The Framers sought, in other words, to create what might be called a monarchical republic. Thus the roots of the Executive are found in two types of historical personages: kings and dictators. Many Americans, however, resentful of the monarchical government that had just been abandoned, were loath to return to what they saw as an inevitable path to tyranny. To them, the better route to happiness was a loose confederation of smaller republics.

The debates between the Federalists and the Antifederalists are illustrative of the tension between the opposing views of the ideal form of national government for the new country. With Alexander Hamilton, John Jay, and James Madison collectively named “Publius,” along with James Sullivan (“Cassius”), John Dickinson (“Fabius”), et alia arguing in favor of the Constitution and one American Republic, and a small army of statesmen and theorists arguing against, the debate was ultimately resolved in favor of the Federalists. This victory was not complete, however: many of the fears of the Antifederalists colored not only the interpretation of the Constitution but also the actions of the federal government, even unto the present day.

The years between the Revolution and the writing of the Constitution were years of disillusionment for those hopeful revolutionaries who believed that self-government would evoke the inherent virtue of every American citizen. Historian Gordon Wood tells the story of this change of heart:

In the 1770s the Revolutionaries had not conceived of the possibility of the people becoming tyrannical. When Tories had suggested in 1775 that the people might indeed abuse their power, good Whig patriots like John Adams had dismissed the notion as illogical: “a democratic despotism is a contradiction in terms.” The crown or executive authority was the only possible source of tyranny; the people could never tyrannize themselves.

But by the 1780s many leaders had come to realize that the Revolution had unleashed social and political forces that they had not anticipated and that the “excesses of democracy” threatened the very essence of their republican revolution.[18]

When the time came to promote the new Constitution, the views of the Federalists and Antifederalists converged on one point: that humanity is not inherently good. The difference between the two camps was in how best to contain the evil of human nature. The Federalists believed that division would lead to war; the Antifederalists that union would lead to tyranny. The Federalist position can be summarized by reference to Hamilton’s Federalist No. 6, wherein he stated that a strong federal union was necessary to counter the “deceitful dream of a golden age”[19] in view of the fact that “men are ambitious, vindictive, and rapacious.”[20] In contrast, the essence of the Antifederalist position was that a strong union would necessarily lead to tyranny. “From the moment we become one great Republic,” wrote “An Old Whig,” “the period is very shortly removed, when we shall sink first into monarchy, and then into despotism.”[21]

The Framers were interested in more than just a single republic. Without a centralized power, that envisioned republic would soon fall apart. To the Framers, a strong central republic was not as dangerous to the welfare of the American people as what was commonly denounced as the “excesses of democracy.”[22] National sentiment at the time of the debates and afterward inclined not toward democratization but toward monarchy.[23]

The hopes of the American people for a monarchical form of government were largely realized in the Constitution, in which the Framers sought a reconciliation of monarchy and republicanism. Writing in Federalist No. 6, Hamilton demonstrated with painstaking detail that there is no practical difference between monarchies and republics in terms of destructive outcomes.[24] He suggested as the solution a new admixture of republican and monarchical government, using Montesquieu’s term, “Confederate Republic.”[25] Fellow Federalist James Iredell shared Hamilton’s vision of reconciling monarchical and republican government: “It seems to have been wisely the aim of the late Convention in forming a general government for America to combine the acknowledged advantages of the British constitution with proper republican checks to guard as much as possible against abuses . . . .”[26] Founding Father Benjamin Rush also extolled the new government as one that “unite[d] with the vigor of monarchy and the stability of aristocracy all the freedom of a simple republic.”[27]

The Antifederalists, too, could not but notice the extent to which the hopes of a monarch were realized in the Presidency. “An Old Whig” advised his fellow Americans “seriously to ask themselves this question; – whether they are ready to RECEIVE A KING?”[28] Earlier he had noted the monarchical quality of the Presidential Office:

To be the fountain of all honors in the United States, commander in chief of the army, navy and militia, with the power of making treaties and of granting pardons, and to be vested with an authority to put a negative on all laws, unless two thirds of both houses shall persist in enacting it, and put their names down upon calling the yeas and nays for that purpose, is in reality to be a KING as much a King as the King of Great-Britain, and a King too of the worst-kind – an elective King.[29]

Nor was “An Old Whig” the only Antifederalist to make this charge. “Philadelphiensis,” too, recognized the President as an elected king.[30] Luther Martin thought that the powers granted unto the President made him a King all but in name and would “enable him, when he please[d], to become a King in name, as well as in substance, and establish himself in office not only for his own life, but even if he chooses, to have that authority perpetuated to his family.”[31] The Antifederalist “Cato,” keeping with the anti-Caesarism of his namesake, believed that the enormity of the scope of the President’s powers meant that what was being established was not a republic but either an aristocracy or a monarchy – and that ultimately these powers did not essentially differ from the British monarch.[32] “The Impartial Examiner” worried that the President, with the powers given him, would easily establish himself as supreme over the Legislature.[33] Patrick Henry went much further, arguing that it would be safer to establish a monarch by name than to allow the “absolute despotism” that would inevitably ensue from the “deformities” of the new Constitution.[34]

Those who cherish the anti-monarchical mythos of our national history might be quick to exclaim that the Antifederalists were writing polemically, and that it did not reflect the views of the Framers. Historian Gordon Wood describes the views of the Federalists at the time of the debates:

[M]ost Federalists had believed that power was what was most needed in the new government. And power to the eighteenth-century American Revolutionaries essentially meant monarchy. If there were to be a good dose of monarchical power injected into the body politic, as many Federalists expected in 1787, the energetic center of that power would be the presidency. For that reason it was the office of the president that made many Americans suspicious of the new government.[35]

Let it be noted that the Federalists made no secret of their casting of the President in the likeness of the British King. Hamilton’s favorable comparisons especially are indicative of the Framers’ full knowledge of this.[36] The identity of American President and British King was so evident to Noah Webster that he remarked only of the differences between them.[37] John Dickinson accepted the near-identity of the American and British constitutions, extolling the virtue of the British system and arguing that the American people would be guaranteed even more freedom than their British counterparts.[38]

Against any monarchical leanings, the Antifederalists quoted an eminent politician and theoretician, who today hasbecome nothing short of a secular saint: The Baron of Montesquieu.[39] Edmund Randolph, at the Virginia Ratifying Convention, argued against the Confederation:

Let us consider the definition of a republican Government, as laid down by a man who is highly esteemed. Montesquieu, so celebrated among politicians, says, “That a republican Government is that in which the body, or only a part of the people, is possessed of the supreme power; a monarchical, that in which a single person governs by fixed and established laws; a despotic Government, that in which a single person, without law, and without rule, directs everything by his own will and caprice.” This author has not distinguished a republican Government from a monarchy, by the extent of its boundaries, but by the nature of its principles.[40]

This is true: Montesquieu did write these things. But it seems that Mr. Randolph missed the Federalists’ point – and perhaps Montesquieu’s as well. While Book II of his Spirit of the Laws defines monarchism, republicanism, and despotism just as Randolph says, Book IX speaks of a “federal republic,”[41] which “enjoys the goodness of the internal government [of its constituent parts]; and, with regard to the exterior . . . all the advantages of large monarchies.”[42]

Hamilton certainly has proven the better at invoking the sacred name of Montesquieu. Writing in Federalist No. 9 he stated: “So far are the suggestions of Montesquieu from standing in opposition to a general Union of the United States, thathe explicitly treats of a Confederate Republic as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism.”[43] This is what Hamilton and the Federalists had in mind. The Federalists were concerned not with definitions of governmental forms but with the creation of a blended government that would protect both the integrity of the nation and individual liberty. Thus any Antifederalist references to Montesquieu fall flat.

The national unity envisioned by Montesquieu and the Federalists was reflected in their ideal of the Presidency. The difference between camps centered on the age-old British debate on the tension between national unity and subjection to the Crown. Like the proud and independent Scots, the Antifederalists believed that the national character of the Presidency would effectually bring the independent States under subjection to a monarch. Like the equally proud yet imperial English, the Federalists believed that the national character of the Presidency would create a strong, unified Republic, which could take its place amongst the great nations of the world. For the nation to be great, it would need “the external force of a monarchical government”[44] – at the least.

The most telling aspect of the intended elective monarchy is the very nature of his election. He was to be elected not by the people but by an electoral college, unaccountable to the people, and he could be reelected for as long as he lived. Precedents of an elective monarchy were to be found in contemporary Poland and ancient Rome,[45] though there was much debate as to the wisdom of these systems. The two camps debated heavily the merits of an elective monarchy, especially as to his perpetual reelection. Hamilton, in Federalist No. 69, argued that the President should be “re-eligible as often as the people of the United States shall think him worthy of their confidence.”[46] Alexander ConteeHanson, writing as “Aristides,” held the same view as Hamilton. Debating the appropriateness of the term “elective monarchy,” he wrote:

It seems, however, that the president may possibly be continued for life. He may so, provided he deserveit. If not, he retires to obscurity, without even the consolation of having produced any of the convulsions, attendant usually on grand revolutions. Should he be wicked or frantic enough to make the attempt, he atones for it, with the certain loss of wealth, liberty or life.[47]

Hanson’s remarks merely demonstrate an attempt at calling a rose by another name. As James McHenry remarked to the newly elected George Washington, “You are now a King, under a different name.”[48]

The delegates at the Constitutional Convention recognized this reality. Luther Martin subsequently wrote of the proceedings:

It was objected [at the Constitutional Convention] that the choice of a president to continue in office during good behavior, would be at once rendering our system an elective monarchy – and, that if the president was to be reeligiblewithout any interval of disqualification, it would amount nearly to the same thing, since with the powers that the president is to enjoy, and the interests and influence with which they will be attended, he will be almost absolutely certain of being reelected from time-to-time, as long as he lives.[49]

George Clinton, writing as “Cato,” would later invoke Montesquieu as having warned of the danger of tyranny. Reeligibility, he said, “may lead to an establishment for life”[50] George Mason, who had also used the term “elective monarchy” to describe the Presidency,[51] called attention to the fact that, realistically, no President would ever be turned out of office by election.[52] “The people of Poland have a right to displace their King,” he said. “But do they ever do it? No.”[53]

While these Antifederalists presumed, at least arguendo, that the President would be elected for life by an adoring public, others noted the danger that might arise should things not go according to plan. The Antifederalist “An Old Whig,” writing in an essay titled, “The Powers and Dangerous Potentials of His Elected Majesty,” argued that if there were to be any monarchy at all, it should be anhereditary monarchy. Then, at least, the succession would be peaceful, as the President was likely to use violence to retain his position should he lose an election.[54] This view was shared by an Antifederalist writing as “Federal Farmer,”[55] who believed that anhereditary monarchy would be better than an elective one, for the reason that it would at least be more stable:

On the whole, it would be, in my opinion, almost as well to create a limited monarchy at once, and give some family permanent power and interest in the community, and let it have something valuable to itself to lose in convulsions in the state, and in attempts of usurpation, as to make a first magistrate eligible for life, and to create hopes and expectations in him and his family, of obtaining what they have not. In the latter case, we actually tempt them to disturb the state, to foment struggles and contests, by laying before them the flattering prospect of gaining much in them without risking anything.[56]

The Federalists and Antifederalists also differed as to the wisdom of the Electoral College, the original intent of which must be distinguished from its modern understanding. Originally, the Electoral College was intended to be a deliberative body of representatives, elected by the people, who would in turn elect the President. Today this College is not much more than a legal technicality; but at the time of the Constitutional debates, it was a definite point of controversy. The Federalists believed that an Electoral College was necessary for the prevention of “tumult and disorder.”[57] It will be a body of men with “information and discernment” necessary to elect a President.[58] The main concern of the Antifederalists was that the President would “not [be] chosen by the community” and would “consequently as to them, [be] irresponsible, and independent.”[59] This august body further distanced the government from the whims of a democratic mass and thus further confirmed the suspicions of the Antifederalists as to the monarchical leanings of the Federalists.

Such tendencies of the Presidency were meant to be offset by the doctrine of the separation of powers. Hamilton argued in Federalist No. 69 that so many checks on the power of the Executive existed as to render him relatively harmless.[60] The Antifederalists could not help but point out that while the Presidency was supposed to be an independent Branch,it had been given the power to dominate the Legislature, atop of many other extraordinary powers. Thus a mere declaration of the separation of powers left open the question of what, exactly, the powers of the President were intended to be.

Of primary importance in assessing the President’s powers is his ability to order the affairs of his Office. Such ability necessarily entails the power to appoint and remove officers. The Constitution granted the President the power to “nominate, and by and with the Advice and Consent of the Senate, [to] appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States.”[61] The true meaning of this clause was debated at the Constitutional Convention. Luther Martin notes:

To that part of this article also, which gives the President a right to nominate, and with the consent of the senate to appoint all the officers, civil and military, of the United States, there were considerable opposition – it was said that the person who nominates, will always in reality appoint, and that this was giving the President a power and influence, which together with the other powers, bestowed upon him, would place him above all restraint or controul. In fine, it was urged, that the President as here constituted was a KING, IN EVERY THING BUT THE NAME . . . .[62]

The problem, then, was that these persons, effectively appointed by the President, as opposed to nominated, would be “subservient to his wishes, and ready to execute his commands.”[63] As Theodorick Bland observed, “A new President might, by turning out the great officers, bring about a change of the ministry, and throw the affairs of the Union into disorder: would not this, in fact, make the President a monarch, and give him absolute power over all the great departments of Government?”[64] Thus officers became “merely the agents of the president,” who “resembled a king,and his ministers spoke in his name and with his authority.”[65]

In this matter the Federalists argued that the power of the President to remove officers was necessary for the effective functioning of government. They thought the danger to be not in the excessive power of the new President, but in the frailty thereof. In regards to the power of removal, a number of Senators “actually invoked the example of the king of England – arguing that the president should have at least the same powers as the English crown.”[66]

The Antifederalists also attacked as monarchical the power of the President to veto legislative acts of the Congress. The Antifederalist “William Penn” argued that the veto power would violate the separation of powers. With the veto power, the President will “intermeddle with the proceedings of the legislature.”[67] Hamilton responded to this charge in Federalist No. 73 by stating that the veto power ensured that the President would be able to withstand the attacks of Congress. Without the veto power, he argued, the Presidency “could be annihilated by a single vote.”[68]

Notwithstanding these charges of the Antifederalists, the monarchical power of the President was at its height in the realm of foreign affairs. In keeping with Hamilton’s favorable view of Montesquieu’s characterization of the blend of monarchical power and republican freedom – “all the internal advantages of a republican, together with the external force of a monarchical government”[69] – the foreign affairs powers were at the heart of the Presidency. The new government had to be monarchical for the purposes of conducting relations with other nations. One Republic must be represented by one voice and one face. It was not enough that the several States be united in one federal government; that government itself must be united in one person, the President, in order to conduct relations with other nations properly. Such unity was especially necessary in the event of hostilities, in which case the President became the sole executor of the war.

The Antifederalists did not see such centralization as necessary. They believed that the nation would unite to repel threats effectively through a confederacy because of mutual interest.[70]They accused the Federalists of fear-mongering: “We have been told of phantoms and ideal dangers to lead us into measures which will, in my opinion, be the ruin of our country.”[71] When it was brought to the attention of the Antifederalists that no nation has ever existed that had escaped war, the “Anti-Federalists replied that if war does come, what will count will be not great armies and navies but the American spirit, that very manly independence and love of country that also supports American liberty.”[72] They further argued that a uniform republic the size of America was “an absurdity, and contrary to the whole experience of mankind.”[73]

In the end, the Federalists won this argument, and the power of war was placed exclusively within the federal government, with the Congress being able to declare war and raise armies and the President being in control of the armed forces. The war powers of the President are perhaps his most significant. These stem from his position as what Marshall would several decades later call “the sole organ of the nation in its external relations.”[74] The Constitution made the President “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States.”[75] The Federalists and Antifederalists disagreed heatedly as to the wisdom of placing a standing army under the direction of the President.[76]

Having noted the likeness of the President to the British King,[77] “An Old Whig” expressed fears that the President, should he be voted out of office, would be likely to perpetuate his term in office by force, thanks to the powers granted him as Commander-in-Chief, rather than to recede back to his inglorious state as an ordinary citizen.[78] This was echoed by the Antifederalist “Philadelphiensis,” who argued that Americans would be “consolidated into one despotic monarchy[79] under a President who was in reality a “military king.”[80] Rhetorically he asked, “Who can deny but the president general will be a king to all intents and purposes, and one of the most dangerous kind too; a king elected to command a standing army?”[81] He darkly remarked, just as did “An Old Whig,” that the people would not have to bother about future elections: “the standing army will do that business for them.”[82]

The Federalists denied such inflammatory charges, with Hamilton describing at length in the Federalist No. 69 some important differences between the British King and the American President that should have dispelled fears of despotism. Most importantly, the Federalists put their faith in the separation of powers, such that the President would be prevented from falling into the evils prophesied by the Antifederalists:

[T]he President is to be Commander-in-Chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the King of Great-Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the confederacy: while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all which by the Constitution under consideration would appertain to the Legislature.[83]

The Framers were well-versed in history and were well aware of the destruction wrought upon England by ambitious, warmongering monarchs. Time and again English history demonstrated the havoc that could befall a country should the power to declare war rest in the hands of the Executive. James Madison noted that the Constitution granted to the Legislature the power to declare war because of the historical tendency of the Executive to be “most interested in war,”[84]the presumption being that the Legislature would be less so.

This does not, however, betray an anti-monarchical prejudice. These limits on the President’s war powers were noted by Hamilton to have their basis in the Glorious Revolution of 1688, wherein the Parliament limited the ability of the monarch to declare war and to raise an army.[85]

“Cato,” the Antifederalist, observed the functional equivalence of the powers of the British King and the American President as concerns the declaration of war:

[T]hough it may be asserted that the king of Great-Britain has the express power of making peace or war, yet he never thinks it prudent so to do without the advice of his parliament from whom he is to derive his support, and therefore these powers, in both president and king, are substantially the same . . . .[86]

Hopeful of allaying the fears of those suspicious of the Constitution, Hamilton emphasized the language of Article II, Section 2 that the President must be called into service by the Congress.[87] However, he goes on to note that once so called, the President was to be the sole director of the war. It is correct to note that the Framers intended to limit the war powers of the Executive by allowing only the Congress to declare war and to raise and regulate fleets and armies. It must also be admitted that Hamilton denied laying the foundations for despotism. However, what is often overlooked is a more subtle yet immensely important point: By stating that the President had the powers of the British King but limited, the Framers implicitly asserted the identity of the American Presidency with the British Monarchy.

Furthermore, the identity of the American President with authoritarian figures did not end with the British King. Hamilton, writing in the Federalist No. 70, observed in a quite matter-of-fact manner that Roman-style Dictators are sometimes necessary in a Republic:

Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.[88]

This direct reference to Caesar et alia betrays what Hamilton may have had in mind for the Presidency. Many forget that the dictatorship was an office legally granted by the Senate, not a result of a coup d’état.

Hamilton further elaborated the idea of dictatorial powers in the Federalist No. 74, where he argued that the power to fight a war must necessarily rest in one person:

Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms anusual and essential part in the definition of the executive authority.[89]

Patrick Henry, the archetypal Antifederalist, agreed with Hamilton’s positive recollection of Dictators past. Unlike Hamilton, however, he did not believe that every American President could be trusted with the powers given to George Washington:

[W]e had an American Dictator in the year 1781 – We never had an American President. In making a Dictator, we follow the example of the most glorious, magnanimous and skillful nations. In great dangers this power has been given. – Rome had furnished us with an illustrious example. – America found a person worthy of that trust: She looked to Virginia for him. We gave a dictatorial power to hands that used it gloriously; and which were rendered more glorious by surrendering it up. Where is there a breed of such Dictators? Shall we find a set of American Presidents of such a breed? Will the American President come and lay prostrate at the feet of Congress his laurels? I fear there are few men who can be trusted on that head.[90]

The difference between the Federalists and Antifederalists on this point lay not in the characterization of the President as potential dictator, but in the wisdom of entrusting the President with dictatorial power.

While Hamilton may have focused more on the necessity of such grants of power, his fellow Federalist Alexander ConteeHanson, obliging the comparison of the President to a “limited monarch,” noted what he called the “senseless clamouragainst standing armies”:

Which of all the European powers is destitute of an army? Which of them if they were free, could be secure of remaining so without a standing force? I might go further, and demand, whether any of them have lost their liberties, by means of a standing army? The troops, continually kept up in Great Britain, are formidable to its neighbors, and yet no rational Englishman apprehends the destruction of his rights.[91]

It was evident to Hanson that the army was meant to protect the nation from hostile, foreign forces, not to be turned on the American people.[92] Cassius, taking the same view, thought the Antifederalists’ unease in this area to be nothing more than a trick of dishonesty. He asserted that the Antifederalists ruminating on the possibility of an American Cesare Borgia were “resort[ing] to things the most strange and fallacious, in order to blind the eyes of the unsuspecting and misinformed.”[93]

IV. Synthesis & Conclusions

Here the writers against the Constitution seem to have taken pains to signalize their talent of misrepresentation, calculating upon the aversion of the people to monarchy, they have endeavored to inlistall their jealousies and apprehensions in opposition to the intended President of the United States; not merely as the embryo but as the full grown progeny of that detested parent. To establish the pretended affinity they have not scrupled to draw resources even from the regions of fiction. The authorities of a magistrate, in few instances greater, and in some instances less, than those of a Governor of New-York, have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a King of Great-Britain. He has been shown to us with the diadem sparkling on his brow, and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses; giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wantingto crown the exaggerated scene. We have been almost taught to tremble at the terrific visages of murdering janizaries; and to blush at the unveiled mysteries of a future seraglio.[94]

So Alexander Hamilton dismisses the concerns of the Antifederalists. Yet with no cohesive narrative given by the Federalists to counterbalance these “misrepresentations,” we are left with the unenviable task of discerning the intentions of the Framers ourselves. To what extent are these charges false? To what extent are they true?

In determining these intentions, several distinctions must be drawn. To begin with, one must distinguish between the “Founding Fathers” and the “Framers.” Not all of the Founding Fathers had a hand in drafting the Constitution. Thomas Jefferson,for instance was stationed in France at the time of the debates and did not take part in them, even though he later sided with those in opposition to the Federalists. This distinction is important because it gives a clearer picture of the intentions of those who actually drafted the Constitution, as opposed to the muddled perception that inevitably arises from grouping all of the Founders together.

Another distinction must be made between the Constitution and the Bill of Rights. The Bill of Rights was demanded by the Antifederalists, who saw the Constitution as engendering monarchy and tyranny. The drafters of the Constitution itself saw no need for such a document, and in fact James Madison argued against it, believing that such a Bill would serve to limit rights, rather than to protect them. Thus the intent of the Framers must be considered apart from those who demanded the Bill of Rights. Individual liberty and democracy were not the primary concerns of the Framers; union and order were. As has already been discussed above, the Framers saw the “excesses of democracy” as the real danger in the new nation. A strong, centralized republic was necessary to counter this, and thus a Bill of Rights was superfluous at best and self-defeating at worst.

A third and final distinction is to be made between “Framers” and “Federalists.” Though it may seem a trivial distinction, it should be noted that the Framers drafted the Constitution, and the Federalists promoted it. Not all Framers were Federalists, and not all Federalists were Framers, though membership in the two groups generally tended to overlap.

With these distinctions in mind, there are several options for deducing the intent of the Framers as concerns the Presidency. The first option is to believe that the intent of the Framers may be inferred from a synthesis of their writings about the Constitution and their actions after its enactment. This option, while tempting, is perhaps a bit misleading. It may be remembered, for instance, that James Madison switched sides to oppose the Federalist agenda. It was Madison who was essential to the passage of the Bill of Rights. A synthesis of Madison’s writings in the Federalist and his actions after the passage of the Constitution, then, would be nothing short of confusing.

A second option is to demand that there must be an admission that an “intent of the Framers” cannot be discerned. Here one might argue that even a group as integrated as the Federalists cannot be lumped together in terms of discovering their intent. No intent can be discovered in an amorphous group of persons who are doing nothing more than promoting a new form of government under a cryptic and nebulous new Constitution. Any inclinations toward authoritarianism, then, are idiosyncratic and cannot be rightfully attributed to the entire body of Federalists.

A third option may concede that the Federalists were not all of one mind while recognizing a common expectation and what might be called an adoptive intent. Here all Federalists (and even the Antifederalists in opposition to them) expected the President to be (or believed that the President would be) an elective monarch, even if they disagreed as to the particulars of such a notion; and an adoptive intent was established by those responsible for the Constitution as a result of the acceptance of the propaganda clarifying this expectation. It is upon this position that the present essay rests.

It is true, as Robert Dahl has argued,that the Federalist Papers were an act of propaganda intended to portray the Constitution as more coherent than it really was.[95] Based on this, argues Dahl, it is improper to attribute any intent to the Framers. Intent, however, is not an all-or-nothing idea; it can be post hoc as well as ante hoc, or even inter hoc. For one thing, it has already been noted that the Federalists were favorably disposed toward monarchy.[96] Moreover, it was not as though Hamilton’s monarchical interpretation of the Presidency was unknown to the Convention before the publication of the Federalist Papers. Alexander Hamilton spoke in this vein at the Constitutional Convention:

It will be objected, probably, that such an Executive will be an elective Monarch, and will give birth to the tumults which characterize that form of Govt. Hewd. reply that Monarch is an indefinite term. It marks not either the degree or duration of power. If this Executive Magistrate wd. be a monarch for life – the other propd.bythe Report from the Comtteof the whole, wd. be a monarch for seven years. The circumstance of being elective was also applicable to both. It had been observed by judicious writers that elective monarchies wd. be the best if they could be guarded agst. the tumults excited by the ambition and intrigues of competitors. He was not sure that tumults were an inseparable evil. He rather though this character of Elective Monarchies had been taken rather from particular cases than from general principles. The election of Roman Emperors was made by the Army. In Poland the election is made by great rival princes with independent power, and ample means, of raising commotions. In the German Empire, the appointment is made by the Electors & Princes, who have equal motives & means, for exciting cabals & parties. Might not such a mode of election be devised among ourselves as will defend the community agst.these effects in any dangerous degree?[97]

Thus while it may be the case that the members of the Constitution Convention did not have an elective monarchy on their minds save when Hamilton put it there, it is also the case that Hamilton did espouse such a view during the Convention, that Hamilton’s propaganda exercise in the Federalist Papers was not rebuked by other Federalists, and that Hamilton’s intent was arguably adopted by the Federalists at large, who continued to push for ratification of the Constitution despite (or because of) its monarchical undertones. Thus the mythos of a common intent of the Framers was established by the acceptance of the Federalist Papers and related propaganda efforts that sought to clarify the Constitution, its foundations, and its principles.

It is in this spirit that we may speak of an intentof the Framers, and that intent was to create a monarchical republic in which the Presidency would be granted powers resembling those of a king or dictator, albeit with certain specified limitations. This is evidenced in the powers of the President and in the nature of his election. Being perpetually reeligiblefor election, the President was limited from reigning for life only if the people decided to vote against him. In effect, the Framers had established a monarchy based upon a social contract with the governed, whoshowed their consent by continual reelection. Furthermore, the governed did not directly elect the President; rather, they elected representatives who were to deliberate and to elect the President thereafter. This further limited the democratization of government and effectively established a sort of artificial, elective aristocracy, yet within the framework of republicanism.

The powers of this potentially perpetual office were likewise monarchical in nature. Vested with the Executive Power, he could remove governmental officers at will and veto the acts of the Legislature, both of which were powers of the English King. The President was also made Commander-in-Chief of the armed forces and the sole representative of the United States in foreign affairs. He could make treaties with foreign nations and wage war, though both of these powers were limited by the rights granted the Congress by the Constitution. With such powers and with such limits, it is evident that the Framers intended the presidential office to be nothing short of a limited monarchy, if cast in republican language.

V. Epilogue: What the Presidency Has Become

Naturally the question arises: If the Framers intended to create a limited monarchy, then why is it that we do not have a limited monarchy in the United States? The answer is to be found in the confluence of the forces of history: Many strains of historical development have converged to create the political environment in which we find ourselves today.

At the beginning of it all is the Antifederalist influence on the new government, which was reinforced by the effect of the two-term Presidencies of Washington and Jefferson.[98] Contrary to the old myth that Washington refused to seek reelection because he feared it might lead to monarchy, the truth is that criticism in the press drove Washington out of office. He had felt that the media had treated him as though he were no better than “a Nero; a notorious defaulter; or even . . . a common picket-pocket.”[99] It was actually Jefferson, a latecomer to the Antifederalist cause, who instituted the practice of two-term presidencies as a tradition so as to negate any threat of an elective monarchy.[100] The force of Jefferson’s gesture in declining to run for a third term caused the concept of the elective monarchy to lay dormant until the Presidency of Franklin Roosevelt. With the ratification of the Twenty-Second Amendment to the US Constitution in 1951, the possibility of an elective monarchy was officially at an end.[101]

Furthermore, the limits and meanings of Presidential powers changed throughout American history. While President Lincoln’s power to use the Army and Navy against the Southern States may have been widely questioned before and during the Civil War, its legality was ultimately accepted; it is difficult to imagine such powers being utilized today. The power of the US military to intern the Japanese on US soil during the Second World War was ultimately conceded as well; yet such power today would be widely conceived as being inexcusable, notwithstanding its necessity.

Despite the legalistic treatment of the Presidential Office, the true instigator of change is not the law itself. Law does not exist in vacuo; it is the culture of a society that determines the meaning of its legal system. The driving force gently guiding our Presidency from limited monarch to what it is today has been the influence of culture, which has, in turn, been influenced by changes in the geopolitical significance, demographic composition, and technological oversaturation of our nation.

America began as a nation that glorified simplicity and held Cincinnatus as the ideal citizen. Most Americans were landowners, and most Americans saw themselves not as Americans but as English colonists. John Dickinson, writing as “A Farmer,” put this sentiment in potent words:

But if once we are separated from our mother country, what new form of government shall we adopt, or where shall we find another Britain, to supply our loss? Torn from the body, to which we are united by religion, liberty, laws, affections, relation, language and commerce, we must bleed at every vein.[102]

The population of the United States was between four and six million people, most of whom were of British descent, spread over a vast expanse of land. The culture was rooted in the Old World, the foreign policy was isolationist, and the population was homogenous.

Contrast this picture with today’s America. After a policy of Manifest Destiny that forged our boundaries; a Civil War that solidified the One Republic and changed the meaning of American citizenship; a war with Spain that created an Empire; two World Wars that established American preeminence in the world community; immigration policies that eventually altered the demographic composition of the population; an onslaught of mass consumerism, mass democracy, mass media, and other such cultural shifts; it is no surprise that the average American is insulted by the concept of an American monarch. For it affronts the egalitarian soul to hear that one person might be more worthy to run a government than any other.

Thus it has been the unfolding of history and the dramatic changes of the American culture that have altered the perception of the Presidency. Whether the modern culture, the modern republic, and the modern Presidency are better or worse today than in that long dead age is a question outside the scope of this paper (though the author’s position on this question should be readily apparent to the reader). Suffice it to say that the President today is no longer a limited monarch or potential dictator, but rather a mediocrity who is at worst an eight-year nuisance to one of two parties. While the powers of the Presidency still include certain wartime dictatorial powers envisioned by Hamilton, those powers would be effectively eviscerated by the strong cultural aversion to authoritarianism prevalent in modern America.

O tempora! O mores!

________________________________________________________________________________

  1. “… studiando nel campionario delle monarchie passate e presenti, delle repubbliche passate e presenti, risulta che monarchia e repubblica non sono da giudicare sotto la specie dell’eternità, ma rappresentano forme nelle quali si estrinseca l’evoluzione politica, la storia, la tradizione, la psicologia di un determinato paese.” BENITO MUSSOLINI, LA DOTTRINA DEL FASCISMO(1932), available at http://scaricarelibrigratisonline.com/popolare/la-dottrina-del-fascismo/.
  2. CARL SCHMITT, THE CRISIS OF PARLIAMENTARY DEMOCRACY 41 (Ellen Kennedy, trans., MIT Press 1988) (1923) (referencing THOMAS HOBBES, BEHEMOTH; OR, THE LONG PARLIAMENT (1679)).See also Robert P. Kraynak, Hobbes’s Behemoth and the Argument for Absolutism, 76 AMER. POL. SCIENCE REV.837 (1982) (arguing that “Hobbes is not a precursor of totalitarianism but a founder of liberalism”).
  3. This is not to say that Fascism is nothing more than a simple expression of authoritarianism, or that the Framers were proto-Fascists; obviously Fascism is a rich philosophy rather than a mere despotism, and the Framers were certainly not in league with that philosophy. The point is that the insights of Gentile as to the transient nature of government were not foreign to the Framers, and that authoritarianism, republics, monarchies, and dictatorships come in many forms.

    A curious oddity – basically irrelevant to the present discussion – that might interest the reader is a small volume by Ezra Pound written in 1935 and titled Jefferson and/or Mussolini: L’IdeaStatale, Fascism as I Have Seen It. Pound, just as Gentile and Madison, notes the transient nature of government and suggests that the motives and principles of Thomas Jefferson and Benito Mussolini were not as different as we might believe.

  4. “What then are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitutions of different States, no satisfactory one would ever be found.” THE FEDERALIST NO. 39 (James Madison).
  5. ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 1-2 (1973) (“. . . there is great value in consulting the Founding Fathers. Even if the search for original intent is difficult, it is not impossible. If original intent cannot settle constitutional questions, it can throw essential light on them. And it can settle related historical questions – whether or not, for example, presidential practice was indeed, as later Presidents liked to claim, what the Founding Fathers designed and desired.”).
  6. I argue this notwithstanding Schlesinger’s characterization of the new republic as a commercial enterprise. See SCHLESINGER, supra note 5, at 2-3.
  7. See generally JOHN NEVILLE FIGGIS, THE DIVINE RIGHT OF KINGS (Harper Torchbook, New York 1965) (1896) (being a sympathetic, as opposed to cynical, examination of the concept of the Divine Right of Kings); ERNST H. KANTOROWICZ, THE KING’S TWO BODIES: A STUDY IN MEDIAEVAL POLITICAL THEOLOGY (1957) (examining the mystical and juristic doctrine of the king as being both a natural person and the embodiment of the body politic).
  8. See FIGGIS, supra note 7, at 5-8.
  9. See FIGGIS, supra note 7, at 17-18.
  10. KANTOROWICZ, supra note 7, at 330.
  11. LOCKE, SECOND TREATISE OF GOVERNMENT CH. VI, § 76 (1690).
  12. Id. at Ch. VIII, § 112.
  13. FIGGIS, supra note 7, at 20.
  14. See generally THOMAS HOBBES, LEVIATHAN, OR, THE MATTER, FORME & POWER OF A COMMON-WEALTH ECCLESIASTICALL AND CIVILL (1651).
  15. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316 (1936).
  16. J.L. TALMON, THE ORIGINS OF TOTALITARIAN DEMOCRACY 27 (Frederick A. Praeger Publishers, New York 1960) (1952).
  17. THE FEDERALIST NO. 9 (Alexander Hamilton).
  18. GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-181519 (2009).
  19. THE FEDERALIST NO. 6 (Alexander Hamilton).
  20. Id.
  21. An Old Whig, Letter to the Philadelphis Independent Gazetteer, 27 October 1787, in 3 THE COMPLETE ANTI-FEDERALIST 32 (Herbert J. Storing, ed., University of Chicago Press 1981).
  22. See Alexander Hamilton, Speech in the Constitutional Convention on a Plan of Government, in ALEXANDER HAMILTON: WRITINGS 151, 166 (Library of America 2001) (1787); WOOD, supra note 18, at 53-94.
  23. See WOOD, supra note 18, at 53-94.
  24. See generally THE FEDERALIST NO. 6 (Alexander Hamilton).
  25. See, e.g., THE FEDERALIST NOS. 6, 9 (Alexander Hamilton).
  26. James Iredell (“Marcus”), Answers to Mr. Mason’s Objections to the New Constitution, Recommended by the Late Convention, in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES: PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE, 1787-1788 352 (Paul Leicester Ford, ed. 1888) [hereinafter PAMPHLETS ON THE CONSTITUTION].
  27. WOOD, supra note 18, at 54.
  28. 3 THE COMPLETE ANTI-FEDERALIST 38 (Herbert J. Storing, ed., University of Chicago Press 1981).
  29. 3 THE COMPLETE ANTI-FEDERALIST 37 (Herbert J. Storing, ed., University of Chicago Press 1981).
  30. 3 THE COMPLETE ANTI-FEDERALIST 128 (Herbert J. Storing, ed., University of Chicago Press 1981).
  31. 2 THE COMPLETE ANTI-FEDERALIST 68 (Herbert J. Storing, ed., University of Chicago Press 1981).
  32. 2 THE COMPLETE ANTI-FEDERALIST 115-16 (Herbert J. Storing, ed., University of Chicago Press 1981).
  33. 5 THE COMPLETE ANTI-FEDERALIST 195-97 (Herbert J. Storing, ed., University of Chicago Press 1981).
  34. 5 THE COMPLETE ANTI-FEDERALIST 224-25 (Herbert J. Storing, ed., University of Chicago Press 1981).
  35. WOOD, supra note 18, at 72.
  36. See infra, throughout.
  37. See Noah Webster (“A Citizen of America”), An Examination into the Leading Principles of the Federal Constitution Proposed by the Late Convention Held at Philadelphia, with Answers to the Principal Objections That Have Been Raised against the System, inPAMPHLETS ON THE CONSTITUTION, supra note 26, at 25.
  38. See John Dickinson (“Fabius”), Letter IX, inPAMPHLETS ON THE CONSTITUTION, supra note 26, at 211.
  39. Antifederalist Richard Henry Lee went so far as to put Montesquieu in league with Moses. 5 THE COMPLETE ANTI-FEDERALIST 113 (Herbert J. Storing, ed., University of Chicago Press 1981).
  40. Edmund Randolph, Speech in Virginia Ratifying Convention, in FEDERALISTS AND ANTIFEDERALISTS: THE DEBATE OVER THE RATIFICATION OF THE CONSTITUTION 33 (John P. Kaminski & Richard Lefler, eds., 1989) [hereinafter FEDERALISTS AND ANTIFEDERALISTS].
  41. MONTESQUIEU, THE SPIRIT OF THE LAWS 131 (Anne M. Cohler et al., eds., Cambridge University Press 1989) (1748).
  42. Id. at 132.
  43. THE FEDERALIST NO. 9 (Alexander Hamilton).
  44. Id.
  45. See Alexander Hamilton, Speech in the Constitutional Convention on a Plan of Government, inALEXANDER HAMILTON: WRITINGS 151, 165 (The Library of America 2001) (1787).
  46. THE FEDERALIST NO. 69 (Alexander Hamilton).
  47. Alexander Contee Hanson (“Aristides”), Remarks on the Proposed Plan of a Federal Government, Addressed to the Citizens of the United States of America, and Particularly to the People of Maryland, inPAMPHLETS ON THE CONSTITUTION, supra note 26, at 233.
  48. WOOD, supra note 18, at 75.
  49. Luther Martin, Genuine Information, inFEDERALISTS AND ANTIFEDERALISTS, supra note 40, at 88.
  50. Cato, Letter to the Citizens of the State of New York, Nov. 8, 1787, in 2 THE COMPLETE ANTI-FEDERALIST 114 (Herbert J. Storing, ed., University of Chicago Press 1981). Cato further remarks: “It is remarked by Montesquieu, in treating of republics, that in all magistracies, the greatness of the power must be compensated by the brevity of the duration, and that a longer time than a year would be dangerous. It is, therefore, obvious to the least intelligent mind to account why great power in the hands of a magistrate, and that power connected with considerable duration, may be dangerous to the liberties of a republic.” Id.
  51. WOOD, supra note 18, at 74.
  52. See FEDERALISTS AND ANTIFEDERALISTS, supra note 40, at 92-93.
  53. FEDERALISTS AND ANTIFEDERALISTS, supra note 40, at 92.
  54. 3 THE COMPLETE ANTI-FEDERALIST 37-38 (Herbert J. Storing, ed., University of Chicago Press 1981).
  55. Believed to be Richard Henry Lee, see 2 THE COMPLETE ANTI-FEDERALIST 215 (HERBERT J. STORING, ED., UNIVERSITY OF CHICAGO PRESS 1981).
  56. Federal Farmer, Letter of Jan. 17, 1788, in 2 THE COMPLETE ANTI-FEDERALIST 313 (Herbert J. Storing, ed., University of Chicago Press 1981).
  57. THE FEDERALIST NO. 68 (Alexander Hamilton).
  58. Id.
  59. Republicus, Letter of Mar. 1, 1788, in 5 THE COMPLETE ANTI-FEDERALIST 168-69 (Herbert J. Storing, ed., University of Chicago Press 1981).
  60. See generally THE FEDERALIST NO. 69 (Alexander Hamilton).
  61. U.S. Const., art. II, § 2.
  62. Luther Martin, Mr. Martin’s Information to the General Assembly of the State of Maryland, in 2 THE COMPLETE ANTI-FEDERALIST 67 (Herbert J. Storing, ed., University of Chicago Press 1981).
  63. Luther Martin, Mr. Martin’s Information to the General Assembly of the State of Maryland, in 2 THE COMPLETE ANTI-FEDERALIST 68 (Herbert J. Storing, ed., University of Chicago Press 1981).
  64. WOOD, supra note 18, at 87 (quoting “Theodorick Bland of Virginia in May 1789” in James Hart, The American Presidency in Action, 1789: A Study in Constitutional History (1948)).
  65. WOOD, supra note 18, at 87.
  66. WOOD, supra note 18, at 88.
  67. 3 THE COMPLETE ANTI-FEDERALIST 174 (Herbert J. Storing, ed., University of Chicago Press 1981).
  68. THE FEDERALIST NO. 73 (Alexander Hamilton).
  69. THE FEDERALIST NO. 9 (Alexander Hamilton).
  70. HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR: THE POLITICAL THOUGHT OF THE OPPONENTS OF THE CONSTITUTION 24 (1981).
  71. 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA 274 (Jonathan Elliott, ed., 1836).
  72. STORING, supra note 70, at 27.
  73. WOOD, supra note 18, at 53 (quoting “Agrippa”).
  74. Curtiss-Wright, 299 U.S. at 319.
  75. U.S. Const., art. II, § 2.
  76. As an aside, it may be worthwhile to note Cassius’ denouncement of the Antifederalists as lacking the nobility and martial character of the Federalists:

    Look around you, inhabitants of America! andsee of what characters the anti-federal junto are composed. – Are any of them men of that class, who, in the late war, made bare their arms and girded on the helmet in your defence? – few, very few indeed, of the antifederalists, are men of this character. But who are they that are supporters of that grand republic fabric, the Federal Constitution? – Are they not the men who were among the first to assert the rights of freemen, and put a check to the invasions of tyranny? Are they not, many of them, men who have fought and bled under the banners of liberty? – Most certainly this is the case.

    Cassius, Letter to the Massachusetts Gazette, Nov. 30, 1787, in ESSAYS ON THE CONSTITUTION OF THE UNITED STATES: PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE, 1787-1788 24 (Paul Leicester Ford, ed., Burt Franklin 1970) (1892) [hereinafter ESSAYS ON THE CONSTITUTION]. In psychological terms, this may go a long way in explaining the divergence of opinion between the Federalists and Antifederalists as to the war powers of the President. On the other hand, this could simply be disregarded as just another of Cassius’ brilliant rhetorical tirades.

  77. 3 THE COMPLETE ANTI-FEDERALIST 37 (Herbert J. Storing, ed., University of Chicago Press 1981). See supra n.18.
  78. 3 THE COMPLETE ANTI-FEDERALIST 38 (Herbert J. Storing, ed., University of Chicago Press 1981).
  79. 3 THE COMPLETE ANTI-FEDERALIST 128 (Herbert J. Storing, ed., University of Chicago Press 1981).
  80. 3 THE COMPLETE ANTI-FEDERALIST 127 (Herbert J. Storing, ed., University of Chicago Press 1981).
  81. 3 THE COMPLETE ANTI-FEDERALIST 128 (Herbert J. Storing, ed., University of Chicago Press 1981).
  82. 3 THE COMPLETE ANTI-FEDERALIST 128 (Herbert J. Storing, ed., University of Chicago Press 1981).
  83. THE FEDERALIST NO. 69 (Alexander Hamilton).
  84. SCHLESINGER, supra note 5, at 5 (quoting a letter from Madison to Jefferson dated Apr. 2, 1798).
  85. THE FEDERALIST NO. 26 (Alexander Hamilton).
  86. 2 THE COMPLETE ANTI-FEDERALIST 115-16 (Herbert J. Storing, ed., University of Chicago Press 1981).
  87. THE FEDERALIST NO. 74 (Alexander Hamilton).
  88. THE FEDERALIST NO. 70 (Alexander Hamilton).
  89. THE FEDERALIST NO. 74 (Alexander Hamilton).
  90. 5 THE COMPLETE ANTI-FEDERALIST 230 (Herbert J. Storing, ed., University of Chicago Press 1981).
  91. Alexander Contee Hanson (“Aristides”), Remarks on the Proposed Plan of a Federal Government, Addressed to the Citizens of the United States of America, and Particularly to the People of Maryland, inPAMPHLETS ON THE CONSTITUTION, supra note 26, at 235.
  92. The fact that this proved a naïve presumption (made obvious by Lincoln’s use of the Union Army in the War between the States) is irrelevant as to the intention of the Framers.
  93. Cassius, Letter to the Massachusetts Gazette, Dec. 14, 1787, in ESSAYS ON THE CONSTITUTION,supra note 76, at 31.
  94. THE FEDERALIST NO. 67 (Alexander Hamilton).
  95. ROBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? 63-64 (2d ed. 2003).
  96. See supra page 9.
  97. Alexander Hamilton, Speech in the Constitutional Convention on a Plan of Government, in ALEXANDER HAMILTON: WRITINGS 151, 158 (Library of America 2001) (1787).
  98. Adams obviously had no chance to run or to abstain from running for a third term, never having won a second term.
  99. WOOD, supra note 18, at 206.
  100. THE OXFORD GUIDE TO THE UNITED STATES GOVERNMENT 652 (John J. Patrick, Richard M. Pious, & Donald A. Ritchie, eds. Oxford University Press 2001).
  101. To strengthen the point, it should be noted that the Twenty-Second Amendment was not enacted as a negation of the opportunity for an elective monarch so much as it was “posthumous vengeance” on the late President Roosevelt. Stephen W. Stathis, The Twenty-Second Amendment: A Practical Remedy or a Partisan Maneuver?, 7 CONST. COMMENT. 61, 61 (1990) (quoting Louis W. Koenig and Paul B. Davis). Granted, the culture at that point would not have been receptive to kings whatsoever; but the constitutional possibility was still present.
  102. John Dickinson, Letter from a Farmer in Pennsylvania, in THE WRITINGS OF JOHN DICKINSON, VOL. I: POLITICAL WRITINGS, 1764-1774 326 (Paul Leicester Ford, ed. 1895); see alsoWOOD, supra note 18, at 40.
Augustus Invictus
An attorney, writer, and political activist in Orlando, Florida, Augustus Invictus is best known as a radical philosopher and social critic. Invictus is a member of the right-wing of the Libertarian Party. He ran for the United States Senate in Florida as a Libertarian in 2016 and formerly served as Chair of the Libertarian party of Orange County.

Invictus earned his B.A. in Philosophy at the University of South Florida in Tampa and his J.D. at DePaul University College of Law in Chicago. Returning to his hometown of Orlando, he studied leadership at Rollins Crummer Graduate School of Business and opened the law firm for which he served as Managing Partner until his retirement from law practice.

A Southerner and a father of five children, Invictus contends that revolutionary conservatism requires a shift in perspective from the exaltation of abstract ideologies to a focus on our families and communities.