Executive Order


Review of Untrodden Ground: How Presidents Interpret the Constitution, by Harold H. Bruff

Chicago: University of Chicago Press, 2015

Untrodden Ground boldly treads where few have ventured before. With lively prose and a touch of humor, Harold Bruff’s superb book furnishes the reader a tour of 44 Presidents and their constitutional claims. Think of the hefty, 557-page tome as something of a “Top 40” for presidential power geeks, with Bruff playing the role of Casey Kasem. Rather than ballads and jams, we are treated to discussions of the Spot Resolutions, the Cuban Missile Crisis, and the Tenure of Office Act.

The book begins with a quick chapter on the origins of the Presidency and then continues with 14 other chapters and a conclusion. Reagan, Bush, and Obama get their own chapters. But most chapters discuss multiple Presidents, with one or two receiving particular attention. For instance, Lincoln shares space with Buchanan, Clinton with George H.W. Bush.

Although other institutions (the Supreme Court, Congress, the states) play cameo roles, the Presidency is the heart of the book, in at least two ways. First, although there are some mentions of the Commerce Clause or now-obscure subjects like the constitutionality of paper money, the book repeatedly considers the scope of presidential power. So readers find treatments of the Commander in Chief authority, the pardon power, and the faithful execution duty. They learn about removal, foreign affairs, and independent agencies. And because these matters resurface over time, readers learn how diverse Presidents approached them over the sweep of American history.

Second, Untrodden Ground also centers on presidential understandings of the Constitution. So whether the subject is the pardon power or secession, Bruff always supplies executive branch perspectives on such questions. This is in keeping with Bruff’s view that each branch of the federal government has a right and duty to consider constitutional questions and that Presidents need not be a servile adherent to the Supreme Court’s doctrine. As Bruff points out, the executive branch considers many questions of constitutional law that never make it to the courts and early Presidents were the principal interpreters of the federal Constitution.

The book is not wholly absorbed by the law. Bruff provides a rough assessment of the foibles, fortes, and features of all America’s Presidents. For instance, we learn that Monroe was genial, John Quincy Adams prickly, and Eisenhower was smarter than he let on. Other characterizations are more familiar, such as the claim that Nixon was suspicious, negative, and extremely sharp or that Obama is aloof and intelligent. These tidbits help leaven Bruff’s unerring attention on wars, scandals, and constitutional controversies.

Throughout, Bruff is extremely fair. He is critical when he needs to be and the censures do not seem to track party or policy. Presidents can have the right policy but misread the Constitution, as Bruff understands it. And Presidents can have a misguided policy and still do right by the Constitution. Having said this, I suppose some will conclude that Bruff is a bit too sympathetic to the Presidency as an institution, that he is disposed to finding assertions of executive authority reasonable or acceptable where others would find them excessive. If so, such critics may well cite his service in the Office of Legal Counsel from 1979 to 1981 as the genesis of this predisposition.

Bruff personally favors a Living Constitution and (favorably) describes Presidents who speak about the Constitution as a “growing thing.” He argues that the Constitution “is not a word puzzle to be solved in quiet study” but a document whose meaning is ever contested, shaped as it by politics and history. Presidents, no less than Justices, are contestants, relying upon history and “creativity” to shape and reshape it. The President, Bruff says, takes an oath “to behave within the boundaries of the Constitution as its understanding has come down, with the modifications that he or she can make through personal effort that is accepted by the people.” But not everything is up for grabs, not “everything is in flux.” There is a framework supplied “by what has happened and what issues have been opened or closed by developments in our national life.”

Bruff is uniquely qualified to see the Constitution and the Presidency through the stream of history, to identify the twists and turns in presidential power. Hence it is something of a disappointment that there is not more in this book about what constitutes acceptable presidential fiddling with the Constitution. Is popular ratification the only check on presidential power grabs? Is the text no hurdle? If the President expended funds without an appropriation, as Lincoln did, is it okay if the people clamor in approval? And what constitutes public acceptance? History is rife with demagogues and democrats claiming to act on behalf of the people. Must the people approve of the constitutional innovation, knowing that it is an innovation? Is generic approval of the President enough to supply popular ratification of presidential amendments to the Constitution? Or is reelection the touchstone in which case perhaps second-term Presidents cannot modify the Constitution by violating it? I suspect that most of the public is wholly unaware that the President possesses the de facto power to alter the Constitution and hence cannot meaningfully approve these executive amendments.

Whatever the mechanism for legitimate presidential amendment of the Constitution, Bruff could have done a better job highlighting constitutional evolutions, such as the evolution in constitutional thought that has taken place with respect to the Commander in Chief Clause or the Faithful Execution Duty. Similarly, though Bruff is a Living Constitutionalist, one suspects that his evaluation of past presidential actions largely reflects the perspective of the 21st century. From the vantage point of this century, it may well be that Abraham Lincoln is invariably right about the Constitution, as Bruff seems to suppose. But if the Living Constitution changes over time, one vital question (perhaps the central question) is whether Lincoln (and his fraternity of Presidents) acted constitutionally given the then conventional, prevailing understanding of the Constitution. Because Bruff cannot possibly supply us the conventional senses of the Constitution over a two-century plus period, he really cannot answer the question of whether a President transgressed prevailing conceptions of the Constitution.

But a book that tries to be all things to all people—to do too much—is doomed to failure. Bruff’s extremely successful book is about Presidents, their constitutional interpretations, and his evaluation of those claims. Bruff has more than enough material without discussing the precise mechanism of acceptable presidential fiddling with the Constitution or whether particular Presidents violated the Living Presidency bequeathed to them by history. Students of the Presidency will greatly profit from floating their way through Bruff’s book, filled as it is with a stream of presidential history and executive interpretations of the Constitution.

Posted on 25 January 2016

SAIKRISHNA PRAKASH is James Monroe Distinguished Professor of Law and Horace W. Goldsmith Research Professor at the University of Virginia. He is the author of Imperial from the Beginning: The Constitution of the Original Executive (Yale University Press, 2015).