Bench Memos

NRO’s home for judicial news and analysis.

The Perennial Publius, part 69


What similarities are there between the presidency of the United States and a monarchy?  The question would seem an absurd one unless we first suppose that the monarchy to which we are comparing it is a constitutionally limited one, fettered by the rule of law and tethered to other institutions with which it shares power.  Throne and sceptre even under such circumstances could still be formidable and frightening, though, and that was certainly the case to many Americans in 1787-88, who knew British royal authority as tyrannical in their own lifetimes.  But were they right to see any affinity between the British crown and the proposed constitutional presidency of the American republic?

In a word, yes.  The American presidency is intended to supply, in republican form, the vigor and decisiveness of a king, in both domestic and foreign affairs, but in a way that is more accountable to the people than a hereditary monarch.  The trouble was, the Anti-Federalists were prone to exaggerate this affinity, and to claim the presidency was an incipient monarchy–a view that we saw Hamilton mock in Federalist No. 67.  Now, in No. 69, he treats the matter more seriously, systematically comparing the proposed office of president to that of the governor of New York on the one hand, and the British monarch on the other. 

While committing some slight exaggerations himself in order to drag the presidency in the direction of the governor and away from the king, Hamilton does highlight the most important respects in which royal authority (at that time) vastly exceeded the constitutional powers of the president.  The king inherits his office, serves for life, and is absolutely immunized from personal punishment under the laws.  He has an absolute veto over legislation (but wait for Federalist No. 73, dear reader).  He raises armies and fleets, declares war, and “is the sole possessor of the power of making treaties.”

There is one presidential power, in Hamilton’s fairly detailed review, that he downplays here and was to treat differently after the Constitution was ratified.  That is the power given the president in Article II, section 3 to “receive Ambassadors and other public Ministers” from other nations.  Here in the Federalist, Hamilton treats it thus:

This, though it has been a rich theme of declamation, is more a matter of dignity than authority.  It is a circumstance, which will be without consequence in the administration of government; and it far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister; though it were merely to take the place of a departed predecessor.

Five years later, defending the Washington administration’s policy of neutrality between Britain and France, Hamilton took a more expansive view of presidential authority here.  Writing as “Pacificus,” he said:

The right of the Executive to receive ambassadors and other public Ministers may serve to illustrate the relative duties of the Executive and Legislative Departments.  This right includes that of judging, in the case of a Revolution of Government in a foreign Country, whether the new rulers are competent organs of the National Will and ought to be recognised or not: And where a treaty antecedently exists between the United States and such nation that right involves the power of giving operation or not to such treaty.  For until the new Government is acknowledged, the treaties between the nations, as far at least as regards public rights, are of course suspended.

Is this a change of tune for tactical purposes?  Did Hamilton think in 1788 what he thought in 1793, and suppress his view to get the Constitution ratified?  Is the view he offers in 1788 a more accurate account of what the framers were thinking in Philadelphia with these innocuous words in the Constitution?  Yet is Hamilton’s 1793 argument nonetheless a better account of the logic of the power once it takes on a life of its own?  And if the answer to both of the last two questions is “yes,” is this not a cautionary tale for those who would turn to the Federalist–or any narrow version of “original intent”–as the last word on the meaning of the Constitution?

(For explanation of this recurring feature, see here.)


Sign up for free NRO e-mails today:

Subscribe to National Review