Constitutional Themes



war_madisonarguesWhile Congress has the power to declare war, raise and provide for the armed forces, as well as other war powers, the President serves as Commander in Chief of the United States military. The Founders’ commitment to civilian control of the military is evident in this decision. They believed that the collective wisdom of Congress would be put to good use in determining whether to declare war, but that once declared, one individual would best be able to wage war.

Like many of the President’s powers, the extent of his or her power as Commander in Chief has been debated. Do these powers apply anywhere other than military situations? Does the President’s role as Commander in Chief empower him to act in ways that may abridge the rights citizens who are not members of the military? John Adams and Woodrow Wilson, who signed the Alien and Sedition Acts of 1798 and Espionage Act of 1917, respectively, into law, were accused of enforcing unconstitutional restrictions on freedoms of speech and press. Abraham Lincoln, who led the nation through Civil War, was accused of numerous civil rights violations, including what many believed was an unconstitutional suspension of habeas corpus.

Federal Power

fedpower_conventionDebate about the limits of the president’s power began at the Constitutional Convention and continues today. James Madison, considered the “Father of the Constitution,” believed that strict limits on federal power were best for liberty. Powers of the federal government which were not enumerated in the Constitution were forbidden. Many later Presidents agreed with Madison, while others, beginning with Theodore Roosevelt, took a more expansive view of the scope of federal power. Theodore Roosevelt was the first President to argue that powers not forbidden were granted. He presided over the greatest expansion of federal power in our nation’s history to that time.

While the President has the power to “recommend measures” to Congress which he believed are necessary, the President is not a lawmaker. Franklin D. Roosevelt and Lyndon B. Johnson, capitalizing on what Theodore Roosevelt had called the “bully pulpit,” were open advocates of policies they believed were needed, and which also increased the size and power of the central government. Ronald Reagan worked decrease the side of the national government and restore what he saw as the rightful place of states in our federal system. Tension between these two understandings (expressed powers and implied powers), and debate over the outcomes of their exercise, has persisted throughout American history.


Impeachment_Nixon_bannerThe Founders were dedicated to creating, as John Adams put it, a government of laws and not of men. Unlike a monarchy where a king served for life by claimed divine right, the office of President of the United States was limited and subject to the law. The Constitution provides for the removal of the President from office “on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” The process of impeachment requires an accusation from the House of Representatives. An impeached President is then tried in the Senate, with the Chief Justice of the US Supreme Court presiding. Two Presidents in US history have been impeached by the House of Representatives: Andrew Johnson and Bill Clinton. Johnson and Clinton were acquitted by the Senate. The House drew up Articles of Impeachment against Richard Nixon for his involvement in the Watergate scandal but he resigned before the entire House could vote on the Articles.


slavery_uniondissolvedAt the Constitutional Convention, the delegates were concerned with the survival of the young nation. Many delegates called for strong protections for slavery, while many others hated the idea of putting into the Constitution the idea that there could be property in people. With the goal of forming a Union, they reached a compromise. Slave states would count 3/5ths of their slave populations towards their state populations to calculate taxation and representation in Congress. Additionally, Congress could not outlaw the international slave trade until 1808. The debate over the federal government’s power to regulate slavery continued through the Civil War.

James Buchanan, Abraham Lincoln, and Andrew Johnson, who served as President of the United States in the years immediately before, during, and after the Civil War, each had different approaches to the constitutional powers of the President, if any, to interfere with the spread of slavery.

Chief Diplomat

The Constitution’s principle of separation of powers is reflected in the President’s power to make treaties with the advice and consent of the Senate. The Constitution goes on to require that two-thirds of Senators present must approve a treaty before it can be ratified. As “Chief Diplomat” for the nation, the President represents the United States to other countries, and directs our foreign policy. Various Presidents in our history have approached the concept of “advice and consent” differently, and have had varying degrees of success at persuading Senators of the wisdom of the treaties they have negotiated.chiefdip_olderdebate

George Washington was aware that his actions would set a precedent as to the meaning of the term “advice and consent.” Many of his decisions with respect to Jay’s Treaty also helped clearly define the separation of powers. Woodrow Wilson all but rejected the Senate’s advice of the Treaty of Versailles, and for the first time in American history, the Senate rejected a peace treaty. Perhaps learning from history, Jimmy Carter took a different and more accommodating approach, winning ratification of the initially unpopular Panama Canal Treaties.

Transfer of power

Transfer_Ford_Pardoning_NixonFor over 200 years, the United States has seen the peaceful transfer of power from one freely elected President to another. The Constitution provides an orderly process for the selection of the President through Electoral College vote, as well through procedures for Presidential succession. Several times in our history, individuals have assumed the office of President without being elected to that office, following the death or resignation of the President.

Enforcement of Law

Enforcer_john_f_kennedyThe Constitution’s principle of separation of powers is highlighted in the President’s power to enforce the law. The Founders were concerned with the potential for abuse of power. Therefore, they gave it to one branch to make law (the Legislature), another to judge its constitutionality (the Judiciary), and another to enforce it (the Executive). The President’s responsibility to enforce the law, as well as the limits on his power to do so, have been debated throughout American history.


While many Americans believe they have a right to vote for President of the United States, they actually never cast votes for candidates themselves. They vote for electors who, in modern times, are pledged to vote for certain candidates. This process differs from what was imagined by the Founders, who designed a republican system for citizens to vote for individuals in their state who they believed were wise and prudent (electors). Electors, chosen by the people, would then themselves vote among candidates for President on behalf of their state. Despite recurrent calls for its abolition, the Electoral College has served and continues to serve as a means for presidential selection that represents the will of the people as well as the sovereignty of states.electing_1877

Several times in our history, the Electoral College system was challenged as a result of unanticipated tie votes (1800), the allegation of a “corrupt bargain” among members of the House of Representatives (1826), and even conflicting sets of electoral votes submitted by states (1876). The Presidential election of 2000 was one of the most hotly contested in American history and ended with a Supreme Court decision halting the state-wide manual recount ordered by a state Supreme Court.