Monday, January 26, 2009

Madison blues

Under the pen name “Pacificus,” Hamilton wrote a defense of Washington’s power to act without congressional sanction. The first Pacificus essay is the mother document of the “unitary executive” theory that Bush’s apologists have pushed to its limits since 2001. Hamilton seized on the first words of Article II: “The executive power shall be vested in a President of the United States of America.” He contrasted this wording with Article I, which governs Congress and which begins, “All legislative powers herein granted shall be vested in a Congress of the United States.” What this meant, Hamilton argued, was that Article II was “a general grant of … power” to the president. Although Congress was limited to its enumerated powers, the executive could do literally anything that the Constitution did not expressly forbid. Hamilton’s president existed, in effect, outside the Constitution.

That’s the Bush conception, too. In 2005, John Yoo, the author of most of the administration’s controversial “torture memos,” drew on Hamilton’s essay when he wrote, “The Constitution provides a general grant of executive power to the president.” Since Article I vests in Congress “only those legislative powers ‘herein granted,’” Yoo argued, the more broadly stated Article II must grant the president “an unenumerted executive authority.”

Hamilton gets the blame in the Atlantic. George Thorogood gets the Madison Blues:

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