Electronic copy available at: http://ssrn.com/abstract=2167760

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NOT EVEN WRONG:THE USE OF BRITISH CONSTITUTIONAL HISTORY TO

DEFEND THE VESTING CLAUSE THESIS

Ryan Patrick Alford

Though a prominent part of our Constitution, the clause that vests the president with the “executive power” remains an enigma. A handful of scholars claim that it mandates a unitary, hierarchical executive branch under the president’s control, and that it vests the president with the powers traditionally associated with the executive . . . . 1

INTRODUCTION

The ‘handful of scholars’ interested in using originalist methodology to defend an expansive interpretation of the president’s powers have been controversial, but influential. Steven Calabresi, Saikrishna Prakash, and John Yoo2 comprise its core: the scholarly agenda of the ‘vesting clause theorists’ supports expansive views of presidential power that, despite being outside of the mainstream of historical or constitutional scholarship, have both shifted the terms of the debate and widened the boundaries of what is considered academically respectable. Yoo’s conception of the original intent of the Founding Fathers when they vested the President with executive power has proven particularly influential,3 if the vesting-clause theorists can

Assistant Professor, Ave Maria School of Law. J.D. New York University, M.St. University of Oxford. Special thanks to Julian Davis Mortenson, Jamie Fox, and Marco Jimenez for careful attention to the manuscript and perceptive comments and suggestions, and also to the participants at the 2011 Stetson Junior Faculty Conference, where a draft of this article was presented. Although anonymous, the author would also like to thank the reviewers provided by the Peer Reviewed Scholarship Marketplace, who offered very helpful comments when the draft was circulated between submission seasons. The author also extends his gratitude to his research assistants Jason Gardner and Peter Schofield for their able assistance.1 Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. ILL. L. REV. 701 (2003).2 This is not an exhaustive list, but many of the other scholars associated with this group have not been unequivocal supporters of this thesis.3 Note that Yoo is now the default choice for participation in debates on the meaning of the President’s constitutional powers, see e.g. John Yoo, War Powers Belong to the President, A.B.A. J. Feb. 2012, at 34; Yoo’s editorials on this subject in the nation’s leading

Electronic copy available at: http://ssrn.com/abstract=2167760

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be counted using one’s hand, he would be the index finger, which alsopoints out the implications of what appear to be abstruse arguments about the original intent of the Framers to contemporary foreign policy debates.

Owing to the taciturn opacity of the Executive Power Clause and the Vesting Clause of Article II, these theorists have turned to various different approaches to support the interpretation that these clauses give the president far more power vis-à-vis congress and the courts than conventional wisdom has ever held. The common starting point is the idea that there is an “essential meaning” of the phrase executive power,4 which—most felicitously for these theorists—is precisely the same definition given by both 1787’s revolutionaries and the twenty-first century’s neoconservatives. This purportedly commonsensical definition allows those who advocate for presidential unilateralism in foreign affairs (up to and including warfare) to claim that this has the Framers’ imprimatur;5 their essential meaning of executive power would give the president the exclusive power to execute the laws and to conduct foreign policy as he sees fit, free from any restraints that emanate from the judiciary’s duty to assess the constitutionality of these actions, because this sort of intrusion into the province of what is by definition the business of the executive alone would purportedly undermine the separation of powers.6

This article will show that, unfortunately for the vesting clause theorists, their particular allegations about the evidence for their thesis purportedly provided by the Framers’ writings and by the records of the Philadelphia Convention have been rebutted, requiring them to rely entirely on the claim that there is an essential meaning or baseline of ‘executive power’ provided by the unwritten British constitution at the time of the Framing. Accordingly, the vesting clause thesis depends on this premise and the argument that this constitution had a decisive influence on the Framers.

The task of making this argument has fallen to John Yoo, who has been both a practitioner and a critic of this discipline, criticizing other scholars for engaging in “law-office history”7 while relying upon historical

newspapers and the debates he participates in at universities and think tanks are too numerous to mention.4 Prakash, supra note 1, at 701.5 See Saikrishna Prakash & Michael Ramsey, The Executive Power over Foreign Affairs, 111 YALE L. REV. 231 (2001).6 JOHN C. YOO, THE POWERS OF WAR AND PEACE , 24-54 (2005), 210. See also Prakash, supra note 1 and Prakash & Ramsey, supra note 5.7 John C. Yoo, Part I: Clio at War: The Misuse of History in the War Powers Debate, 70 U. Colo. L. Rev. 1169, 1170-71 (1999).

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arguments to bolster his own arguments about the Constitution’s meaning.8

Another vesting clause theorist had argued that “even if the Constitution did not vest the American executive with all the English crown’s executive powers, it still might have codified the executive’s essential power,”9

making a halfhearted argument that the key model for the Framer’s conception of executive power in 1787 was George III. However, as a whole the vesting clause theorists appear to have shied away from making it clear that they believe that the Framers chose to base the powers of theirpresident on those of the tyrant whose yoke they had only just escaped.

The obvious implausibility of this argument has does not faze Yoo, who having first argued that the Framers’ modeled the president’s war powers on those of the King in 1787, now proceeds to argue that the same can be said for the all of the president’s executive powers.10 However, this article will demonstrate that Yoo’s English legal history is flawed, both in its substantive conclusions and its methodology. It will further demonstrate that Yoo has come to a position on executive power that is the opposite of the Framers’. Yoo is free to make pragmatic arguments about what the constitution should mean, but his attempt to justify this approach with appeals to legal history has led him to adopt a methodology that is more problematic than law office history: whig history

While this has assertion has been vigorously disputed, his critics have failed to note that Yoo has glossed over the vital premise: that the British constitution was as described in his work —namely, a paradigm that provided for both a strong executive and a separation of powers that distinguished between domestic and foreign affairs. In order to make his case that it did, Yoo has relied upon a historical account of the constitutional developments of the seventeenth and eighteenth century that is critically flawed.

More importantly, it will be demonstrated Yoo has failed to conform to the standards of historical scholarship, and has committed the most fundamental of methodological errors. In relying on the methods of whig history, Yoo has allowed his views of the existing constitutional order to determine his vision of the past. He has worked backwards instead of forwards, as if the present could have shaped the past rather than the reverse. Accordingly, the article will serve both as the rebuttal of the final pillar supporting the vesting clause theorists’ argument about the original intent for the President’s powers, and serve an illustration of the errors

8 This article will focus on the argument he has made in his latest book, Yoo, supra n.6.9 Prakash, supra note 1, at 810.10 Yoo, supra note 6, at 45-54.

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which legal historians working in the field of law must avoid in order to conform to the standards of modern academic historical research.

The article’s first section will illustrate Yoo’s views of the President’s powers, the degree to which they have been influential despite being radical, and explain why he feels compelled to justify them by reference to original intent. It will also demonstrate that Yoo’s English legal history is all that remains to support his constitutional claims after the responses of scholars who specialize in the evidence relating to the Framers’ views and the Philadelphia convention. The second section will dispose of the key premise of Yoo’s historical argument: that George III possessed thoseconstitutional powers which Yoo argues a twenty-first century President possesses pursuant to Article II. It will also show that this mistake is only possible if the constitutional developments of the past two centuries are viewed from the perspective of the present rather than in their own context. The third section will describe this context in detail, and show how this explains how the Framers could (and would) not have used eighteenth century British constitutionalism when creating the Constitution. The fourth section shows how Yoo’s views have led him to a conception of the ideological context of the American revolution that is precisely the opposite of what the leading scholars of this period have revealed, and how whig history has led the vesting clause theorists to ascribe to the Framers views which were actually those of their enemies and the historical figures whom they despised.

I. THE ATTRACTIONS OF WHIG HISTORY IN POLITICS AND ITS DANGERS

A. Yoo’s Views and Their Appeal to the Executive Branch

Yoo claims that the President has implicit constitutional powers that are derived from his responsibility to protect the nation that can supersede legalchecks on this authority, even those explicitly detailed in the Constitution itself.11 The views he expressed as an academic he put into action while Deputy Assistant Attorney General at the Office of Legal Counsel (the “OLC”). The key memoranda relying on this rationale for controversial assertions of executive supremacy are commonly referred to as the “War Powers”12 and “Torture”13 memos.

11 See, e.g., John C. Yoo, War and the Constitutional Text, 69 U. Chi. L. Rev. 1639 (2002).12 John C. Yoo, Memorandum Opinion for the President: The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, OLC (Sep. 25. 2001) available online at: http://www.justice.gov/olc/warpowers925.htm

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The introduction to the War Powers memorandum states:

The President has broad constitutional power to take military action in response to the terrorist attacks . . . . Congress has acknowledged this inherent executive power . . . . The President has constitutional power to retaliate . . . against foreign states suspected of harboring or supporting such [terrorist] organizations . . . . The President may deploy military force preemptively . . . whether or not they can be linked to the specific terrorist incidents.14

This is tantamount to a declaration two years before the fact that President Bush could have ordered the invasion of Iraq without a Congressional resolution. He made this claim explicitly in this same memorandum that no “statute, however, can place any limits on the President’s determinations as to any terrorist threat the amount of military force to be used in response or the method, timing and nature of the response. These decisions, under our Constitution, are for the President alone to make.”15 Yoo reiterated this position in 2011, when he argued that President George W. Bush did not need legislative approval for the wars in Afghanistan or Iraq.16 If his premises are accepted, it would also follow that the President has the power to authorize military action against any nation if he suspects that any country is harboring terrorists, notwithstanding any statute that might seek to prevent this action.

Just as he believes Congress cannot limit the President’s freedom of action with laws, Yoo contends that treaties cannot override his purported implicit power to protect the nation. The Torture memorandum explicitly disavows the Convention Against Torture, and Yoo has conceded in a debate that he believes that the President could not be prevented from ordering that a child’s testicles could be crushed if he believes that is

13 John C. Yoo, Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States, OLC (March 14, 2003) available online at: http://www.aclu.org/files/pdfs/safefree/yoo_army_torture_memo.pdf14 Yoo, supra note 12, at 19.15 Id.16 John Yoo, Opinion, Antiwar Senator, War Powers President, WALL ST. J., (March 25, 2011), available online at: http://online.wsj.com/article/SB10001424052748704050204576218540505216146.html.

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necessary to protect the nation.17 Additionally, he argued that the Federal Intelligence Surveillance Act18 was unconstitutional, since “we do not believe that Congress may restrict the President’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.”19

Yoo’s view of “inherent executive authority” was rejected by the Supreme Court in Hamdan v. Rumsfeld,20 when they held that the Court could intervene when President “disregard[ed] limitations Congress has, in the proper exercise of its war powers, placed on his powers.”21 Likewise, the memoranda he drafted were disavowed by the OLC after President Obama’s election.22 However, it seems that the appeal of his theory of presidential power has been too appealing for the next administration to resist. While President Obama’s statements while campaigning for office in 2008 gave his supporters the impression that he did not countenance Yoo’s views, he soon took actions that could only be justified by reference to the arguments Yoo had made about the President’s purportedly inherent war powers.23

Namely, this administration has asserted that the President has the power to issue executive orders to target American citizens with drone strikes (and that no court has the power to review these commands)24 and asserted that any attempt by Congress to constrain executive orders sending the armed forces into action in Libya would be “an unconstitutional

17 HOUSE COMMITTEE ON THE JUDICIARY MAJORITY STAFF REPORT TO CHAIRMAN JOHN C.CONYERS, JR., REINING IN THE IMPERIAL PRESIDENCY: LESSONS AND RECOMMENDATIONS

RELATING TO THE PRESIDENCY OF GEORGE W. BUSH (2009) 113-14.18 50 U.S.C. § 36 (2011).19 Memorandum For the Attorney General From John C. Yoo, Nov. 2, 2001, available online at: http://www.aclu.org/files/assets/NSA_Wiretapping_OLC_Memo_Nov_2_2001_Yoo.pdf.20 548 U.S. 557 (2006).21 Id. at 592. 22 Memorandum from Steven G. Bradbury, Principal Deputy Assistant Att’y Gen., Office of Legal Counsel, Re: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001, at 2–3 (Jan. 15, 2009) available athttp://www.justice.gov/opa/documents/memostatusolcopinions01152009.pdf23 See, e.g., Hayley Peterson, Obama Flexing Same Powers He Criticized, WASHINGTON

EXAMINER (Jan. 11, 2012, 5:01PM), http://campaign2012.washingtonexaminer.com/article/obama-flexing-same-powers-he-once-criticized/307821.24 Ryan Patrick Alford, The Rule of Law at the Crossroads: Consequences of Targeted Killing, 2011 Utah L. Rev. 1203.

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encroachment on executive power.”25 Secretary of State Hillary Clinton admitted to the House of Representatives that “the White House would forge ahead with military action in Libya even if Congress passed a resolution constraining the mission”26 as contemplated by the War Powers Resolution of 1973.27

When campaigning, President Obama noted that “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual and imminent threat to the nation”28 that is precisely the power which he claimed to have four years later, since he notified Congress that he had ordered military action “pursuant to my constitutional authority to conduct U.S. Foreign relations and as Commander in Chief and Chief Executive.”29 As John Yoo pointed out, this language mirrors his War Powers memorandum.30 Despite the fact the Obama administration has not taken this theory to the extremes urged in its original formulation, it should be noted that Yoo’s expansive interpretation of Presidential powers in his academic work and in the OLC should not be considered a historical footnote; nothing could be further from the truth, as they have an enduring appeal to Presidents from both

25 Susan Crabtree, Clinton to Congress: Obama Would Ignore Your War Resolutions, TalkingPointsMemo, March 30, 2011, available at: http://tpmdc.talkingpointsmemo.com/2011/03/clinton-tells-house-obama-would-ignore-war -resolutions.php, see also Charlie Savage, Clock Ticking on War Powers Resolution, The Caucus: The Politics and Government Blog of the [New York] Times, April 1, 2011, available at: http://thecaucus.blogs.nytimes.com/2011/04/01/clock-ticking-on-war-powers-resolution/.26 Charlie Savage, Clock Ticking on War Powers Resolution, N. Y. TIMES, April 1, 2011, available online at: http://thecaucus.blogs.nytimes.com/2011/04/01/clock-ticking-on-war-powers-resolution/ —later, “under congressional pressure the White House released a report . . . which bears no letterhead, no date, and no signature . . . . deem[ing] section 5 of the WPR inapplicable . . . [because] the campaign . . . was transformed into something less than ‘hostilities’ before the expiration of sixty days . . . . it ought to be observed, however, that, compared to earlier instances in which Presidents urged what might be called the ‘sub-hostilities theory,’ the Libya campaign is offensive, sustained, and continuous.” Peter M. Shane, The Obama Administration and the Prospects for a Democratic Presidency in a Post-9/11 World, 56 N.Y.L. SCH. L. REV. 27, 53-54 (2011).27 War Powers Resolution, Pub.L. 93-148 Stat. 87 Stat. 555.28 Charlie Savage, Barack Obama’s Q & A., BOSTON GLOBE, (Dec.20, 2007), http://www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/29 Associated Press, Obama Authority to Act Under Challenge, Mar. 22, 2001, available at: http://texas.onpolitics.com/news/40677/obama-authority-to-act-under-challenge30 John Yoo, Antiwar Senator, War Powers President, WALL STREET JOURNAL (March 11, 2011), available at: http://online.wsj.com/article/SB10001424052748704050204576218540505216146.html.

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parties. What remains to be demonstrated in this section is that Yoo’s arguments about British constitutional history in support of this position deserve serious scrutiny. It will be shown that once these are dispensedwith, Yoo’s argument collapses, since his other arguments in favor of his interpretation of the Constitution have already been refuted.

B. The Centrality of Arguments from Legal History to Yoo’s Appeal

It is true that views similar to Yoo’s have had some currency from the time of the Nixon administration.31 However, what is novel about Yoo’s argument is his break from purely pragmatic arguments that depend largely on political theory. Rather, Yoo has attempted to establish that his view was precisely what the Framers had in mind.32 This article will show that Yoo attempts to ground what appears to be a public policy argument derived from principles of political science with detailed arguments from legal history. This can be characterized as an attempt to square the circle of modern conservatism by fusing a vision of a highly centralized government in foreign affairs (as prized by neoconservative hawks) with the vision of limited government at home (which is dear to libertarians and other small government conservatives). In doing so, Yoo weaponizes whig history. Rather than attempting to discover the truth about the past for its own sake, he attempts to enlist it in a battle for the hearts and minds of conservatives. As will be demonstrated in this subsection and the next, this requires the abandonment of serious academic history.

Yoo has argued that the constitutional text is of paramount importance to our understanding of the President’s powers. However, after his tendentious arguments about the plain meaning of the relevant clauses of Article I and Article II have been vigorously refuted by his critics,33 Yoo seems to have shifted back to another tack. He now relies almost exclusively on the argument (which he first made in 1996,34 but which unfortunately has yet to receive significant scholarly attention) that in order

31 See Bretton G. Sciaroni, Boland in the Wind: The Iran-Contra Affair and the Invitation to Struggle, 17 Pepp. L. Rev. 379 (1989-90).32 See, e.g., Yoo, supra note 6, at 85-144. 33 See generally Michael D. Ramsey, Text and History in the War Powers Debate: A Reply to Professor Yoo, 69 U. Chi. L. Rev. 1685 (2002); Curtis A. Bradley and Martin S. Flaherty,Executive Power Essentialism and Foreign Affairs, 102 Michigan Law Review 545 (2004);Julian Davis Mortenson, Executive Power and the Discipline of History, 78 U. Chi. L. Rev. 377 (2011). 34 John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers 84 CAL. L. REV. 167 (1996).

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to interpret these clauses correctly it is not enough to make textual arguments related to the meanings of their words in 1787. Rather, it is now necessary to see how the constitution’s meaning was shaped by British constitutional practice at the time. Yoo stakes his argument for the inherent authority of the President in foreign affairs to his understanding of this context, which he implies is superior to that of his detractors.35

1. The Refutation of Yoo’s textualist arguments

According to Yoo, foreign affairs are the dominion of the executive, as are the powers of war and peace. As such, any decision about whether or not to commit troops to battle or to observe a treaty belongs to the president alone. The root of Yoo’s earlier textual argument36 is what his critics have called the “Vesting Clause Thesis.”37 Namely, Yoo asserts that because Article II provides that “the executive power shall be vested in a President”,38 whereas Article I specifies that the “legislative powers herein granted shall be vested in a Congress,”39 it “implicitly grants the President a broad array of residual powers,”40 despite the fact that Article II also enumerates the powers of the presidency specifically.

Yoo’s War Powers memorandum asserted that no statute “can place any limits on the President’s determinations as to any . . . threat, the amount of military force to be used in response, or the method timing and nature of the response,” owing to the President’s residual constitutional powers under the Vesting Clause of Article II. As described above, subsequent memorandareferenced the same clause as providing the authority for the President to ignore treaties ratified by the Senate that prevented the use of torture on detainees (and, as Yoo conceded, even their innocent children) and to disregard statues that restrict the President’s use of his powers in wartime.41

Scholarly appraisal of the assertion that this thesis is supported by textual evidence from the convention, ratification debates, and the Federalist Papers has been quite negative:

35 JOHN C. YOO, THE POWERS OF WAR AND PEACE , 24-54 (2005). 36 See Michael D. Ramsey, Text and History in the War Powers Debate: A Reply to Professor Yoo, 69 U. Chi. L. Rev. 1685 (2002).37 Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545, 546 (2004).38 U.S. CONST. art. II § 1, cl. 1 (emphasis added).39 U.S. CONST. art. I § 1, cl. 1 (emphasis added).40 Bradley & Flaherty, supra note 37, at 546.41 The President’s Constitutional Auth. to Conduct Military Operations Against Terrorists & Nations Supporting Them, 2001 WL 34726560 (U.S.A.G. Sept. 25, 2001).

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Far from supporting the Vesting Clause Thesis, the records of the Federal Convention all but devastate it. The records show that as the delegates drafted and negotiated the constitutional text, they attempted to specify the powers being granted to the executive branch.42

As for the idea that Article II created residual powers, Yoo’s critics note

that “there was no suggestion that the Vesting Clause was creating residual powers. Indeed, if the delegates had been assuming the Vesting Clause Thesis, much of their quibbling about specific executive powers would have been much beside the point.”43 After an exhaustive analysis of the ratification debates, these critics also concluded that that “[t]he Federalist Papers likewise repudiate the Vesting Clause Thesis.”44 It simply has no documentary support in any kind in the contemporary literature or records pertaining to the Framing.

Yoo’s other primary means of supporting his thesis cannot be taken seriously as academic historical research. This second source of support comes from the acts of selected Framers once they themselves were in position to wield executive power, are easily disposed with. This is the first evidence that Yoo does not appear to understand the methods of the discipline of history, as attempting to use later events to explain earlier ones is—as will be explained below—precisely what a historian must never do. Furthermore, it is unclear why Yoo should believe that Thomas Jefferson’s actions, once in office, would shed light on the collective intentions of the Framers in defining executive power.

It is a simple matter to demonstrate why this is a specious method. Jefferson famously asserted—using the Presidency as a bully pulpit aimed at the Chief Justice—that Aaron Burr was guilty of treason before his trial and did all that he could to convict him, engaging in many gross constitutional improprieties.45 Leonard Levy noted that this was entirely inconsistent with Jefferson’s zealous defense of due process and the rights of the subject, as found in Jefferson’s Notes on Government of 1781. Levy—a constitutional historian of the first rank—concluded sensibly that Jefferson’s views had changed, and sought to understand and explain the reasons for that change.46 Yoo, when confronted with similar examples

42 Bradley & Flaherty, supra note 37, at 592.43 Id. at 600.44 Id. at 602.45 See generally NANCY ISANBERG, FALLEN FOUNDER: THE LIFE OF AARON BURR, (2007).46 LEONARD W. LEVY, JEFFERSON AND CIVIL LIBERTIES: THE DARKER SIDE, 90-2 (1989).

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from Jefferson’s presidency, seeks to show us how the President’s later behavior explains earlier texts. This use of the fallacy of ignoratio elenchiis of use to serious historians merely as a good example of a bad example.

That said, academic commentators have noted that these examples are not merely irrelevant. As presented, they are also frequently incorrect. In a acclaimed review of The Powers of War and Peace, Julian Davis Mortenson states that:

Yoo’s constitutional history [of executive power in practice from the Washington to Bush administrations] fails on all counts. It misstates crucial facts, misunderstands important episodes, and misrepresents central primary sources. It applies one set of standards to friendly evidence and another to evidence that undercuts its argument. It omits and obscures evidence that contradicts its claims. It neither addresses nor even cites major scholarship that reaches opposite conclusions about the precise historical issues in question. It omits thematically relevant presidencies that appear to teach uncongenial lessons. And its overwhelming concern with present-day problems overpowers its primary obligation as history: to faithfully assess the past on its own terms.47

While Yoo has now turned from premises drawn from the time after the framing, focusing now on history that might be relevant for the purposes of explaining these later events, it will be demonstrated that his methods have only appeared to change: when discussing these earlier events, he remains committed to making sense of the past by reference to the categories and concerns of the present. This attempt to justify a particular perspective on a political controversy by presenting an anachronistic view of the past is whig history.

C. Whig History as the Antithesis of Modern Legal History

To determine whether Yoo’s arguments about the British constitutional context at the time of the Framing should be taken seriously, we must consider whether his approach is consistent with the standards established

47 Mortenson, supra note 33, at 382. Mortenson also comes close to identifying one of the central problems with Yoo’s methodology when he notes that “Yoo’s presentism [a more modern label for whiggishness] drowns his history. He reframes what seems like every single historical episode in present-day terms, that is as distracting as it is analytically distorting.” Id., 383; See also supra note 29.

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by the professional historians of the twentieth-century, or whether they embody outmoded nineteenth-century approaches that have long been discredited. Twentieth-century English legal history was marked from the outset by a turn to empiricism, which is to say they are marked by a newtendency to build theories after careful consideration of the facts, rather than an attempt to make the facts fit into existing conceptions of the historical process, which had been tainted by longstanding political myths.48 It is easy to note how the rejection of the earlier methods of legal and constitutional history was not only exemplified but explained by Sir Herbert Butterfield, 49 in The Whig Interpretation of History.50

Butterfield drove the final nail into the coffin of theory-driven history in an influential book, which “put historians into a state of self-analysis and scrupulosity,” and which catalyzed “the modern and fruitful consideration of the problems of historiography.”51 His thesis was that above all other things the historian must not diminish the differences between the present and the past, and he or she must not merely think of the past as the incubator of the present: “he is riding after a whole flock of misapprehensions if he goes to hunt for the present in the past.”52 In criticizing the state of the discipline, Butterfield argued:

It is part and parcel of the whig interpretation of history that it studies the past with reference to the present . . . he will imagine that he has discovered a ‘root’ or an ‘anticipation’ of the 20th century, when in reality he is in a world of different connotations altogether, and he has merely tumbled upon what could be shown to be a misleading analogy . . . . The total result of this method is . . . to produce a scheme of general history which is bound to converge beautifully upon the present . . . . it lies in a trick of organisation, an unexamined habit of mind that any historian may fall into. It might be called the historian’s ‘pathetic fallacy.’53

48 The work of F.W. Maitland clearly constitutes a break with the work of G.O. Trevelyan and S.R. Gardiner, and this is certainly illustrative of this trend. 49 Butterfield served as Vice-Chancellor of the University of Cambridge and President of the Historical Association of Britain.50 HERBERT BUTTERFIELD, THE WHIG INTERPRETATION OF HISTORY, (1965).51 OWEN CHADWICK, FREEDOM AND THE HISTORIAN, 37 (1969).52 Butterfield, supra note 50, at 10. 53Id. at 16-30.

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The whig historian, who unconsciously falls into the habit of explainingthe past by reference to the terms of the present, usually does so because they implicitly believe that history is a march of progress that has inexorably led us the best of all possible worlds: Unfortunately, this is antithetical to serious academic history because it does not allow us to understand the past at all, since it excludes on principle all evidence that people in the past may have had ideas and concerns that are not like one’s own, and which one may find strange and paradoxical. In particular, they will discount all evidence that people in the past had in mind a different vision of the future than the present in which we find ourselves, since this would endanger their notion of the inexorable historical progress that has led us to the shining present.

When considering Yoo’s assumptions and premises in this article, the analysis will not terminate with a conclusion about whether or not they areempirically true. Rather, it will continue on to the question of why they are presented as true if there is no evidence supporting them. This will lead to the most important conclusions about his use of legal history: whether he asserts certain statements merely because if they were true, they would explain how the efforts of certain historical figures led us to the present state of affairs, namely expansive presidential power. The article will begin by comparing his ideas about the powers of George III to the power of the monarch under the British constitution as it was shaped by the conventions emerging during the eighteenth century. It will then discuss whether Yoo understands the constitutional history that led to this state of affairs, and examine whether Yoo’s conclusions rely exclusively on whig methodology.

II. THE FRAMING’S HANOVERIAN CONTEXT

A. Understanding Executive Power in the United Kingdom of 1787

Nothing, perhaps would more surprise the English people than if Queen [Victoria] by coup d’etat . . . destroyed a Ministry firm in the allegiance and secure of a majority in Parliament. That power, indisputably, in theory belongs to her; but it has passed so far away from the minds of men that it would terrify them, if she used it, like a volcanic eruption from Primrose Hill.54

The key premise of Yoo’s argument about the Framers’ conception of executive authority is that “the Framers would have looked to recent British 54 WALTER BAGEHOT, THE ENGLISH CONSTITUTION, 131 emphasis added).

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political history as much to intellectual thought on the separation of powers,”55 thereby making it possible for them to give the President powers modeled on those of the monarch. However, this argument contains a hidden premise; Yoo’s conclusion relies on a question-begging argument. It stands or falls on our accepting the assumption that the British monarch had the powers in 1787 that Yoo believes the President has under Constitution in 2012.

This section will demonstrate that Yoo has fatally misread the British constitutional context of the framing owing to his failure to appreciate the difference between the formal and actual powers of the British monarch, as shaped by constitution convention, and how this error was driven by an failure to understand the broader intellectual context of eighteenth century constitutionalist thought. Instead, he has assumed that the political concerns of English constitutional theorists of the eighteenth century were the same as the scholars of today, and of the Framers themselves, when nothing could be further from the truth. Substantial attention must be given to this divergence, which stems largely from the Framers’ accurate perception of the gaps emerging between constitutional theory and practice in the late eighteenth century. Subsequent sections of this article will discuss how the context provided by the English constitutional history of the seventeenth century made the divergent approaches to executive power adopted by the Framers and Parliament possible.

In approaching the question of the difference between George III’s formal and real powers, it should be noted that the British monarch retains undisputed formal authority over foreign affairs to this day. However, Elizabeth II possesses no actual authority, merely the duty to exercise whatever reserve powers she enjoys strictly in accordance with constitutional convention. Conversely, “[n]either the Cabinet nor the Prime Minister, as such, claims to exercise any powers conferred by law. They take the decisions, but the acts which have legal effect are taken by others,[including] the Queen.”56 Despite the fact that the Queen possesses formal authority and the Cabinet merely informal and practical powers, everyone acknowledges that in reality that it is not the monarch who is the head of the executive branch, but rather the Prime Minister and the Cabinet, who are continuously responsible to Parliament, and not to the Queen.

Since this discrepancy between the monarch’s official powers and those which they may in fact exercise is the result of a convention that emerged over time, it is impossible to pinpoint at which precise moment the monarch

55 Yoo, supra note 6, at 45.56 SIR IVOR JENNINGS, CABINET GOVERNMENT, 2 (1961).

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lost her ability to direct foreign affairs. This question relates closely to the issue of when the cabinet assumed a more expansive role. One can point to the fact, however, that the Prime Minister has been at the head of the civil service due to his position as First Lord of the Treasury since 1730, and that since approximately that time he has also been the undisputed head of the Cabinet. While the Cabinet is formally described “as a body of servants to the Crown . . . [who] belong to the Privy Council because, historically, the Cabinet is a private meeting of those Privy Councilors in whom the Sovereign has particular confidence for the time being,” “this definition is, in short, a relic of history.”57 Before addressing the question of what powers the King and the Cabinet possessed in 1787, one must understand what Walter Bagehot thought was his central insight about the British constitution, namely “the way in which the continuity of the form of institutions has masked a transformation of their function.”58 Most of thesetransformations happened during the eighteenth century, a period that is of the highest importance to Yoo’s thesis about the Framers’ adoption of the model of executive power provided by the British Crown.

At some point in the eighteenth century, a Cabinet (or rather, as it was initially described to differentiate it from the Privy Council, an “Inner Cabinet”)59 responsible only to Parliament assumed most of the monarch’spowers, which they exercise in his name, while the monarch himself has no ability to execute personally except on the advice of his ministers, who are formally Privy Councilors but who are all members of the Cabinet government that has the confidence of Parliament. Again, it is difficult to pinpoint when this was accepted as a constitutional convention, since there has been no formal change. However, “[s]ince the resignation of [Sir Robert] Walpole in 1742 it had been clear that the Crown could not govern for any prolonged period without the support of ministers who had the confidence of a majority of the House of Commons.”60

Accordingly, Yoo’s argument that the Hanoverian context of the American Revolution provided an example of strong executive power for the Framers is completely wrong. The fact that the Hanoverian monarchs brought to the throne by an act of Parliament were in a position that was subordinate to that legislature was clarified shortly before the time of the framing. Until the rise of the Fox-North coalition, George III “was generally able by ‘management’ to maintain a majority for himself and his

57 Id.58 FINER ET AL., COMPARING CONSTITUTIONS, 100 (1995).59 JOHN P. MACKINTOSH, THE BRITISH CABINET, 52-60 (1962).60 DAVID HAMER, CAN REPRESENTATIVE GOVERNMENT SURVIVE IN AUSTRALIA, 5 (1994).

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[preferred] Cabinet. [“Management” or ‘maintenance’ refers to George’s attempts to influence Members of Parliament with what largely amounted to bribes.] From 1784, the policy was primarily that of the Cabinet.”61

Yoo demonstrates his failure to come to terms with the fundamental shift in power relations between the Crown and Parliament during the eighteenth century in his brief discussion of the problem of maintenance. He appears to suggest that an earlier controversy over patronage, as reflected in Cato’s Letters, was a response to “a power-grabbing ministry”62

that had “allowed the Crown to engage in an end-run around the checks and balances of the ancient constitution, and gave it the power to erode Parliament’s ability to defend the rights of the people,”63 which had led to an ideological reaction against the “Hanoverian establishment of a permanent executive ministry that oversaw the new financial and administrative system.”64 The ministry described by Cato was responsible to Parliament, and consequently it had not been the monarch that had been guilty of the practice of inserting ‘placemen’ whose interests identified them with the ministers, but rather the Prime Minister, Walpole,65 who possessed a much greater degree of political agency than the monarch that he nominally served.

The examples which Yoo relies upon to show that the Hanoverian Kings possessed strong executive powers in practice are picturesque but provide no insight, as they ignore the informal dominance of the Cabinet and Parliament. It is unclear what it proves to note that “the entire empire celebrated the Battle of Dettingen, in which King George II himself had led British troops to victory over the French.”66 It would appear to be more important to note that by the latter part of his reign, King George II—the foreign-born son of a minor German Prince who had been brought to the throne by Parliament—had generally failed to exercise effective influence over the government in any way, even through patronage.

Most importantly, it must be noted that Yoo is clearly wrong about the Hanoverian monarchs reserving to themselves decisions about war and peace: in 1756 the Cabinet (which George II had by then been unable to control with patronage) voted for a declaration of war, and “when it came to approving the Treaty of Paris at the end of the war in 1783, this was done by

61 Jennings, supra note 56, at 14.62 Yoo, supra note 6, at 39.63 Id.64 Id., at 38.65 FRANCIS WORMUTH, THE ORIGINS OF MODERN CONSTITUTIONALISM, 178-179 (1949).66 Yoo, supra note 6, at 53.

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the inner Cabinet alone.”67 As for the importance of the fact that the decision was made by the inner Cabinet, we must consider the opinion of Sir David Keir:

From Walpole’s fall to the end of George II’s reign, it may be said that the King’s ability to form and maintain ministries was steadily on the decline . . . . in theory he might retain full control over appointments to the Cabinet. In practice there was developing within the Cabinet an inner Conciabulum of ministers, united by links he could not break, prepared to conduct his business on their own terms . . . . It was from this . . . that the modern Cabinet system was to grow.68

The process of management of Parliament through influence had become problematic even before George III’s reign. As Keir noted under George I and II, “[g]roups of ministers tended to draw further away from the King, and to acquire . . . a coherent and independent character. . . . However skilled the manipulation of patronage, there remained an undercurrent of antagonism to its systematic use as an instrument of power.69

The Prime Ministership of the Duke of Newcastle, like that of Walpole, represented a giant step towards the establishment of responsible government and to a constitutional order where the king’s attempt to have any role in foreign affairs by means of ‘influence’ became increasingly problematic. During the reign of George III, “[t]he contest between a conception of a government wholly depending on a Parliament dominated by royal ‘influence,’ and one in which ministries mainly independent of the Crown governed by virtue of their own parliamentary strength came to a head.” George lost this battle—one which the American patriots had followed closely, owing to their admiration of such figures as John Wilkes, who figured prominently in the later battles—in 1782.70

By the time that Wilkes’ party returned to power, they had been formulating a reform agenda for the previous twelve years. This agenda focused on insulating the government from any form of royal influence. They initiated this process, which had immediate effect, but it continued

67

R.T. MACKENZIE, BRITISH POLITICAL PARTIES, 58 (1955).68 DAVID LINDSAY KEIR, THE CONSTITUTIONAL HISTORY OF MODERN BRITAIN 1485-1937, 333 (1938) 69 Id. at 331.70 Id.

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under Pitt the Younger. “The process by which the central executive was subjected to investigation and reform by Parliament was begun in 1782 . . . to diminish the royal influence based on patronage . . . . the personal share of the sovereign in government steadily lessened after the fall of Lord North’s ministry in 1782.”71 The Civil Establishment Act of 1782 drastically reduced the king’s ability to influence Parliament through maintenance, and thus reinforced the cabinet’s unrivaled control over executive affairs. Now the king’s personal funds, which were disbursed as part of the civil list from the Treasury, were being brought steady under Parliamentary control, thanks to the efforts of Edmund Burke and his allies. This, along with the Paymaster-General of the Forces Act of 1781, was the means by which “public money in general and the Civil List in particular were brought under parliamentary control.”72

By the time of the Framing, the range of coercive measures that Parliament could use to prevent the king from subverting it had been rounded out: After 1688, Parliament had more options than the last resort of forcing the king from office. It could issue much less drastic, yet painful, reproaches to the monarch by reducing his salary (and thereby, his ability to influence policy through the maintenance of parliamentarians). Parliament long had the power to snip the hair suspending the sword of Damocles hanging over the monarch’s head by forcing his abdication: it could now also cut his purse-strings.

From this time onwards, Parliament would be increasingly willing to disregard even the pretense of being subordinate to the Crown. In 1782, Charles James Fox convinced the Parliament to defy the King’s wishes and to form a government formed explicitly to carry out a foreign policy initiative contrary to the King’s preferences.73 This was an act from which the monarchy never really recovered, despite Pitt’s later victory over Fox —no monarch since George III has even attempted to act as his own prime minister and to manipulate the cabinet into implementing his own ideas about foreign affairs. It could hardly have been lost on the American Revolutionaries that Parliament had forced an end to the conflict on the king, who tendered his abdication after agreeing to the settlement embodied in the Treaty of Paris.74 Soon after this, George III’s madness had become so pronounced as to lead to the belief that he would never recover. At this point Parliament’s supremacy was plainly affirmed, as the possibility of a 71 Id. at 373-75.72 HENRY ROSEVEARE, THE TREASURY 1660-1870: THE FOUNDATIONS OF CONTROL, 63 (1973).73 JEREMY BLACK, GEORGE III, AMERICA’S LAST KING 252-63 (2006).74 JOHN BROOKE, KING GEORGE III, 221 (1972).

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regency was discussed. For the first time this discussion took place not in private, but openly in Parliament. Pitt the Younger, who was certainly no radical or enemy of the king, noted that should George fail to recover, it would be up to Parliament to decide who would serve as the regent, and ultimately become the next king. He argued forcefully that Parliament could freely choose to depose the king and could appoint someone other than the Prince of Wales without any constitutional difficulties whatsoever.

This debate demonstrates that the practical subordination of the king to Parliament and his reduction being merely the formal head of the British government had become obvious by 1787. In the light of this universal acknowledgment of the realities of the British constitution, it appears that Yoo’s argument that the Framers turned to British constitutional practice when searching for a strong model of a solitary executive wielding strong powers rests on a faulty premise. His argument that “the British constitutional system had reached an accommodation concerning the royal prerogative over war and treaties that had provided the legislature with [and, by implication, left the king with] a significant role”75 cannot stand. The emergence of parliamentary supremacy in the eighteenth century did not create an “accommodation” with the Crown, even less that the American Revolution led to an “accommodation” with George III. As for the royal prerogative, it was reduced to the status of a legal fiction, as it could only be exercised on the advice of a cabinet minister responsible to Parliament.

That said, since Yoo has argued that the Framers drew upon the British constitution and used the king’s powers as a model for the president’s, his argument could be salvaged if the Framers were, in fact, ignorant of the real position that the Hanoverian monarchs held in government after the development of the constitutional conventions that reinforced parliamentary sovereignty. Accordingly, this paper must adduce the evidence of this knowledge, which is ample. This will also serve to demonstrate that Yoo has been snared by whig methodology in assuming a gradual and inexorable development, wherein British constitutionalism evolved seamlessly into its American variation.

In fact, nothing could be further from the truth. The following sections will demonstrate that there simply was no ‘baseline’ view of what the ‘executive power’ was in British constitutional theory in 1787, since the very idea of a separation of powers was an essentially contested concept. In the eighteenth century constitutional theory that ultimately prevailed in Britain, the concepts of separate executive and legislative powers ceased to

75 Yoo, supra note 6, at 53.

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have any currency, as the government evolved into one of fused powers. The Constitution’s conception of what powers should be granted to the executive could not possibly have been derived from a system that had abandoned the concept of the separation of powers. Instead, the Framers reached back to a constitutional model that British theorists had superseded,thereby demonstrating that there were many models for executive power that they could draw upon during the revolutionary period. Far from being preordained, their choice was determined by an ideological context developed over the previous two centuries, about which Yoo appears to know very little. His narrative of the gradual emergence of a consensus in favor of a strong executive is at odds with history.

1. The Framers’ acquaintance with the practice of parliamentary supremacy

The American revolutionaries were acutely aware of the discrepancy between the formalities of “a mixed constitution”76 and the practice of parliamentary supremacy. The colonies had been subjected to parliament’s dictates in a harsh and peremptory manner, and in response they had discussed and taken issue with the theory that justified it at great lengthduring the critical pre-revolutionary period between the passage of the Stamp Act of 1765 and the Declaration of Independence.

The Stamp Act was the first imposition of direct taxes inside the colonies. Violent resistance followed; this was justified by arguing that the tax had been levied by a body in which the colonies had no representation. What Yoo and other scholars who fail to engage with the constitutionalist discourse of the revolution fail to note is the importance of parliament’s response: the Declaratory Act. After the backlash against direct taxation, Parliament bowed to necessity and repealed it, but accompanied this with the parallel passage of this Act, since Chancellor of the Exchequer WilliamDowdeswell had warned the House of Commons that while “repeal [of the Stamp Act] on expediency is proper,” “if you let this repeal go without an assertion of right they [the colonists] will conclude that Parliament has given up the right absolutely.”77.

The preamble to the Declaratory Act noted that various colonial assemblies had “passed certain votes derogatory to the legislative authority of parliament.” In response the Act established that “Parliament had, has, and of right ought to have, full power and authority to bind the colonies and

76 See FRANCIS WORMUTH, THE ORIGINS OF MODERN CONSTITUTIONALISM, 50-59 (1949).77 JOHN REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: THE AUTHORITY TO LEGISLATE, 37 (1991).

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people of America, subjects of the crown of Great Britain, in all cases whatsoever.”78 This was taken as a threat to pass legislation imposing taxes on the colonies in the future, it also provoked a response from the American patriots because it appeared to dispense with remaining pretense of a balanced, or mixed, British constitution, in which the colonists held rights and charters from the king that could not be overruled by the legislature.

The patriots were correct. Speeches in the House of Commons confirmed that the Act was intended to defend the principle of the supremacy of parliament: Attorney-General Charles Yorke stated that “I consider this way of proceeding [repealing the Stamp Act while at the same time passing the Declaratory Act] most consistent with your [parliament’s] dignity separating the question of right from that of expediency . . . . I am clear on the right. Parliament must be supreme . . . The king [by granting colonial charters] cannot grant away the supremacy of Parliament.”79 Even the defenders of the American patriots in parliament, such as Richard Hussey, “had no doubt Parliament was supreme”80 and therefore that no charter given to the colonies by the king could prevent Parliament from legislating and taxing there. The Declaratory Act and these ensuing developments put the American patriots on notice that the British constitution was no longer mixed or balanced, never mind having anything like a separation of powers. Parliament was firmly in control over the machinery of what had previously been considered Crown’s levers of control (the Board of Trade was supervised by the Privy Council, but this was now responsible to Parliament); it now used the prerogative powers of these bodies in foreign affairs in ways that evaded even the desultory checks and balances of the early Stuart era.

This assertion of parliamentary supremacy over both the king and the colonies was noted by American patriots: criticizing the Act on these grounds, one Philadelphia correspondent pointed out that the earlier Irish Declaratory Act had not made that colony subordinate to Parliament, but only to the Crown.81 Accordingly, Thomas Bradshaw noted that “the Americans are less pleased with the repeal [of the Stamp Act] than displeased with the declaration of right.”82 The Boston Evening-Post asked that if America “tacitly gave up your right … [by assenting to the Declaratory Act . . . to what trifling purpose have we exerted ourselves in glorious opposition to the Stamp Act? At best we have put the evil day afar 78 Declaratory Act, 1766, 6 Geo 3 c 12 (Eng.).79 Reid, supra note 77, at 38.80 Id. at 41-42.81 Id. at 50.82 Id. at 53.

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off.”83 That day arrived quickly, as two years later the Townshend duties were passed by Parliament in order to raise money in America for Britain.

Colonial opposition to the Declaratory Act’s vigorous assertion of the supremacy of Parliament then exploded, catalyzing the creation of a well-formulated criticism of this doctrine that quickly reached England. Patriots were quick to label this as the imposition of arbitrary power, unchecked by any possible restraint, which had been anathema under earlier theories ofthe balanced constitution. The patriots’ rhetoric asserted that the imposition of the arbitrary power of Parliament reduced the colonial subjects to the status of slaves. Speaking of the Declaratory Act, delegates of the counties of Pennsylvania told their state representatives that the assertion of parliamentary supremacy “cannot possibly form a more clear, concise, and comprehensive definition and sentence of slavery.”84

This complaint, elaborated into a constitutional argument that the Act had done away with any vestige of balance in the British constitution—that Parliament by adopting a European theory of sovereignty had set itself up as an unbound and arbitrary power—was repeatedly reasserted up to the very eve of the Declaration of Independence. Addressing the question of Parliamentary supremacy, the Second Continental Congress asked:

What is to defend us against so enormous, so unlimited a power? Not a single man of those who assume it is chosen by us; or is subject to our control or influence; but on the contrary, all of them exempt from the operation of such laws.85

The patriots were clearly well aware that the legal history of seventeenth and eighteenth century Britain had not led to the development of a separation of powers, but rather, that it had created the opposite type of political system, one which political theorists call a system of fused powers. Had, as Yoo suggests, “the Framers looked to recent British political history [rather than to earlier periods of British constitutional history, as will be demonstrated in the next section] as much as to intellectual thought on the separation of powers [] [w]hile drafting and discussing different constitutional provisions,” they would have created government without any checks and balances. As Bagehot noted, the “Americans of 1787 . . . were contriving a contrast to [the British constitution].” He also noted that the divergence between the two models of government had been plain at that

83 Id. at 55.84 Id. at 57.85 Id., at 58.

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time: “Even in their time, the British system had in practice discarded the doctrine of Separation of Powers . . . and was tending to adopt the very different doctrine of Concentration of Responsibility.”86

Yoo’s particular claims about how the eighteenth-century British constitution provided a precedent for the balancing of executive and legislative powers by setting out formal roles that the Crown and Parliament were to play in war and treatymaking87 simply make no sense at all once we acknowledge the reality of parliamentary supremacy. Likewise, his anachronistic discussion of parliament’s power to impeach the “king’s ministers” as a part of a scheme of divided powers,88 fails to recognize that the Cabinet members’ status as the king’s servants had been reduced to the status of a legal fiction during the earlier part of the eighteenth century.

The question that this article must answer is this: since both the Framers and the British defenders of parliamentary supremacy all understood that the British constitution in 1787 did not grant strong powers to the executive, how has Yoo managed to arrive at the opposite conclusion? The next section will demonstrate that this stems from his inability to understand the historical context that he believes is crucial – the constitutional history of the seventeenth and eighteenth centuries, in which he contends a balance of powers between the crown and Parliament was created. If we want to redeem this attempt to understand the constitutional text by reference to the eighteenth-century Anglo-American constitutional context, we must correct all the errors in his seventeenth and eighteenth century constitutional history. It will also be demonstrated that Yoo could only have strayed so far from the truth by adopting the methodology of whig history —by assuming that we can understand the past best by conceptualizing it as a steady march towards the present. This approach blinded him to the fact that it was precisely this history that led the Framers to reject a constitutional framework that would give strong powers to the executive branch.

III. THE CONSTITUTIONAL CONTEXT OF THE REVOLUTION

After correcting the errors of Yoo’s seventeenth century legal history, it will be evident that Yoo has come to conclusions about the Framer’s ideas that are in opposition to their own because of his reliance on faulty premises. As explained above, rather than their being a unity of constitutional thought in the Anglo-American world, Britain and America

86 RAMSEY MUIR, HOW BRITAIN IS GOVERNED, 21 (4th ed. 1940).87 Yoo, supra note 6, at 86-89.88 Id., at 44, 53.

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were profoundly divided by their conceptions about the British Constitution. We will see below that the Framers were not swayed by the more modern constitutional theory developing in England at the time, who put forward ideas about executive power that the Framers concluded was consistent with earlier royalist views that they had contested. Rejecting theparadigm of sovereignty, the Framers oriented themselves instead towards seventeenth-century constitutionalism, as represented by Edward Coke and Matthew Hale, and the theory of the ancient constitution.89

A. Seventeenth Century Constitutional Conflict Did Not Presage a Separation of Power

As is typical of whig history, when laying out his cursory history of seventeenth and early eighteenth century constitutional history Yoo fails to note that this history itself was vigorously contested: the Framers and the British advocates of parliamentary supremacy drew diametrically different conclusions about the fundamental ideas of English liberty. Animated by a teleological view of the development of Anglo-American constitutionalismin the seventeenth century, Yoo argues that “the contest between Crown and Parliament for primacy in foreign affairs was a critical element of British [sic] civil war,90 the Interregnum, the Restoration, and the settlement.” He further asserts that this process of constitutional development created “both separation of powers principles and the checks and balances” which “two centuries of political struggle had wrought.”91 However, there is no scholarly support for the view that Parliament was fighting for primacy in foreign affairs in the English Civil War, rather than for a constitutional order that fixed the powers of the executive to clearly defined limits, as required by their vision of the rule of law. To understand how Yoo has been led astray, we must retrace his steps and see where he steps off the path of mainstream academic consensus about these two centuries of English history.

89See Alford, supra note 24.90 Note the anachronism: It was the English civil war, since Britain was not created as a political entity until the Act of Union of 1703.91 Yoo, supra note 6, at 46.

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1. Understanding the underlying causes of the English Civil War and their effect on early American ideas of executive power

Yoo’s assertion that the struggle between Parliament and King James I was, in some important respects, a battle over power in foreign affairs is necessary to the general line of argument that spans his book, as heerroneously concludes that by the time of the framing, the British constitution entrusted matters domestic to Parliament and matters foreign to the executive branch, thus establishing a British precedent for his interpretation of the Constitution’s Articles I and II. In part, the error is attributable to the mistaken construal of the phrase “matters of state.” The article must establish that Yoo gives this phrase, as uttered by James I, a thoroughly anachronistic meaning. Admittedly, at that time matters of state might include foreign affairs, but it will be demonstrated that it was clearly not the intrusion of Parliament into this sphere that caused friction with theking. Rather, the problem was that this category, connected as it was to the even more problematic concept of royal prerogative, was potentially boundless, at least when seen from James’ point of view. Parliament was concerned with absolutism —overweening executive power.

While king of Scotland’s throne James had written a defense of quasi-absolutism entitled The True Law of Free Monarchies, wherein the king, and not his subjects, was “free”: “the essence of a free monarchy was that royal power was limited by no human law.”92 After ascending the throne of England, in both theory and practice James demonstrated his disdain for any purported restraints on his own executive power —drawing no distinctions between foreign and domestic spheres. Unfortunately for James, the existing English constitutional restraints were already formidable, thanks to the evolution of “higher law” or “fundamental law” constitutionalism during the Elizabethan era.93 By the early modern era the common belief was that the executive prerogative . . . was subject to legal definition and subordinate to the subject’s legal liberties, such as the absolute rights to one’s property and to the guarantees specified in the Magna Carta.94

92 J. P. SOMMERVILLE, ROYALISTS AND PATRIOTS: POLITICS AND IDEOLOGY IN ENGLAND 1603-1640, 37 (1986).93 Alan Cromartie, The Constitutionalist Revolution: An Essay on the History of England, 1450-1642 (2009).94 John Reid, The Ancient Constitution and the Origins of Anglo-American Liberty (2005) 110-14.

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a. The battle over royal prerogative as a decisive influence on the constitutionalist tradition’s view of the dangers of executive power and the rule of law

Two views of the executive power lay at the heart of the constitutional struggles preceding the civil war. These divergent views of the king’s ability to define the scope of his own royal prerogative were evident from the beginning of James’ reign. Long before 1618 (a year to which Yoo pointed as being critical to the rift between the two branches of government owing to disputes over foreign policy),95 the crown and Parliament had come to odds over fundamental constitutional questions. One of his first actions as king of England was to attempt to force, on his own authority, a complete overhaul of the English constitution, through a union of the realm with Scotland.96 After failing to force this very contentious plan to fruition, relations between James and Parliament began to sour, long before any disputes over the conduct of English foreign policy on the continent emerged. James, owing to his financial problems (which, contra Yoo, predate disputes over foreign policy) attempted to articulate anextraordinary prerogative to raise money for any purpose.

The constitutional battles that followed related not to foreign policy, but to whether this prerogative had any limits and whether it could also be employed to crush those who had raised legal challenges to this extraparliamentary taxation. As will be set forth below, in the course of many attempts to raise funds James often asserted that his powers—even over matters that appear to us to be entirely domestic—were unlimited because of his duty to attend to matters of state and to protect the nation. He also asserted he was the sole judge over whether any danger to the public existed and resisted any attempts to force him to disclose his reasons or justify his conclusions. These assertions of executive power led to considerable strife.

One pertinent early example from 1606 is found in the record of Bates’s Case, when a merchant sought to challenge the king’s power to raise the import duties, a power which Bates argued belonged to Parliament alonesince time immemorial. However, in an incendiary decision Chief Baron of the Exchequer Fleming ruled that the King possessed a plenary power to act for the welfare of all his subjects, which was not restrained by the law. Thisformulation prefigured many later arguments for broad executive powers in

95 Yoo, supra note 6, at 47.96 Bruce R. Galloway & Brian Levack, THE JACOBEAN UNION: SIX TRACTS OF 1604 (1985) ix-xxvii.

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an emergency based upon the doctrine of necessity. Discussing Bates’s Case, Johann Sommerville (quoting Fleming) noted:

“The king’s power is double, ordinary and absolute” . . . . His ordinary power applied in cases where the public interest was not involved, and here the monarch was bound by the common law . . . . But in matters which concerned “the general benefit of the people” the king possessed an absolute power, subject only to the rule of “Policy and Government.” The implications of these rules, said Fleming, were to be determined by “the wisdom of the king, for the common good” and “all things done within these rules were lawful.” If the king decided that something was in the public interest, it was not fit for subjects to question his judgment.97

Notice that this makes no reference to a “foreign affairs” power; the extraordinary prerogative is rooted in the public interest, which has clear domestic implications. Seizing on this very favorable precedent, James issued letters-patent (executive orders) imposing taxes on many different commodities, in what was perceived as nothing more than a bid for enhanced revenues: “The Stuarts [James and Charles I] used impositions not to regulate trade but to raise cash. Indeed, they derived more revenue from this source than from Parliament —a fact which put the continued existence of Parliament in jeopardy.”98

Later, the Stuarts would depend for funds on the grants of monopolies (issued by royal proclamation, arguably contrary to statute) for the production of many basic items, something that virtually all contemporary commentators denounced as squarely against the common good.99 This was clearly a domestic measure and had no connection to foreign affairs, demonstrating that the scope of the concept of “matters of state” was larger than Yoo indicates. Despite the looming implications of this interpretationof the executive prerogative when matters of state were invoked, following Bates’s Case, this action was—in almost all matters—legally unassailable: the king had merely to say that he was acting in the public interest to settle the issue, even when he was clearly abusing his power and damaging the common interest that he was sworn to protect.

97 Sommerville, supra note 92, at 152 quoting An Information Against Bates (Bates’s Case), 145 Eng. Rep. 267 (1606).98 Id. at 152 (emphasis added).99 Sommerville, supra note 92 at 155.

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That said, this case could not protect the king from Parliament or the common-law judges, since many believed that the decision in Bates’s Case had ignored certain basic premises of the English constitution. They also feared that extraparliamentary taxation threatened to destroy the English constitution itself, since it would allow James to govern as an absolute monarch: if he had ready access to revenue without needing to call Parliaments, no laws could ever be passed to challenge or even censure his abuses. James Whitelocke and Nicholas Fuller said so during the debates of 1610, which came close to igniting a constitutional crisis.

Sommerville identifies Parliament’s grievances of 1610 as sounding for the first time the enduring theme of the constitutionalist struggles against the early Stuarts, which would persist right up to the outbreak of the English Civil War. He notes that these crucial speeches from Whitelocke and Fuller “were published in 1641 as propaganda justifying recent proceedings in the Long Parliament —another indication of how little the essentials of the anti-absolutist case had changed in the course of the early seventeenth century.”100 The battle had always been over whether the king’s powers had limits; Yoo’s assertion that “foreign affairs became the source of one of the central conflicts between the monarchy and Parliament”101 explains earlier events by reference to those that came later; he cannot explain the disputes of 1604 to 1617 by reference to the 1618 debate over foreign policy upon which he focuses without whig methodology and without ignoring longstanding academic consensus to the contrary.

From the seventeenth to the twentieth centuries, the consensus view of this struggle has always been that the early Stuarts attempted to disrupt the existing constitutional order of England, but Yoo, determined to describe the period as one in which checks and balances emerged, continually attempts to shoehorn the facts into a narrative where the implicit antagonist is an overweening Parliament intruding into the kings’ business. For instance, Yoo asserts that “Charles I’s ascension to the throne the following year (1625) led Parliament to push its powers even farther.”102 He further argues that Charles instituted a period of personal rule as a means of “[r]esisting what he saw as further encroachment on the prerogative,” during which “the crown raised funds through forced loans, a tax on

100 Id. at 153.101 Yoo, supra note 6, at 46.102 Id. at 47.

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maritime communities to support the navy, and the sale of royal property.”103

This evades the critical question of whether or not Parliament was in fact pushing its powers beyond existing constitutional limits, or rather—as the consensus view has always maintained—that it was Charles who had been attempting to push his prerogative powers past all legitimate bounds. There is ample historical support for the latter: Charles had in fact suspended Parliament in order to prevent them from presenting a public complaint about the collection of taxes that they had not approved, something which they argued made “the hearts of your people are full of fear of innovation and change of government.”104

Yoo’s second reference to Charles’ reign (which asserts that the king was merely resisting Parliamentary encroachment on the prerogative) glosses over the momentous importance of the Forced Loan (which led to The Five Knights’ Case,105 the most important struggle over habeas corpus in Anglo-American legal history) and the Case of the Ship Money,106 which determined the course of discussions over who has the power to declare a state of emergency in a constitutional state for centuries to come. One year after assuming the throne, Charles decided to tax his subjects directly, but to pretend that it was merely a loan. The Forced Loan fooled no one, and arguments circulated that this specific practice had been banned by medieval statutes.107 These argued further that the king could not use his prerogative to ignore a statute and violate his subjects’ absolute right to their property.108 Charles did not resort to this form of taxation rather than a parliamentary levy because of some dispute over foreign policy: it was necessary because Charles had dissolved Parliament in order to protect the Duke of Buckingham, one of his favorite courtiers.109

The Forced Loan led to two historically significant confrontations between the king and Parliament on the issue of the scope of the royalprerogative. The first was over the passage of the Petition of Right, a statute that would later be seen as part of the fundamental laws of England, and which was “the most important affirmation of personal liberty yet made

103 Id. 47–48.104 Remonstrance of Parliament 1628 quoted in JOHN REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION THE AUTHORITY TO TAX, 40 (1987).105 Darnel’s Case (The Five Knights’ Case) (1627) 3 How. St. Tr. 1 (K.B.).106 R v Hampton (Case of the Ship Money) (1637) 3 How. St. Tr. 825.107 Ryan Patrick Alford, Star Chamber and the Regulation of the Legal Profession 1570-1640, 51 AM. J. LEGAL HIST. 639, 691–93 (2011).108 See Id. at 692-93, quoting letter of Oliver St. John.109 Sommerville, supra note 92, at 128.

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by an English parliament.”110 As Sommerville noted: “The Petition of Right acknowledged no emergency royal powers of taxation. The claim of necessity, in short, did not justify the king in flouting the law. It was, in any case, self-contradictory to infringe the liberties of the subject for the sake of promoting the public good.”111 It also disavowed the king’s prerogative of imprisonment in exceptional cases, which had been already called into question during the Five Knights’ Case. These knights had been arrested on the Charles’ orders in 1627 for having resisted the Forced Loan. Although narrowly decided, the decision was a victory for the rule of law, as it held that the royal prerogative to imprison for matters of state had some legal limits.112

In the course of proceedings, Attorney-General Sir Edward Heath conceded that although the king had both the power to issue commands that were defined by the law of the land and an “absoluta potestas [absolute power] that the sovereign has. But when I call it absoluta potestas I do not mean that it is such a power as that a king may do what he please, for he has rules to govern himself by.”113 That said, royalist theorists argued that the only the king himself could judge his own adherence to these rules; no one else could challenge him when he argued that special circumstances applied that allowed him to use his absolute power in defense of the common good, or question whether he had done so within the appropriate limits set by the law of God that had granted him these powers. Unsurprisingly, the constitutionalists considered this argument unacceptable.

Naturally, constitutionalists complained that this was against Magna Carta, but absolutist theorists countered that there were historical precedentsfor this approach. For example, the influential royalist theorist William Lambarde114 had earlier argued that while “Magna Carta had re-established the rule of the common law in many areas . . . kings retained the old ‘absolute authority’ in ‘a few rare and singular cases’ . . . [accordingly, the Member of Parliament] [Edward] Alford had warned the Commons that as long as ‘matters of state’ remained undefined the royal power remained

110 Robert Zaller, ‘Alford, Edward (1565/6–1631/2)’, OXFORD DICTIONARY OF NATIONAL

BIOGRAPHY, (Oxford Univ. Press, 2004) available at http://www.oxforddnb.com/view/article/37106.111 Somerville, supra note 92, at 158.112 See Mark A. Kishlansky, Tyranny denied: Charles I, Attorney General Heath, and the Five Knights’ Case 42 Hist. J. 53, 53–82 (1999).113 J. W. GOUGH, FUNDAMENTAL LAW IN ENGLISH HISTORY, 72 (1955).114 Alford, supra note 107 at 653–655.

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open to abuse.”115 Accordingly, the practice was banned in the Petition of Right.

Charles resisted its passage, as he predicted that his power to raise taxes without Parliament and to imprison those who resisted without showing any cause would later be necessary. Summarizing the arguments of his supporters, Sommerville notes that they declared that:

[K]ings rule not only by the common law but by “a law of state” . . . “the common law,” he said, “does not provide for matters of state.” Where such matters were at issue, the king was to govern by the law of state, and could ride roughshod over libertiesguaranteed by the inferior and irrelevant common law. The king’s power of imprisoning without cause shown was “committed to him by God.” Of course he could suppress the cause, for “every state has secrets of the kingdom.”116

Note that the concept of the royal prerogative was not limited or even linked to foreign affairs; rather, Heath made it clear that the extraordinary prerogative was instead connected to the king’s power to act for the public good.

Owing to considerable financial pressures, Charles had proved willing by the spring of 1628 to sign the Petition of Right into law, at least if a caveat were to be added: namely, that the statute did not affect his sovereign power. Parliament refused. Alford used the debate to rebuke both the king and to explicitly denounce the concept of sovereignty. He asked, rhetorically: “What is sovereign power? [Jean] Bodin says that it is free from any condition. By [agreeing to] this, we shall acknowledge a regal as well as a legal power.”117 Parliament, following Alford’s advice, refused to acknowledge the existence of an extraordinary prerogative. For similar reasons, they rejected an amendment proposed by the House of Lords that would allow the king to imprison subjects for a limited time without showing cause “for reasons of state.” Edward Coke noted that allowing this would amount to Parliament’s recognition of “an intrinsic prerogative . . . entrusted by God . . . [that] no man can take away.”118 Again, note that the concept of “reasons of state,” just as it had been invoked in the Five

115 Somerville, supra note 92, at 164.116 Sommerville, supra note 92, at 167-68, quoting the speeches of Serjeant Ashley in Parliament.117 Sommerville, supra note 92, at 168–69.118Id. at 169.

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Knights Case, had no necessary connection with foreign affairs. Parliament, after considerable struggles, managed to pass the Petition of Right without these amendments and forced Charles to sign it. Unfortunately, he proved unwilling to comply.

Charles repeatedly resorted to extraparliamentary taxation in order to raise funds in peacetime. He attempted to disguise this with various transparent fictions, so that his measures might pretend not to be unprecedented.119 The raising of these funds, named “Ship Money” (as these levies were imposed in lieu of the obligation to furnish ships) were justified with the assertion that they were to be spent on coastal defense from piracy, although it was obvious since they were to be paid into the general account at the exchequer that they would instead be used to pay Charles’ debts. In 1635, Charles made a serious mistake by attempting to raise Ship Money in inland counties. This was novel and proved controversial. Accordingly, Yoo’s assertion that this consisted in “a tax on maritime communities to support the navy”120 is wrong and misses the point completely: Charles insisted that he had no duty to answer any questions from his subjects about whether or not this “tax” actually been spent on maritime defense.

John Hampden’s refusal to pay set the stage for the last great showdown before the Civil war on the question of the royal prerogative. “[T]he point before the court . . . was the same that had already been decided in Bates’s Case and [the Five Knights’] Case . . . the problem was to determine the King’s discretionary power to act for the public good.”121 For Hampden Oliver St. John argued that if the king alone was the judge of whether an emergency existed and also the sole judge of the scope of his prerogative, then English subjects had no property rights. This of course was a summary of the primary complaint found in the Petition of Right, which had asserted that this absoluta potestas was not consistent with the “fundamental propriety in his goods and a fundamental liberty of his person,”122 which the constitutionalists argued that king was bound by the law to respect, even during purported emergencies.

119

This was characteristic of his approach to fund-raising; he had earlier retroactively fined his wealthy subjects for not attending his coronation to present themselves as knights for his royal army. These fines in distraint of knighthood were based upon long-obsolete and forgotten statutes from the thirteenth century.120

John Yoo, supra note 35, at 48.121

D.L. Keir, The Case of the Ship-Money, 52 L.Q.R. 546, 546–48 (1936).122 Petition of Right, 1627 (Eng.)

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Yoo committed a critical error in conceptualizing the dispute as one involving the division of powers between the Stuart kings and Parliament, rather than one predicated on the necessity of rule of law and the danger of arbitrary power to liberty. Banks argued in response to St. John that the king “is an absolute monarch and ‘as he is an absolute monarch, so all these iura summae magistatis [powers of the supreme majesty] are given to him by the common law.’ His bona fides [good faith] must be presumed . . . . Parliament must not even inquire into whether the King has used his ordinary revenue for the [stated] purpose.”123 Banks and Sir Edward Crawley asserted that necessity, as assessed by the king, was always superior to the law of the land, which was both inferior and purely parochial.124

This theory of the king’s prerogative had prevailed in this case, although the king’s judges (all twelve had sat in judgment owing to the importance of the case) sought to decide it on the narrowest grounds, and even then, the majority only prevailed by seven votes against five. The ruling depended on the argument from necessity: “In a case of necessity, he said, the king had ‘regal power’ to make extraparliamentary levies;”125 the king alone was the judge of the necessity. This judgment was an extension of Fleming’s rationale in Bates’s Case;126 what was different about this decision was that it explicitly ignored an intervening statute—the Petition of Right—which Parliament had passed to prevent the king from taking these sorts of actions.

Following the judgment’s reasoning, Parliament could never bind the king, since he could operate above the statutes whenever he perceived anemergency, even in peacetime. It would not been long until the reckoning: Charles would be executed for treason, having violated his coronation oath to rule in accordance with the law of the land. In a direct rebuke to the opinions in Bates’s Case and The Case of the Ship Money, the king’s prosecutor had asserted at Charles’ trial: “it is one of the Fundamentals of Law that the King is not above the Law, but the Law above the King.”127 Yoo pays no serious attention to parliament’s justification for this act, ignoring the role of the rule of law and instead insinuating that the conflict involved a struggle among the branches of government for control over foreign policy. This allows him to argue that the English Civil War led to a separation of powers in the British constitution that never existed.

123

Id., at 560; Mortenson, supra note 33.124

Gough, supra note 113, at 75.125

Sommerville, supra note 92, at 162. 126

Id., at 161-62.127

4 St. Tr. 1019.

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B. Understanding how the American Reaction to Seventeenth Century Developments in England Shaped the American Revolution

The Founding Fathers’ relationship to the British constitutionalist struggles of the seventeenth century is central to the question of what sort of constitutional order they themselves created. One must remember that the legal history of the United States begins at that precarious moment when the struggle between the crown and Parliament was nearing its peak. The legal existence of the colonies that were to form the nucleus of the British presence in North America began in the time between the critical disputes over the limits of executive power, namely between Bates’s Case and the overturning of the Case of the Ship Money. This was a time when two views of executive power were still extant and the question of whether absolutist or constitutionalist ideas would prevail was still open.

It is clear that the colonists were squarely on the constitutionalist side of the debate, as the Puritans were already indisposed towards the king due to his religious inclinations, and were keen to avoid being subjected to strong executive authority. This was central to the early colonial prejudice against what were then understood to be absolutist ideas about the emergency powers incumbent in the executive prerogative. Yoo has ignored the American history that demonstrates that British and American ideas about the need for a separation of powers and limited government were diverging in the seventeenth century. It will be demonstrated that his discussion of the Restoration and the Glorious Revolution is marred by his fixation on proving that these events led to a British constitution wherein the king had power over foreign affairs and Parliament power of domestic matters. The true facts about this time period instead point to an unwavering dedication to the rule of law within America and clear mistrust of strong executive power. In short, it demonstrates that Yoo’s whig history conceals the evidence that the constitution’s approach to the president’s powers is precisely the opposite of his interpretation.

1. Early American History and its Influence on its Constitutionalism

By moving to a remote corner of the emerging empire, the earliest settlers did manage to achieve something very close to independence from the burgeoning Stuart royal authority. This remoteness also encouraged a parallel constitutional evolution. From the beginning there was something different about the law in the colonies: it was explicitly predicated on what

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the constitutionalist opposition in Parliament would have called written fundamental law, which the royalist theorists in England had resisted:

[T]he charter or other basic document of each colony was recognized . . . as a species of written and controlling law . . . as a result, the colonists learned through experience that men could govern successfully within the confines of a written higher law . . . at the same time, the assemblies learned to appeal to the charter and to make capital out of the blessed word “unconstitutional.”128

Accordingly, “the growth of standing law in the colonies did much to give practical content to the slogan ‘a government of laws and not of men’because “the written constitution was designed primarily to limit the whim of the executive.”129 The colonists, being seventeenth centuryconstitutionalists, believed in mixed government and shunned absolutism. For instance: “the Massachusetts [Bay Colony] charter was considered a written guarantee of civil and political liberties . . . just as these same Puritans thought of the Magna Carta as a general guarantee to all Englishmen, themselves included, of civil liberties.”130

These colonies were largely unaffected by the English Civil War and the Interregnum, except insofar as these events made them more attractive destinations for religious dissenters. These puritans were likely to be viscerally opposed to absolutist ideas about the royal prerogative, which they associated with Anglicanism and the Episcopal hierarchy. The Restoration caused no immediate disturbance to the constitutional order of the colonies, but the late Stuart tendency towards absolutism would make itself felt on both sides of the Atlantic. Consequently, there were clear motives for the Glorious Revolution in the colonies just as there were in England; these were all closely related to the yoke of excessive and arbitrary executive authority.

Charles II’s administration recognized for the first time the considerable economic importance of the colonies to England. They saw the colonies as both a source of important raw materials for English industry and as a market for finished goods.131 The Navigation Acts of 1660 and 1663 (along with similar statutes such as the Staple Act and the Act of Enumeration)

128

CLINTON ROSSITER, SEEDTIME OF THE REPUBLIC, 32 (1953).129

Id., at 34.130

MICHAEL HALL ET AL., THE GLORIOUS REVOLUTION IN AMERICA, 10 (1964).131

DAVID LOVEJOY, THE GLORIOUS REVOLUTION IN AMERICA, 4 (1972).

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“guaranteed to English merchants the richest fruits of colonial commerce,”132 a goal that was important enough to be considered “an affair of state”133 that should be regulated extensively by various executive boards, such as the Lords of Trade. These regulations hit certain colonies very hard, but Massachusetts less so, purportedly because of prior evasion of the rules forbidding exports to continental Europe. Early efforts at enforcement against those who resisted were not particularly effective, but they were resented. The colonies had been virtually independent for decades, and yet Charles II was not content merely to “regulate” trade but to control it. To that end, he sent a commission to Massachusetts to “persuade them to accept fully the sovereignty [or rather, the absolute authority] of the King.”134

Charles thought that he had the power to amend or revoke colonial charters, on the theory that what his father had made, he might unmake. He instructed his commissioners “to lead and dispose them to desire to renew their Charters and to make such alterations as will appear necessary for their own benefit.” If this were to be achieved, then he could avoid controversy by claiming he was amending those provisions that needed alteration “for the public benefit of the plantation” but might also have the opportunity to amend “other inconvenient ones” by means of the fiction that this was also done in response to “a general consent and desire.”135

This strategy was “a total failure,”136 but the king would soon need to turn to direct measures. In response, by 1676 various constitutional crises had flared in the colonies; their legislatures had openly questioned the scope of the executive authority of the new royal governors. In Virginia, Bacon’s rebellion had led to the burning to the ground of Jamestown and the recalling of Sir William Berkeley. The rebellion had multiple causes, but Charles II’s Privy Council “flatly asserted ‘that the rebellion of Virginia was occasioned by the executive power of the assembly,’” which could not coexist with Berkeley’s.137 Charles responded by granting Virginia a charter in 1676, but it was seen by the colonists as deficient, as it seemed to “stress[] the colony’s dependence upon the crown . . . there was little protection afforded the assembly of Virginia against the power of the Crown. The most glaring omissions in the new charter were . . . a guarantee

132

Rossiter, supra note 128, at 81.133

Lovejoy, supra note 131, at 4-20.134

Hall, supra note 130, at 11.135

Hall, id., at 14-15, (discussing Charles II Private Instructions to Colonel R. Nichols).136

Id. at 11.137

Lovejoy, supra note 131, at 50.

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to Virginians of the rights of Englishmen, and specifically the right to consent to taxes.”138 Here, we see a clear continuation of early seventeenth century notions about the scope of the executive’s prerogative being made in the colonies long after they had been resolved in England. The persistence of the seventeenth century constitutional paradigm and its inherent tensions in the colonies was also a factor in the divergence of ideas about sovereign power and the rule of law on opposite sides of the Atlantic.

1676 also saw increased discontent with the Crown and its royal governor in Massachusetts. Writing to Charles, Governor Edward Randolph noted that in Boston, many ships from European nations were present in the harbor, in open violation of the Navigation Acts. In response, the governor of the Massachusetts Bay Colony (empowered by its corporate charter):

Your majesty ought not to retrench their liberties, but may enlarge them if your Majesty please, and said, your Majesty had confirmed their charter and all their privileges . . . and that your Majesty could do no less in reason than let them enjoy their liberties and trade.139

Charles, in response to this and further provocations, revoked the colony’s charter, citing inter alia many challenges to orders issued through his royal prerogative, including that they “have not suffered his Majesty’s letters patent to be publically read in their courts at time of trial of causes related to his Majesty’s customs.”140 Charles then “brought legal action against Maryland, the Carolinas, both New Jerseys, Delaware, and Bermuda.”141 By Order-in-Council (i.e., executive order), he instructed the Navy to seize ships violating the Navigation Acts. Executive prerogative was increasingly used as the vehicle by which England might enforce trade policies that would be economically ruinous to the colonies.

James II, who was considerably less cautious in asserting his absolutist views than his father Charles, was also considerably more aggressive in response to colonial slights against his prerogative, both before and after his coronation. However, the colonists knew that he was unpopular in England, in part because of the backlash in the mother country to “a fresh

138

Id. at 51.139

Edward Randolph’s Letter to Charles II, Hall, supra note 130, at 19.140

Articles Against the Government of Boston Received June 4, 1683, Hall, Id.141

Lovejoy, supra note 131, at 168.

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assertion of the prerogative.”142 This encouraged resistance to the royal administration, in New England, Pennsylvania, Carolina, and New York.143 James II fought back,144 refusing to confirm New York’s charter, and wrote to Governor Dongan declaring it “disallowed . . . repealed, determined and made void.”145

The colonists perceived that the liberties they had earlier enjoyed were now under threat from a monarch with pretentions to absolutism, a dilemma that mirrored the English parliament’s struggles with the early Stuarts, but at a much later date. As David Lovejoy summarized the state of affairs under James II:

With Massachusetts reduced to insignificance, the Bermuda Charter vacated, New York settled under arbitrary government, with quo warranto proceedings ordered for most colonies whose patents still stood out against the King, it was clear that the crown was determined to subject the dominions to centralized control.146

This would remain the case until the Glorious Revolution of 1688, when the Stuart dynasty would be removed for a second and final time from the throne of England.

2. The unfolding of the Glorious Revolution in England

James’ many assertions of the royal prerogative led to his deposition. The spark that lit the revolutionary powder keg was his Declaration of Indulgence, which seven influential bishops had asserted “was contrary to the Statutes of Parliament and the therefore illegal;” they also criticized his use of the dispensing power to protect the officials within the executive branch from the effect of the laws. Once James fled the capital before William of Orange’s arrival, parliament’s victory had become a fait accompli. The question remaining for Parliament was whether the argument that James had abdicated could be justified, something that was

142

Id. at 167.143

Id. at 164-65.144

He was at that time still technically only the Duke of York, but the health of his brother Charles was failing rapidly.145

James II’s Commission to Governor Dongan, quoted in Lovejoy, supra note 131, at 171.146

Id. at 172-73.

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as vital as the justification of the execution of his father (Charles I) forty years previously. Again we see that the struggle against the royal prerogative was framed using the issue of the rule of law, although the discourse had evolved significantly in the course of the seventeenth century.

Sir George Treby (Later Attorney-General and author of the English Bill of Rights) asserted that “James II had broken ‘all the fundamentals’ . . . ‘[he] plain[ly] design[ed] to subvert the constitution in the very foundation of the legislature,”147 by reducing Parliament to a mere rubber stamp for his policies. James, like his father, had believed that only he could determine the scope of his own powers, and that he alone could determine the circumstances in which the laws passed by Parliament could be abrogated.

The leading constitutionalist theorists were quick to expand upon these ideas, and some rose to the occasion well, producing works that would have an enduring influence on American views about the necessity of limited government and the rule of law. Foremost was the seminal view of the pamphleteer Robert Ferguson, who yoked together Locke’s contractual theory of government with a defense of the ancient constitution (as the pre-Stuart mixed government that respected Magna Carta and the other fundamental laws was then described), in a manner that would create a paradigm for constitutionalist argument for a century to come:

[N]o government is lawful but what is founded upon compact and agreement between those chosen to govern and those who condescend to be governed . . . the articles upon which they stipulate the one with the other become the fundamentals of the respective constitutions of nations, and . . . are the limits of the rulers’ authority.

This theory “came into its own at the time of the [Glorious] Revolution, when it . . . granted belief in the original contract and acceptance of the principle that the powers of government were defined and limited by a ‘fundamental’ constitution.”148 This was elaborated upon by many other authors, who sought to emphasize its points of commonality with earlier constitutionalist thought. Mainly this consisted in arguing that England had always had fundamental laws (i.e., a constitution that the king was bound to obey) and that when he overstepped the boundaries of his power, which were a matter of law and not left to the king’s own determination, he could 147

Gough, supra note 113, at 161-62.148

Id. at 163.

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be lawfully resisted. The laws of Edward the Confessor, the Magna Carta, and the laws of Edward III featured prominently in their definition of England’s ‘unwritten’ constitution.149

The constitution was also protected by significant weakening of the executive, though the abolition of the dispensing power, which “allow[ed] [the king to make] exceptions to the law, to permit what would otherwise be illegal.”150 James II and his brother had greatly abused this part of their prerogative: “he had used his power to defy the law . . . . The rule of law could not be assured . . . while the king had a power to grant dispensations at his will and whim.”151 It appeared that William had agreed to forego this power by agreeing to the Declaration of Right, which established the conditions under which Parliament would support his claim to the throne. However, William’s allies in the House of Lords resisted the passage of a proviso in the bill that would establish the succession addressing this subject. The House of Commons refused to budge, arguing that this power had been used to “subvert and extirpate . . . the laws and liberties of this kingdom, by assuming and exercising a power of dispensing and suspending law . . . [which] is illegal.”152

The passage of the bill evidenced the movement towards parliamentary supremacy inherent in the Glorious Revolution, but at the time it was seen as necessary to protect the rule of law, and was not intended primarily to empower Parliament. Its importance to English constitutional history has long been recognized as vital: for “if a king be vested with a discretionary power of dispensing with laws, what remains deserving of the name of a free constitution, or of a settled government?”153 Indeed, the passage of this bill in 1689, along with the English Bill of Rights, completed the revolutionary settlement: “If the revolution marked the triumph of law, it marked too the end of the dispensing power.”154

As these features of the English constitution were developed by statute, the revolutionary settlement created further precedent for the theory of a written constitution. This was reflected in the later importance of such

149

See, e.g., A Brief Account of the Nullity of King James’s Title, printed in State Tracts (William III), i, 280.150

Carolyn A. Edie, Revolution and the Rule of Law: The End of the Dispensing Power, 1689, 10 Eighteenth Century Stud. 434, 435 (1977).151

Id., at 434.152

10 H.L. Jour., (1688) 17-21.153

THOMAS SOMMERVILLE, THE HISTORY OF POLITICAL TRANSACTIONS, AND OF PARTIES,FROM THE RESTORATION OF KING CHARLES THE SECOND TO THE DEATH OF KING WILLIAM, 185 (1792).154

Edie, supra note 150, at 450.

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documents as the English Bill of Rights, which was then enshrined with the Great Charter and the Petition of Right as constituting Fundamental Laws which could never be abrogated. Naturally, the American colonists were wholly in accord with this development, since they themselves had already conceived of their grievances in terms of the violation of their fundamental laws by an executive that presumed to have the right to alter them at will. This is because of their deep attachment to their charters, which “‘had . . . become the frame of government for a state.’ The Massachusetts Bay charter in particular ‘approximated a popular constitution . . . more closely than any other instrument of government in actual use up to that time inAmerica or elsewhere in modern times.’”155 The successful defense of the colonial charters would cement the colonial patriots adherence to the emerging fundamental law constitutionalism predicated on the theory of the ancient constitution.

3. The Glorious Revolution in America and its consequences

When news of the Glorious Revolution reached the American colonies, the colonists seized the opportunity to strike back at those whom they considered the agents of arbitrary power and the violators of their own ancient liberties. Revolutions against the royal governors flared up quickly in Massachusetts, New York, and Maryland. “Elsewhere, there were varying degrees of protest and rebellion. Connecticut and Rhode Island, for example, quickly filled the political vacuum created by overthrow of the administrations imposed by James; they quietly resumed their old forms of government.”156 From the perspective of the colonists, however, they were not rebels but patriots, and participants in the same revolution as the one their English compatriots had directed at James II himself. This is demonstrated not only by their statements after the fact, when they hailed William III as a king who might restore their rights, but by statements that were contemporaneous with the revolution.

Increase Mather welcomed William III on behalf of the colonists andmade it clear than it was through a constitutionalist lens that the Americans perceived their grievances, just as the English did. Mather pointed to:

155

1 BERNARD BAILYN, PAMPHLETS OF THE AMERICAN REVOLUTION 1750-1776, 110(1967), quoting CHARLES H. MCILWAIN, CONSTITUTIONALISM AND THE CHANGING WORLD, 241 (1939).156

Hall, supra note 130, at 4-5.

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The quo warranto and scire facias which wrongly wrenched the charter from the colonists; [Royal Governor Sir Edmund] Andros’ illegal commission which maintained over a “poor People” a “French Government,” taxing them without their consent, depriving them of town meetings, arbitrarily seizing their property, and leaving the country in a “bleeding state” . . . . Mather added that since charters were restored in England, it was high time that the same was done in New England.157

The Glorious Revolution could be considered a tactical victory for

Mather and the colonists who had thrown the governors out of office and resumed the earlier forms of government. The three colonies that had engaged in armed rebellion were restored to their original status of independent entities. Massachusetts received a new charter in 1691, and won the right of the legislature to elect the governor’s council (creating, in effect, an executive branch responsible to an elected parliament). New York obtained a charter and an elected assembly, and Maryland “the insurrectionaries gained complete approbation.”158 Other colonies, such as Connecticut and Rhode Island, regained their old forms of government owing to the dissolution of the Dominion of New England.

The significance of the Glorious Revolution to development of political thought in the American colonies cannot be overstated: “the impetus given to self-government in 1689 continued as the main line of political development down to the War for Independence.”159 This is because while English grievances with royal government were remedied, the colonies were still subjected to the excesses of an unchecked executive prerogative. Writing of the long-term effects of the events of 1689 in America, Hall notes that:

Paradoxically, the Glorious Revolution, which overthrew the theory of divine right monarchy in England, was followed by an expansion of the royal prerogative [exercised on the advice of the Cabinet] in the colonies . . . . That British imperial policy had not changed was demonstrated by Parliament’s passage of the Navigation Act of 1696, which greatly increased the King’s

157 Lovejoy, supra note 131, quoting INCREASE MATHER, A NARRATIVE OF THE MISERIES OF NEW ENGLAND BY REASON OF AN ARBITRARY GOVERNMENT ERECTED THERE UNDER SIR EDMOND ANDROS (1689).158 Hall, supra note 130, at 212.159 Id., at 213.

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prerogative power in America, and the creation of the Board of Trade and Plantations by royal edict in the same year.160

To understand why Parliament believed itself justified in imposing executive orders on America after it had fought for and established for itself the principle of limited, constitutional power, one must first grasp that the Glorious Revolution also constituted a point of divergence for political theory in England from both the established discourse of constitutionalism and the American norms that remained largely static, even as English views evolved rapidly during the eighteenth century.

C. Divergences of English and American Constitutionalism After 1688

While William III had famously declared that he “came hither to restore the ancient constitution,”161 Parliament soon recognized that this statement was double-edged. It meant not only that William would agree not to expand upon his royal power as had Charles II and James II, but also that he would insist on exercising those powers as they existed before the backlash to Stuart overreaching.

That said, Parliament clearly now had the upper hand and had no interest in the rivalry of a monarch whom they had selected. Given these realities, there was nothing to stop Parliament from asserting its superiority over the constitution itself. It did so implicitly with the passage of the Septennial Act of 1716:

With that statute, Parliament repealed the Triennial Act, one of the most fundamental parts of the constitutionally sacred revolutionary settlement. . . . Allan Ramsey . . . thought that the most fundamental of fundamentals had been arbitrarily quashed. “Thus the primary law of our constitution,” he bemoaned, “the first principle on which it was founded, which has stood the test of twelve-hundred years, and been the admiration of many ages, was now reduced to the common level of a nuisance, to be corrected by acts of parliament.” The meaning of constitutionality was drastically deformed . . . . Civil rights existed at the pleasure and caprice of the legislature.162

160 Id.161 William Cobbett, 5 PARLIAMENTARY HISTORY OF ENGLAND, 1195.162

JOHN REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: THE AUTHORITY OF RIGHTS, 76 (1986).

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Between 1689 and 1716, Parliament had implicitly rejected the constitutionalist theories that condemned arbitrary power and which had motivated in no small part both the English Civil War and the Glorious Revolution, by granting itself the power that they had denied to the king: the legislature could now dispense with the laws passed by an earlierparliament, however fixed and fundamental those laws might seem. They did so because the English constitution had put them on the horns of a dilemma. As Gough describes the choices:

[I]f unlimited emergency powers were once conceded to the king, all the rights and liberties of the subject would be in jeopardy. There could only be two practicable escapes from this predicament. One would have been the acceptance of a definite written constitution, which would leave no room for dispute about the boundary between the rights of the subject and the powers of government. In this case fundamental law, instead of being something vague and uncertain, would have acquired authority and definition. The other, which ultimately came about [in Britain] . . . was to accept the principle of sovereignty, at the expense of fundamental law, but to place it in the hands of a representative parliament.163

Conversely, by the time of the Glorious Revolution, the American patriots had already displayed an inclination to take the other option: to embrace a written constitution.

As noted above, the American colonies owed their existence to the legal force of their charters. These documents also established the form of government and the rights and liberties of the inhabitants. The struggle against the royal prerogative and arbitrary power which culminated in the rebellions that constituted the Glorious Revolution in America had been waged specifically to protect or preserve these charters. In the American colonies, the Glorious Revolution had not been fought, even implicitly, to secure the supremacy of Parliament, but rather to protect the rule of law and ensure that no executive official, whether royal governor or the king himself, could disregard or abrogate the enumerated rights contained in the charters. “In these rights, they believed, besides protection from arbitrary

163 Gough, supra note 113, at 74.

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power and troublesome ‘mutations,’ lay sanction for government by law, equal justice, economic opportunity, and the rights of property.”164

1. The emergence of differing views of the constitutional effects of the Glorious Revolution across the Atlantic: parliamentary supremacy and the fundamental law tradition

Understanding the American patriots’ view of the Glorious Revolution is vital to any discussion of the context of the American Revolution. This explains how they were able to create revolutionary discourse that many leading British theorists found so retrograde and anachronistic, yet which connected to deeply-rooted ideas in the colonial mind about liberty and rights: In the colonies, “[t]he Glorious Revolution was less an attempt to kick over the traces and strive for a brave new world in America than it was a return to acceptable conceptions of empire which colonialists . . . [had] lived for in the past.”165

This tendency was crucial to the key difference between British and American constitutionalism in the course of the eighteenth century. The American patriots were oriented towards the past, and clung to the idea that the Glorious Revolution had restored the rights they had enjoyed previously. However, Parliament and its allies believed differently. “[D]uring the eighteenth century, proadministration . . . publications spread the themes . . . that the [Glorious] Revolution [itself] was the foundation of our Civil and Religious Liberties” and “that before the Revolution there was no such thing as Liberty.”166 English theorists promoted the idea that Parliament itself was the bulwark of liberty, rather than merely the protector fundamental laws —as the Americans and earlier generations of Britons had believed. This was essential to shoring up support for parliamentary supremacy, and for the most part it succeeded: most English constitutional reformers never challenged the emergence of this doctrine, but insteadchanneled their efforts into broadening the franchise.

Accordingly, by 1765 the Lord Chancellor of England could make it clear that the British legal profession had long dispensed with the ideas of fundamental law and the ancient constitution. Reid describes his argument:

164

Lovejoy, supra note 131, at 377.165 Id., at 272.166 JOHN REID, THE ANCIENT CONSTITUTION AND THE ORIGINS OF ANGLO-AMERICAN LIBERTY, 100 (2005).

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[L]ord chancellor [Northington] was telling the colonists that the constitution was no longer a constitution of immutable prescriptive rights traceable to the ancient constitution. If his law was valid, its constitution was now whatever a majority of the two Houses of Parliament said it was.167

Likewise, in one of the most important legal judgments of the revolutionary era, Chief Judge Camden found that the general warrants issued by the secretary of state in cases of seditious libel were legal by using the same logic.168

While parliamentary supremacy took root in England, the theory of the ancient constitution continued to grow in importance in the American colonies. Clinton Rossiter described this process in detail, revealing the importance of such legal thinkers of the prerevolutionary period as Richard Bland, who made an impression on John Adams, George Washington, and Thomas Jefferson.169 Bland, a great enemy of the royal governors of Virginia, and against whom he defended the Virginia Assembly, was no defender of parliamentary supremacy over the fundamental laws. Instead, he “asserted that the Constitution cannot be destroyed . . . by any Act of the General Assembly or of Parliament.”170 He and those he influenced “became more and more convinced that they, not the English, were the trustees and beneficiaries of the [ancient] British Constitution.”171

These constitutionalist ideas were particularly influential because the discourse of the revolution was, in the main, narrowly legal in nature. This is because “[t]he pre-Revolutionary crisis [of 1765-1776] marked the climax of an historical process that had been generations in the making: the seizure of political power by the legal profession.”172 This was critical to defining the revolutionary ideas that flourished throughout colonial society, which provided the immediate intellectual context of the Framing. In addition to James Otis, James Wilson, John Dickinson, John Adams, Thomas Jefferson and Patrick Henry:

[D]ozens of other American leaders were practicing lawyers; their assaults on English policy were thoroughly legalistic in approach and expression. The argument from legal history—

167 Id., at 101.168 Id.169 Rossiter, supra note 128, at 249.170 Id., at 273.171 Id., at 273.172 Id., at 345.

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heavily laden with citations to Bracton, Coke, Hale, Holt, and other giants of English law—was a favorite not only with those sons of the common law, but also, as Burke pointed out, with those patriots who had only a ‘smattering in that science’ . . . hundreds of other pamphlets and letters exploited the widespread popularity of this type of argument.173

All of these English writers formed part of the fundamental law tradition, which had been abandoned in England in favor of parliamentary supremacy; the patriots’ arguments drawing upon these authors exploited the fact that the American public remained committed to the idea of theancient constitution. They were also firmly committed to the idea—which had been cemented in the American consciousness in their battles for the charters during the Glorious Revolution—that the supremacy of these fundamental written laws was essential to the rule of law, a concept that they held in high esteem even as it was supplanted in Britain.

Accordingly, those statements in Blackstone’s Commentaries that admitted “Parliament was no longer controllable by the rule-of-law shocked a surprising number of readers.”174 Because the Americans clung to the fundamental law tradition, Reid argues that:

British imperialists had moved away from the traditional constitutionalist theory that England had been governed from time immemorial by the same “ancient constitution.” They were, instead, “looking ahead” to the British constitution of today . . . in which government exercises arbitrary power and the civil rights of citizens are grants conferred at the discretion of the sovereign. The Americans were “looking backward,” not to a government by popular consent but to government by the rule of law, to a sovereign that did not grant rights but was limited by rights.175

Accordingly:

[T]he American Revolution, if understood from the perspective of the development of the rule-of-law in England and Great

173 Id.174 JOHN REID, RULE OF LAW: THE JURISPRUDENCE OF LIBERTY IN THE SEVENTEENTH AND EIGHTEENTH CENTURIES, 73 (2004).175 JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION, 5 (Abridged Edition 1995).

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Britain, should be seen as one of the last—if not the very last—constitutional stands for the old ideal of rule by customary, prescriptive, immutable, fundamental law . . . . it is no exaggeration to say that the American Revolution was the greatest triumph of rule-of-law.176

This triumph was only possible because the American patriots explicitly rejected contemporary British constitutional practice. An accurate description of the ideological context of the American Revolution—one that begins with the charter governance of the colonies and paid close attention to the importance of the Glorious Revolution—forecloses Yoo’s argument that there was one prevailing (and strikingly contemporary) view of executive power in the Anglo-American world near the end of the eighteenth century. Furthermore, it demonstrated that even had this been the case, the Framers would not have been predisposed to adopt it.

IV. UNDERSTANDING THE FRAMERS’ DISPARATE INTELLECTUAL INFLUENCES

In addition to positing a constitutional history that led to uniform view of executive power in 1787, Yoo presents an intellectual history that is strangely harmonious, wherein all the enlightenment thinkers whom the Framers drew upon held similar views, which not coincidentally are in accord with his own. Unfortunately, there was no such consensus at all, never mind a conventional view that supported the idea that the executive should have exclusive control of foreign affairs or matters of state. .

Yoo argues that when considering the separation of powers, “the Framers’ thinking looked to authorities such as Locke, Montesquieu, and Blackstone . . . combined with radical eighteenth-century English opposition ideology.”177 This is altogether too vague, and disguises the coordinating function played by the theory of the ancient constitution, which influenced the American patriots to read these figures in a different way than their adversaries. Eliding the question of relative degrees of influence, and the fact that “the major figures of the European enlightenment” were “[r]eferred to on all sides, by writers of all political viewpoints in the colonies,”178 Yoo then returns to the intellectual influences that he prefers to think of as particularly influential in his description of the intellectual context of the Framing. As will be demonstrated below, the

176 Id.177 Yoo, supra note 6, at 36.178 BAILYN, supra note 155, at 25.

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tension and irreconcilability of these ideas is evident in the works of those legal thinkers. It should also be noted that Blackstone’s views on the relationship between the Crown and Parliament were riddled with inconsistencies, as many of his critics observed, and could not have served as a decisive influence on the Constitution’s separation of powers.179

Owing to his failure to understand the divergence between American and English theories of the rule of law in the eighteenth century, Yoo fails to appreciate the significance of the fact that views that predated enlightenment ideas about the nature and origin of rights remained dominant within the colonies despite being antithetical to the views that were becoming more influential in Britain. Instead of Coke, Hale and Bracton, Yoo draws our attention to the fact that the colonial patriots also read Locke, Grotius, and Montesquieu. However, he fails to note that this does not mean that they adopted all of their ideas uncritically. Indeed, they couldn’t have, since their ideas were also irreconcilable or internally inconsistent.

A. Arguments About Philosophical Support for Strong Executive Powers Must Account for Their American Context

In an attempt to demonstrate the coherence of a shared Anglo-American philosophy undergirding its constitutional theory, Yoo calls upon Locke, giving significant attention the purported influence of Locke on the Framers’ vision of the separation of powers. Unfortunately, hedemonstrates little understanding of Locke and even less about the preciseway in which that thinker influenced the Framers.

While it is easy to cherry-pick quotations from Locke’s voluminous works to support any particular interpretation of the division of powers (much as the American patriots did on other topics, as in their works “he is referred to in the most offhanded way, as if he could be relied to support anything the writers happened to be arguing”),180 the simple historical fact of the matter is that Locke was a strong proponent of parliamentary

179 By this point, Jeremy Bentham’s criticisms had been widely circulated, and as Gough notes, he pointed out “that the inconsistencies in the Commentaries were more than superficial.,” but Yoo’s invocation of Blackstone as a proponent of executive dominance is clearly wrong-headed, given the fact that “there are pages in the Commentaries where Blackstone gives a clear and straightforward exposition of legislative supremacy. Gough, supra note 113, at 189.180 BAILYN, supra note 155, at 24.

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supremacy; his views contradict the vision of strong executive power that Yoo believes are embodied within the Constitution.181

Failing to note this specific error, Yoo misses a broader point: If the Framers rejected at least some of Locke’s ideas (for example, parliamentary supremacy), then how can we discern which of his views were influential on particular questions, and how can we make sense of the way that his views were synthesized with those of other thinkers to create support for aseparation of powers that did not exist in Britain in 1787? Thankfully, other historical scholars have resisted the appeal of attempting to use the present to explain the past.

Bernard Bailyn (whom Yoo himself cited as an authority on the intellectual influences on the American Revolutionaries),182 points us towards a solution, by arguing that:

What brought these disparate strands [of intellectual influences] together, what dominated the colonists’ miscellaneous learning and shaped it into a coherent whole, was the influence of . . . [a] tradition [which] lay in the radical social and political thought of the English Civil War and Commonwealth period . . . the colonists identified with these seventeenth century heroes of liberty.183

These late seventeenth century writers, and those who followed in their footsteps in the eighteenth century, like Cato, were firmly rooted in the constitutionalist tradition, although they were more radical than their forerunners Fortescue, Coke, or Hale. These writers had not merely spoken of the restraints of the fundamental law on any overweening executive authority, but they had catalyzed the corpus of that tradition —most notably in the form of the Petition of Right and the English Bill of Rights.184 Tracing their influence in his extensive study of the pamphlet literature of the prerevolutionary crisis, Bailyn argued that “it would be difficult to exaggerate the importance of this tradition of radical [seventeenth century] dissent to the thought of the American Revolutionaries.”185 He also located the vital point of disagreement between the patriots operating within this constitutionalist tradition and the proponents of parliamentary supremacy: 181 See John Dunn, THE POLITICAL THOUGHT OF JOHN LOCKE, 158-64 (1969).182 Yoo, supra note 6, at 38.183 Id., at 29 (emphasis added).184 Printed in Neil H. Cogan, Contexts of the Constitution: A Documentary Collection on Principles of American Constitutional Law, 666-69 & 686-92 (1999).185 Id., at 34.

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These writers so employed the ideas they had inherited from the seventeenth century as to refuse to accept [the dominant British view of] the Glorious Revolution and the lax political pragmatism that followed . . . . They refused to believe that the transfer of sovereignty from the crown to Parliament provided a perfect guarantee that the individual would be protected from the power of the state.186

“According to Bernard Bailyn, this ideology could be seen as the center of the ‘ideological origins of the American Revolution’ because it served as the framework in which other strains of political thought . . . were fused into a structured universe of thought.”187 Given Yoo’s recognition of the importance of Bailyn’s analysis to the question he is addressing, it is surprising to see that he devotes only one paragraph in his book to this entire tradition.188 Instead, he devotes the bulk of his analysis to Locke, Montesquieu, and Blackstone, writers that contradicted each other and even themselves (Locke was a parliamentary supremacist, Montesquieu a proponent of the separation of powers, and Blackstone was at war with himself on this point), and which the American patriots could only make sense of by reference to the earlier seventeenth-century constitutionalist thought that held together these contradictions.

More importantly, Yoo fails to recognize that the most important influences on the Framers were not those which were most frequently cited when they discussed the most complicated and controversial issues. Rather, the most important influences were those which set the very terms of the debate, whose conclusions had attained the status of indisputable premises, being at that time commonsensical and which hardly bore mentioning. As Yoo concedes, to understand these deep influences that shaped the constitution, we must understand the wide intellectual context of the American legal mind, and not merely the period from 1776-1787. Unfortunately, when discussing this period Yoo feeds on chaff while ignoring the grain.

186 Id., at 34-35 (emphasis added).187 ALAN GIBSON, INTERPRETING THE FOUNDING, 28-29 (2006) (emphasis added).188 Yoo, supra note 6, at 39.

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V. YOO’S WHIG HISTORY ATTRIBUTES TO THE FRAMERS VIEWS ABOUT

EXECUTIVE POWER THAT IGNORE THEIR CONSTITUTIONALIST AND

IDEOLOGICAL CONTEXT

What remains to be demonstrated in this section is that it is impossible to square Yoo’s view of the Framers’ approach to executive power with an accurate description of the historical context that he relies upon. This can be revealed by discussing the colonial patriots’ understanding of the previous century of constitutional conflict. A brief recapitulation of this history and discussion of how it influenced the Framers will make it clear that the American revolutionary ideology was inherently hostile to strong executive powers; there is no evidence that even failures of the Articles of Confederation caused even the most ardent Federalists to abandon this stance. As will demonstrated in this section, this unshakeable belief wasowing their deep appreciation of the history that Yoo has misconstrued, such that his reading of the Constitution is not consistent with the Framer’s ideas, but rather with the ideas of the thinkers whose ideas they explicitly rejected.

A. Arguments About the Constitution’s Inherent Executive Powers Ignore the Framer’s Disdain for Seventeenth Century Royalist Arguments

The previous section demonstrated that Yoo fails to understand how it

was the dispute over the emergency powers of the executive branches that animated these seventeenth century constitutional struggles. Yoo asserts that the struggle between Parliament and the Crown was over the right to impose taxes and to control foreign policy; we have seen that it was not. Parliament never denied the king the right to raise monies in forms that had some constitutional or statutory basis, even when these forms of fundraising had long fallen into desuetude. Rather, they would not accept the king’s ability to define his own emergency powers of taxation; the Case of the Ship-Money never would have been brought had Charles I confined himself to raising these levies in the maritime counties.

England was not at war, and these levies had never been collected inland. Nevertheless, Charles’ lawyers argued in open court that the king had the ability to declare that the conditions for emergency taxation had been met, and that no one else —neither parliament, the judiciary, nor anycitizen had the power to challenge his determination. Furthermore, the early Stuart kings had not merely asserted that they had the sole right to define their own powers. Rather, they had sought to repress the ability even to say otherwise. In 1616, during a speech delivered at the Star Chamber,

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James I had ordered the common-law judges never to allow arguments to be made in court that would define or limit his prerogative, and he asserted more than once that to do so was criminal, akin to lèse-majesté. For refusing to accept this principle, Lord Chief Justice Sir Edward Coke—a great hero to the Framers—was dismissed from office.

A victorious Parliament put an end to the practice of allowing one branch of government to define the powers that it would later exercise. First, in the wake of the crisis of 1641, it impeached the justices who had accepted the King’s arguments in the Case of the Ship-Money. Second, the idea of an extraordinary prerogative—one that freed the king from the statutory law of England when the king believed that matters of state required it—was now understood as anathema to the common law. Of course, Parliament had been remarkably consistent in its opposition to the prerogative; in the wake of the Five Knights’ Case (in which the king had asserted to imprison tax resistors in the Tower of London for unspecified reasons of state, and had argued that these prisoners need not be produced in response to the writ of habeas corpus) it had passed the Petition of Right.

After the English Civil War, no king asserted that he had the power to ignore the statutory law, whether or not a national emergency existed. Following the Restoration, the closest the late Stuart monarchs had come to this sort of behavior had been to invoke the dispensing power. This allowed them to assert that they recognized that the law existed and bound them, but that they were waiving it on a case-by-case basis owing to their concern for the public interest. Even this weaker form of the argument for executive preeminence with respect to the legislative branch would bring about the removal of the Stuarts, this time for good. When William and Mary accepted the throne offered by Parliament, they explicitly acknowledgedthat they would rule under the laws, and that the constitutional order did not allow them to invoke any exceptions. The dispensing power was abolished—by statute—the year after the Glorious Revolution,189 and no king, not even George III, would ever have thought to argue that he had an executive prerogative to ignore a statute in the interest of national security during a crisis. Such an argument could have had no other result than the monarch’s deposition by parliament.

For the reasons described in the previous section, the dangers of a royal prerogative to ignore, abrogate, or dispense with the laws were appreciatedeven more keenly in the American Colonies, both before and after the Glorious Revolution. One must remember that while James II was

189 1 W. & M. Session 2, ca. 2. (1689) (Eng.). See also Edie, supra note 150.

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constrained by popular opinion in England, he paid little attention to the thoughts of his American subjects. When confronted with parliamentary overuse of the royal prerogative in the eighteenth century, colonial patriotsmade the same arguments about the supremacy of law that their forefathers had brought with them from England in the time of James I and Charles I, attesting to the enduring appeal of seventeenth century “higher law” constitutionalism in America. They believed their charters and the rights they detailed were sacrosanct, and this was as great a source of friction between the colonies and the motherland as it had been between Parliament and the king. The Glorious Revolution was understood by Americans—even up to the very eve of the American Revolution—to be a vindication of the supremacy of law over the executive; in England, the Glorious Revolution was recharacterized as nothing more than establishing the supremacy of parliament, which was now free to use the royal prerogative as it saw fit.

In the face of this evidence of the true context of the Framing, Yoo’s assertion that Americans would have embraced the idea of an extraordinary prerogative to define his own powers in 1787 is remarkable, especially as hehas acknowledged that since Alexander Hamilton had “admitted that he took his inspiration [for his proposal at the Philadelphia Convention] from the British monarchy” this “practically guarantee[d] that his proposals [on the subject of executive powers] would go nowhere.”190 Yoo understoodthat the monarchy itself was not popular in 1787, but fails to grasp that the idea of an extraordinary executive prerogative was considerably less palatable.

Even on Yoo’s own reading of the most important influences on the Framers, it is difficult to understand how there would have been any support for a theory of an extraordinary prerogative pertaining to national security. Furthermore, the seventeenth-century theorists that were very influential in America (e.g. Coke and Sir Matthew Hale) and their eighteenth century equivalents from the English libertarian tradition (e.g. Cato) were squarely against it. Even after discounting or misconstruing these theorists, the case for his theory is not plausible, as he fails to note how the enlightenment thinkers he relies upon were cited by all sides in the Revolutionary debate, and how the patriots’ ideas can only be discerned once we view how these philosophical influences were viewed through the lens of the radical constitutionalism of the late seventeenth century.

190

Yoo, supra note 6, at 23.

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There is no historical evidence for Yoo’s claim that the Framers wanted to give the President the same powers as that of George III in foreign affairs; this article has demonstrated that the historical context to which he appeals also undermines this thesis. As outlined in the first section of this article, had the Framers done so this would not have invested the presidency with anything near the range of powers that Yoo believes the President possesses, owing to the realities of parliamentary supremacy. Lastly, the article will demonstrate in its final subsection that given the aversion to extraordinary prerogative that had been a key feature of constitutionalist thought for almost two hundred years on both sides of the Atlantic, that another conclusion follows: if Yoo’s views on executive power had been presented to the convention they would have produced even more of “an unreal interlude” than Hamilton’s, as they ran against the constitutional principles of everyone across the entire Anglo-American spectrum in 1787, from libertarian to Tory.

B. Arguments About the Nonjusticiability of Matters of State Ignore the Fact that this is Inimical to the Framer’s Theory of the Rule of Law

Yoo asserts that the President has the power to decide when his decisions involving national security matters should be unreviewable in the courts, pursuant to the state secrets privilege and the political question doctrine. He also argues that the President possesses the ultimate authority to interpret his own national security powers, and that court judgments, even of the Supreme Court when deciding whether the rights of American citizens have been violated by the executive branch’s anti-terror operations, should be considered as attempted to erect a regime of “judicial supremacy” that would “attack . . . the President’s right to interpret the constitution.”191

Note that Yoo is advocating precisely the argument about executive power that was rejected in the wake of the Five Knights’ Case, and labeledunconstitutional in the Petition of Right and the English Bill of Rights. However, in the Guantanamo detainee cases, the Justice Department presented arguments based on Yoo’s theory of presidential power that were strikingly similar to those presented by James I’s advocates four hundred years earlier, despite these being universally rejected from the time of the English Civil War to 1787.

One must recall that in the Five Knights’ Case, James asserted that he had an emergency power to detain prisoners for matters of state, and that the

191

Yoo, supra note 6, at 210.

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common-law courts had no power to force him to produce the bodies of these prisoners pursuant to a writ of habeas corpus. He also insisted that a return of the writ which stated merely that he had asserted that the imprisonment was for a matter of state constituted sufficient cause shown for the detention, and that he could not be forced by any court to disclose the particular facts that had led to his determination that matters of state required the prisoners’ incarceration.

Similarly, in Hamdi v. Rumsfeld, the government asserted that the President’s determination of the plaintiff’s status as an enemy combatant was dispositive and “no evidentiary proceedings are required to resolve a habeas petition filed on behalf of such a detainee.”192 Likewise, in Padilla v. Rumsfeld it asserted that not even an American citizen subjected to this detention was “entitled to present facts [to the court] disputing the President’s determination.”193

The Fourth Circuit characterized this type of argument as a categorical assertion that no court may “second guess the . . . determination that an individual is an enemy combatant and should be detained as such,” which, if accepted, would lead to a state of affairs where “any American alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government’s say-so.”194 Now that arguments derived from Yoo’s view of executive power have been made in cases involving executive death warrants marking specific American citizens out for death (as in Al-Aulaqi v. Obama), this claim might now also entail that any American alleged to be an enemy combatant might be killed via a drone strike without charges or counsel on the President’s say-so, an argument that would have been shocking even at the height of Stuart absolutism.195

James’ assertions (in the Five Knights’ Case) that the judiciary had no right to determine the scope of his extraordinary executive prerogative was rejected —their acceptance would likely have led to the impeachment of the common law judges, as it did after a verdict to that effect in the Case of the Ship-Money. Following the English Civil War and the decisive rejection of the extraordinary executive prerogative, there was nothing in English law that resembled the political question doctrine (which itself only became a feature of American law in 1962).196 The idea that the judiciary should

192

Brief for Respondent-Appellants at 28, Hamdi v. Rumsfeld, No 02-6895, (4th Cir. June 19, 2002), 2002 WL 32728567.193 Opening Brief of Respondent-Appellant at 37, Padilla v. Rumsfeld No 03-2235, (2nd Cir. July 22, 2003), 2003 WL 23622382.194 Hamdi v. Rumsfeld, 296 F.3d 278, 283 (4th Cir. 2002).195 Alford, supra note 24.196 Baker v. Carr, 369 U.S. 186 (1962).

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show deference to the determinations of the executive branch in matters involving national security or matters of state had been so sorely abused by the early Stuarts that the prerogative was still condemned 150 years later at the time of the Framing. Without any evidence that the Founding Fathers would reject or ignore these deeply held constitutionalist ideas, the idea that the historical context of the framing demonstrate that they intended to invest the President with these powers cannot be taken seriously.

1. Striking similarities exist between Yoo’s ideas and those of the theorists whom the Framers and their constitutionalist forbearers abjured

Detailed attention to the historical context to which Yoo has appealed will yield an even stronger conclusion than the statement that his theory of extraordinary executive privilege is incompatible with the Framers’ most deeply held beliefs. Namely, these appear to be perfectly consistent with those of the antagonists in the seventeenth struggles that were fundamental to the American patriots’ worldview. In laying out the ideas of the civilian lawyers and high church ecclesiastics who defended the royal privilege, the similarities with Yoo’s theories will become clear. As these royalist ideologues were both well known to (and despised) by the Framers, after this examination the conclusion that the Founding Fathers could have adopted views that were congruent to the royalists will no longer seem even vaguely plausible.

a. Yoo’s conception of emergency powers compared with the civilians who supplied royalist arguments against the parliamentarians who opposed Stuart absolutism

The civil lawyers of England occupied a marginal place within its legal system by the seventeenth century, and they depended on royal patronage to protect them from the much larger group of common lawyers. They were mistrusted by the barristers because “[t]heir education and training was . . . in the civil law of Rome, a code that was believed at the time to support the autocratic power of the Crown . . . . the civilians provided strong encouragement for James I and Charles I.”197

The civilians, following Jean Bodin, articulated an idea of sovereign power residing in the monarch. James I and Charles I had argued, drawing upon such sources as the civil law and its codes, that the source of their extraordinary prerogative to ignore the statutes when matters of state or the 197 BRIAN P. LEVACK, THE CIVIL LAWYERS IN ENGLAND 1603-1641, 2-4. (1973).

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public interest required it was the nature of kingly power itself, in a matter that is highly reminiscent of Yoo’s essentialist views of the “executive power.” While the common lawyers found the king’s powers in precedents and sources of law, the civilians, like Yoo, located them in the necessaryattributes of the executive. Accordingly, the civilian (and Regius Professor of Law) John Cowell argued that the “[p]rerogative of the King is thatespecial power . . . above the ordinary course of the common law [including statutes], in the right of his crown.”198

Cowell’s text was so provocative to the defenders of Parliament and the rule of law that it was banned and he was required to apologize, and those who followed in his footsteps were forced to provide limits and a justification for the prerogative, lest they be taken as advocates for royal absolutism. For this reason, John Hayward “restrict[ed] the use of the absolute power to ‘those affairs of state that are of so high nature that upon the ordering of them depends not only the honor and dignity but the safety also and liberty of the people.’”199 He argued that in defense of the safety and liberty of the people, the king could, according to the civilians, enjoy the benefit of the “interpretation of the laws, as well as independence of the laws,”200 of making war and peace and levying emergency taxes on that basis,201 and the administration of the martial law, as in war the king “uses absolute power, in that his word goes for law.”202

It is easy to discern a clear resemblance between these views of the civilians on the prerogative and Yoo’s ideas that the President can ignore statutes when he perceives a national emergency and also remain immune from judicial review of his decisions in that circumstance. It is indisputable that this view has a long and distinguished history in political theory, insofar as the doctrine of sovereignty in that discipline is derived from Bodin andHobbes. However, to avoid the pitfalls of whig history one must remember that these views only became acceptable long after the period at issue. In the seventeenth century— even when James I’s power was at its zenith—“the public endorsement of Bodin’s views in England was the height of constitutional heresy.”203 In the debate over the amendments proposed to the Petition of Right John Glanvill noted that the idea of sovereignty “implies that the King is trusted with a power for the destruction, and also

198 JOHN COWELL, INTERPRETER, (1607) quoted in Levack, supra note 197 at 100.199

Levack, supra note 197, at 100, (quoting John Hayward, Reporte, 7-8).200

Id. (quoting Richard Zouch, Elementa 60-61).201

Levack, supra note 197, at 101, (quoting Giles Fletcher, Works of Fletcher, 194).202

Cowell, supra note 198, at 7-8.203

Levack, supra note 197, at 102.

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for the safety of the people. It admits he may use sovereign power, and if he does we may not refuse it for it is for our protection.”204

A historian must not view the past through the lens of the present; here, doing so would blind us to the fact that while the novel discourse of political science and more venerable ideas of constitutional theory might blend well today, in the seventeenth century, they mixed about as smoothly as oil and water. At the time when the constitutionalist ideas were elaborated, and the tracts that would inspire the Framers were written, these notions of inherent executive power were recognized as defenses of royal absolutism and arbitrary rule. Bodin and Hobbes were abhorred by the seventeenth century writers who most inspired the American patriots.205

In the seventeenth century, even the most sophisticated defenses of the extraordinary prerogative were repulsive to contemporary constitutionalist thinkers. The foremost among these was written by Alberico Gentili, another civil lawyer (and Regius Professor of Law). Brian Levack noted that in De Potestate, he argued that the king:

[C]ould not exploit that power [the extraordinary prerogative] for intrinsically evil purposes, nor could he by virtue thereof deprive his subject of his property [or his life or liberty] without just cause. But it was still at the discretion of the King to determine when that just cause existed, and there was no way to ensure [that] adequately.206

Gentili’s view bears striking similarity to Yoo’s; the executive has the power to determine when just cause exists to deprive a subject of what would otherwise be inalienable rights, and there is no power that can call into question whether this is being done in good faith. According to Mortenson, Yoo holds that:

The only coherent difference between “good” and “bad” exertions of presidential power appears to be a virtue-based notion of patriotism. The sole limit on the President’s “reservoir of power,” in other words, if the President’s own belief that the action in question actually serves the national interest . . . . Our

204

Id., (quoting Petyt MS. 537/23/f. 356v).205

Alford, supra note 24; see also F.A. HAYEK, THE CONSTITUTION OF LIBERTY (1960).206

Levack, supra note 197, at 109.

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great Presidents were not “dictators,” as Yoo puts it, because they used their executive powers to the benefit of the nation.207

Like Yoo, Gentili and the civil lawyers that supported the royal administration believed that the executive can be trusted with extraordinary power because he was bound to be virtuous, and “his conscience forced him into observance.”208 Because of this presumption, the only options that would remain should the executive misuse this power were rebellion orimpeachment. This approach to the scope of executive power was decisively rejected, as Parliament repeatedly reasserted that the executive was bound to observe the laws (and particularly those detailed in thePetition of Right) in all circumstances, and that the king’s decisions could be overridden by parliament. Parliament’s allies in the judiciary asserted that courts could call into question and nullify the king’s executive orders, most notably in Bonham’s Case a decision penned by Coke that would later be prized the American Patriots above all others. Their experiences with the Stuart kings had taught them that no one could be trusted with the ability to invoke powers that would render them immune from judgment by any other body. Rather than trusting to virtue, the seventeenth century constitutionalists sought to create a government of laws, rather than of men. Contra Yoo, this is the ideological genesis of the separation of powers —not some concern with the efficient division of labor for the conduct of domestic and foreign affairs.

Throughout the seventeenth century, Gentili’s views on executive power were vilified by the constitutionalists. He was tarred by association with Bodin’s theory of sovereignty, since “just as Bodin [was] in France, he [Gentili] was the theoretical founder of absolutism in England.”209 In 1648 he was accused by parliamentarians as having provided the intellectual justification for the Stuart overreaching: one of “Gentili’s critic[s] claimed that the Professor had encouraged both James I and Charles I to advance the royal prerogative at the expense of the people’s liberty and to lead the country into civil war.”210

This critic also asserted that the argument—made both by Gentili and by James I himself in the True Law of Free Monarchies—that the king did not need to justify his view that his prerogative had been invoked to protect his

207

Mortenson, supra note 33, at 386-87.208

Levack, supra note 197, at 108. n.4.209 G. VAN DER MOLEN, ALBERICO GENTILI AND THE DEVELOPMENT OF INTERNATIONAL LAW, 239 (1938).210 Levack, supra note 197, at 5.

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people “actually violated God’s law itself,”211 since arbitrary power was a violation of the natural law, which following Aquinas and all his medieval expositors meant that his claim to authority would then be void. This type of response to royalist arguments about the prerogative was very influential in both the seventeenth and eighteenth centuries, as arbitrariness, no matter how benevolent, was considered by all constitutionalists to be the exact opposite of liberty.212 This argument also appealed to the Framers.

b. The similarity between Yoo’s arguments about the nonjusticiability of the limits of executive powers and the sermons of Sibthorpe and Mainwaring

During the reign of James’ son Charles I, the leading proponents of broad executive powers were not civil lawyers, but rather ecclesiastics. The two primary advocates for a broad theory of the extraordinary royal prerogative (primarily in the form of the dispensing power) at this time were the Vicar of Brackley Robert Sibthorpe, and Roger Mainwaring, a royal chaplain to Charles I.

Sibthorpe and Mainwaring wrote at the time of the Forced Loan. As described in the last section, the Forced Loan depended upon the fiction that the payment to the Crown was voluntary; it clearly was not, since lists were being kept that detailed who did not pay, and those who advocated resistance were subjected to substantial royal coercion in the Star Chamber.213 The question of whether the king had the power to ignore thestatutes that prevented extraparliamentary taxation on the basis of his perception of a crisis divided constitutionalist and royalist thinkers.

Sibthorpe and Mainwaring’s writings and speeches pleased Charles, who ordered them published despite the fact that they had already proven controversial. They drew upon a range of absolutist ideas; Mainwaring in particular derived his argument from a number of political theorists and continental civilian lawyers.214 He argued that the power to tax without consent was inherent in kingship, and derived from the king’s power to protect the public interest: “it did not matter that it infringed the laws of the land.”215 Sibthorpe insisted that the king’s prerogative could never be limited by the laws, and “inveighed against ‘that fractious fraternity’ of

211 Id. at 107.212 Reid, supra note 162, 36-48.213 Alford, supra note 107, at 691–93.214 Sommerville, supra note 92, at 129.215 Id. at 129.

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common lawyers and constitutionalist parliamentarians who ‘make the law above the king.”216

Parliament was incensed by these statements; complaints were filed against the two clerics. Charles, although content to allow Parliament to scapegoat clerics, did not relent in the battle over the forced loan, and one of his proclamations “made it clear that [he believed that] the fundamentals of [Mainwaring’s] theory were right. Absolutism was true.”217 Since Parliament would not agree, Charles dissolved it the next year and beganthe period of personal rule that led to the Civil War. Ultimately, this led to his execution, which also marked the death of the king’s extraordinary prerogative to ignore the statutes when he perceived this to be in the public interest, unchecked by any other authority.

While any possibility of royal absolutism in England died at the end of the early Stuart era, its specter haunted the nation until the Glorious Revolution owing to the dispensing power, and in the colonies until the American Revolution, due to parliament’s control over the royal prerogative through such bodies as the Board of Trade. Accordingly, it should not surprise us that Sibthorpe and Mainwaring were hate figures in the discourse of the eighteenth century British libertarians and American Patriots. It is relevant to note that Locke criticized Sibthorpe and Mainwaring’s view of the prerogative, to the point that they became the “universally despised apologists of Stuart authoritarianism.”218 The extraordinarily influential Cato’s letters also denounced them, and this “helped similarly to transmit to the Revolutionary generation the reputations of the more notorious clerical absolutists . . . . [including] Robert Sibthorpe and Roger Mainwaring.”219

Accordingly, by the beginning of the pre-revolutionary crisis in 1765, there was a universal consensus that their ideas were entirely unacceptable. “Writers those colonists took to be opponents of Enlightenment rationalism—primarily Hobbes, Filmer, Sibthorpe, Mandeville and Mainwaring—were denounced as frequently by loyalists as by patriots . . . . with the exception of Filmer none of the authors . . . were in fact referred to favorably by Tories.”220 As Bailyn notes, “[e]arlier defenders of the royal prerogative Roger Mainwaring and Robert Sibthorpe [were those whom] the colonists would frequently denounce as pre-eminent absolutists.” 216 Id., quoting ROBERT SIBTHORPE, APOSTOLIC OBEDIENCE, 23 (1626).217 Sommerville, supra note 92, at 131.218

BERNARD BAILYN, IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION, 29 n.9 (1992).219

Id. at 53 n.40.220

Id. at 28-29.

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This was true not only in the prerevolutionary period, but extending forward to the ratification of the constitution. During the ratification debates, delegates “denounced the ancient villains . . . even those fabled apologists of . . . Charles I, Robert Sibthorpe and Roger Mainwaring.221 It is quite clear both that their ideas (which incorporated the ideas of the civilians such as Gentili with whom they were accustomed) are similar toYoo’s about executive prerogative in times of crisis, and that these ideas were demonstrably anathema to the framers, and considered emblematic of the arbitrariness which they considered the opposite of ordered liberty.

CONCLUSION

It is quite unlikely that Yoo would appreciate the comparison between his views on executive power and those of the absolutist theorists whose ideas were decisively rejected by the constitutionalist writers of the seventeenth and eighteenth centuries, including the Framers. After all, Yoo has explicitly rejected what Thomas Jefferson had called the Lockean prerogative,222 defined as the executive’s “power to act according to the public good, without the prescription of the law, and sometimes against it.”223 However, this view of the prerogative had also been rejected by the absolutists. They continued to assert that while the king was not bound to observe the statutes, he was bound to observe the natural law and the law of nations, which had invested him with kingly power.

The problem before the English Civil War had been one of enforcement. Constitutionalists had noted that the assurances of Gentili and other absolutists meant nothing if the king was the only judge of whether he was in breach of his obligations, as found in such sources as the coronation oath. While Yoo, like Gentili, asserts that the executive is not above the law (unlike Jefferson, who asserted that he was, when the salus populi might require it),224 this is meaningless if the judiciary cannot constrain the President’s actions, especially when they are contrary to statutes, as demonstrated by the Case of the Ship Money.

If the executive may ignore any statute passed to restrain his authority, such as the Petition of Right or the War Powers Act of 1973, they are not adequately constrained by the legislature. If it has the power to terminate

221

Id. at 344.222 Mortenson, supra note 33, at 444; Yoo, supra note 6, at 124-26, 201-01.223 JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT § 160, 82 (1966).224 See John Yoo, Jefferson and Executive Power, 88 B. U. L. REV. 421, 443 (2008); see generally Leonard W. Levy, JEFFERSON AND CIVIL LIBERTIES: THE DARKER SIDE (1963).

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any judicial proceeding in which their right to act in a manner that might be against the law is called into question, i.e., as with James I’s speech in the Star Chamber of 1616 that prevented any discussion of his prerogative in the common law courts, or by way of the political question doctrine, then itcannot be controlled by the judiciary. The constitutionalists of the seventeenth century—like Mortenson and several other of Yoo’s critics of today—recognized that this state of affairs is functionary equivalent to absolutism. Accordingly, the distinction without a difference propounded by thinkers such as Gentili, Mainwaring, and Yoo was decisively rejected.

It must be noted that Yoo has produced no solid evidence for this thesis that the Framers intended to invest the presidency with the extraordinary powers that he believes it possesses. His history of the conventions and the ratification debates has been refuted;225 the same is true for his post-1787 history, which consists of a whiggish attempt to explain earlier events by reference to what occurred at a later date. All that remained was Yoo’s assertion that the “baseline” for the Framers’ conception of executive power (which would make Yoo’s interpretation seem at the least plausible) was provided by the powers of the British Crown in 1787.

Unfortunately, Yoo’s whiggish methodology doomed his description of the Crown’s powers in 1787. He failed to note that even if the Framers had chosen to use this as their baseline (and they clearly did not, as Hamilton’s arguments that they should were perceived as practically surreal), the President would not possess an extraordinary prerogative of the type that Yoo defends, since the ability to control these powers had been transferred to Parliament in the wake of the Glorious Revolution. As demonstrated by Reid and others, the revolutionary generation understood that British constitutional theory had abandoned any conception of a separation of powers during the eighteenth century, as the new theory of the supremacy of Parliament had been a key point of contention between the United Kingdom and the American Colonists during the pre-revolutionary crisis. There simply was no independent executive power in the British constitution of 1787, as every Patriot knew.

Conversely, Yoo did not grasp that the formal theory of the powers of the British Crown, which endures to this day, was a legal fiction by the time of George III, and that the Framers were clear on this fact. He fails to observe that the Hanoverians did not have the same powers as those exercised even by William III, who possessed only a fraction of those possessed by the post-Restoration Stuarts —who themselves could only dream of the extraordinary prerogative used by Charles I during his period 225 Bradley & Flaherty, supra note 37.

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of personal rule (but which unfortunately had led to his execution). More fundamentally, Yoo failed to note that the late eighteenth century context is dramatically different from the early seventeenth century state of affairs —and that this difference is attributable to the rejection of ideas strikingly similar to his own, by precisely those constitutionalist theorists who were most admired by the Framers.

When we understand the true context of the Framing we see that it is not merely the case that Yoo has posited the wrong baseline for the consideration of executive power in 1787. Rather, he held that the Framers would have adopted the view which the constitutionalist tradition in which they participated had defined itself against. In doing so, he became a defender of the extraordinary executive prerogative that was universally rejected and derided in the seventeenth and eighteenth centuries—most notably by the Framers—as the antithesis of constitutionalist ideals of freedom from arbitrary power.

Again, all of these errors can be attributed to the fact that Yoo reliedexclusively on the methods of whig history. He cleaved to the simple but fundamentally misleading story of a march of progress towards a terminal point which he has selected, which corresponds with his preferred vision ofcontemporary executive power: Not merely a general theory of theseparation of powers (which Britain had rejected long before 1787), but a particular kind of separation of powers that gives the executive effectively unreviewable discretion in foreign affairs. However, to posit that a single, ahistorical conception of “the executive power” is present across four centuries of history is to defend an absurdity.

The vesting clause theorists’ textual arguments and their legal history of the Philadelphia convention have been thoroughly refuted. It is clear that Yoo’s thesis about the ‘baseline’ of executive power provided by the British Constitution of 1787 is all that can support their expansive interpretations of the Executive Power and Vesting Clause of Article II; this is what explains Yoo’s historical focus in The Powers of War and Peace, where this had simply been one line of reasoning among many in his earlier scholarship. Unfortunately, this argument is not even wrong.