Introduction
What would happen if the President had no qualms about violating the law? Suppose he is fighting terrorism and wants to deploy wiretaps prohibited by the statutory surveillance framework
and an interrogation program that violates federal criminal law.
Or imagine he wants to conduct an unauthorized humanitarian intervention but runs into a statutory time limit requiring him to cease hostilities.
What if a statute requires U.S. passports to include a diplomatically provocative term, but the President wants the State Department to leave it out?
Different though the stakes and specifics of these questions may be, their underlying structure is identical. In each hypothetical, a presidential policy—to wiretap, torture, bomb, or scriven—is prohibited by existing legislation. In each hypothetical, the prohibition is too clear to be finessed by clever statutory interpretation. And in each hypothetical, lawyers have to decide what will give way. Does the statute constrain the President? Or does executive power trump the statute?
A leading scholarly view—shared by at least one current member of the Supreme Court
and asserted with increasing persistence by the executive branch itself
—is that cases like these often turn on the President’s constitutional possession of “the executive power.” Usually called the Vesting Clause Thesis, this view is said to date to a post-ratification pamphlet written by Alexander Hamilton.
It rests on a simple claim about the original understanding of the Constitution. Specifically: “[T]he executive power” was a term of art for a particular bundle of substantive powers held by the British Crown. In the same way that bestowing agency, guardianship, or bailment powers would convey a well-understood package of powers to an agent, guardian, or bailee, the vesting of “executive power” is said to have conveyed a bundle of authorities usually associated with kingship.
From that starting point, the Vesting Clause Thesis derives the following rule: The constitutional President was understood to possess the same powers and privileges as the eighteenth-century British Crown, except when specifically limited by other provisions of the Constitution.
In its strongest form—which suggests that any limitation or reassignment would require very clear constitutional text—the Vesting Clause Thesis yields a powerful presumption of indefeasible
presidential authority in the arenas of foreign affairs and national security. In a world where originalism is so influential, that’s a big deal—especially since executive branch interpretation often proceeds either out of sight or without a clear path to judicial review.
Certainly the thesis loomed large in the real-world version of each controversy flagged above.
This Article lays the foundation for demonstrating that, as a historical claim about the document adopted by the Founders, the Vesting Clause Thesis is wrong. Historically speaking, there was a term of art for the basket of nonstatutory powers held by the British Crown. But that term was “royal prerogative.” Article II’s reference to “the executive power,” by contrast, referenced only one specific item in a very long list of royal authorities. Specifically, it meant the narrow but potent authority to carry out projects defined by a prior exercise of the legislative power. As the leading English theorist of royal absolutism explained—with unmistakable disdain—the “executive power” was nothing more than “a power of putting [the] laws in execution.”
To be clear, even radical Whigs knew that the Crown had other powers besides the merely “executive.” But as a matter of well-established legal semantics, those powers were possessed in addition to “the executive power” rather than as part of it. For this reason, the first sentence of Article II simply cannot bear the weight of the Vesting Clause Thesis. It vests the executive power, not the royal prerogative.
If this is right, then three conclusions follow:
- First, the opening sentence of Article II vested exactly what it says: the power to execute the law, both by enforcing its negative prohibitions and by carrying out its affirmative projects. This was a mighty charge for a majestic office, and the manner of its delegation caused much anxiety. But it extended only to the implementation of substantive legal requirements and authorities that were created somewhere else. It wasn’t just that the use of executive power was subject to legislative influence in a crude political sense. Rather, the power itself was fundamentally derivative. It was incapable of providing even a defeasible source of independent substantive authority, let alone one that was immune from legislative revision.
- Second, the Vesting Clause Thesis gets the original default rule of constitutional preeminence backward. Far from presuming that law cannot bind the President on questions of national security and foreign affairs, the Founders’ Constitution presumed that the President must obey duly enacted statutes in those areas too—unless some other grant of Article II authority specifically rebutted that presumption. The contrary claim isn’t just wrong; it’s conceptually confused.
- Third, arguments that the President possesses a free-floating and indefeasible foreign affairs power cannot rest on historical claims about the Founding. They must rest instead on some form of what originalists call living constitutionalism—and in particular on a meticulous demonstration that such powers have in fact emerged over time.
Because the Vesting Clause Thesis is so entrenched in our constitutional culture, we must uproot it systematically—first by examining the intellectual currents of the late eighteenth century, and then by attending to what the Founders actually said and did before, during, and after the ratification debates. This Article lays the foundation for that project. Left for another day is a discussion of how the standard understanding of executive power was reflected—as it demonstrably was—in discussion and debate throughout the Founding and early Republic.
But the indispensable foundation for that forthcoming work is laid here: While the canonical commentators disagreed vigorously about how best to allocate the powers of government, the eighteenth-century grammar of their debate—both conceptually and semantically—was well established. Absent some evidence that the Founders ignored this background and adopted a basically unprecedented meaning of “executive power,” the first sentence of Article II would have been understood as vesting the wholly derivative authority to execute the laws, and nothing else.
This Article is organized as follows. Part I outlines three competing views of the Executive Power Clause: the “Cross-Reference” theory, the “Law Execution” theory, and the “Royal Residuum” theory. Part II surveys the political and theoretical backdrop for eighteenth-century debates about the separation of powers. Part III turns to the legal semantics of constitutional law proper. It shows that the standard term for the bundle of nonstatutory powers held by the Crown was “royal prerogative” and that “executive power” referred to one distinct branch of the prerogative: the authority to execute the law. Part IV explores some reasons that Royal Residuum proponents have misunderstood the historical evidence. Part V concludes with a survey of Founding-Era dictionaries, showing that they offer unanimous support for reading “executive power” as “the power to execute.”
I. Three Views of the Executive Power Clause
To a lay audience, the questions we started with may seem easy: Surely the President isn’t above the law? Under the U.S. Constitution, however, the legislative code only frames the question about legality; it doesn’t necessarily answer it. Consider by contrast a jurisdiction where the answer really is that simple. In the United Kingdom, statutes control the Crown—full stop. Whether courts trace the origins of the proposition to dictum from the Case of Proclamations,
the statutory abrogation of royal suspension and dispensation,
or the evolution of political conventions after the Glorious Revolution,
the principle of legislative sovereignty has now been established for centuries:
[T]he most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme . . . . Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation . . . .
There is thus no such thing as an indefeasible residuum of royal power that is immune from legislative interference: The Crown cannot act in defiance of the statutory framework.
It’s more complicated in the United States. American sovereignty is famously divided—first between the federal government and the states, and then among the branches of the federal government itself. It’s not just that no single entity possesses unitary authority over the coercive power of the state. Even if the political institutions were to act in perfect cooperative concert, they still couldn’t exercise genuinely plenary control—not even as a collective. That’s because all of them are bound by the U.S. Constitution, which puts some kinds of policy choices completely off limits—such that sovereignty (whatever exactly that means) resides not in any set of political institutions but “in” the American people (whoever exactly they are) on terms currently defined by the Constitution itself (whatever exactly that is).
The point here isn’t the metaphysics of nationhood but the pragmatics of turf wars. No American political entity possesses anything like Parliament’s plenary authority and legal supremacy. To the contrary, at the federal level, the Constitution parcels out discrete legal authorities—and only those authorities—to the various players in the system. Like a corporation’s founding charter or an international organization’s constitutive treaty, the Constitution conveys only those powers that the stakeholders choose to convey. This gives rise to a foundational principle of American governance: Any federal action that cannot trace its authority to some constitutional grant of power is, by definition, ultra vires.
And that brings us back to the questions outlined above. Unlike the U.K. prime minister, the American President can’t figure out whether he gets to act without legislative authorization — much less in violation of a statute — by making grand inquiries about the locus of sovereignty. Instead, the conversation begins with a small-bore question: Is there some constitutional grant of presidential authority over this kind of wiretapping, torturing, bombing, or scrivening?
If there isn’t, then he can’t.
That conclusion follows necessarily: Either he has no legal authority at all (and so lacks the power ab initio), or he has only statutory authorization (and so his power is necessarily limited by the statute’s restrictions). Either way, the President can’t ignore the law.
So for questions like ours, the enumeration problem is central: What powers does the Constitution grant to the President? Well, it’s a grab bag—and not a terribly big one. Article II begins by vesting “the executive Power” in the President.
After specifying the details of eligibility and election, the Constitution then names the President “Commander in Chief of the Army and Navy of the United States” and of the state militias “when called into the actual Service of the United States.”
In the realm of foreign affairs, the President has the power to “make Treaties” if two thirds of the Senate concurs, to “receive Ambassadors and other public Ministers,” and to “nominate” and “appoint” U.S. diplomats with senatorial consent.
On “extraordinary Occasions,” the President has the authority to convene both houses of Congress.
Finally, the President has an overarching obligation to “take Care that the Laws be faithfully executed” and must take an oath to “preserve, protect and defend the Constitution of the United States.”
When it comes to the provisions of Article II plausibly bearing on the questions at issue, that’s more or less it.
This Article focuses on the first of these enumerations. Its text has all the romance of a human resources circular: “The executive power shall be vested in a President of the United States of America.”
Yet this first sentence of Article II presents what Gary Lawson calls “one of the most important questions of any kind, on any subject, under the Federal Constitution.”
That’s because “the executive power” is the last best hope of Presidents who want to take action without legislative authorization.
(The other enumerations are of course relevant to—and possibly preclusive of—statutes touching on the kinds of activities they authorize.
But the universe of such activities is not large.)
There are at least three ways to understand Article II’s reference to the executive power. The first is what I will call the “Cross-
Reference” theory, which understands “the executive power” as a content-free referent to the rest of Article II. This thin reading of the Executive Power Clause has been embraced by Supreme Court Justices,
legislators,
and a number of academics.
On this view, the term is a convenient lexical handle for a grab bag of powers. The full contents of that grab bag are set out in the remainder of Article II. And nothing else goes in the bag. While this approach reads the Executive Power Clause as substantively prefatory, it does leave the clause with one significant job: clarifying that the listed powers belong to the President and no one else. That specification is more significant than it might seem. Repulsed by even the suggestion of kingship, some early state constitutions vested such powers in a committee rather than in one individual
—producing exactly the kinds of indecision, ineffectiveness, and delay that you would expect. And so on the Cross-Reference theory, a muscularly centralizing Constitution responded by using the Executive Power Clause to preclude the possibility of devolution to governance by committee.
The second understanding, which I will call the “Law Execution” theory, gives the opening clause its own independent substantive content. On this view—which has found support among Presidents,
Supreme Court Justices,
and scholars
—“the executive power” is exactly what it sounds like: the power to execute the law. The executive power thus authorizes the President to bring that law—which before execution exists only on paper—into effect in the real world. Sometimes this might mean coercing obedience from private parties, like ticketing jaywalkers. Other times it might mean implementing an affirmative project of the legislature, like picking up the garbage. Either way, the executive power enables the President to spearhead the project of connecting legal imperative to physical reality: “Interpreting a law enacted by Congress to implement the legislative mandate,” the Supreme Court tells us, “is the very essence of ‘execution’ of the law.”
And no other provision of the Constitution gives it to the President as an affirmative enforcement authority rather than as a Take Care compliance obligation.
The third understanding is what I will call the “Royal Residuum” Thesis.
(It’s often called the Vesting Clause Thesis, but that is an unhelpful description. All three theories have a Thesis about what is Vested by the Clause.) As described above, this understanding takes “the executive power” as a term of art referring to a well-understood bundle of authorities that went well beyond the specific enumerations elsewhere in Article II. “Because supreme executives in other countries had a similar basket of powers,” Royal Residuum theorists argue, “it became common to speak of an ‘executive power’ that encompassed an array of powers commonly wielded by monarchs.”
Here’s a typical modern description of what went in the basket:
Traditionally, the “executive power” was understood at the time of the framing as including the power of war and peace, and all external relations of the nation. . . .
But the President was left with whatever remained of the traditional “executive power” in matters of war, peace, and foreign affairs, diminished to a significant extent, but not completely, by the re-allocation of some very important, traditionally executive, powers to Congress.
Leaning heavily on two eighteenth-century writers to whom I will return below,
Royal Residuum theorists conclude that “[b]y using a common phrase infused with that meaning, the Constitution establishes a presumption that the President will enjoy those foreign affairs powers that were traditionally part of the executive power.”
For judges who subscribe to these claims, the doctrinal implications are straightforward: “[T]he ‘executive Power’ vested in the President by Article II includes the residual foreign affairs powers of the Federal Government not otherwise allocated by the Constitution.”
The Royal Residuum Thesis has been remarkably successful. Besides support from Supreme Court Justices,
prominent federal legislators,
leading executive branch officials,
and at least one President,
it is easily the dominant historical account among modern commentators.
Certainly, the historical claim is expressed with sufficient frequency and confidence that, particularly in the wake of its seminal modern summation by Saikrishna Prakash and Michael Ramsey,
I had long assumed at least some version of it to be correct. The consequences of that success are stark, at least for originalists willing to stick with the full logical consequences. If the Executive Power Clause really is a royal residuum, then the President is endowed—it would seem indefeasibly—with those aspects of kingly authority that have not been reallocated to other actors.
Take, for example, the now-retracted memo in which the Office of Legal Counsel advised George W. Bush’s Defense Department that it was legally entitled to torture suspected terrorists. The first sentence of Article II was front and center in explaining why the relevant criminal statutes would be unconstitutional as applied to torture by federal officials:
First, we discuss the constitutional foundations of the President’s power, as Commander in Chief and Chief Executive, to conduct military operations during the current armed conflict. . . .
. . . .
. . . The decision to deploy military force in the defense of U.S. interests is expressly placed under Presidential authority by the Vesting Clause and by the Commander-in-Chief Clause. . . . [T]he structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive—which includes the conduct of warfare and the defense of the nation—unless expressly assigned to Congress, is vested in the President. Article II, Section 1 makes this clear by stating that the “executive Power shall be vested in a President of the United States of America.”
In the same vein, the Office of Legal Counsel later advised the Attorney General that, because of the President’s “‘unique responsibility,’ as Commander in Chief and Chief Executive, for ‘foreign and military affairs’ as well as national security,” Barack Obama had constitutional authority to initiate the use of force against Libya without congressional approval.
And Justice Thomas argued that the Executive Power Clause, standing alone, justified presidential defiance of a statute that required the United States to issue a passport listing “Israel” as the place of birth for a young boy born in Jerusalem.
To be sure, the Royal Residuum Thesis has met strong resistance as a basis for modern doctrine—certainly it has never commanded a majority on the Supreme Court. The principal textual criticism has been the redundancy it creates within Article II.
Other resistance has focused either on disputing the size of the historical bundle or contesting its methodological relevance today. As a historical matter, there are ongoing disputes even among proponents of the Royal Residuum Thesis about just how far the package of powers was understood to extend.
There is likewise at least some disagreement among advocates of the theory about whether the royal residuum sits in Youngstown Zone Two or Zone Three—that is, whether its contents were defeasible by an otherwise appropriate act of Congress.
And as a methodological matter, some critics deny that the original understanding (even where discernible) should decide modern separation of powers controversies. They emphasize, with strong support in Supreme Court doctrine, that considerations like functionalism and evolving historical practice also play an important role.
Among constitutional originalists, however, the Royal Residuum Thesis remains dominant. At most, criticism of the historical claim—exemplified by the work of Martin Flaherty and Curt Bradley
—challenges particular bits of evidence offered by Royal Residuum theorists and contends that the Founders had more amorphous and varying views than the Thesis recognizes.
The real mistake of the Royal Residuum Thesis, Flaherty and Bradley argue, is what they consider an ahistorical decision to seek an “essential” definition of executive power in the first place. In their view, that whole enterprise is misconceived from the get-go, partly because of “complexity within eighteenth-century political theory” and partly because “the constitutional Founders were [demonstrably] functionalists, willing to deviate from pure political theory and essentialist categories.”
As Flaherty has written elsewhere, “the sweep of events [following the American Revolution] belies the assumption that the formalist conception was a constant and renders improbable the notion that it became the consensus.”
It verges on law-office history to suggest otherwise.
In practice, this fundamentally equivocal criticism reduces to a caution flag of uncertainty, contingency, and historical contestation—a sort of standard historian’s warning that likely underwhelms executive branch lawyers and judges who must reach a binary yes-or-no decision. As Aziz Huq explains in his generally sympathetic account of the arguments advanced by scholars like Bradley and Flaherty as well as Peter Strauss, Lawrence Lessig, and Cass Sunstein:
[T]he leading work [criticizing the Royal Residuum thesis and associated theories] finds the text inescapably ambivalent. Such work instead situates the Constitution in what is described as a fluid, contested, and unstable eighteenth-century debate about the appropriate internal organization of government . . . . In consequence, [these scholars] decline to draw a strong conclusion from the Constitution’s text, preratification practice, or Founding-era interpretative conventions about the precise contours of each branch’s authority.
This Article goes beyond previous work in two ways: first, in the scope and systematic treatment of the evidence reviewed. In contrast to a brief engagement with four or five works of early modern political theory, this Article relies on more than a thousand contemporaneous published texts by hundreds of commentators, with a research methodology that involved reviewing every instance of the word root “exec-” and reading most of the texts cover to cover with the topic of presidential power squarely in mind. That immersion in the evidence enables the second distinctive feature of this project: the confidence with which this Article can not only refute the Royal Residuum Thesis, but also offer an affirmative replacement theory that is both historically and theoretically coherent—and that cannot be caricatured as so much carping about a thicket of contestation and uncertainty.
To be clear, this Article does not engage nonoriginalist arguments for an Article II residuum. The thesis defended here rests neither on the mistaken textualist premise that the Constitution must be read to avoid surplusage, nor on a contestable methodological commitment to custom and tradition as a source of constitutional meaning. Instead, the Article targets the Royal Residuum Thesis where it lives: as a descriptive historical assertion about the semantic content of a standard eighteenth-century legal concept. In that respect, the piece begins by agreeing with Royal Residuum theorists—thereby diverging sharply from Bradley and Flaherty—that the Founders did “ha[ve] in mind, and intend[ ] the Constitution to reflect, a conception of what is ‘naturally’ or ‘essentially’ within executive power.”
This project will show, however, that the meaning was unambiguously limited to law execution. And it will offer a fully worked-out explanation of how that authority operated in an integrated constitutional context.
II. Political Theory
The Article’s methodology is motivated by a metaphor: standing in front of James Madison’s bookshelf and pulling texts off the wall to ask, what was the foundation on which the Founders were building? First, normatively: What did the canonical works of political, philosophical, and legal theory have to say about the functions and powers of government, particularly its head magistrate? Second, semantically: What words did the canonical authors use when talking about these various functions and powers?
I have not, of course, literally identified every book in Madison’s possession or limited myself to the holdings of one man. Rather, the man and his bookshelf stand in for the educated American public and the corpus of materials from which its understandings were drawn. That said, the bookshelf conceit is not entirely metaphorical. We know a lot about what the Founders were reading, partly from statistical analysis of citations in political debates and the contemporary press,
and partly from inventories of real bookshelves, often in the form of library catalogs, probate records, and purchase orders.
On the background of such evidence—as processed by decades of painstaking work by archivists and intellectual historians—American historian Jack Rakove sketches the scholarly consensus about “those intellectual sources of influence that shaped the mental world of the revolutionary generation”:
There is no question that politically articulate eighteenth-century Americans—and certainly members of the political elite—were eclectically conversant with the works of luminaries like Hobbes, Locke, Montesquieu, Hume, and Blackstone. They were also well-versed in the richly polemical literature of seventeenth- and eighteenth-century English politics; the moral philosophy and faculty psychology of the Scottish enlightenment; the disquisitions on public law of such European authorities as Grotius, Pufendorf, and Delolme; and, one might add en passant, the inheritance of English jurisprudence. American thinking about politics was no doubt also shaped by reading in the classics, the legacy of Newtonian science, and even the emphasis on sympathy in eighteenth-century philosophy and literature (which resonates strongly in their notions of representation). All of these writings shaped the intellectual context in which the Framers and Ratifiers acted. Whether we think of these ideas as big concepts whose evolution can be traced in a classic history-of-ideas mode, or as elements of ideologies like republicanism or liberalism, or as competing Foucauldian discourses, it seems evident that they were essential elements of the original language of American constitutionalism.
The consequence for any intellectually serious version of originalism is clear. Confronted by a question about the Founders’ constitutional arrangement, we must start by turning to material like this to “reconstruct the underlying assumptions and concerns and the manifest events and experiences that presumably explain both authorial intentions and Ratifier understandings.”
None of this will necessarily lead to a straightforward interpretive conclusion in any case. Madison’s bookshelf was stocked with wildly varying visions of political legitimacy and good government. And that variation was well suited to the tumult and uncertainty faced by the Founders themselves. They had shattered their relationship with the English sovereign. They had experimented with a variety of new forms of governance. And they were facing the challenge of writing a new constitutional charter that would both empower and constrain a national government in a way never before achieved. Forget the vexations of federalism, the Founding generation was profoundly uncertain even about how to structure the national entities in their own right—and how best to allocate responsibilities and authorities among them once created.
This Article does not resist that standard picture of contestation and uncertainty.
There is no question that—like the intellectual legacy to which they were heir—the colonists, revolutionaries, Philadelphia drafters, ratification polemicists, and state ratifiers expressed radically diverging views on the best allocation of national power. There is no question that the Constitution’s terms are abstract and incomplete in most respects, and nowhere more so than the allocation of foreign affairs powers. And it is obviously the case that both the ratifiers themselves and the politicians of the early Republic disagreed on a great many particular problems of application—if and when those problems even occurred to them in the first place.
And yet.
Even amidst this intellectual chaos-slash-ferment, some things were clear. If the Founders’ goals were often irreconcilable, the words they used to describe and debate their proposals, criticisms, and counterproposals were—at least on some points—strikingly consistent. Of particular relevance here is how their disputes about institutional structure were consistently framed around what they often called the “complete” or “perfect” triad of legislative, executive, and judicial power as three conceptual phases in the life cycle of law.
This Article shows that formulation to have been a straightforward reflection of standard eighteenth-century understandings. If that’s right, then the negotiated settlement of the Executive Power Clause did have a clear meaning. That meaning is the one that leaps off the face of the text: “[T]he executive power” meant “the power to execute.” My hope is that even unsympathetic readers will wind up finding this hard to unsee.
A. The Historical Background
The Founders came of age in the aftermath of a long constitutional struggle in the mother country. It is a fool’s errand to offer even the most apologetically caveated summary of England’s multicentury wobble toward parliamentary supremacy. But the political imaginary of that struggle was deeply entrenched in the Founders’ minds, by way of schoolrooms, the political press, and widely published histories from authors across the political spectrum.
So we should begin by chalking out some rudimentary context for the legal and political concepts that are discussed in depth below.
The American Founders told themselves a story of English constitutionalism in which Parliament (and especially the Commons) led the struggle to wrest individual freedom from increasingly oppressive monarchs.
The path to that outcome was winding. While many Americans followed the English Whigs in imagining that Parliament’s institutional identity was central to the “ancient constitution” of England,
it is now understood that English parliaments emerged not so much as institutions in their own right as ad hoc gatherings summoned by the Crown, especially when approval for taxation was needed.
During the long transition to modernity, a complicated variety of economic, religious, and political developments led parliamentary elections and debate to channel larger and more systematic ideological disputes among members of the British political elite.
And Parliament—or at least, significant factions within Parliament—began to develop a more particularized sense of institutional identity once assembled. With the arrival of the Stuarts in 1603, tensions between the Crown and Parliament as such increasingly crystallized around suspicion of the new dynasty’s Catholic sympathies; dissatisfaction with the costs of court, government, and military adventures; and anxiety about the new King’s pretensions to a divine-right absolutism.
The end of the resulting struggle is well known. Certainly by the middle of the eighteenth century, the legislative institution of “the King-in-Parliament” had been recognized as conceptually sovereign and legally supreme over all competing institutions, and the Crown’s direct participation in statutory enactment had been reduced to an empty formality.
The intermediate steps were complicated.
Over the course of the 1600s, the king clashed with (some) judges and (many) parliamentarians over royal interference with parliamentary privileges; over the promulgation of proclamations purporting to have the force of law; over judges’ authority to interpret the law differently from the Crown; and over Parliament’s power to restrict the operations of the Crown and its apparatus of government.
It took a civil war, a republican interregnum, and a tentative royal Restoration before the Glorious Revolution of 1688—involving the flight of James II and Parliament’s installment of William and Mary in his place—led to a formal settlement that entailed (it quickly became clear) the total capitulation of any claim to constitutionally indefeasible royal authority.
Certainly by the Founding period, it was well-settled that English law had no separation of powers doctrine in the sense that American lawyers understand it today. The Crown simply had no powers that the legislature was bound to respect.
The analogy to common law is almost exact. For instance, eighteenth-century students of English law learned, correctly, that “the law” required contracts to include at least a peppercorn in consideration.
But—notwithstanding aggressive statutory interpretation and occasional vague rumblings of judicial review
—they also learned that if “the common law and a statute differ, the common law gives place to the statute.”
William Blackstone, whose landmark treatise on English law probably influenced the Founders more than any other single source,
generalized the point: “[T]here is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.”
Indeed, the English treatises taught that not just common law but all of English constitutional law existed only at the continued sufferance of Parliament: “[Parliament] can change and create afresh even the constitution of the kingdom and of parliaments themselves . . . .”
By the time of the American Revolution, this had long since been true of royal authority in particular.
The previously sacrosanct jus regium of “dispensing with penall Lawes”
was the first item in the crosshairs of the Bill of Rights that defined the Glorious Revolution.
Starker still was the 1701 Act of Settlement’s dictation of succession
and marriage rights,
which even many pre–Civil War parliamentarians had understood as “inseparable prerogatives of the Crown and king.”
The seismic implications of stripping such “prerogatives absolute” were well understood; earlier generations’ search for a theory to justify and describe some essential core of indefeasible royal authority simply ended.
This radical reworking of English parliamentary theory was thoroughgoing.
The prerogative was demystified.
It was no longer subdivided into aspects that were indefeasible (“prerogative absolute,” “prerogative indisputable,” or “jus majestatis”) and those that were not (“prerogative disputable” or “jus praerogativae”).
And it was shorn of its extralegal pretensions.
Following the lead of the parliamentarian jurist Edward Coke, English law had worked its way from the milder proposition that “the Common law hath so admeasured the prerogatives of the King, that they should not take away, nor prejudice the inheritance of any [man]”
to the more radical conclusion that “the King hath no prerogative, but that which the law of the land allows him.”
Never again could a king say “you neither mean [to] nor can hurt My Prerogative.”
To the contrary, William and Mary recognized the full implications of the Glorious Revolution by “solemnly Promis[ing]” at their coronation to “[g]overne the People of this Kingdome of England and the Dominions thereto belonging according to the Statutes in Parlyament Agreed on and the Laws and Customs of the same.”
Eighteenth-century legal commentators followed suit, contrasting the king’s “divers Prerogatives which the Law gives unto him” with the sovereign supremacy of Parliament’s “absolute Power in all Cases . . . to make Laws,” noting that “if the Parliament itself err, as it may, this may not be reversed in any Place but in Parliament.”
Even political theorists who were generally sympathetic to monarchy felt no need to hedge:
[T]hough in [the King’s] political capacity of one of the constituent parts of the Parliament, that is, with regard to the share allotted to him in the legislative authority, the King is undoubtedly Sovereign, and only needs alledge his will when he gives or refuses his assent to the bills presented to him; yet, in the exercise of his powers of Government, he is no more than a Magistrate, and the laws, whether those that existed before him, or those to which, by his assent, he has given being, must direct his conduct, and bind him equally with his subjects.
This hard-won legacy of subjecting the Crown to the rule of law was key to the Founders’ self-image as heirs to a revolutionary tradition of liberty, seized by “that patriotic spirit which prompted the illustrious English barons to extort Magna Charta from their tyrannical king, John.”
However much the Founders otherwise disagreed, they tended to share the view that the spirit of parliamentary liberty was less corrupted in the New World than in the home country and to think any new government would be measured by its ability to embody and protect that spirit.
B. The Execution Problem
On this historical backdrop, the legal and political theory on Madison’s bookshelf was as varied and quarrelsome as the Founding generation itself. Within the array of contested values and competing priorities, it is hard to identify any single concern as dominant. But the need for vigorous execution of the law loomed especially large. That was certainly true in the ineffective politics of the post-revolutionary Confederation. And it was every bit as central to the writings on Madison’s bookshelf.
A longstanding challenge for governance theorists was the problem of closing the gap between law and reality. Like the classical philosophy
and Christian theology
on which it drew, English jurisprudence had long marked a distinction between law’s content in theory and its enforcement on the ground. By the Founding Era, the classic English formulation was summarized in Matthew Hale’s pathbreaking treatise:
[W]e must observe a threefold effect of law. (1) The obligation on conscience. (2) The penalty. (3) The irritation or making void of an act done contrary to the direction of the law. The first proceeds from the directive power of the law; the two latter from the coercive power of the law.
This distinction between directive and coercive (or “coactive”) power had long been central to discussions of governance and administration.
Directive power was understood as that quality of rules which makes them legally binding on their objects. But both in theory
and in practice,
not all rules can be enforced against the people to whom they are directed. As the leading seventeenth-century theorist of royal power put it, “[g]overnment as to coactive power was after sin, because coaction supposeth some disorder, which was not in the state of innocency.”
The problem of disobedience thus required government to have not only the power to formulate rules directing people’s behavior but also the power to force people to comply.
In addition to a power of making rules, then, any not-perfectly-virtuous society required a power of enforcing rules—a power of execution. Bracton, the great medieval English treatise, was unequivocal: “[I]t is useless to establish laws unless there is someone to enforce them.”
The immensely influential Coke exhorted similarly in his much-admired Charge at the Norwich Assizes: “The life and strength of the Laws, consisteth in the execution of them: For in vaine are just lawes Inacted, if not justly executed.”
This observation became a standard opening move for virtually any ambitious discussion of law and government.
Prolific writer Daniel Defoe’s formulation serves well as a précis of conventional eighteenth-century wisdom: “[T]he Vigour of the Laws consists in their Executive Power; Ten thousand Acts of Parliament signify no more than One single Proclamation, unless the Gentlemen, in whose hands the Execution of those Laws is placed, take care to see them duly made use of . . . .”
Metaphors for the point were varied and colorful: the motion of bodies, the speaking of thoughts, and the voicing of melodies. The famous cartoon Leviathan on the frontispiece of Thomas Hobbes’s masterwork drew on a long tradition of such corporeal imagery,
its author describing “Publique Ministers . . . that have Authority . . . to procure the Execution of Judgements given” as providing “service, answerable to that of the Hands in a Bodie naturall.”
Other commentators deployed more musical analogies, observing that “lawes without execucion, be no more profitable, than belles without clappers,”
or that “the Law . . . is indeed an excellent Instrument to make harmony and concord in the Commonwealth: but the best Lute that ever was made could never make musick of it self alone, without the learned hand of the Lute-player.”
The point was visceral: The laws must “follow every subject, as the shadow follows the body”
—for “what a livelesse fond thing would Law be, without any judge to determine it, or power to enforce it . . . ?”
The legal and political writings inherited by the Founders were fairly obsessed with execution. The treatise known as Bracton returned metronomically to the pairing of judgment and execution—in both practical
and jurisdictional
terms. Later authors likewise framed their inquiries as an exploration of administrative mechanisms for putting parchment law into effect. The introduction to the jurist and politician John Davies’s seminal work on Irish common law celebrated the king, not so much for his majesty’s gracious gift of English law to the lucky nation of Ireland as for creating an administrative apparatus to implement it.
Coke prefaced the first volume of his Reports by explaining that its publication was prompted “when [he] considered how by her Majesties princely care and choice, her Seates of Justice have beene ever for the due execution of her Lawes.”
And Francis Bacon’s Elements of Common Law was framed around an appeal to a set of royal reforms — compared by the author to those of the Byzantine emperor Justinian
—aimed at facilitating the execution of law.
This idea recurs persistently in legal treatises,
reported case law,
and theoretical writings,
and eighteenth-century statute books were dotted with provisions aimed at “the more effectual execution of . . . Laws.”
C. Execution: The King’s Defining Role
The practical need for a constitutional cudgel was obvious. Luckily for the English, they had one ready at hand: the king.
The standard formulation emphasized that “[t]o rule well a king requires two things, arms and laws, that by them both times of war and of peace may be rightly ordered. For each stands in need of the other.”
The English treatise writers tended understandably to focus on the second:
For this is true freedome in a Prince, to be loved at home, and feared abroad, to be able to defend his own people at home from oppression and violence by his Laws, without the help of an Army; to keep and conserve all his Subjects in happy peace, by a sword made of Parchment and Paper in his Laws, and not by a Sword made up of Iron and Steel in his Armies.
The king’s role in creating and interpreting law was one of seventeenth-century England’s most hotly disputed constitutional controversies.
But when it came to its execution, everyone agreed that the king—or someone like him—was indispensable:
[Y]our Majesty is in a double respect the life of our Laws; once, because without your authority they are but litera mortua; and again because you are the life of our peace, without which laws are put to silence, and as the vital spirits do not only maintain and move the body, but also contend to perfect and renew it; so your sacred Majesty, who is anima legis, doth not only give unto your laws force and vigour but also hath bin careful of their amendment and reforming . . . .
As Chief Justice of the King’s Bench Thomas Billing explained in the fifteenth century, “[I]t pertains to every king by reason of his office to do justice and grace, justice in executing the laws, &c, and grace in granting pardon to felons . . . .”
To suggest otherwise was to misunderstand the office: “[W]hat is the King himself, but the clear Fountain of Justice? [A]nd what are the Professors of the Law but the Conduit-pipes deriving and conveying the streams of his Justice to all the subjects of his several Kingdoms?”
The king’s centrality to the execution of law was practical, to be sure. But it had significant theoretical consequences too—reflected in a number of legal doctrines that turned on the Crown’s institutional role in “giving life to law.” For one thing, to be out of the king’s protection was to be legally defenseless:
[F]or the law and the king’s writs be the things[ ] by which a man is protected and holpen; and so, during the time that a man in such case is out of the king’s protection, he is out of helpe and protection by the king’s Law, or by the king’s writ.
This was true not only for those who physically departed the realm but also for anyone expelled from the body politic in a metaphorical sense, as by a praemunire facias.
Even ritual formulations (“The King is dead; long live the King!”) recognized that interregnum meant the death of law: “[I]t is a general uncontested Rule, That upon the Death of a King in actual Possession of the Crown, his Heir is a King . . . before his Coronation[,] for without a King to execute the Laws, Justice must fail[,] and therefore it is a Maxim[,] that the King never dies.”
The king’s role as the executor of law was so conceptually central to his identity that it was literally criminal to disrespect it. Thus, to refuse a royal request for assistance with the execution of law was to commit a misprision contempt against the king’s prerogative.
It was also a crime, not only to accuse the king of failing to execute the law but even simply to suggest that he might not be doing so with sufficient vigor.
It was no accident that the first item in Parliament’s Grand Remonstrance complained about King Charles I’s failure to provide for “the due execution of those good laws which have been made for securing the liberty of your subjects.”
D. Toward a Separation of Powers
Whatever the virtues of kingship as a solution to the execution problem, it didn’t take a spitefully anti-Catholic legislature to notice that the Crown came with some serious problems as well. One was the possibility that the king might be too hasty. Energy was good, but it had to be bridled, and its enthusiasms tamed—or at least carefully directed. In a carefully abstract vein, the politically conservative Bacon cautioned:
[B]oldness is ever blind; for it seeth not dangers and inconveniences. Therefore it is ill in counsel, good in execution; so that the right use of bold persons is that they never command in chief, but be seconds and under the direction of others. For in counsel it is good to see dangers, and in execution not to see them, except they be very great.
Bracton—at least as inherited by eighteenth-century readers—often returned to an equestrian metaphor for the same point: “[S]ince the heart of a king ought to be in the hand of God, let him, that he be not unbridled, put on the bridle of temperance and the reins of moderation, lest being unbridled, he be drawn toward injustice.”
Commentators also worried about other human frailties to which even God’s lieutenant might be subject. The most candid urged realism: “[N]o advantage in moral policy can be lasting, which is not founded on the indelible sentiments of the heart of man. Whatever law deviates from this principle will always meet with a resistance, which will destroy it in the end . . . .”
Sometimes they acknowledged that the king himself could be wicked; popular tropes about Bad King John and humpbacked Richard were often tolerated or even cultivated by subsequent dynastic coalitions.
More often, though, these worries were framed in terms of bad advice from “Evil Counsellors, and Corrupt and Arbitrary Ministers of State”
who were themselves malicious or just ignorant. Other writers focused on society at large and the factions to which it gave rise, whether religious, regional, socioeconomic, or otherwise.
But this left them on the horns of a dilemma, since even the most ardent parliamentarians recognized the need for a magistracy to execute the law vigorously and predictably. The parliamentarian Henry Parker, summarized the problem:
[After the origin of civil society,] it was soon therefore provided that lawes agreeable to the dictates of reason should be ratified by common consent, and that the execution and interpretation of those Lawes should be intrusted to some magistrate, for the preventing of common injuries betwixt Subject and Subject[.] [B]ut when it after appeared that man was yet subject to unnaturall destruction, by the Tyranny of intrusted magistrates, a mischiefe almost as fatall as to be without all magistracie, how to provide a wholsome remedy therefore, was not so easie to be prevented. . . . [Even] if it be agreed upon, that limits should be prefixed to Princes, and judges appointed to decree according to those limits, yet an other great inconvenience will presently affront us; for we cannot restraine Princes too far, but we shall disable them from some good, as well as inhibit them from some evill, and to be disabled from doing good in some things, may be as mischievous, as to be inabled for all evils at meere discretion. Long it was ere the world could . . . finde out an orderly meanes whereby to avoid the danger of unbounded prerogative on this hand, and too excessive liberty on the other: and scarce has long experience yet fully satisfied the mindes of all men in it.
How indeed to “restraine Princes” from tyranny without “disabl[ing] them” from the vigorous execution of law—which was the whole point of having them in the first place?
The start of an answer came as more of a (hotly disputed) assertion than a solution as such: The king was said to be subject to law. This point goes back to Bracton:
[While the] king has no equal within his realm . . . [he] must not be under man but under God and under the law, because law makes the king, . . . for there is no rex where will rules rather than lex. . . . And that he ought to be under the law appears clearly in the analogy of Jesus Christ, whose vicegerent on earth he is, . . . [and who] willed himself to be under the law that he might redeem those who live under it.
Both the manuscript lineage and the best reading of this portion of Bracton are disputed; it is at least debatable whether it was an exhortation
or a doctrinal statement of present legal obligation.
Either way, the notion of a king subject to law persisted. Quoting Bracton without citation, Richard Hooker—one of England’s first systematic constitutional theorists and in general an enthusiastic monarchist
—put it simply: “[S]o is the power of the [English] king over all and in all limited, that unto all his proceedings the law itself is a rule.”
On Hooker’s account, this was England’s great boon:
Happier that people whose law is their king in the greatest things, than that whose king is himself their law. Where the king doth guide the state, and the law the king, that commonwealth is like an harp or melodious instrument, the strings whereof are tuned and handled all by one, following as laws the rules and canons of musical science.
Certainly counternarratives existed; the relationship between municipal law and the king was a central point of disagreement between Crown and Parliament during the seventeenth century.
By the Founding Era, however, there was no question: The Crown was subject to law—or at least, to its directive force.
But that only displaced the question. We can tell the king he is subject to law. But what if he doesn’t listen? As Parker observed: “‘Twas not difficult to invent Lawes, for the limitting of supreme governors, but to invent how those Lawes should be executed or by whom interpreted, was almost impossible, nam quis custodiat ipsos custodes . . . ?”
For that, the writers of the seventeenth and eighteenth century began to explore the idea of separate government powers in the well-ordered commonwealth. There were two steps to this thought.
The first step was recognizing a matter of empirical fact: Debates about political legitimacy aside, governance in any moderately sophisticated state requires institutional specialization. In the chain of events that bring law from a thought to an enacted rule to a lived reality, different institutions typically play different roles. The philosopher John Locke’s taxonomy of legislative, executive, and federative (in other words, foreign affairs and national security) powers of the government was the Founders’ most important referent.
But the descriptive point long predated Locke. Already in the thirteenth century, Bracton was groping toward the distinction between a legislative power
and an implementing power in its executive and judicial guises.
By the sixteenth and seventeenth centuries, the commentary had long since found greater precision. Davies, for example, explained in the preface to his treatise that:
[I]n every Commonwealth, when it once begins to flourish, and to grow rich and mighty, the people grow proud withall, and their pride makes them contentious and litigious, so as there is need of many Laws to bridle them, and many Officers to execute those Laws, and many Lawyers to interpret those Laws, and all little enough: as when a body grows full and gross, it needs more physick then when it was lean.
Coke’s classic commentary on Littleton used a similarly corporeal metaphor in distinguishing between law’s three phases—-announcement, interpretation, and enforcement: “The law is the rule, but it is mute. The king judgeth by his judges, and they are the speaking law, lex loquens. The processe and the execution, which is the life of the law consisteth in the king’s writs.”
Hale likewise distinguished between “jurisdictio or potestas legem ferendi, or jurisdictio nomothetica” and “jurisdictio legem dicendi or distribuendi,”
and Hobbes noted that “the two arms of a Commonwealth, are Force, and Justice; the first whereof is in the King; the other deposited in the hands of the Parlament.”
Many others were to the same effect.
The second step was prescriptive, and it was at least initially far more controversial. On this account, not only were the powers of government in fact distributed among various institutions; they actually should be so separated, with each institution at least somewhat independent from the other. The Enlightenment philosopher Cesare Beccaria captured the basic idea:
The sovereign, who represents the society itself, can only make general laws, to bind the members; but it belongs not to him to judge whether any individual has violated the social compact, or incurred the punishment in consequence. For in this case, there are two parties, one represented by the sovereign, who insists upon the violation of the contract, and the other is the person accused, who denies it. It is necessary then that there should be a third person to decide this contest; that is to say, a judge, or magistrate, from whose determination there should be no appeal; and this determination should consist of a simple affirmation, or negation of fact.
This prescriptive assertion had been fiercely contested both in theory
and in practice.
But by the late eighteenth century, it was received wisdom—certainly among the commentators and legal theorists on whom the Founders most relied, with Blackstone,
Locke,
and Montesquieu
being the standard referents.
The Anglo-Irish essayist Jonathan Swift was typical in criticizing Hobbes for “confound[ing] the [e]xecutive with the [l]egislative power”: “[A]ll well-instituted [s]tates,” Swift argued, “have ever placed them in different hands.”
Even treatises on rather banal topics of private law would signal their intellectual bona fides by reciting the standard point.
And commentators—both British
and Continental
—focused frequently on this separation as a principal cause for England’s celebrated liberty and prosperity.
In Blackstone’s famous paraphrase of Montesquieu, England was “the only nation in the world where political or civil liberty is the direct end of it’s constitution.”
III. Legal Doctrine
a. The Umbrella Term for the Crown’s Nonstatutory Powers Was “The Royal Prerogative”
That brings us to the late eighteenth-century English constitution and the semantic conventions used by legal treatises and political theorists alike to describe the powers of the Crown. Blackstone’s Commentaries make a useful expositional scaffold, both because they are so well written and because they were so important to the mainstream American understanding of English law. Published over four years beginning in 1765, Blackstone’s multivolume treatise was as influential in the United States as it was in England
—on constitutional questions, perhaps even more so. That’s not to say that it was influential in shifting the law; if anything, Blackstone was behind the times in his presumably willful silence about the Commons’s political dominance of the Crown.
But for Americans like James Madison, Blackstone’s treatise was the “book which is in every man’s hand”—central to pedagogy, drafting, and litigation alike as the standard restatement of the formal constitutional law of England.
The key to Blackstone’s conceptual structure is his careful division of two distinct issues. First, the timeless powers of government in the abstract. Second, the contingent and particular entities among which those powers happened to be divided in mid-eighteenth-century England.
Blackstone thus begins by dividing the law-related powers of governance into two interlocking categories, each of which depends on the presence of the other to form a meaningful whole:
- The “legislative” authority, defined as the “right” of “making. . . the laws”; and
- The “executive” authority, defined as the “right” of “enforcing the laws.”
Paraphrasing Montesquieu, Blackstone then explains that the genius of the English constitution was to vest these conceptual powers in two separate institutions:
In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. But, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of it’s own independence, and therewith of the liberty of the subject. With us therefore in England this supreme power is divided into two branches; the one legislative, to wit, the parliament, consisting of king, lords, and commons; the other executive, consisting of the king alone.
With this roadmap in place, Blackstone proceeds to a consideration of the two politically distinct entities to which these two conceptually distinct powers were separately entrusted.
He starts with Parliament—the political entity vested with the legislative power. The treatise’s second chapter surveys the basic elements of that entity’s identity, structure, and powers.
The structural discussion describes the entity’s constituent parts: King, Lords, and Commons.
Blackstone describes the varying process by which particular human beings were selected to fulfill the role of each part.
He also explores the basic operations of the entity as a real-world decisionmaker: how Parliament was convened,
the process by which it passed laws,
and the process by which those laws were handed off for execution.
In addition to surveying Parliament’s constitutional structure, Blackstone conducts a close review of its substantive authorities, entitlements, and privileges.
First among these was, of course, the legislative power itself: the authority to enact forward-looking rules of legal compulsion.
But the suite of powers and authorities held by Parliament also included the legislators’ right to speak freely on the floor of Parliament
and a more general immunity from arrest while actively engaged in parliamentary service.
With Parliament sorted, Blackstone then turns in his third chapter to the political entity vested with the executive power: “The Person of the King.”
Over the next two hundred pages, Blackstone conducts a methodical analysis of the structural and institutional characteristics of the Crown. First, he describes the process by which “the English nation . . . mark[s] out with precision, who is that single person”—i.e., the rules of “the royal succession.”
Then he describes the constitution, legal rights, and juridical relations of the individuals and institutions appurtenant to the Crown: in particular “The King’s Royal Family”
and “The Councils Belonging to the King,” from “the high court of parliament” and “the peers of the realm” to “the judges of the courts of law” and the “privy council.”
The treatise then turns to “The King’s Duties,” especially “the duty . . . to govern his people according to law,” with close attention to the historical evolution of the coronation oath.
Only after this lengthy discussion of the Crown’s institutional characteristics does Blackstone finally arrive at the question of most interest for modern purposes: a discussion of the substantive “rights and capacities which the king enjoys alone.”
This suite of substantive authorities had a name: “The King’s Prerogative.”
As discussed above, by Blackstone’s time, the prerogative had long since been consigned in its entirety to what American constitutional lawyers would call Youngstown Zone Two.
That is to say, it represented a residual and defeasible authority for Crown action in areas that Parliament—or more precisely the “King-in-Parliament”—had not (yet) chosen to occupy. Like the common law more generally, the prerogative as described by Blackstone thus provided the default rule of decision for questions of Crown authority—until Parliament chose, by contrary or supplementary legislation, to displace it.
The first royal authority was—as we have already seen—the “supreme executive power,” specifically defined as “the right of enforcing the laws.”
The full list of Crown prerogatives, however, goes on (and on). It’s worth setting out the full inventory. As the footnotes to the list will attest, Blackstone was not innovating. He was just the latest consolidator of Anglo-American constitutional commonplaces:
- the sovereign and sacred nature of the royal person;
- a personal immunity from suit;
- a personal exemption from the rules of laches and negligence;
- the “sole power of sending [a]mbassadors to foreign states, and receiving [a]mbassadors at home”;
- the power “to make treaties, leagues, and alliances with foreign states and princes”;
- “the sole prerogative of making war and peace”;
- “the prerogative of granting safe-conducts”;
- the right to be “a constituent part of the supreme legislative power” with “the prerogative of rejecting such provisions in parliament, as he judges improper”;
- the role of “the generalissimo, or the first in military command”;
- the “sole power of raising and regulating fleets and armies”;
- “the prerogative of appointing ports and havens”;
- “the erection of beacons, light-houses, and sea-marks”;
- “the power . . . of prohibiting the exportation of arms or ammunition out of this kingdom, under severe penalties”;
- “the right of erecting courts of judicature”;
- the ultimate role of prosecutor;
- the power of “pardoning offenses”;
- the “prerogative of issuing proclamations” that “enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary”;
- “the sole power of conferring dignities and honors”;
- “the prerogative of erecting and disposing of offices”;
- “the prerogative of conferring privileges upon private persons”;
such as converting aliens into citizens, or “erecting corporations”;
- “the establishment of public marts, or places of buying and selling, . . . with the tolls thereto belonging”;
- “the regulation of weights and measures”;
- the power to coin money and “give it authority or make it current”;
- the role of “supreme governor of the national church”;
- the right to “all the lay revenues, lands, and tenements . . . which belong to an archbishop’s or bishop’s fee”;
- the right to “send one of his chaplains to be maintained by [each] bishop”;
- the right to “all the tithes arising in extraparochial places”;
- the right to a share of the profits of the lower clergymen;
- the right to all of “the rents and profits” of various types of Crown lands;
- all “profits arising from the king’s ordinary courts of justice”;
- the right to all whale and sturgeon caught near the English shore;
- the right to certain goods washed up on the land from shipwrecks;
- the right to silver or gold mines
and various other categories of “treasure-trove” that are discovered;
- the right to “goods stolen, and waived or thrown away by the thief in his flight”;
- the right to “valuable animals as are found wandering” without an apparent owner;
- the right to any other “goods in which no one else can claim a property”;
- the right to lands and goods forfeited in punishment for various offenses;
- the right to lands escheated for a defect in either the testament or the heirs;
and
- “the custody of idiots” and their estates.
The royal prerogative, as it was understood in the Founding Era, thus comprised a long list of separate and highly particularized legal authorities within a well-understood framework of English constitutional law. There was no overarching theoretical coherence to it; it was just “stuff the king can do,” so long as Parliament didn’t tell him otherwise.
Nor did the authorities on this list originate with Blackstone. He was just describing, in the fashion of a modern nutshell, his own generally unremarkable take on what amounted to black letter administrative law. The particular authorities varied somewhat from summary to summary, but the gist was remarkably consistent, as was the use of the legal term “prerogative” to name this grab bag of powers that originated in the Crown itself rather than from some parliamentary grant of authority.
To be sure, eighteenth-century writers regularly used “prerogative” in the same loose sense we use it today—as a generic power, privilege, entitlement, or even just a general id-like willfulness.
But as a term of art in the context of constitutional law, “prerogative” had a very specific meaning: “all powers, preheminences, and priviledges, which the law giveth to the crowne.”
The writers are both precise and explicit about what was for them a schoolboy distinction between “the prerogative” as the basket category for royal power and “the executive power” as one specific authority among a great many in that basket.
They even used the same terminology when describing the chief magistrates of other nations.
Before we transition to a closer focus on the executive power as a single element of the royal prerogative, it’s worth stepping back to recall the big-picture structure of Blackstone’s analysis. First he discussed the entity that possessed the legislative power: Parliament.
His discussion covered both the structural law of that entity’s formation and constitution
and also the entity’s substantive authorities and entitlements—including but not limited to the legislative power.
Next, he walked through the exact same steps in analyzing the entity that possessed the executive power: the Crown.
Once again, he began with a detailed discussion of the structural constitutional law of that entity.
And once again he then turned to a detailed discussion of the substantive authorities and entitlements of that entity—including but not limited to the executive power.
B. “The Executive Power” Was the Power to Execute the Laws
So “the executive power” was a discrete subset of the Crown prerogative, which was itself a long list of substantive authorities ranging from the consequential (the right to participate in lawmaking and the power of war and peace) to the mundane (the power to erect lighthouses and the right to claim whale carcasses). Within this suite of powers, though, what exactly did the executive power entail?
We already know Blackstone’s answer: It was simply “the right . . . of enforcing the laws.”
In keeping with the nutshell quality of his constitutional discussion more generally, this was just the rote recitation of a terminological commonplace. Locke was but one in a long line of commentators who contrasted the “legislative power” as “a right to direct how the force of the commonwealth shall be employed” with the “executive power,” which “see[s] to the execution of the laws that are made, and remain in force.”
According to Whig politician Algernon Sidney’s martial formulation, “[t]he Sword of Justice comprehends the legislative and the executive Power: the one is exercised in making Laws, the other in judging Controversies according to such as are made.”
And using “executive power” as the word for law-implementation was no Anglo-American idiosyncrasy. As the seminal international law theorist Emmerich Vattel explained:
The executive power naturally belongs to the sovereign[ ]—to every conductor of a people: he is supposed to be invested with it, in its fullest extent, when the fundamental laws do not restrict it. When the laws are established, it is the prince’s province to have them put in execution. To support them with vigour, and to make a just application of them to all cases that present themselves, is what we call rendering justice.
Nor was the terminology ideologically inflected or otherwise conceptually contested. To the contrary, even arch-royalists like the man known to Founding-Era Americans as “the prostituted, rotten Sir Robert Filmer”
knew that the “executive power” was limited to law execution. That’s why Filmer and other critics of parliament resisted a description of the king’s power that was limited to those terms:
By these words of legislative, nomothetical and architectonical power, in plain English, [is understood] a power of making laws. And by gubernative and executive, a power of putting those laws in execution by judging and punishing offenders.
It’s hard to overstate the uniformity of this point. As Jean-Jacques Rousseau explained almost a hundred years later, it just wasn’t that complicated a concept: “[T]he executive power . . . is only the instrument for applying the law.”
In the most significant sense, Rousseau’s “only” was completely accurate: “[T]he executive power” didn’t encompass other authorities. In another way, though, it might mislead modern ears—because, let’s be clear, this was a hugely important authority. As discussed at length above, the execution problem may have been the single greatest concern of political and legal thinkers over the course of English history. In recognizing this power as perhaps the king’s defining authority, Blackstone was thus once again following an illustrious list of predecessors. From Bracton
to Hume
— with a chorus of thinkers as diverse as Bacon,
James I,
Milton,
and Filmer
in between—English law had for centuries recognized the king’s coercive power to “punish and compel wrongdoers”
as his “principal and most natural branch of authority.”
This “power to compel the parties to come to judgment and to execute the judgment given”
was celebrated especially in judicial opinions, which saw “a King’s Crown [as] an hieroglyphic of the laws, where justice, &c. is administered,”
and public law treatises, which “take it for granted, [t]hat the King, being the supreme Magistrate of the Kingdom, [is] intrusted with the whole executive Power of the Law.”
It was precisely because the Crown’s defining authority was “the sole exercise of the executive power” that the king was “therefore by our English lawyers called ‘the universal judge of property’—‘the fountain of justice’—‘the supreme magistrate of the kingdom, intrusted with the whole executive power of the law.’”
And it was for that same reason that the Crown’s implementation of this particular prerogative was the principal measure of its performance: If a legislature is “denominated good, from the goodness of its laws,” then “[t]he goodness of executive government” for its part “consists in [the] due administration of the laws already made.”
C. This Power to Execute Was an Empty Vessel, both Subsequent and Subordinate to the Power to Legislate
The singular feature of this constitutionally indispensable authority was its derivative and subsequent character—and therefore its conceptual subordination ab initio. Certainly as a matter of the specific constitutional law of England, the executive power was subject to plenary control and instruction by parliamentary legislation.
But conceptually speaking, this wasn’t a merely contingent feature of Parliament’s political and military supremacy. Rather, the subordinacy of “executive power” was one of its constitutive features: Without some preexisting intention or instruction, that power is an empty vessel that has nothing to execute.
This conceptual point was nowise a tendentious claim of Whigs, republicans, or commonwealthmen. It was simply intrinsic to the concept in eighteenth-century vocabulary—both in the governance context and in the world at large.
1. The “Empty Vessel” Nature of Executive Power in General. — To begin with, the conceptual subservience of executive power to legislative power was just a special case of executive power in general. While law was certainly the default object of execution in political theory, “executive power” in its most generic sense referenced the ability and authority to take a plan, intention, or instruction, and bring that mentally formulated state of affairs into actual being.
This distinction was central to eighteenth-century theories of human perception and cognition.
Rousseau’s account, for all its naiveté by the standards of modern neuroscience, beautifully captures the standard eighteenth-century framework:
Every free action has two causes which concur to produce it, one moral—the will which determines the act; the other physical—the strength which executes it. When I walk towards an object, it is necessary first that I should resolve to go that way and secondly that my feet should carry me. When a paralytic resolves to run and when a fit man resolves not to move, both stay where they are. The body politic has the same two motive powers—and we can make the same distinction between will and strength — the former is legislative power and the latter executive power.
The notion of an “executive power” as the enacting force which transforms intentions into reality was as pervasive among theologians as it was among philosophers of the mind: “It is the distinguishing Character of a rational Creature, to propose to himself an End, and then to pursue that End in proper Methods; hence Logicians tell us, the End is first in the Intention, and last in the Execution . . . .”
And so it was, according to Saint Thomas Aquinas, that “operation belongs to the executive power; and the act of the will does not follow the act of the executive power, on the contrary execution comes last.”
The act of execution thus often had a rote or even marionette quality, with the influential treatise writer William Hawkins describing “[c]onjurers, who by force of certain Magick Words endeavor to raise the Devil, and compel him to execute their Commands”
and Francis Bacon describing officers who “execute the experiments so directed” by another officer.
Not for nothing did the phrases “executors and administrators”
and “execution and administration”
become formulaic. Indeed, Justinian’s Institutes taught that if you went beyond your instructions, you were no longer engaged in execution: You could no longer intelligibly speak of your actions as a manifestation of executive power.
Execution also had a significant association with success: not merely an attempt to perform the plan but the actual consummation thereof.
In this vein, three standard objects of “execution” were a judicial writ,
a legal judgment,
and a creative work.
1. The “Empty Vessel” Nature of Executive Power in a Constitutional Context. — Applying “executive power” to the special case of state action was thus pretty straightforward. It was the implementing power: the authority to deploy the massed force of the state to bring legislated intentions into effect, especially the laws and their intended consequences. Notably, this concept of bringing-into-being extended to all decisions about state action of any sort—which for their part could only be designated by an exercise of legislative power. That’s why Locke begins with the broadest possible definition of legislation: “The legislative power is that, which has a right to direct how the force of the commonwealth shall be employed . . . .”
The implementation of authoritatively formulated intent was intrinsic to the very concept of the executive function, both grammatically and in principle.
By the Founding, the implementatory essence of executive power was most often expressed in terms of Locke’s vision of law as an interlocking tripartite phenomenon: First the law must be legislated, then in at least some cases it must be adjudicated, and then its requirements must be executed. While this trinitarian scheme still dominates our modern understanding of the law-related functions of government, it’s worth noting that many joined Blackstone in describing the essential powers of government as two interlocked halves of a whole: the “legislative . . . authority” as “the right . . . of making . . . the laws,” and the “executive authority” as “the right . . . of enforcing” them.
This uncertainty about whether to classify judicial power as a distinct authority or as a subset of executive power ran deep,
but for present purposes it doesn’t matter in the slightest. That’s because all formulations were identical on the crucial point: Exercising “the executive power” meant bringing the legislated intentions of society into being. As Obadiah Hulme put it in his much-praised Historical Essay on the English Constitution: “The king, who is in the constant exercise, of the executive power, in the state, always did the business of the state; and therefore, it immediately falls within his province, to see any plan, of national utility, put into execution . . . .”
In its famous 1774 Appeal to the Inhabitants of Quebec, the Continental Congress described the standard framework in similar terms:
You have a Governor, it may be urged, vested with the executive powers or the powers of administration. In him and in your Council is lodged the power of making laws. You have Judges who are to decide every cause affecting your lives, liberty or property. Here is, indeed, an appearance of the several powers being separated and distributed into different hands for checks one upon another . . . .
To put it mildly, such constitutional formulations about the “execution” of “law” were pervasive, including both those that used the specific phrase “executive power” and those that did not.
This definition of executive power necessarily entailed both its subsequence and its subordination to the legislative power. As pastor Gad Hitchcock explained in his famous 1774 Election Day sermon—before an audience that included the British military governor for Massachusetts—“the executive power is strictly no other than the legislative carried forward, and of course, controlable by it.”
Scottish philosopher David Hume summarized the matter as an uncontroversial and fully generalizable point of political theory: “[T]he executive power in every government is altogether subordinate to the legislative . . . .”
A long and diverse list of commentators—including but not limited to parliamentary partisans like William Prynne,
Philip Hunton,
and John Locke
—were in accord.
- There is justice to be observed in making laws. The legislative authority is usually stiled supreme. The power of making laws is undoubtedly the highest in every society. The executive officers are obliged to observe the rule prescribed them by the legislators . . . .
- Rulers considered in their executive capacity as putting laws in executive, must be just. Executive officers are obliged to proceed according to the received and established laws of their country.
Samuel Sherwood, A Sermon, Containing Scriptural Instructions to Civil Rulers, and All Free-born Subjects (Aug. 31, 1774), reprinted in 1 Political Sermons, supra, at 375, 387, 389.
That’s why the great eighteenth-century historian Catherine Macaulay could call it “absurd”—strictly as a matter of logic—for Charles I to claim sovereignty over the estates, “since no power can be superior to the legislative; and if the King is not part of the legislative, he can be only the executive, which is a power subordinate to the legislative.”
And that’s likewise why writers seeking to limit magistrates to the executive power could describe the “executive branch of government” as being charged “only to perform, (without a will of their own), what the constitution and representation enacts.”
Far from disagreeing, even the most royalist writers emphasized—often with some disdain—that “the executive power” by definition “derived from” the legislative power. The divine right theorist Filmer was especially contemptuous: “When the law must rule and govern the monarch, and not the monarch the law, he hath at the most but a gubernative or executive power.”
It was precisely because of the subsequent and subordinate nature of this power that Filmer rejected it as the basis for the English king’s powers: “[A] limited monarch must govern according to law only. Thus is he brought from the legislative to the gubernative or executive power only.”
Other writers sympathetic to the monarchy were similarly dismissive of “executive power” as a factotum’s charge. The German jurist Samuel Pufendorf observed that it “is characteristic of a minister or a bare executor” to “have the strength by which you may compel others, but only if another decides that it should be brought to bear.”
Old Whig parliamentarian Edmund Burke scolded “many on the continent” who “altogether mistake the condition of a King of Great Britain” as “an executive officer.”
To the contrary, Burke explained, “[h]e is a real King,” certainly “if he will not trouble himself with contemptible details, nor wish to degrade himself by becoming a party from little squabbles.”
The less-categorizable Adam Smith captured a similarly dismissive flavor: “The leading men of America . . . feel, or imagine, that if their assemblies . . . should be so far degraded as to become the humble ministers and executive officers of [the British] parliament, the greater part of their own importance would be at an end.”
At times, Burke was even more explicit about the narrow scope of executive power, not only recognizing its “mere” implementatory nature but going out of his way to emphasize that it did not include the authority to make decisions about foreign and military affairs. Listen to his mockery of the revolutionary French government: “[I]n their hurry to do every thing at once,” he jibed, “[they] have forgot one thing that seems essential, and which, I believe, never has been before, in the theory or the practice, omitted by any projector of a republic.”
What was it? “[A] Senate, or something of that nature and character.”
And why did the omission matter? Burke thought a government with only legislative and executive officers might forget to designate anyone to conduct foreign affairs:
Never, before this time, was heard of a body politic composed of one legislative and active assembly, and its executive officers, without such a council; without something to which foreign states might connect themselves; something to which, in the ordinary detail of government, the people could look up; something which might give a bias and steadiness, and preserve something like consistency in the proceedings of state. Such a body kings generally have as a council. A monarchy may exist without it; but it seems to be in the very essence of a republican government. It holds a sort of middle place between the supreme power exercised by the people, or immediately delegated from them, and the mere executive.
Note that Burke had no problem believing in precisely the “constitutional gap” that modern Residuum theorists find unthinkable. He knew what practicing lawyers and statesmen have never forgotten: Drafting is hard.
All of this is to say that Blackstone was neither confused nor idiosyncratic when he described the executive power as the power to enforce the law. Here as in most other respects, the eighteenth century’s greatest law treatise was just reciting a relatively bland restatement of conventional wisdom.
Even at the most royalist stage of the political story traced in section II.A, and even according to the most royalist writers, this conceptual understanding of “the executive power” was common currency—simply a special case of the same phrase when applied to human affairs in general. It was the power to execute a law or project that had been separately authorized by some other source of government authority: perhaps a statute; perhaps the common law; perhaps a royal decree issued pursuant to a different branch of prerogative. The key conceptual point was that “executive power” referred to the downstream implementing authority, not to its upstream authorization. Without a source, you can’t have a fountain;
without a planet, the idea of a satellite makes no sense.
IV. Why Have Residuum Proponents Misunderstood this Evidence?
We are left with a puzzle. In the face of such overwhelming evidence, how did the Royal Residuum Thesis come to conflate the overarching category of royal prerogative with a single sub-item on the incredibly long list of authorities that it included? How could a Supreme Court Justice wind up writing the following, catastrophically incorrect summary of the evidence:
Founding-era evidence reveals that the “executive Power” included the foreign affairs powers of a sovereign State. . . .
. . . William Blackstone, for example, described the executive power in England as including foreign affairs powers . . . .
. . . .
This view of executive power was widespread at the time of the framing of the Constitution. . . . Given this pervasive view of executive power, it is unsurprising that those who ratified the Constitution understood the “executive Power” vested by Article II to include those foreign affairs powers not otherwise allocated in the Constitution.
Not one sentence in that excerpt is right. For the moment, though, focus only on Justice Thomas’s claim about the Founding Generation’s “pervasive view of executive power.”
How could he have gotten it so wrong?
This Part will focus on three reasons, starting with mistakes in the scholarship on which Justice Thomas relies.
First and most important, while looking for evidence in the historical materials, Royal Residuum theorists have systematically confused two different things: (1) the use of the phrase “executive power” to reference a conceptual power capable of being “vested,” and (2) the use of the phrase “the executive” as a metonym for the political entity in which that conceptual power was vested. Second, Royal Residuum theorists have misread an idiosyncratic taxonomy adopted by the eighteenth-century authors Thomas Rutherforth and Montesquieu, who didn’t actually contradict the fundamental conceptual structure described above at all. The third reason is a little different. It has to do not with errors made by the theory’s champions but with the ready audience they find in many lawyers and academics. Some listeners’ receptivity may of course result from what they want presidential power to be—a bias to which none of us is immune. The more significant reason, however, seems to be a common misunderstanding of what the Founders meant by a “separation” of powers in the first place.
A. The First Scholarly Error: Attributing the Whole to the Part
By far the most important mistake of the Royal Residuum Thesis is its systematic conflation of two different things: (1) the Constitution’s use of “executive” to describe a particular power of government with (2) the historical sources’ use of “executive” as metonymy for the political entity that possesses both that particular power and also many others. It’s hard to overstate the pervasiveness of this error.
So far as I can tell, every single piece of evidence from pre-Framing commentary cited in support of the Thesis—other than the misunderstanding of Rutherforth and Montesquieu discussed below—is a trivially demonstrable conflation of these two meanings.
At bottom, the point is simple. The eighteenth-century practice of referring to presidents, governors, prime ministers, stadtholders, and emperors as “the executive” was an everyday metonymy:
the use of something associated with the referent as a name for the referent itself, like talking about “head” of cattle or “boots” on the ground. This was neither semantically confused nor substantively controversial: Today, we likewise use “the executive” as shorthand for our governors, presidents, and prime ministers because they all count the executive power as one of their authorities. But not even the most aggressive Residuum theorist would claim that all authorities held by “an executive” in this metonymic sense are part of “the executive power” in the relevant conceptual sense. Partly that’s because the claim is obviously wrong: Everyone agrees, for example, that the President’s veto is a quintessentially legislative act.
More profoundly, however, the problem is that this would turn the linguistic logic of metonymy upside down. Rather than using the part as shorthand for the whole, this move crams all the features of the whole into the part. And that’s exactly backward.
Think, for example, of referring to a seventeen-year-old boy as “a youth.” We do that because one attribute of the boy is his youth—his young age. So far, so uncontroversial. But in addition to his young age, the boy surely has other abilities and characteristics as well. Probably he can read and run. Probably he has ears and elbows. But even if in these respects this particular boy is pretty representative of boys in general, it would be incorrect to reason as follows:
- This boy is called a youth.
- This boy has ears.
- Therefore, it is an intrinsic feature of youth to have ears.
For an example closer to the political context, consider the practice of referring to an army as “a force.” The semantic logic of this metonymy is that the army has the capacity to be forceful—to compel, especially in a violent or kinetic fashion. And yet it would be nonsensical to include other characteristics of this army (even if shared by many other armies) in the dictionary definition of the word “force.” Probably this army is wearing uniforms. Probably its members carry rifles rather than halberds. Surely some of its members are qualified to deliver skilled medical care. But that would hardly lead us to conclude that it is a constituent element of “force” to be wearing a uniform, carrying any particular weapon, or wielding an EMT certification.
And yet that is exactly what virtually all of the evidence for the Royal Residuum Thesis involves. There are far too many examples to list. But the error comes in two different versions. The first involves (1) accurately flagging an author’s metonymic reference to the king as “the executive” or “the executive authority,” and then (2) mistakenly concluding that all of the royal powers later described by the author are therefore conceptually “executive.” The leading scholarly argument for the Royal Residuum Thesis, for example, states:
According to Blackstone, the executive power ‘is the delegate or representative of his people’ who transacts with ‘another community’ because it is impossible for individuals of one community to transact directly ‘the affairs of that state’ with another.
What Blackstone actually says in the cited text, however, is: “[T]he king is the delegate or representative of his people,” and “the king therefore, as in a center” must “transact the affairs of that state.”
It’s only (much) earlier that Blackstone uses the shorthand “executive power”—in its metonymic sense—to refer to the king.
A second version of the error involves (1) accurately flagging an author’s observation that the king has the “executive power” of government, but then (2) mistakenly suggesting that the all the other prerogatives later described by the author are therefore part of that “executive power” as well. So, for example, the leading modern Royal Residuum theorists assert: “Emmerich de Vattel, a leading European writer on the law of nations, said that the ‘conductor’ or ‘sovereign’ of a nation had the ‘executive power’ and consequently could enter into treaties, send emissaries, engage in war, and control the nation’s ambassadors.”
But what Vattel actually wrote in the quoted passages was that:
The executive power naturally belongs to the sovereign—to every conductor of a people: he is supposed to be invested with it, in its fullest extent, when the fundamental laws do not restrict it. When the laws are established, it is the prince’s province to have them put in execution. To support them with vigour, and to make a just application of them to all cases that present themselves, is what we call rendering justice. And this is the duty of the sovereign, who is naturally the judge of his people.
This is, of course, the textbook definition of executive power explained at length above; indeed, Vattel turned immediately from this point to an extended discussion of the judicial function, which had historically been associated with the executive power in its law enforcement sense.
It was only much later in Vattel’s discussion that he turned to the chief magistrate’s authority to enter treaties and send ambassadors.
And in those contexts, Vattel doesn’t use any variant of “executive” to describe the magistrate; rather, he refers to “the sovereign.”
Far from suggesting that the latter powers are “consequent[ ]” to the “executive power,” Vattel makes clear that they have nothing to do with it—they are simply different branches of what the English called prerogative.
Make no mistake: Blackstone (and many others) did say that—in addition to the executive power—the king claimed a range of foreign affairs powers as part of his prerogative.
And Blackstone (and many others) did variously refer to the Crown as “the executive,” “the executive magistrate,” “the executive part of government,” and sometimes even “the executive power.”
But neither of those facts, nor both in combination, supports the erroneous claim that “William Blackstone . . . described the executive power [in its conceptual sense] . . . as including foreign affairs powers.”
Instead, Blackstone described the Crown as having various foreign affairs powers, in addition to the distinct power to execute the laws. And he used “the executive” as a shorthand for the political entity, rather than as an umbrella category for the activity or function. So long as you bear this simple grammatical distinction in mind, the bookshelf evidence offered for the Royal Residuum Thesis simply evaporates as you read it.
B. The Second Scholarly Error: Misunderstanding “Internal Executive” and “External Executive”
The second source of confusion is rooted in the idiosyncratic taxonomy of two eighteenth-century writers—the minor Rutherforth and the major Montesquieu. Modern advocates of the Royal Residuum Thesis have relied on snippets from Montesquieu
and Rutherforth
in a way that is both inaccurate and also disproportionate to their taxonomy’s contemporary significance.
In this section I will show that the Royal Residuum Thesis’s heavy reliance on these two writers is substantively mistaken.
Not only was the taxonomy of Montesquieu and Rutherforth idiosyncratic, but even taken on its own terms, their framework does not actually support a royal residuum at all. To the contrary, their discussion necessarily rejects it, for exactly the same reasons that the rest of the literature does too.
But first, what did Montesquieu and Rutherforth say? For them, it was taxonomically important to distinguish between the application of “the executive power” to internal objects and its application to external objects. In his Institutes, Rutherforth wrote:
[T]he executive power is either internal or external. We may call it internal when it is exercised upon objects within the society; when it is employed in securing the rights[,] or enforcing the duties of the several members, in respect either of one another or of the society itself. And we may call it external executive power, when it is exercised upon objects out of the society; when it is employed in protecting either the body or the several members of it against external injuries . . . .
Montesquieu said something similar: “In every government there are three sorts of power: the legislative; the executive [la puissance exécutrice], in respect to things dependent on the law of nations; and the executive, in regard to things that depend on the civil law.”
Note that his definition was even narrower than Rutherforth’s, identifying both forms of executive power as involving the authority to implement strictly legalized entitlements and authorizations.
1. Montesquieu’s Taxonomy of “Executive Power” Was Just an Expositional Tool to Organize His Otherwise Standard Use of the Concept. — First and most important, the substance of Rutherforth and Montesquieu’s discussion reflected an entirely standard understanding of “the executive power” as a general concept. Their taxonomic wrinkle was no conceptual revolution. It served simply to highlight the rather mundane point that government force can be directed in one of two directions: inward or outward. In both realms, “the executive power” is the power to execute—the power to follow through on a plan, desire, or instruction. It is just that the power is “internal” when performed internally; “external” when performed externally.
If you read Rutherforth’s entire discussion of government powers, the point is not subtle:
The legislative is the joint understanding of the society, directing what is proper to be done, and is therefore naturally superior to the executive, which is the joint strength of the society exerting itself in taking care that what is so directed shall be done.
A leading review of his Institutes zeroed in on precisely this point: The internal and external versions were conceptually indistinguishable aspects of the same power to carry out an a priori instruction or plan. “It may be called internal,” the reviewer wrote, “when exercised upon members of the society; external, when exercised upon persons neither belonging to the society, nor residing in it . . . .”
Montesquieu likewise left no doubt that the “legislative power” was the content-giving font of instructions to be carried out by the external “executive [power].” He could scarcely have been more specific—the legislative power and the external executive power may each:
be given . . . to magistrates or permanent bodies, because they are not exercised on any private subject; one being no more than the general will of the state, and the other the execution of that general will.
It’s for that reason that his account so tightly associated the separation of powers with the protection of liberty: “There would be an end of every thing, were the same man, or the same body, . . . to exercise those three powers, that of enacting laws, that of executing the public resolutions, and [that] of trying the [crimes] of individuals.”
Every single example in Montesquieu’s weirdly celebrated sentence about the “law of nations” executive
thus relates to the implementation of a plan—a plan that he has just finished telling us is defined in its entirety by an exercise of the relevant legislative power, wherever that happens to be vested.
Understanding the conceptual subordinacy of execution to legislative intention, however, doesn’t even require this close a reading of their respective accounts. This is because both authors go out of their way to insist that the executive power is conceptually every bit as subordinate to the legislative power when acting on foreign objects as it is when acting domestically. Again, Rutherforth couldn’t be more explicit:
[T]he external executive power, in its own nature, is no more an independent power of acting without being controlled by the legislative, than the internal executive power is. Even in those civil societies, where the particular constitution has left this power discretionary in some instances, it does not suffer it to be so in all.
This is exactly how Rutherforth’s eighteenth-century contemporaries understood him: “The Doctor is of opinion, that the executive power is derived from, and ought always to be held, as, in a very great measure, dependent upon, and originally subordinate to, the legislative.”
And again Montesquieu is to the same effect: Not only was the external executive power just “the execution of [the] general will” as defined by the legislative power, but the terms of that execution could be dictated totally by the entity possessing the legislative power.
Here Montesquieu and Rutherforth were on common ground with every other commentator I have encountered. Everyone agreed that an exercise of the conceptual function of legislative power would define the scope of every other function of government, including the federative:
We act as a nation, when, through the organ of the legislative power, which speaks the will of the nation, and by means of the executive power which does the will of the nation, we enact laws, form alliances, make war or peace, dispose of the public money, or do any of those things which belong to us in our collective capacity.
Certainly that had been the constitutional law of England since at least the 1701 Act of Settlement,
and as expressed more saliently for the Revolutionaries in cases like the 1774 decision in Campbell v. Hall, which barely paused on the point in discussing the Crown’s foreign affairs prerogative as the basis for a peace treaty with France in the Caribbean.
This was likewise true in the realm of theoretical commentary, where writers observed without fear of contradiction that the various foreign affairs powers were fully subject to direction by legislative power.
2. Montesquieu’s Taxonomy of Executive Power Was Odd and Unrepresentative. — Notably, Montesquieu and Rutherforth’s presentational choice to divide the universe of executive power into these taxonomic categories was highly unrepresentative. Certainly as a matter of English law, “the executive power” was a completely distinct branch of royal authority from the military and foreign affairs powers—a point by itself decisive in a Constitution so thoroughly steeped in Anglo-American legal concepts. But so far as I can tell, Rutherforth and Montesquieu stood alone among political theorists in this taxonomy more generally. Indeed, both thinkers acknowledged that “[t]hese two branches of the executive power may, if we like these names better, be called civil and military.”
So they may. And so they typically were: The standard way to incorporate foreign affairs into governance theory was as a subject matter—a competence, to borrow a term from modern European Union law—no different in principle from building lighthouses, or coining money, or conferring honors.
To be sure, many thought that the various foreign affairs competences ought usually to be vested in the same hands that held the executive power.
But that was all contingent political dickering—such debates had nothing to do with essentialist claims about the “executive” nature of such competences. To the contrary, the same people often asserted that similar practical considerations meant that the chief magistrate should also hold powers that were on nobody’s account “executive”: the veto or negative,
the power to raise money,
and in some cases the power to enact law itself.
The Founders rightly declined to confuse this distinction between subject matter (competence) and conceptual function (power).
There is much more to say on this score, but for the moment, let some statistics refute the claim that we should treat the Rutherforth–Montesquieu presentational taxonomy as anything other than idiosyncratic. The most comfort their writings offer to the Royal Residuum Thesis is a single sentence by Montesquieu that—shorn completely of context and squeezed for every conceivable semantic ambiguity—reads as follows: “By the [executive power][,] [the magistrate] makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions.”
This quote from Montesquieu is littered throughout the modern commentary, invoked as a shibboleth by those who claim a presidential power to ignore the law in the realm of national security and foreign affairs.
If the quote were as central to the founding generation’s conception of the executive power as these commentators believe, surely the Founding generation would have mentioned it. Yet they did not—not once, not even in passing, and surely not to assert that an executive could ignore duly enacted law.
The gargantuan-though-still-unfinished Documentary History of the Ratification of the Constitution of the United States has compiled all archival records relating to the Constitution’s drafting and ratification from every state except North Carolina.
None of these documents contain the phrase “internal executive,” “external executive,” or their cognates. For his part, Montesquieu is cited by name 166 times. But not one of these citations quotes, paraphrases, or even mentions the quote on which more or less the entire intellectual pedigree for the Royal Residuum Thesis hangs. To the contrary: Every single citation to Montesquieu’s discussion of the separation of powers invokes the portion of his discussion where “the executive power” unambiguously means the execution of domestic law.
(I suspect this is because that passage is the one paraphrased by Blackstone, who a great many Founders actually read in some depth.
) As for Rutherforth, he’s cited one single time in the ratification discussions—for the proposition that adopting the Constitution would not absolve debtors of their obligations to the United States.
Publius didn’t even spell the guy’s name right.
C. Fertile Ground Among Nonspecialists: Conflating the “Separation” and the “Distribution” of Powers
Besides the misreadings described above, the Royal Residuum Thesis offers no other support for its claims about Madison’s bookshelf or the intellectual foundation on which the Revolutionary and Founding debates took place.
But there’s something else worth saying about the success of the Thesis—a more speculative observation that has less to do with the errors of Royal Residuum champions, and more to do with the mistaken premises of some in their audience. Specifically, many nonspecialists—that is to say, lawyer-generalists who have no expertise in either constitutional history or eighteenth-century political theory—have confused intuitions about what the constitutional “separation” of powers actually entails.
Justice Scalia’s dissent in Morrison is a classic example. It begins:
It is the proud boast of our democracy that we have “a government of laws, and not of men.” Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:
“In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws, and not of men.”
The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government.
Justice Scalia thus equates the Federal Constitution’s allocation of powers with the Massachusetts Constitution’s statement that only the chief magistrate may exercise any portion of the executive power. He then bolsters the case—without noticing that he has shifted from conceptual powers to institutional organization—by noting that “the Founders conspicuously and very consciously declined to sap the Executive’s strength . . . by dividing the executive power. Proposals to have multiple executives . . . were rejected.”
This shows, Scalia says, that Article II’s vesting of “the executive power” in the President “does not mean some of the executive power, but all of the executive power.”
As a historical statement about the Founding, this is a howler. Opponents of the Constitution savaged the document—at length and with great relish—precisely because of its failure to impose the kind of clean separation between legislative, judicial, and executive powers that is sketched in Scalia’s excerpt of the Massachusetts Constitution. Far from being embarrassed by this feature of the Constitution, Federalists embraced it:
Is there any one branch, in which the whole legislative and executive powers are lodged? No. The legislative authority is lodged in three distinct branches properly balanced: The executive authority is divided between two branches; and the judicial is still reserved for an independent body, who hold their office during good behaviour.
As Hamilton explained, this distribution of powers “is so complex, so skillfully contrived, that it is next to impossible that an impolitic or wicked measure should pass the great scrutiny with success.”
Madison agreed that while “[i]t is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments,” it is likewise true that “the degree of separation which the maxim requires . . . can never in practice be duly maintained” “unless these departments be so far connected and blended as to give to each a constitutional control over the others.”
For present purposes, however, Justice Scalia makes an even more significant mistake. And that’s the methodology he announced for deciding what kinds of power count as “executive.” He asks:
In what other sense can one identify “the executive Power” that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by reference to what has always and everywhere—if conducted by government at all—been conducted never by the legislature, never by the courts, and always by the executive?
Scalia thus suggests an inductive analysis based on empirical observations about institutional practice of actual political entities: If the thing called “the executive branch” does X, then that means that X is an exercise of “executive power.” As an evidentiary matter, this is a version of the grammatical error described above, conflating the metonym with its referent. And at least by the lights of Madison’s bookshelf, it’s simply incorrect.
To Scalia’s credit, he was later persuaded to reject the Royal Residuum Thesis as yielding “a presidency more reminiscent of George III than George Washington.”
But his confusion in Morrison exemplifies the mistaken mental shorthand that makes some audiences such fertile ground for claims about such a thesis. If you move from the (correct) observation that each branch is associated primarily with one power to the (incorrect) conclusion that all acts by that branch represent an exercise of that power, then the Royal Residuum Thesis might seem quite intuitive. But that doesn’t make it any less wrong, at least as a matter of history.
V. Dictionaries
In light of the sources canvassed above, it should come as no surprise that the literally uncontradicted dictionary definition of executive power in the Founding Era was “the power to execute.” For someone immersed in the historical materials, this makes perfect sense. The words “execute” and “execution” were commonly used in the eighteenth century for the act of bringing an intention into being, often in places where it would now be more typical to say “do” or “finish” or “perform.” And yet seeing the definitions below may startle people who have read only Royal Residuum Thesis scholarship. That’s because it’s central to Royal Residuum claims that eighteenth-century readers shared some special, counterintuitive-by-modern-lights understanding of “executive” that involved more than just the power to execute law. There was obviously more to the word: It would disrespect the President to confine him to his enumerated powers, supplemented only by the role of executing legislative commands. Or so the instinct goes—and it’s quite misguided.
In 1808, the first edition of Noah Webster’s dictionary made a typical distinction between “executive” as an adjective and “executive” as a noun.
As a noun, “executive” meant “the person or council administering a government.”
Other dictionaries agreed: When used as a noun, “executive” meant “the person or body in the administration of a country who puts the laws in force—thus distinguished from the legislative and judicial bodies.”
The Executive Power Clause obviously uses executive in the adjectival sense, and it is that sense on which the remainder of this Part focuses.
Here are the Founding-Era dictionary definitions I have found for the adjective “executive” as an attribute or characteristic in the most general sense. Each bullet represents a definition from a different dictionary.
- “having the quality of executing or performing”
- “having power to act”
- “having power to act”
- “(adj from execute) having the quality of executing, having the power of execution”
- “that which may be done, or is able to do; . . . [exécutoire, F.] serving to execute”
- “[executoire, F.] that which may be done or is able to do, or pertaining to executing”
- “being invested with a Power to act”
- “that which may be done, or which is able to do”
- “that has the power of doing a thing, by virtue of a proper authority”
- “having power to act”
- “having a power, or tending, to act”
- “active, able to act”
- “having power to execute”
- “having power to act”
- “having power to act”
- “having power to act
- “having the quality of executing or performing. They are the nimblest, agil, strongest instruments, fittest to be executive of the commands of the souls. Hale”
- “having the power to put in act the laws”
- “that serves to execute”
- “that which may be done, or is able to do”
- “having power to act”
- “that which may be done, or is able to do”
- “having power to act, active”
- “having the quality of executing or performing.—They are the nimblest, agil, strongest instruments, fittest to be executive of the commands of the souls. Hale”
- “[from execute or executoire, Fr.] . . . Having the quality of executing or performing. Executive of the commands of the soul. Hale”
- “having power to act”
- “[h]aving power to act”
I have found no evidence for a specialized meaning that varied from this core transitive concept. If an unusual or specialized term of art existed, one would expect it to emerge in definitions of “executive” as applied to legal or governmental functions. But the notion of simple transitive implementation persists in full and without modification in such definitions as well:
- “having the quality of executing or performing. Active, or putting into execution, opposed to deliberative or legislative”
- “having the quality of executing. Active, or putting into execution, opposed to deliberative or legislative”
- “having the quality of executing or performing. Active, or putting into execution, opposed to deliberative or legislative”
- “having the quality of executing or performing. Active, or putting into execution, opposed to deliberative, or legislative”
- “having the quality of executing or performing; active, not deliberative, not legislative”
- “having the quality of executing or performing. Active, or putting into execution, opposed to deliberative or legislative”
Definitions that offer more detail about the object of execution in a government context are clearer still: It is the execution of law, precisely as you would expect from the commentators and theorists on whom these definitions drew. Here are the Founding-Era dictionary definitions of “executive” that offer a more particularized specification of what the “executive” power of governance meant:
- “having power to act, or to carry laws into execution”
- “the being invested with a power to act, do, or execute, having authority to put the laws in force”
- “having the quality of executing. Hale.—Not legislative, having the power to put in act the laws. Swift”
- “having the quality of executing or performing. Active; having the power to put in act the laws”
- “having the quality of executing or performing. Active; having the power to put in act the laws”
- “Active; not deliberative; not legislative; having the power to put in act the laws. The Roman emperors were possessed of the whole legislative as well as executive power. Addison. Hobbes confounds the executive with the legislative power, though all well instituted states have ever placed them in different hands. Swift”
- “[from execute.] Having the quality of executing or performing — Active; not deliberative; not legislative; having the power to put in act the laws”
- “Active; not deliberative; not legislative; having the power to put in act the laws.—The Roman emperors were possessed of the whole legislative as well as executive power. Addison’s Freeholder.—Hobbes confounds the executive with the legislative power, though all well instituted states have ever placed them in different hands. Swift”
- “Having the power of putting in act the laws, active, not legislative or deliberative. The legislative as well as executive power. Addison”
- “Having the quality of executing or performing; active, not deliberative, not legislative, having the power to put in act the laws”
- “pert. to the governing body; having the power to put the laws in force; not legislative or judicial; active”
Now the kicker. A handful of dictionaries do reference the full phrase “executive power” precisely as used in the Executive Power Clause: a term of art for a conceptual authority that is capable of being vested in a government entity. I have found five such definitions. Each of them defines “executive power” to mean exactly what an informed reader of Madison’s bookshelf would have expected: the power to execute plans, instructions, and authorities.
- “EXE’CUTIVE Power, (S.) The power of putting in execution”
- “EXECUTORY or EXECUTIVE, that serves to execute; as The executive Power”
- “Exécutive Power, pouvoir d’executer, potestas executorialis, Die Vollmacht etwas zu vollstrecken”
- “Exécutive, a. Ex. Executive power, pouvoir ou authorité d’exécuter”
- “The executive power. Administratio; potestas aliquid administrandi”
Hidden meanings and counterintuitive findings are great when you find them. But sometimes simplest is best.
Conclusion
When a moderately educated eighteenth-century reader—or really any literate American with access to a dictionary—saw the phrase “executive power,” they would have understood it as the power to execute plans, instructions, and above all else the laws. They would have understood the power as an empty vessel whose authority in any particular case depended entirely on the substantive decisions of the entity (sometimes the same one that held the power to execute) which possessed the legislative power to direct executive action.
That’s certainly not to say we’ve arrived at a comprehensive historical account of Article II as drafted. What settlement on presidential power did the drafting Framers think they had reached? What arrangement did the ratifying Founders think they were voting on? Doesn’t the “Law Execution” theory of the Executive Power Clause leave a foreign affairs gap in the constitutional text?
A detailed answer requires deep engagement with a completely different set of historical materials—and perhaps a sturdier sense of civic confidence than the Royal Residuum Thesis seems to possess. But it is surely worth saying something about the power besides its bare semantic meaning: namely, a word on its contemptuous reception by theorists who yearn for a king.
Because, if mere execution is all there is to it, then wasn’t this a rather milquetoast role? When Chief Justice Vinson called the merely executive President an “impotent” “automaton” or “messenger-boy,”
and when the arch-royalist Filmer dripped with disdain about a mere executive power,
weren’t they right? Didn’t at least some Founders think so too? Take Charles Pinkney who, at the Convention, “objected to the contemptible weakness & dependence of the Executive” that was created by Article II.
That’s certainly Harvey Mansfield’s view: “[I]f any real president confined himself to this definition, he would be contemptuously called an ‘errand boy,’ considered nothing in himself, a mere agent whose duty is to command actions according to the law.”
I don’t think so. Certainly it’s wrong today. The modern statutory framework conveys a staggering amount of discretionary policy power to the executive branch. Very few of the legal constraints imposed on these delegated authorities are so precise as to rule out a politically plausible policy option in the realm of national security and foreign affairs.
But it was obtuse in the eighteenth century as well: The executive power has never been anything less than the nation’s force mustered in service of the nation’s will. That was why many authors saw England not only as being the freest and happiest of countries
but also as the country whose ruler was in fact the most powerful. Indeed, and perhaps ironically, the Crown could direct the power of a peerlessly vigorous nation that flourished precisely because of the various formal limitations on royal authority. By this measure, the American President would soon be stronger still. At a minimum, James Wilson observed, the President’s powers were clearly “of such a nature as to place him above expressions of contempt.”
Some Antifederalists made far less sanguine versions of the same point: “[T]hough not dignified with the magic name of King, he will possess more supreme power, than Great Britain allows her hereditary monarchs . . . .”
Even Madison (who, it turns out, had read the books on his bookshelf) saw what was coming. He warned that the President would likely wind up with tyrannical power in his executive capacity if Congress’s legislative authority were not limited:
One consequence must be, to enlarge the sphere of discretion allotted to the executive magistrate. Even within the legislative limits properly defined by the [C]onstitution, the difficulty of accommodating legal regulations to a country so great in extent, and so various in its circumstances, has been much felt; and has led to occasional investments of power in the executive, which involve perhaps as large a portion of discretion, as can be deemed consistent with the nature of the executive trust. In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished, and the difficulty of providing uniform and particular regulations for all be increased. From these sources would necessarily ensue a greater latitude to the agency of that department which is always in existence, and which could best mould regulations of a general nature, so as to suit them to the diversity of particular situations.
Yes, the immediate post-Revolutionary period saw the executive power either mismanaged by committee or left under the thumb of a multimember legislature riven by squabbles. But once the executive power was conferred on a single President, and once that President was given a veto to influence the content of the legislative instructions he would effectuate—watch out. Because the result was a massively powerful institution. Just not one with an indefeasible foreign affairs power, or indeed any other power not specifically listed in the Constitution. The particulars of that settlement and its implications for modern controversies, however, must wait for another day.