Federalist 77
In Federalist #77 Hamilton concluded his reflections on the executive branch, mainly extending the argument he had already made in #76 concerning the appointment process. That does not exhaust the Article II powers, however, and Hamilton treats the Article II section 3 powers in a cursory manner. Those powers are:
“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”
I’ll say more about those in a moment, but I want to finish with his arguments on the appointment process.
By this point we are all-too-familiar with the drama and intense controversy generated by the appointment process. Sometimes the presidents proposes and the congress disposes, and other times the president has a rubber-stamp at his disposal. Those debating the power considered all this, and worried about how party politics might corrupt the process. In the main, however, they believed that the system could be designed in such a way as to bend partisanship to its own advantage. They were certainly familiar with the intense passions associated with political parties – one recalls what happened to both patriot and loyalist non-combatants during the Revolution – but they couldn’t have anticipated either the organization of modern parties nor the amount of financial resources they would have at their disposal.
Furthermore, while Madison had discussed factions earlier in The Federalist and their tendency “to organize and actuate,” I think he underestimated the power that modern interest groups and lobbying efforts would exert on our politics, including the nomination process. We have witnessed large-scale mobilization of pressure on appointments, particularly when it comes to Supreme Court vacancies. In fact, factional pressure through interest group politics has weakened the parties. We do still have straight party-line votes, but the party-in-government is a fairly weak entity, unable to exercise much control or sway over its members. The party-in-government has yielded to the same forces of fracturing and atomization that infect our politics generally. Hamilton and others worried about cabals and family ties but underestimated the power of well-heeled interests.
Neither did Publius fully understand the problem of ideology, especially how it might bridge the separation of powers he counted on to keep government in check. Publius could hardly be blamed for this. The term “ideology” was not coined until nearly a decade after The Federalist when Antoine Destutt de Tracy fashioned it as a way to describe the organization of ideas (interestingly enough, he treated it as a branch of zoology). Our modern usage of the word, largely pejorative (who, after all, likes being called an ideologue?) largely derives from Marx’s critique of ideology, a production of signs and symbols designed to legitimate political power. In its more positive meaning we typically use it to refer to efforts to create fairly comprehensive and coherent systems of thought, but typically the term cannot be absolved of its references to social control and interest.
The Viennese writer Robert Musil may have given us the best description of how ideologies operate in his great novel The Man Without Qualities. Musil’s characters become more interested in possible realities than in real possibilities, creating a “second reality” alongside the world-as-it-is and relocating the meaning and purpose of life into that second reality. It becomes a kind of dream world of all our hopes and aspirations, the impossibility of which heightens rather than slackens belief in it. It becomes a closed system, impervious to criticism or correction, the guides all action, including the destruction of the world-as-it-is. These ideologies operate as powerful features in our contemporary politics, infusing politics with the burden of purpose it is not well-suited to carry and, since they are impervious to criticism, not capable of change. Ideologues will regard all opposition as existentially stunted and in need of either correction (“consciousness raising”) or suppression, which could include the termination of opponents. Reeducation and concentration camps are the endgame.
Fortunately our politics have, for the most part, not gotten to that point, but we get a whiff of what’s at stake for ideologues when a new justice is being seated. They treat these appointments as if “the future of our democracy” [sic] is always at stake. The pearl-clutching hysteria on both sides, as well as the hard lines that get drawn, indicates that the ideological disease has infected the body politic to a fevered state. These fevers have typically broken until the next “most important election of our lifetime” or “most important appointment in history” comes along, but every fevered episode shortens the life-expectancy of the body politic.
I think the Anti-federalists may not have had the conceptual tools to understand fully the problem of ideology, but they understood that rescaling politics would make it more susceptible to the fevered imaginations of those lusting for power. Hamilton repeats in #77 his claim from #76 that the sharing of the appointment process between the Senate and the president would stabilize the government, and no doubt there was something to the claim, but concerns about stability need to be directly related to causes of instability. Here, again, Hamilton seems to assume that “the people” (especially notable if the House got involved in the process) are the main source of instability and therefore need to be consigned to the sidelines as much as possible. Even excepting for that, ideologues love presenting themselves as abstractions, claiming to represent “the people” or “the national interest” or “human rights” or “democracy” itself. Too often, however, it is an effort to substitute the whole for a part, and this tendency toward abstraction would intensify in a centralized and nationalized system.
Neither could Publius have anticipated the revolutions that would occur in transportation and communication and how these revolutions would throw sand into the gears of Publius’ finally calibrated machinery. Hamilton opposed the idea of a nominating council such as the one used in New York at the time because “Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination.” Fair enough, but at least it would enjoy the value of not turning into bad television. The broadcasting of the proceedings of Congress, especially the appointment process, has become a circus cum freakshow. Members are more interested in air time than thoughtful deliberation, and in catering to the shrieking ideologues at the margins than thoughtfully weighing the actual qualifications of a nominee.
Hamilton thought “fitness” for the office in terms of training and character and reputation, not the candidate’s ideological positioning, the prerequisite for appointment. Indeed, if an office-holder proved competent there would be no need for replacement appointments when a new administration took power. “Where a man in any station had given satisfactory evidence of his fitness for it,” he wrote, “a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself.” Competency and character, not passion and purpose, were the qualities desired.
The advent of transportation and communication revolutions also affected the section 3 powers, mentioned above. Publius assumed that the national legislature would be largely a part-time affair (if only!) staffed by persons who had other interests and commitments besides governing. Surely that’s what the Anti-federalists thought, and even if Hamilton wanted something more permanent and energetic than that, the logistics of travel and communication made it difficult to convene. Congress would be “on recess” with such frequency that it could put the federal government in a precarious spot, particularly when it came to defense emergencies, war powers, making treaties, or even appointments. For that reason the President was given the ability to call Congress into session to insure the continual and stable operations of the federal government.
He could also adjourn them when they couldn’t agree on a time of adjournment. The expansion of this power is one of my favorite scenes in the remarkable 1933 film Gabriel Over the White House, a film made with the financial backing of William Randolph Hearst. I can’t do this movie justice in a paragraph, other than to say it’s an incredible fantasy about presidential power. It’s horrifically bad, and I love it unconditionally. President Judson Hammond, the stuff of FDR’s fantasies, is an amalgam of the worst traits of FDR’s predecessors until he has a near-death experience where he is visited by the angel Gabriel (to the strains of Brahms’ First Symphony) and experiences a death-bed conversion. Now energized and with a sense of purpose, he fires his cabinet, adjourns Congress so they can’t impeach or impede him, and takes control of the economy. He admits to being a dictator, but "a dictatorship based on Jefferson's definition of democracy: a government for the greatest good of the greatest number." (Of course, Jefferson said no such thing.) Once having corrected the economy he turns his attention to world peace which he accomplishes via a massive expansion of the US military. All the world’s leaders agree to this plan and in his presence sign “The Washington Covenant.” After affixing his signature, thereby insuring peace and prosperity for all, he collapses and dies. It’s fantastic in every sense of that word.
No one assumed that the adjourning power approached what Hammond thought he could do with it, but it didn’t escape the attention of some that this fairly benign power carried the potential for mischief, a reminder that the Constitution contains enough vagueness and ambiguity that it could be susceptible to the Humpty Dumpty principle: "When I use a word, it means just what I choose it to mean—neither more nor less." Madison had claimed that all the confusion could be liquidated over time; critics thought it made more sense to take some time and get it right to begin with.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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