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Public confidence and executive power: the symbiosis.

Article Excerpt
Thomas Jefferson and Executive Power. By Jeremy D. Bailey. New York: Cambridge University Press, 2007. 280 pp.

The Terror Presidency: Law and Judgment Inside the Bush Administration. By Jack Goldsmith. New York: Norton, 2007. 256 pp.

Terrorism and the Constitution: The Post-9/11 Cases. By H. L. Pohlman. Lanham, MD: Rowman & Littlefield, 2008. 321 pp.

In Defense of the Bush Doctrine. By Robert G. Kaufman. Lexington: University Press of Kentucky, 2007. 251 pp.

Jeremy D. Bailey has accomplished something truly remarkable. In Thomas Jefferson and Executive Power, he has thoroughly and convincingly overturned the received historical wisdom. Ever since Henry Adams--and arguably since 1803--historians have been saying that Jefferson's presidency was marked above all by contradiction and hypocrisy. Here was Jefferson, according to Adams (and Jefferson's Federalist critics), the advocate of a weak national state and chief executive, presiding over the greatest expansion of federal and executive power the country had seen. As Adams himself put it, if Jefferson was right "that the Federalist differed from the Republican only in the shade more or less of power to be given the Executive--it was hard to see how any President could be more Federalist than Jefferson himself" (1986, 354). He had, as generations of historians following Adams have claimed, out-federalized the Federalists.

But as Bailey shows in splendid detail, this argument rests on a misconception of Jefferson's views of executive power in a republic. Jefferson believed that "governments are republican only in proportion as they embody the will of the people, and execute it" (Jefferson to Samuel Kercheval, July 12, 1816, in Peterson 1984, 1396). Failure to do either would undermine the government's claim to the republican name. Jefferson embraced energy in the executive, Bailey says, precisely because the executive would be the clearest representative of the national will. In order to carry out that will, the president would require a certain latitude in dealing with unforeseen emergencies and with the inevitable (in Jefferson's view) progress of human nature.

Yet, in contrast with Alexander Hamilton and other advocates of a strong executive, Jefferson resisted finding such discretion in a doctrine of implied powers or a loose construction of the Constitution because such reasoning would distance the executive from consent, clouding the law in complexity difficult for the public to judge (p. 66). Unlike most scholars who see Jefferson's "strict construction" as designed to weaken executive discretion, Bailey argues that Jefferson understood it as a way to ground executive energy in popular consent--which, in turn, would expand the scope of executive power by stamping it with the public imprimatur. In order to face contingencies such as invasion, presidents would occasionally find it necessary to exercise prerogative--that is, to act outside the law. But presidents cannot hide such acts behind a doctrine of inherent authority or simply assert their powers; they must defend their actions before the bar of public judgment (p. 152). Or, as Jefferson memorably put it, "It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake." In the absence of infinitely expansive implied power, the "good officer," Jefferson said, acts "at his own peril"; exercise of the prerogative forces the president to "throw himself on the justice of his country" (Jefferson to John B. Colvin, September 20, 1810, in Peterson...

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