Corey Brettschneider is a professor of political science at Brown University who has written extensively on constitutional law, freedom of expression and democratic rights. His latest book, The Oath and the Office: A Guide to the Constitution for Future Presidents, offers a direct response to a question that Donald Trump has managed to raise almost every day since taking office: What exactly is the president of the United States empowered to do?
I found the book subtle and entertaining, and it taught me a lot of things that as a political theorist I should probably have known already. But I wasn’t sure what to make of it from a philosophical perspective. After all, isn’t it possible that a document written by slaveholders in the eighteenth century might stand in the way of progress today? What about Thomas Jefferson’s argument that each generation should reassess the Constitution for itself? And what are we referring to when we talk about the Constitution anyway? When I called Corey to ask about all of this, he turned out to have some pretty compelling answers, and those answers then led us into a discussion of the role that political theory can play in democratic life. What follows is an edited transcript of our conversation.
Jonny Thakkar: What do you take to be the main argument of The Oath and the Office?
Corey Brettschneider: The book is an argument for the limited presidency. It starts with a very simple point, which is that the president is required in Article II of the Constitution to say some very specific words—it’s the only oath that’s laid out in detail—namely that he or she will preserve, protect and defend the Constitution of the United States. So the job description is to submit to the rule of law but also to go beyond that in actually defending the provisions and limits on the presidency, and on the government generally. The book therefore begins with the words spoken by George Washington in the Second Inaugural Address: “This oath I am now about to take, and in your presence: That if it shall be found during my administration of the Government I have in any instance violated willingly or knowingly the injunctions thereof, I may (besides incurring constitutional punishment) be subject to the upbraidings of all who are now witnesses of the present solemn ceremony.”
That’s really the heart of the book—the idea that the powers conferred to the president are limited by Article II and then the Bill of Rights. Take war powers, for instance: the president has the power to be commander in chief, but to initiate war is the power of Congress. But then the final section of the book is about how to stop a president who either doesn’t care about the oath or who disregards it. So there are chapters on indictment, on impeachment, and finally a topic that’s less well known, the role of the state in stopping unconstitutional presidential actions.
JT: How would you say that your vision of the U.S. Constitution differs from other people’s vision?
CB: It’s what I call a value-based reading of the Constitution, that the Constitution is not only about the text itself and then the views and intentions of the Framers, but also about a set of principles and values that are wider than the words on the page, principles and values that are articulated over time through cases.
I’m critical, for instance, of originalism, the view of Justice Scalia that the role of the Supreme Court is to only interpret the Constitution as the words were semantically understood at the time the provisions were enacted. The text matters, of course—sometimes it’s very specific, for example, the requirement of how old the president has to be, 35—but when it comes to the issues that I’m discussing, such as cruel and unusual punishment, or free speech, or the limit on the establishment of religion, those things can’t be understood as just words on a page. We need to engage in a kind of conceptual analysis of the underlying values and the way they’ve been understood over time through court cases whose role was precisely to work out their meaning. So it’s not a single-source theory of the Constitution, it’s multi-source.
JT: Given the level of debate over the meaning on this multi-level understanding, how is it that you can be definitive about what it would entail to respect the Constitution? You’re giving an argument for a particular reading of the Constitution, but isn’t it open to the president to say, “Well, I do respect the Constitution, but I interpret it very differently”?
CB: Yes, and I say that in the book, by laying out what the debates around the Constitution have been. But I think the obligation of a citizen-interpreter, and a president, and anyone who occupies an important political role—Supreme Court Justices, for instance—is not just to say, here’s what the debate is, but to actively engage in it, and to say, here’s what I consider to be the best interpretation. So what I’m trying to do is to give the best account of the Constitution while being honest about this debate, and not just to leave the reader hanging, but to try to walk them through it.
Part of it is the frame: the book is normative—it’s about what the president should think and do. A book that just sort of says “on the one hand, on the other” isn’t much good as advice. I give an account of the presidency that I consider the most consistent with the original values of the text and the way that over time the case law has helped us understand these things. The best understanding over time is that the Constitution provides for a somewhat limited presidency. I don’t think there’s a lot of argument.
I should say too that there is actually agreement about some of the limits. So for instance, I think really on any reading of the Constitution—originalist or value-based—you can’t see the president as having the ability to initiate war. Now I know John Yoo and others disagree with that, but I think they’re wrong even on their own terms. So I guess I wouldn’t say that you have to buy into my theory of the Constitution to buy into all of my arguments.
JT: How would you place the relationship between what you might call the written Constitution and the de facto Constitution? I mean you’ve talked about values and case law so I don’t know if maybe that encompasses this, but I’m thinking about something like judicial review. If you were to describe to somebody how politics operates in the U.S., what are the final sources of judgment and authority, you’d have to say something about judicial review, and yet it’s not there in the written Constitution.
CB: Yeah, and I think that that speaks to the need for a multi-source theory of the Constitution. Marbury v. Madison is seen as the fundamental case establishing judicial review (even if the concept of judicial review is referred to in the Federalist Papers and in earlier cases) and the argument there is about the rule of law and the role of the courts in enforcing the law. Now that’s not a provision that’s found in Article III and what that tells me is that you need to go beyond the text itself in order to give an interpretation of the Constitution that has any real fit with our tradition and with common understanding. A judge that got up before the Senate Judiciary Committee in a nomination hearing and said they would overturn Marbury v. Madison would be a nonstarter. So that’s why the argument of the book is that you have to look at basic case law, established precedent, what some people call “superprecedent,” as having a role in shaping the meaning of the Constitution alongside the text and the values it expresses.
JT: There’s a sense in which we can derive judicial review from the basics of the rule of law, so that it’s almost entailed by what is in the text, but you wouldn’t be able to say that of certain other phenomena that I would think of as crucial to the situation of the U.S. from a sociological perspective, for example the existence of the DEA or more generally the administrative state in its huge expansion in the twentieth century. I’m no expert, but it seems to me that the regulation of interstate commerce became a kind of wedge that allowed for a huge expansion relative to what was intended by the Framers on any plausible understanding.
CB: Yes, yes.
JT: I think many people would say that’s a matter of fit with the modern world rather than fit with the principles of the Constitution.
CB: Yeah, I mean, I would put it slightly differently. I certainly think there was an expansion, but I don’t think it’s just deference to the modern world. This becomes clear when we try to think of why the administrative state is constitutional, which I certainly think it is, or why, to take another example, the 1964 Civil Rights Act, which bans discrimination in hotels and restaurants, is constitutional. Why does Congress have that power? The answer in the Ollie’s Barbecue case of the ’64 Civil Rights Act is, as you say, the power to regulate interstate commerce. But in my view that case is not only about interstate commerce, but also about certain values that the federal government can pursue, including equal protection. To take another example, in the New Deal there’s a huge shift in the creation of the administrative state, but it’s justified not only by the words “interstate commerce” but also by the idea of the rule of law—that Congress can make law and establish agencies to carry out its will—and more broadly just by the role of the federal government in pursuing general welfare.
JT: So just to take a step back, as I’m not American, I’m sure you know that Europeans tend to be quite amazed at the degree to which American politics revolves around the Constitution, the degree to which Americans are willing to adhere to, and valorize, the Constitution. In the introduction you talk about honoring it, and when you get to executive power in chapter 3 you write, “The concern in questions of delegation isn’t about whether the end result is good or bad. It’s what the Framers would think of a Congress that shrinks from its authority to check presidential power.” As you’ve said, you’re not just going with the text of the Constitution, but with its values—but that’s going to raise a question, which is, well, what if the “political morality” of the Framers was wrong? We know that it was wrong with respect to some issues, slavery being the most obvious, so might it not have been wrong in other respects as well? So from a European perspective, we always want to ask: Wouldn’t it be a legitimate goal to want to change and improve on the Constitution? Why must you believe that it has the answer to everything?
CB: I think that’s a great question. First of all, I wouldn’t want to say that it’s a perfect document. There are many questions it doesn’t answer, for instance, issues about whether we should have a universal health-care system just aren’t answered or weren’t available to the people drafting the document. I don’t think it answers issues that would properly be dealt with in contemporary partisan politics. But I think the central values are laudable, and it’s important here to talk about the combination of the eighteenth-century document with the three amendments passed after the Civil War, the Thirteenth Amendment that ended slavery, the Fourteenth Amendment guaranteeing all citizens equal protection and due process at all levels of government, and the Fifteenth Amendment about the right to vote.
I reject originalism because I don’t think the Framers’ own understandings of these values was always the right one. But what they embedded in the law was the principle of a limited presidency, and that I do accept. They saw, for instance, that although this was a powerful office, it was extremely dangerous to allow one official the absolute right to do whatever he or she wanted just because he or she was elected. They were worried about monarchy, and they thought that the rule of law needed to constrain any leader, and not just any old rule of law, but a substantive one that included the concept of due process, and also, eventually, over time, equal protection. So it’s not that George Washington was a perfect person—of course he was a slave owner, and he should be condemned for his complicity in the evil of slavery—but when it comes to his vision of the presidency as subject to constraints and criticism and the rule of law, it turns out to be pretty good and it stands to help us right now.
And even then we have to argue it out regarding the details. I don’t think that every provision is justifiable—there’s nothing in the book, for instance, defending the electoral college, and in fact I think there are very serious arguments for getting rid of it. But the core provisions and the core values of the Constitution are certainly not things that I want to amend. This is coming into view now that Trump is talking about getting rid of the Fourteenth Amendment, or at least the birthright citizenship clause, or Kanye West said in a tweet that we should get rid of the Thirteenth Amendment. People were rightly up in arms about getting rid of these provisions, and not just because somebody in the nineteenth-century said they were good.
JT: The counter-argument would be that the Constitution actually impedes progress: the founding principles are very heavy on protection of private property rights, they are individualistic in a certain respect, perhaps anti-democratic, and even the constraints on the power of what the president can do mean that it’s very hard to see how someone like Bernie Sanders, supposing he ever got elected, could transform the country in any serious way. So the thought would be that Americans need to change the Constitution if they want to have a more progressive country.
CB: That certainly is an argument that I’ve heard made by some on the left, but I think it’s wrong. I think our constitutional system is perfectly compatible with a socialist vision of how the economy should be managed. It doesn’t require market mechanisms at all. And I’ll say why. The understanding of the courts since the New Deal, and it’s the right one, is one of ordered liberty. And that has a very specific meaning in constitutional law. The idea is that the values of the Constitution are primarily about personal liberty, such as the right to free speech, the right of religious freedom, and civil liberties, as well as the rights of discrete groups, like African Americans or women or gay people, to be free from discrimination. That idea of “ordered liberty”—the “ordered” part is the thought that personal liberties come first. But what the Constitution doesn’t do is impose a particular capitalist or economic order at all. It doesn’t actually speak to those things in the least.
Now, in the early twentieth century, there was a view expressed in the Lochner judgment that the Constitution was about the creation of a certain kind of laissez-faire economic system, but it was overturned in 1937 and now we’re almost a hundred years, thankfully, from that vision of the Constitution. Are some people trying to bring it back? Of course. There are members of the Supreme Court as well as scholars who have been arguing for a return to something like that, using, for instance, the First Amendment—wrongly in my view—to protect certain economic interests. Now, how do you respond to that? You could respond as I’ve heard some do on the left, by saying, let’s get rid of the system, or let’s be anti-constitutional—and there’s certainly a tradition of doing that. But I want to say let’s look at the law, first of all. Anybody who tells you that current constitutional law sort of guarantees Lochner-style rights is wrong. Lochner is universally seen as a bad case. So the way I want to fight that view is in terms of the Constitution itself, not by arguing for its abandonment. Ultimately, I’m on Frederick Douglass’s side: you take the values within the tradition and you seek to critique on those terms. He’s certainly one of the heroes of the book.
JT: Another thing that strikes me, as a foreigner, about the U.S., is that the American political imaginary revolves around the presidency in a way that the Constitution—it seems you’re right about this—doesn’t really license. Before Trump came to power, he was clearly suffering from the same kind of misapprehension as many Americans about what the power of the presidency really is, attributing agency to Obama with regard to a variety of things that he couldn’t possibly have controlled. And then when Trump became president, you could see that he was sort of confused—like, “Why can’t I?” So one way of looking at it—and this seems to be the way that you want to look at it—is that people need to be educated, basically, so that the cultural imagination gets closer to reality.
JT: But another way of looking at it would be to say something like, this system was designed for a different world, where our political attentions were much more local. In the contemporary American world, most people only give political life a certain amount of attention and they center that attention around presidential elections, on the assumption that the presidency is what creates change. So perhaps the Constitution should actually change in order to match the reality of political life in America by giving more power to the president?
CB: Yeah, that’s a serious challenge to the book, which relies on the assumption that you can educate people to understand how the system is supposed to work and thereby restore this idea of the limited presidency. But maybe that is incompatible with today’s attention spans. I’m calling us to see the next presidential election and the midterms too as a referendum on the Constitution, and what you’re suggesting is a reason why it might not go the way I want. Because there is something appealing about a president who just says, I’m going to do this, and who cares about the Constitution!
But we’ve got to think about what the stakes are if the limited-attention-span view wins. With a presidency that is unconstrained, you could do enormous good, but you could also do serious damage. You’re talking about the possibility of constitutional dictatorship. Carl Schmitt’s vision of politics is like that and unfortunately in American politics there are people who’ve defended it: the people have spoken, they’ve made the decision, and they turn everything over to a leader. We’ve seen how that turns out at points such as the 1930s.
JT: One book that you don’t mention as far as I can see is Eric Nelson’s book about the founding, The Royalist Revolution, where he claims that many of the American revolutionaries were against the British parliament but not against the monarchy per se. What do you make of that?
CB: Yeah, I think it’s a great book—I recommend it. It brings out a strand of American politics that certainly is royalist; people arguing against the constrained presidency might draw on that strand. But I’m not doing history here—I’m trying to give an account of the legal and constitutional constraints on the U.S. presidency. And what matter are the multiple sources I mention: the case law, the principles, and the text.
So take my discussion of the Alien and Sedition Acts. Congressman Matthew Lyon of Vermont went to prison for saying that Adams was kind of haughty—basically he was accusing him of being a royalist—because there was a law, the Sedition Act, that punished people who criticized the president of the United States while allowing for criticism of members of a different party. Now, that’s a royalist statute. But when we start to think about the understanding over time things look different: Jefferson and Madison went back to Virginia and drafted the Virginia and Kentucky Resolution arguing that this statute represented a violation of the First Amendment free-speech guarantee. So although there were originally these royalist strands, or even strands of constitutional dictatorship, there’s nobody now on the Supreme Court, no scholar of constitutional law, who would argue that the Sedition Act was, or is, constitutional. It’s a royalist violation of the structure of the American constitution. So although Eric’s book is a terrific history, I think, of this forgotten royalist strand of American history, as a matter of constitutional law, the document itself and the cases over time privilege the Madisonian strand that strictly rejects monarchy.
JT: Yeah. Speaking of Jefferson, what do you make of the classic question for students of political theory studying the founding documents and the political theory behind them, namely what to make of Jefferson’s argument that each generation needs to reevaluate the constitution for itself in order for it to be legitimate. There was a debate between him and Madison over just this issue. Jefferson’s position seems to have an intuitive appeal, in that democratically we ought to be able to reappropriate the law for ourselves, each generation anew. But then Madison comes back and says, it’s never going to work because you’re always going to need some kind of relatively unquestioned tradition that we can appeal to in political life. What do you make of that debate?
CB: Yeah, I mean, as is often the case with these classic debates, there’s partial truth on both sides. Certainly Jefferson’s right about the need for a civic renewal in terms of each generation coming to understand the Constitution. As I say in the book, there’s no Constitution police. It’s not like the law just self-executes. You need a president that’s going to nominate Supreme Court justices that are going to enforce the Constitution, and you need a population that’s going to understand and demand that leaders respect the rule of law. And that hasn’t happened. So that’s the Jeffersonian part, that if you don’t have a continually renewed civic understanding of the values that are essential to the tradition, they’re going to disappear.
But I also think that what Madison’s warning about is that we need to be careful how we’re framing it. Because if it’s just political revolution of any kind, and turnover, then we get to the idea that my partisan side should win—free speech for the left but not for the right or vice versa—and that kind of constitutional revolution isn’t going to be consistent with the basic values that Jefferson bought into. So, yes, renewal, invigoration, civic education, the role of the polity matters, and so on, but that’s not an anything-goes view. And I don’t think either of them thought that, right? Jefferson drafted the Declaration. I don’t think he thought, Let’s continually think about whether the idea of the equality of humans is right or not, and get rid of that sometimes and rewrite the Declaration. I think there are certain founding principles that both of them thought had to be renewed.
JT: I think that’s right, and it goes to something I found very interesting in your book. I have also tried to argue for the notion of what I call “philosophical citizenship” that involves an attempt to understand what the ideal version of one’s own society would be, and to try to nurture and further that. So I thought it was kind of interesting that although I argue for my vision on the basis of a treatment of Plato, whereas you cover it from a totally different starting point, actually we’re saying something actually fairly similar, namely that citizenship involves the need to orient ourselves towards ideals.
CB: Yes, yes.
JT: So although you frame the book as being aimed at a future president, really, I think, it’s aimed at citizens, who also really have to understand the fundamentals.
CB: That’s great, you’re hitting the nail on the head. Look, you and I are not going to be future presidents in all likelihood. Well, it sounds like you can’t be! [Laughs]
JT: Unless the Constitution is changed!
CB: [Laughs] Right. And I don’t think I’m going to be president either. But the book is for citizens—that’s the idea. It’s for voters, to help them think about the ideals underlying the Constitution. And the reason why that matters is the Jeffersonian point we’ve been discussing: if citizens go for Donald Trump’s vision of the presidency then ultimately citizenship itself disappears and gets replaced by subjecthood. That’s the core idea of the book, what it’s written for.
JT: Rhetorically, that creates an interesting effect. Bernard Williams speaks of a distinction between the listener of a work and the audience. And he uses as his example the “mirror to princes” literature in this history of political thought—Machiavelli, for example. The ostensible listener of The Prince is of course the prince. But the audience is supposed to be much broader than that: fellow citizens, or whoever. And I thought you pick up that kind of rhetorical tradition by framing this book as a guide for future presidents.
CB: I think I give a shoutout to Machiavelli in the beginning. That’s exactly what I’m trying to do, to hark back to an earlier tradition that’s really forgotten by modern political science. A lot of modern political theory is written in the third person. This book is mostly written in the second person. And that’s meant to convey exactly that structure that you just so nicely laid out, where citizens are the real audience. So yes, that’s why I wrote the book that way and used that structure.
JT: That approach implies a vision of an enlightened citizenry that doesn’t just abide by the law, but actually grasps the underlying ideals that animate the law and then works to further those ideals in ways that go beyond what is strictly required. And then the president is just one more citizen in that regard. I find that conception very attractive from a normative perspective. But when working out my own ideal of philosopher-citizens I came across an argument that Madison gives in Federalist 49, where he says that “in a nation of philosophers … reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato.” He’s arguing that in the real world we need a somewhat unthinking attachment to the tradition, what you might call a prejudice in favor of it. So there’s some kind of balance to be drawn between the need for a philosophical citizenry that thinks things through from first principles and the need for the stability provided by tradition. And maybe that’s the merit of your attempt to articulate the ideals that are immanent in the existing Constitution—you get to bridge philosophy and tradition. On the one hand, you have the notion of a philosophical citizenry, but on the other hand, there are fundamental bounds given by the Founders.
CB: That’s really well said, and it sounds like that particular Federalist Paper would be good for us to revisit in this context. Yes, I do think you need both. There are some things that should be off the table given our tradition. You would think that the possibility of making a law explicitly based on racial or religious prejudice would be one of those things. But at some point the boundaries do start to get erased, and people challenge even the core principles of democratic government. So I guess I would say the tradition argument is only going to go so far, and we live in a time where it doesn’t do much. These basic principles have eroded to such a degree where if we don’t revisit them and talk about them in a way that does educate the citizenry, and not just educate in a pedantic way, but in a way that brings them into the conversation, they might erode. We have to have the Jeffersonian part, this renewing conversation.