ABSTRACT Title of Document: IN TREPIDIS REBUS: THE CONSTITUTIONAL BASIS OF THE EXECUTIVE WAR POWER Todd R. Lowery, Doctor of Philosophy, 2010 Directed By: Professor Charles Butterworth, Department of Government and Politics Traditional approaches to questions of executive war power emphasize presidential- congressional relations, and focus on the meaning and implications of specific constitutional clauses. This dissertation offers an alternative approach by examining executive war power through the higher, more normative purposes to which the Constitution aims. It views executive war power from the perspective of Constitution’s basic but essential goal of self-preservation, and argues that the Presidency has a special duty to preserve, protect, and defend the Constitution. Presidential power, therefore, should be viewed in light of its duties to preserving the constitutional order. Presidential power, however, should not be viewed as “anything goes” for, true to republican principles, the people ultimately are sovereign and have multiple constitutional means by which to hold their leaders accountable. The dissertation focuses its analysis on the Constitution’s text, examining Publius and other writings of the Founding era, to help uncover the explicit purpose and implicit principles for understanding the Constitution. Understanding “to what end” the Constitution provides the lens through which we should view the actions of its institutions and officers. The dissertation then offers an interpretative analysis of President Washington’s words and deeds during the Whiskey Rebellion, demonstrating that his construction of the executive war power offers an important contribution to U.S. constitutionalism. It also focuses on Lincoln’s construction of the executive war power during the Civil War, arguing that although Lincoln exercised extraordinary power in meeting the necessity of the situation, he did so while remaining true to both the spirit and the letter of the Constitution. This counters conventional opinions that Lincoln’s conduct was un- or extraconstitutional, or that he had to act outside of the Constitution in order to save it. The dissertation suggests that the constitutionalism and statesmanship of Washington and Lincoln offer much perspective for understanding issues surrounding the executive war power today. IN TREPIDIS REBUS: THE CONSTITUTIONAL BASIS OF THE EXECUTIVE WAR POWER By Todd R. Lowery Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park, in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2010 Advisory Committee: Professor Charles Butterworth, Chair Professor Herman Belz Professor Steve Elkin Professor George Quester Professor Irwin Morris Professor William Galston © Copyright by Todd R. Lowery 2010 Preface “What chiefly attracts and chiefly benefits students of history is just this—the study of causes and the consequent power of choosing what is best in each case. Now the chief cause of success or the reverse in all matters is the form of the state’s constitution; for springing from this, as from a fountain-head, all designs and plans of action not only originate, but reach their consummation.” Polybius, The Histories, Book VI, I.2.8-10 ii Dedication In memory of my grandfather, Ralph Francis Winebrenner, 1916-2002. And to my boys, Alex and Aiden. iii Acknowledgements When one works on something for so long, one naturally incurs a number of debts. To everyone who, over the years, offered advice and encouragement—and you are too many to name—please know that you in some way contributed to the writing of this dissertation. Specifically, I thank Professors Irwin Morris, Steve Elkin, George Quester, and Bill Galston for serving on my dissertation committee, and for offering me helpful suggestions and advice. I especially thank Herman Belz for his mentorship and friendship over the years. He is an outstanding scholar of the American Constitution and his work inspired me throughout the writing of this dissertation. He has given me wise advice and counsel, and I look forward to our continued friendship. I also give special thanks to my teacher and advisor, Charles Butterworth. His encouragement, and occasional reminders to me to finish my dissertation, proved indispensable. His careful reading of each chapter along the way was beyond generous, and in the end, made this dissertation a much better product than I could have written on my own. I honestly can say I may not have finished were it not for his efforts. I also must thank Mr. Butterworth for his years of friendship and mentorship; he has led me to realize what a liberal education truly entails, and has helped put me on a path to a lifetime of careful study and liberal learning. Whether I follow through is up to me but I could not ask for a better guide in that pursuit than Mr. Butterworth. I also thank my dear friend Rene Paddags, who graciously gave his time to read each chapter for me. He is a true friend and colleague in every sense of the word, and I look forward to continuing our discussions. I also thank my old buddy iv Steve Dinauer, who reminded me often of the need to finish; his words of encouragement proved critical at times when I questioned whether I would really do it. I also must thank Steve’s better half, Leslie, who also took the time to provide me with advice and read over some portions of the dissertation. Although he had nothing to do with the writing of this dissertation, except occasionally shaming me to finish, I thank Mike Vickers for his years of friendship and mentorship. His service to our nation has inspired me in many ways, and I look forward to continuing to work with him. I also thank my parents, who for the past several years have asked me every week about the status of my dissertation. More importantly, you taught me (mostly by example) from a young age the virtues of working hard and doing things to the best of my ability. I thank you for that, and I can now say to you: “I’m done.” As with all matters in life, this dissertation’s dedication also has a twist of irony. To my boys, Alex and Aiden, who kept me away from writing my dissertation on many occasions, I dedicate it to you. Although I do not expect you to read this dissertation, I do hope you will take from it that if you put your mind to something, you can carry it through completion as well. Never give up, however tempting it may be. I love you both dearly and regret that I could not have been with you more over the past few years. Finally, to my wife Treva, who has been with me every step of the way, I could not have completed this dissertation (or anything else for that matter), were it not for your unconditional love and support. I would have dedicated the dissertation to you, however, it does not even begin to pay the debt I owe you. v Table of Contents Preface .......................................................................................................................... ii Dedication .................................................................................................................... iii Acknowledgements ...................................................................................................... iv Table of Contents ......................................................................................................... vi Chapter I: Introduction .................................................................................................. 1 Purpose and Research Question(s) ............................................................................ 3 Summary of Findings and Overview of the Study .................................................... 5 Chapter II: The Constitution and the Special Role of the Presidency ........................ 17 That to Which All Parts Aim: The Overriding Purpose of the Constitution .......... 23 A Note on Publius’s Constitution ........................................................................ 26 The Explicit Purpose of the Constitution ............................................................ 29 Implicit Principles ............................................................................................... 34 The Special Role of the Presidency ......................................................................... 44 Energy in the Executive ....................................................................................... 47 Responsibility and the Presidential Oath ............................................................. 51 Safety in the Republican Sense ........................................................................... 59 Alternatives to Self-Preservation ............................................................................. 65 Of Prerogative ..................................................................................................... 67 Constitutional Self-Preservation and the Spectre of Carl Schmitt ...................... 70 Executive War Power and the Separation of Powers .......................................... 74 Chapter III: Completing the Founding: Washington, the Whiskey Rebellion, and the Constitutional Presidency ............................................................................................ 78 President Washington: The Man Behind the Myth ................................................ 81 Whiskey and the Constitution ................................................................................. 92 What was the Whiskey Rebellion?