The Presidents and the Constitution Short The Presidents and the Constitution: A Living History can serve as the textbook for undergraduate, graduate, and law school courses. It consists

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• A chapter for each president, so that the reader learns about dramatic moments in constitutional history in the context of the people and events who shaped them.

• A skillfully edited book so that forty-four chapters on unique chief executives weave together seamlessly to tell a powerful and rich story worthy of all readers of history, law, politics and the presidency.

• The only book of its kind that shows the U.S. Constitution itself evolving through the bold initiatives (some successful, some ill-fated) of presidents whom the Framers entrusted to bring energy to the American system of government.

wh Y cO n s i d e r t h i s BO O K F O r YO u r cL a s s?

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WThe Presidents and the Constitution: A Living History can serve as the textbook for undergraduate, graduate, and law school courses. It consists of 44 chapters, one for each president, arranged chronologically, authored by prominent political scientists, historians, law professors and journalists. The goal of the book’s editor—a prominent author and scholar in the fields of American presidencies and constitutional law—is to create an accessible and engaging text for a variety of courses and seminars.

The book focuses on a familiar subject, the American presidency. However, it does so through a unique lens—the constitutional issues and crises that each of the 43 men who have occupied the presidency have faced during the 225-year history of the American Republic. The parameters of presidential power and the meaning of constitutional provisions are explored in the context of major events of American history. Broad themes that have constitutional implications—such as race, war powers, national security, gender, etc.—are linked together to show how events during one presidency interrelate with and shape events in later administrations.

With the exception of the initial classes, which are aimed at providing background and covering foundational principles as an introduction, the course is designed to be participatory. For each class, students can be assigned book chapters and expected to participate in a class discussion of questions (which may be given to the students in advance) based on the material they have read. For each chapter, this Teachers Manual provides a set of discussion questions and a brief analysis of several key issues to make teaching the course efficient and enjoyable.

Students should understand at the outset that due to the open-ended nature of certain provisions in the Constitution and the historical context in which each president has operated, many of the questions raised in class have no “right” answer, and that the analysis one presents of an issue is often as significant as the conclusion one reaches. Typically, students are required to write a short paper and a long paper, and present them in class. The papers ordinarily focus on one or more constitutional issues as they relate to a president or presidents of choice, a presidential era, a historic event, a presidential power, etc.

The course tends to be lively, and provides a wonderful introduction to students who are considering a law degree, or advanced study in American law, political science or history. By learning about the presidents as they have shaped—or have been shaped by—various provisions in the U.S. Constitution, students learn about history, government, policy-making, and law. Simultaneously, they also learn how to analyze legal issues that confront all three branches of government. In this sense, the course can serve as a creative substitute for traditional undergraduate and graduate courses in Constitutional Law, and develop students’ skills that will prove invaluable in future courses of study. Hopefully, you will enjoy teaching the course as much as the authors (and editor) have enjoyed writing this unique and exciting book.

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BACKGROUNDAt the outset of the course, students should be introduced to the Constitution and the principles on which it was founded. A good beginning is the historical context in which the Constitutional Convention of 1787 took place, with a particular emphasis on the matters that infl uenced the founders in drafting the Constitution. In this regard, the following information about the Articles of Confederation, the state constitutions adopted during the Revolutionary War, and the ideas of the Enlightenment that infl uenced the founding fathers can provide useful background.

The Articles of Confederation. Adopted in 1781, the Articles served as the written document that established the United States of America after the colonies declared independence from Great Britain. The Articles created a loose alliance of sovereign states, as well as a sovereign central government. The central government, however, was weak, consisting of a single body, a one-house legislature. While the central government was given the authority to make treaties, maintain armed forces, coin money, and conduct foreign affairs, it did not have the authority to tax or regulate commerce. In addition, it lacked both an executive to carry out or enforce the acts of the legislature and a court system to adjudicate national concerns. The limited power of the central government under the Articles led to signifi cant problems for the new country—disputes among states over claims to western lands; a crippling national debt that the states refused to address; border clashes with Britain and Spain; and a currency crisis. As a result, a convention was called for the purpose of amending the Articles. Ultimately, however, the delegates agreed that more than a mere revision of the Articles was needed and began drafting an entirely new document to govern the country.

State Constitutions. Since many of the delegates to the Constitutional Convention had participated in state constitutional conventions, state constitutions served as models for the federal constitution. Many of them predated the U.S. Constitution. Almost uniformly, state constitutions guaranteed and protected individual rights; emphasized that government’s power emanated from the people; and required that the branches of government be separate.

Intellectual Infl uences on the Founders. The founders embraced the central idea of the Enlightenment—that humanity could be improved through rational change. The founders were infl uenced by, among others: Blackstone (the rule of law), John Locke (the natural right of all men to life, liberty and happiness); Montesquieu (the separation of powers among branches of government); Rousseau (the social contract—all citizens contribute to the greater good and cede power to the government for what ); Voltaire (religious tolerance and freedom of thought and expression); and Adam Smith (a free-market economy based on rational self-interest leads to prosperity for all).

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FOUNDATIONAL PRINCIPLES Students should be familiar with the following principles found in the Constitution, as they are encountered repeatedly throughout the book’s chapters: separation of powers, checks and balances, federalism, republicanism, limited government, and the rule of law. The points to be made about each include the following:

Separation of Powers. The separation of powers doctrine aims to avoid the tyrannical consequences of absolute power. The doctrine calls for a government consisting of separate, distinct, and co-equal branches of government, each wielding defined and unique powers. Under the Constitution, the government is divided into three branches—the legislature, which is given the power to enact the laws, the executive, which is given the power to execute the laws, and the judicial, which is given the power to adjudicate. However, the doctrine does not demand a complete and strict division of labor. Rather, the branches work in coordination with one another.

Checks and Balances. Under the system of checks and balances in the Constitution, each of three branches is able to restrain the others, so that no single branch has too much power. For example, the executive branch has the power to veto a law passed by the legislature, but the latter may override the veto. The executive branch executes the laws, but the legislature appropriates the funds to the executive to do so. The executive negotiates treaties, but the legislature must ratify them. The legislature passes laws, but the laws are subject to the judiciary’s interpretation and review.

Federalism. Federalism is a system of government in which the same territory is controlled by two levels of government. (Other major types of government in the world today are the unitary system, in which power is held at the national level with very little power being held in political subdivisions, and the confederation, in which there is a union of equal states, with some power being held at the national level.) Under a federalist scheme, an overarching national government governs issues that affect the entire country, and smaller subdivisions, such as states, govern issues of local concern. Both the national government and the smaller political subdivisions have the power to make laws and both have a certain level of autonomy from each other.

Limited Government. The federal government has only the authority the Constitution gives it to intervene in the affairs of individuals and in the activities of the states.

Republicanism. The principle of republicanism reflected in the Constitution refers to a form of government where the citizens conduct their affairs for their own benefit and not for the benefit of a ruler. The term also refers to the fact that democracy in America is not direct. Rather, the people elect representatives to

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The Rule of Law. The rule of law, as embodied in the Constitution, is associated with the notion that there is a formal, regular process of law enforcement and adjudication; “a government of laws, not of men.” (John Adams, “Letters of Novanglus,” published in the Boston Globe, 1774.) The rule of law also means that these rules are binding on rulers and the ruled alike.

THE CONSTITUTION It is generally helpful to have students read the entire U.S. Constitution at the beginning of the course, paying particular attention to its structure and organization. Spending some time in class discussing the Constitution and pointing out highlights sets the stage for later discussions of specific provisions, the evolution of key issues, and as well as the interaction among the three branches of government.

POWERS Because the students will find references in the book to the types of power the Constitution grants, the following categories of power should be defined, as part of your discussion of the Constitution:

Enumerated Powers. Also known as delegated powers, enumerated powers are those expressly assigned to the federal government. For example, in Article I, Section 8, Congress is expressly empowered to regulate interstate commerce: in Article II Section, the president is expressly empowered to serve as commander in chief.

Implied Powers. Implied powers are not expressly stated in the Constitution, but flow from the express powers. For example, Article I, Section 8 grants implied powers to Congress by stating that Congress the power to do make laws “necessary and proper” to carry out its duties; Article II, Section gives the president the implied power to remove cabinet officers by granting him or her the express power to appoint them.

Inherent Powers. The federal government has those powers that are inherent in the very idea of a sovereign nation and national government. The primary inherent power is the power of self-preservation; i.e., a state has the right to defend itself from foreign and domestic enemies.

Prohibited Powers. The Constitution also explicitly prohibits the federal government from exercising certain powers. For example, Congress cannot tax exports (Article 1, Section 9, Clause 5) or pass bills of attainder (laws that punish individuals or groups without a judicial trial) or ex post facto laws (laws that classify an act as a crime leading to punishment after the act occurs) (Article 1, Section 9, Clause 3).



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Reserved Powers. Reserved powers are the powers that derive from that portion of the Tenth Amendment which provides that powers not granted to the national government and not prohibited to state governments, are “reserved to the States.”

Concurrent Powers. Concurrent powers are powers held by both states and the national government. An example of a concurrent power is the power to tax.

TEXT The students should familiarize themselves with those parts of the Constitution that they will encounter in the book’s chapters, with particular attention paid to Article II. This can be accomplished by walking through and reading from the provisions listed below. Preliminarily, you might introduce the competing approaches that have been used since the nation’s founding to interpret the Constitution. The proponents of a “strict construction” give the Constitution’s text a literal and narrow meaning; the proponents of a “liberal construction” read the words broadly and allow for a more expansive meaning.

The Preamble. The Preamble is the introductory statement of the goals at work in the full text in the Constitution. With the words, “We the People…do ordain and establish” the Preamble reflects the idea that the people (as opposed to a King, for example) are sovereign and that the source of governmental power resides in the governed themselves.

Article 1. Article I establishes the legislative branch. Under Section 1, “all legislative powers shall be vested in the Congress,” which is made up of two chambers—the House of Representatives and the Senate. Section 7 describes the process by which Congress enacts laws. Section 8 lists the specific powers of Congress, and includes the power to make “all laws necessary and proper for the execution” of the specified powers. Often, the power of Congress will collide with powers of the president; this is one of the book’s recurring themes.

Article II. Article II establishes the executive branch in the office of the presidency. For this reason, it is central to the course. As the founders were drafting the Constitution, they grappled with competing concerns—on the one hand, they wanted an “energetic” chief executive who could effectively enforce the laws and prevent abuse by a runaway legislature; on the other, they did not want a chief executive who could usurp power and become despotic. Out of their work, a new and unique model for a chief executive emerged in Article II.

Students should be made aware that the provisions in Article II are often general and vague—with many blanks that have been filled in over time. The Article II provisions that should be specifically reviewed include: the presidential eligibility requirements of age, residency and citizenship (Article II, Sec. 1, cl. 3); the selection process under the Electoral College (Art. II, Sec 1, cl. 3 and the Twelfth



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NAmendment); the presidential term (Art. II, Sec. 1, cl. 1 and the Twenty-second Amendment); the Vesting Clause (Art. II, Sec. 1, cl. 1); the Take Care Clause (Art. II, Sec. 1, cl. 8); the Commander in Chief provision (Art. II, Sec. 2, cl. 1); the Appointments Clause (Art. II, Sec. 2, cl. 2), the pardon power (Art. II, Sec. 2, cl. 1); the Treaty Clause (Art. II, Sec. 2, cl. 2); the veto power (Art. I, Sec. 7, cl. 2); presidential succession (Art. II, Sec. 1, cl. 6); and impeachment (Art. II, Sec. 4).

Article III. Article III establishes the federal judiciary. Under Section 1, “[t]he judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The Supreme Court, ultimately, possesses the authority to determine when Congress and the president overstep their bounds and take action inconsistent with the Constitution. For this reason, the Supreme Court also plays an important role in the book’s chapters.

The Supremacy Clause. Article VI, Section 2 of the Constitution declares that the Constitution and any laws passed under it are “the supreme Law of the Land.” The Supremacy Clause essentially means that federal law, when applicable, prevails over conflicting state law.

The Amendments. Article V of the Constitution spells out the processes by which constitutional amendments are proposed and ratified. There are 27 Amendments in all. (The original text of the Constitution remains intact; amendments are appended at the end of the text.) Amendments 1 through 10 are referred to as the Bill of Rights. The Bill of Rights and the Amendments have often played an important role in specific presidencies. It is worthwhile for students to review them and to have a sense of their contents.

PREVIEW Finally, you might wish to preview the interconnections spanning presidencies. A good example is the fact that President Woodrow Wilson and the George Burdick pardon are later connected to President Gerald Ford and the Richard Nixon pardon; President Abraham Lincoln and the Civil War are connected to Presidents George W. Bush and Barack Obama and the War on Terror. You might also preview the overarching themes that span presidencies—race, gender, Commerce Clause, national security, shaping the Supreme Court, and special prosecutors. Students should be invited to begin noting these interconnections and themes for themselves, and to identify their own interconnections as they move through the book. If you wish to get an overview of these overarching themes and connecting threads, be sure to review the Conclusion chapter; it seeks to accomplish this goal in an exhaustive fashion, at the end of the book.



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As the nation’s first president to serve under a new Constitution, George Washington was well aware that he would play a critical role in shaping the American presidency and defining what it meant to be a president, not a king. The Washington Chapter introduces students to several enduring precedents Washington established for his successors.

You might open class discussion by noting that one of Washington’s immediate concerns upon assuming office was finding the right balance between strong executive leadership and respect for the power of the legislative branch. You might also observe that Washington determined that building a collegial relationship between the executive and legislative branches to demonstrate that the Constitution’s system of checks and balances would work effectively was essential to the country’s success. Consequently, you might add, Washington made the conscious decision to approach Congress with deference, but also with firmness of purpose. Students should be able to understand the wisdom of Washington’s approach—he won the good will of Congress and secured its cooperation and inspired trust in the people that their new government would serve their interests.

Turning to the foreign policy challenges that Washington faced, a brief review of the manner by which the Constitution divides war-related powers between the president and Congress might be useful. Students should know that on some matters, the division is clear. For example, the Constitution explicitly grants the president certain exclusive powers as commander in chief—he or she decides strategy on the field of battle and makes treaties (provided the Senate gives its advice and consent)— and explicitly grants Congress certain others, such as the authority to declare war and finance military operations. On other matters, however, the allocation of power between the president and Congress is less than clear. As a result, they have been the subject of dispute and settled through the political process or by the U.S. Supreme Court. One such matter highlighted in the Washington Chapter is the policy of neutrality, which came to the fore when France and Great Britain went to war in 1793. Washington wanted America to remain neutral; in his view, the county could not afford to become embroiled in the conflict. The Constitution, however, did not clearly state which branch of the federal government—the president or Congress—had the authority to decide that America would remain neutral. When discussing Washington’s approach to securing the policy of neutrality he favored, you might point out the prudence and political adroitness it revealed. Washington announced the country’s neutrality in the Proclamation of Neutrality of 1793. While he believed that neutrality was in the president’s sphere of power to declare, he did not ignore Congress. Instead, he invited Congress to comment on and improve his Proclamation. Congress accepted Washington’s Proclamation and backed it up

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in a statute, the Neutrality Act of 1794. Thus, the question of the president’s authority to decide neutrality was settled. The take-away for students is that the course Washington steered not only avoided a showdown with Congress, but also demonstrated that the executive and legislative branches could work together and accomplish what the country needed.

You might remind students that when it came to organizing the presidency, the Constitution did not give Washington much guidance. In Article II, Section 2, Clause 1, the framers anticipated the creation of executive departments by Congress, to be headed by a “principal officer” who would provide the president with an opinion “on any subject relating to the duties of their respective offices.” However, the framers did not set forth the process by which the president would secure those opinions. Consequently, Washington experimented. Eventually, he settled on bringing the heads of departments and the attorney general together into a body he dubbed his “cabinet,” and meeting with them collectively to discuss and debate the issues of the day. When asked to evaluate Washington’s choice, students should be able express that a president’s receipt of a variety of views from cabinet members who debate the pros and cons of a particular policy decision leads to a better decision-making process.

Turning to the Supreme Court, you might confirm that students understand that although the Constitution provides for the establishment of a Supreme Court and “such inferior Courts as the Congress may from time to time ordain and establish” (Article III, Section 1), it does not prescribe the size of the highest court or the number of lower courts. Congress first supplied the missing pieces in the Judiciary Act of 1789—the Supreme Court was to have six members: five associate justices and a chief justice; there were to be 13 district courts—roughly one per state—and three regional circuit courts, which could hear appeals from the district courts. As to how the appointment and confirmation of U.S. Supreme Court justices (and lower court judges) was to proceed, the framers gave no guidance in the Constitution. When the Senate denied Washington his choice of John Rutledge as chief justice, it became clear that the process was not going to be a mere formality and the Senate was not going to defer to the president’s choice.

Another matter left unaddressed in the Constitution was the process by which the president should secure the Senate’s “advice and consent.” The Chapter describes the chaos that erupted in the Senate when Washington sought its advice and consent on a treaty in person, and his determination never to seek the Senate’s advice personally again. You might ask students to consider whether Washington should have made more of an effort to establish a presidential tradition of personal appearances before the Senate. The better answer seems to be that in light of what happened when he did so, Washington correctly concluded that the president should not be involved, even as a spectator, in the



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1Senate’s debates. It ran the risk of demeaning the dignity of the office and could have weakened the office for his successors.

As to the Supreme Court’s role, after reminding students that Chief Justice Jay indicated that Washington had likely overstepped his constitutional boundaries by asking the Court to serve as an advisory council, they should understand that Chief Justice Jay’s admonition was correct under the separation of powers doctrine—executive decision-making is vested only in the executive branch. You might also note that Washington’s request was inconsistent with that portion of Article III, Section 2 which limits the judiciary’s power to “Cases” and “Controversies.”

It is also important that students appreciate the fact that at the time, the Constitution placed no term limits on the presidency. Washington, however, chose not to seek a third term. He believed it was important to show the success of America’s new political system was not dependent on any one person. A two-term presidency became a tradition that all presidents honored, until Franklin D. Roosevelt, who served for four terms, from 1933 to 1945. The Twenty-second Amendment, which limits the president to two terms, was ratified in 1951 and formalized Washington’s two-term practice.

QUESTIONS FOR DISCUSSION

1. George Washington was a president of “firsts.” Is it surprising to you that he received the votes of all 69 presidential electors in 1788? Was this more like a coronation?

2. Was Washington’s deference to other branches of government, particularly Congress, a detriment to his presidency? Was this deference necessary to building trust in the office of chief executive, as Washington believed?

3. We’ve already discussed the concept of separation of powers embodied in the Constitution. Why did President Washington feel so strongly that it had to be respected?

4. The debate over neutrality with respect to the issue of war between England and France led to a public disagreement between the primary drafters of the Federalist Papers. In the Pacificus-Helvidius debate, Alexander Hamilton asserted that the president had the power to declare neutrality because the Constitution made the chief executive “the organ of intercourse between the United States and foreign nations.” (Art. II, Sec. 1). In contrast, James Madison argued that the legislature, which was tasked with declaring war (Art. 1, Sec. 11), logically possessed the power to declare neutrality. Who had the better argument?

5. Although the framers viewed the appointment and confirmation of U.S.



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Supreme Court justices as little more than a mere formality in theory, presidents beginning with Washington have learned that this is not the reality in practice. Should the Senate be more deferential to the president and his nominees, or does a highly-critical confirmation process better serve the nation? Should political considerations be a basis for rejecting a president’s nominee?

6. Washington invented the notion of a “cabinet” that advised the chief executive, although the Constitution said little about organizing the executive branch. (Art. II, Sec. 2) Was this a positive step?

7. When Washington sought to use the Supreme Court as an advisory council, Chief Justice Jay rebuked the president’s attempt, stating that “the lines of separation, drawn by the Constitution between the three departments of the government” prevented the Court from rendering advisory opinions to the president. What, if anything, in the Constitution supports Chief Justice Jay’s determination?

8. Washington’s effort to appear before Congress in person, to seek “advice and consent” of the Senate on a treaty, was a colossal failure. Why? Would it have been better, long-term, if presidents had made it a point to appear regularly before Congress to work out disagreements on treaties, presidential appointment and other matters requiring the approval of the legislative branch?

9. Why do presidents continue to give a “State of the Union” address (Article II, Sec. 3) in Congress, in person? Could they simply mail the address to Congress consistent with the Constitution?

10. Washington, we see, was a very “cautious” president. Would that approach work today?

11. Another way of asking the same question: Compared to modern chief executives, Washington’s presidency was weak. Yet, he still managed to assert himself in several key respects, and to establish himself as one of the great presidents in American history. What was Washington’s most significant contribution to the development of presidential power under the Constitution?

12. Was it a good or bad decision for Washington to decide, voluntarily, not to seek a third term?



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The highlights of the John Adams presidency include the Election of 1796, which ushered Adams into office, and the Election for 1880, which ushered him out. In addition to informing students about these consequential elections, the John Adams Chapter introduces students to questions they will encounter repeatedly in the book: what are the parameters of the president’s power to engage the country militarily without congressional approval; what types of restrictions on constitutional rights are Americans willing to tolerate in the name of national security; and what conduct did the framers contemplate would merit a president’s impeachment

To put the Election of 1796 in context, you might start with a brief history of the rise of party politics in America. Students are likely unaware that the Constitution did not refer to political parties. The reason, you might point out, was that the founding fathers sought to prevent their formation, having witnessed vicious fighting among political parties in Europe and saw “factions” as a threat to the rational, collaborative process of government they sought to establish. Therefore, when devising the procedure for electing the president, the founders did not give political parties a role. Rather than designing a contest of competing political ideologies, they created a contest among individuals. Article II, Section 1, Clause 3 of the original Constitution provided for the establishment of “The Electoral College.” In that body, each state had a number of delegates, known as “electors.” That number was based on a state’s total number of U.S. Senators and Representatives. Each elector was originally authorized to vote for two persons for president; a first and a second choice were not designated. The person receiving the most electoral votes became president and the runner-up became vice president.

You might add that despite the founders’ hopes and intentions, political parties did emerge. During Washington’s second term, Alexander Hamilton formed the Federalist Party to advance his political philosophy, and Jefferson created the Republican Party, later called the Democratic-Republican Party, to advance his. During the formative years of our nation’s history, the interests of North and South, rich and poor, and industry and agriculture competed. Out of that competition, two profoundly different ideas about the role of federal government came into view, as expressed by Hamilton and Jefferson, respectively. Hamilton, aligned with the urban, mercantile interests of the North, believed that America would thrive if it had a strong federal government with broad powers. He advocated for the creation of a national bank that would establish fiscal policy, institute credit, and standardize a national currency. Jefferson, aligned with agrarian interests in the South, feared that a strong federal government would function more like a monarchy and wipe out the newly-born democracy. He believed it prudent to limit centralized power and allow more power to individual states.

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Turning to the Election of 1796, students should understand that the political parties Hamilton and Jefferson established were firmly in place and assumed center stage in the presidential election. They should know that in one corner, stood John Adams, a Federalist; and in the other, Thomas Jefferson, a Democratic-Republican, Under the rules then in place, Adams won the presidency with the largest number of electoral votes (71) and Thomas Jefferson, who secured the second largest number of electoral votes (68), was elected vice president. (Thomas Pinckney, the person the Federalists had selected to be Adams’s vice president, came in third and lost out to Jefferson.) Accordingly, the nation’s top two executives represented not only widely disparate views, but were also of two opposing political parties. It became clear that the unanticipated rise of political parties compelled significant change to the Constitution. Congress ratified the Twelfth Amendment in 1804. This Amendment requires separate votes for the president and vice president and also stipulates that the president and vice president must come from different states. This progression can be used to show students how early provisions regarding the presidency had to adapt based upon the experiences of the new nation.

Students should next understand that in the so-called “Quasi-War,” Congress did not declare war against France and that the country’s military engagement was limited to naval operations, with American vessels capturing numerous French warships. The question the Quasi-War raises for class discussion is whether Adams overstepped his constitutional authority in the way he handled it. Some students may indicate that without a declaration of war from Congress, Adams had no authority to issue orders that the U.S. Navy attack and seize French ships. Others might point out that although Congress never officially declared war, it gave Adams, as commander in chief, the statutory authority and means to take defensive measures that were necessary to protect American interests. The larger point to be made here is that the Quasi-War illustrates that the Constitution did not clearly allocate power between Congress and the president with respect to the control and deployment of military force and the line of authority between the two branches had to be sorted out in practice over time.

You might advise students that the Alien and Sedition Acts, which Congress passed and Adams signed in 1798, during the Quasi-War, were prompted by rumors that there were French spies in the county and a French invasion was imminent. After outlining the broad contours of the legislation (the Alien Acts increased the residency requirement for American citizenship and authorized the president to imprison or deport aliens who were deemed dangerous; the Sedition Act restricted speech critical of the government), it would be worthwhile to point out that these laws reflect a dilemma that students will see repeatedly in the book—how should the country reconcile the inevitable tension that arises in times of conflict between constitutional freedoms and the interests of national security?



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2When discussing the Thomas Nash affair, you might confirm that students understand that President Adams was accused of interfering with the federal judiciary when he handed Nash over to the British to be tried and executed, and that this was why some in Congress called for Adams’s impeachment and/or censure. Students should be able to see that such calls were the result of partisan politics for the following reasons. If the decision on Nash was incorrect, Adams was, at most, mistaken as to the exact contours of his executive powers. Such a mistake would not be grounds for censuring a president, assuming the Constitution, which speaks only to impeachment, allows it. Moreover, Adams’s decision on Nash, even if mistaken, did not rise to the level of “treason, bribery, or other high crimes and misdemeanors” the conduct that is impeachable under Article II, Section 4 of the Constitution.

In the Election of 1800, Adams was the first president to lose his reelection bid, defeated by Thomas Jefferson. Following the election, power changed hands as a matter of course—Adams departed for home and Jefferson assumed office. Students should be able to appreciate that the election marked a milestone in American history—Americans could be confident that our leaders would abide by the Constitution, that power would be secured through the ballot box, not violence, and that the country could engage in lively, even contentious, political debate, but be capable of uniting once the victor was declared.

QUESTIONS FOR DISCUSSION

1. Were you surprised that John Adams only lasted one term as president? Did his governing style contribute to this?

2. Did Adams over-step his constitutional authority in seeking to handle the “Quasi-War” and the conflicts between France and England, or was he simply a victim of politics?

3. Does the Constitution envision that the president, as a general rule, should be the “sole organ” of government who represents the nation in the sphere of foreign affairs? [See Justice Sutherland’s opinion in U.S. v. Curtiss–Wright Corp. (1936) discussed in the chapter on President Franklin D. Roosevelt].

4. If the Alien and Sedition Acts of 1798 had been challenged in court, would the laws have survived constitutional scrutiny under the First Amendment? Why or why not?

5. Did Adams truly violate the separation of powers when he handed Thomas Nash over to the British to be tried and executed? Were the calls for Adams’ impeachment and/or censure legitimate, or were they simply the result of partisan politics?



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6. Like Washington, Adams associated himself with the Federalists, but was not a full-fledged partisan. Were Washington and Adams the only two presidents of this type? Would the nation in modern times benefit from a less partisan chief executive, as the framers may have envisioned?

7. In the election of 1796, Adams was elected president and his political rival, Thomas Jefferson, was elected vice president pursuant to Article II, Section 3, because he received the second highest number of votes. This result would no longer be possible, because the Twelfth Amendment (1804) requires each member of the Electoral College to cast a separate vote for president and vice president. Was there any benefit to the original system, by which the two highest vote-getters became president and vice president, respectively, regardless of political affiliation?

8. Adams was the first president to lose his reelection bid. How important was the peaceful transfer of power in terms of stability for the young nation? How much credit does Adams deserve for this (i.e. the Revolution of 1800)?

9. Would you rank Adams as a good or bad president?



Documents

The Presidents and the Constitution Short The Presidents and the Constitution: A Living History can serve as the textbook for undergraduate, graduate, and law school courses. It consists