Duquesne President's Book Explores Commander-In-Chiefs' Relationship With The Constitution

Jul 19, 2016

When Presidents take office, they swear to preserve, protect and defend the Constitution of the United States. A new book edited by Ken Gormley, the recently-appointed president of Duquesne University, looks at how past presidents have interpreted the Constitution.

Gormley said he’s taught constitutional law over his whole career, and The Presidents and the Constitution: A Living History is a project he’s been thinking about for 10 years.

He said he was intrigued that the Constitution devotes less than 1000 words to the presidency, arguably the most powerful office in the world. The framers purposely left things out, Gormley wanted to tell the story of how presidents have filled in the blanks.

“It’s real people,” Gormley said. “It’s real events pushing and tugging as history confronts individual people with circumstances, and that is how the powers of the presidency under the Constitution have been shaped and will be shaped.”

The styles range from George Washington who was very cautious about exercising his power to Franklin Delano Roosevelt who took a more robust approach. But Gormley said Abraham Lincoln played the largest role in shaping the powers of the office under the Constitution.

“He was a brilliant constitutional strategist,” Gormley said. “He was very, very careful, strategic and creative in using the Constitution.”

He pointed to using the commander-in-chief power to deliver the Emancipation Proclamation and having a political scientist draft a code of war which has served as the basis for several international treaties.

He said the Commerce Clause of the Constitution, which played a role in Supreme Court decisions concerning Obamacare, has proved to be one of the most important clauses in the Constitution. Lyndon Baines Johnson used it to pass the Civil Rights Act of 1964.

“It gave the government and Congress wide berth in order to exercise its powers,” Gormley said. “Using that, he managed to passed the most significant civil rights legislation, which is still governing us today.”

Yet LBJ was unpopular when he left office because of the Vietnam War.

“It’s so interesting to see legacies can shift and turn, and someone who’s on the top of the world in one moment can end up at the bottom,” Gormley said. “That’s a fascinating piece of the story.”

Gormley noted that powers are interpreted more expansively during times of war, with Woodrow Wilson’s Sedition Act of 1918, FDR’s Japanese internment camps during World War II and the George W. Bush administration expanding the NSA’s wiretapping privileges.

“When there is fear and war and hysteria, we tend to restrict our rights in ways that really are dangerous to ourselves,” Gormley said.

The book closes by looking at the national security presidency of George W. Bush and Barack Obama. Gormley said 9/11 led to a large shift in how presidents interact with the Constitution, granting George W. Bush enormous power following the attack.

“He wanted to make (the presidency) so powerful that he exceeded his authority,” Gormley said.

He cited the prison at Guantanamo Bay and treatment of enemy combatants. Gormley testified in the Senate in 2006 regarding the NSA wiretaps.

“What resulted was very potent legislation protecting the President’s power to protect us from outside terror threats,” Gormley said. “President Obama has really continued that path fairly strongly.”

Touching on recent events, Gormley said race has haunted our country from the start. He said it begins with Washington and was codified later on in the three-fifths clause and with Plessy v. Ferguson — which created the “separate but equal” doctrine.

During the presidency of Franklin Pierce, Gormley said people flocked into Kansas and killed each other to determine whether it would allow slaveholding. The incident was called Bleeding Kansas, and it’s notable because Kansas was the birthplace of Barack Obama’s mother.

“It is Bleeding Kansas that produced the first African-American President, and yet we are still fighting over these things all these years later,” Gormley said. “That’s a sobering reminder that if we are going to be a country that really is premised upon equal justice for all citizens, that is something we have to address.”

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