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Book review of John Yoo's 'Crisis and Command'

Most of the book, though, is not about the origins of the presidency but about the actions of its most capable leaders. It argues that it is what presidents do when challenged that really matters. Much of this material will be familiar to many readers. As a historian, I have some qualms about Yoo's emphases and omissions. Take his case for Jefferson. One wonders why Yoo worries so much about Jefferson's agonizing over his authority to acquire Louisiana, which may tell us more about Jefferson's scruples than any serious constitutional question of constitutional authority. Nations had long used treaties and other agreements to acquire territory, and Jefferson's doubts seem to have been self-made.

Yoo is downright in love with Jackson's war against the Second Bank of the United States, though many scholars believe that his unshakable campaign did far more harm than good. Maybe James K. Polk deserves a few more pages than he gets as a footnote to Jackson; his decision to manufacture a war with Mexico arguably produced more lasting consequences for the nation than Jackson's mercurial politics. One also wonders why the three presidents who governed from 1897 to 1921 (McKinley, the first Roosevelt and Wilson) are wholly ignored, for, between the wars with Spain (1898) and the Central Powers (1917-1918), and the creation of what we now call the "rhetorical presidency," was an epochal time in the history of the institution.

Yoo's is selective history, then, but he never lets readers forget his central points. The presidents we admire possessed a pronounced confidence in their authority. They were innovators and risk-takers, with an entire branch of government to command. They either faced challenges they could not afford to avoid or raised issues they insisted the nation must confront -- and their office alone had the capacity to focus the nation's attention as a result. They drove American politics in ways that no congressional statesman or jurist -- not even John Marshall or Earl Warren -- could ever equal.

I would, however, raise two deep objections to this overall argument. The first begins with the founding-era debates, which Yoo does not treat with the seriousness needed to capture that generation's persistent uncertainty about the safety of executive power. Establishing the presidency was the framers' most creative act, but it left them profoundly uneasy, because a vigorous executive was so hard to square with underlying republican ideas. The models of executive power in the 18th century were either monarchical or ministerial. There was no real precedent for the institution the framers conceived.

The second concerns Yoo's use of the idea of prerogative -- the notion that the government must possess some discretion to deal with threats no one can ever fully anticipate. Here Yoo relies on John Locke's famous chapter on prerogative from his "Second Treatise" (1690), the revolutionary work that justified the right of a people to overthrow tyranny and establish a new government. The people, Locke suggested, would rightly trust the executive to use prerogative wisely, and if they agreed with his purpose, they would cut him slack on the constitutional side, understanding why the benefits sometimes outweighed the costs. But the question of whether the prerogative was broad or narrow remained, Locke thought, a matter of legislative supervision, always subject to a review that Yoo, with his deep distrust of Congress, finds alarming.

There is, in short, a tension that Yoo does not wholly resolve between underlying republican values and the virtues of presidencies that he champions. The great lesson of this past decade of misrule has been that our system works best when all three institutions are fully engaged. However much we celebrate the heroic presidents, Americans, as a people, have a stake in seeing the whole government achieve its potential. Yet what Yoo forces us to confront is the reality of all the striking advantages the executive enjoys. It is, in its way, an enticing portrait of presidential power -- and a disturbing one.

Jack Rakove teaches history and political science at Stanford University. His new book, "Revolutionaries," will appear in May.

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