Some fret that we drew closer to an American monarchy earlier this month.
In 2002, Congress passed a federal statute that allowed Americans born in Jerusalem to designate Israel as their place of birth in their passports. Menachem Zivotofsky, an American citizen, had been born in Jerusalem in 2002 and his parents wanted their son’s passport to record “Israel” as the birthplace. President George W. Bush, believing that Jerusalem’s status should be left to negotiation, disregarded the statute on the grounds that it interfered with the exercise of his powers over foreign relations. President Barack Obama continued that policy. The Zivotofsky’s filed suit and the case wound up in the Supreme Court. In Zivotofsky v. Kerry, the Court sided with the president.
In dissent, Justice Antonin Scalia raised the specter of a monarchy. Though the majority’s preference for “one voice” in foreign affairs yields a more efficient foreign policy, that system, he noted, would be “as effective as that of a monarchy.” Scalia had more cutting words for Justice Clarence Thomas’s separate opinion (which partly sided with the president), arguing that the latter’s vision of the executive was more in keeping with “George III than George Washington.”
This was a losing gambit because it blinks at reality. Our Constitution establishes a republican monarchy. We should belatedly, if grudgingly, come to recognize that fact.
The truth is that the Constitution, as Thomas Jefferson put it, “wears a mixed aspect of monarchy and republicanism.” This perspective must seem rather odd to modern readers. What would lead Jefferson to that assessment? Jefferson recognized that the Constitution fashioned a representative legislature and hence a republic. But he also read Article II (establishing the presidency) and understood that it entrusted significant authority in the hands of one man. The Founders had forged a powerful executive, vesting it with extensive powers over law execution, foreign affairs, military affairs, and civilian officers. Indeed, the original presidency was more powerful than many 18th century European monarchs, or so John Adams insisted.
Little wonder that the Constitution triggered severe anxiety among those who wished for less monarchy and more republic. During the ratification fight, anti-federalists and others decried the presidency as a monarchy. Luther Martin, of Maryland, said the president was “constituted as to differ from a monarch scarcely but in name.” Patrick Henry, the Virginian, said the Constitution “squints toward monarchy.” Ambassador Jefferson, serving at the Court of Louis XVI, observed that the presidency “seems a bad edition of a Polish king,” meaning the Constitution had established an elective (rather than an hereditary) monarchy. William V, the Dutch stadtholder, said that America would have a “king, under the title of president.” John Adams would later note that the Constitution had established a “monarchical republic, or if you will, a limited monarchy” and that the presidency would naturally excite the “fears, apprehensions, and opposition” of the sort that the English Crown stirred.
Adams was absolutely right. During the Washington administration, the attention shifted from the office to the office holder. America’s Cincinnatus and the epitome of selflessness somehow become an “Embryo-Caesar” to feverish critics. The focus has been on the office holder ever since, with detractors routinely accusing presidents of having monarchical pretensions and perverting the supposedly modest office.
Indeed, almost every time a modern president does something that a section of society detests, someone grouses that the president resembles a king or that his claim of executive power is better suited to a monarchy. The American Bar Association made such a claim about President Bush and his use of signing statements, comparing him to James II. Today, critics take aim at President Obama. Newt Gingrich said that an “Obama power grab is the greatest threat to freedom since King George III.”
But critics who shriek “king” are missing the obvious. The presidency was not only a monarchy in 1789, the office continues to be quite regal today. Compare the president to existing monarchs. Our republican monarch — the president — is mightier than several of them. Some monarchs, like the Swedish king, Carl Gustaf, have no real power. Others, like the Dutch monarchs, have formal powers that are invariably exercised in conformity to the wishes of the elective government, rendering them nothing more than heads of state.
My claim is not that presidents never act unconstitutionally or that the Constitution establishes an absolute monarchy. Instead. the point is that assertions about monarchy or the road to monarchy are shopworn. They have little place in a judicial opinion with minimal consequences. And they typically have little purchase in public discourse, because not every presidential act takes us down the road towards absolute monarchy. Perhaps the price of liberty is eternal vigilance. Yet such watchfulness will flag when people constantly cry “King George” when opposing minor assertions of presidential power.