if i were starting with a clean sheet of paper, i would not come up with the same constitution. but there is one thing to be said for what we have, that by creating the central figure, by creating the presidency and giving the president a task that the single individual actually can perform, it makes it possible for the spare old system. maybe even if we were to replace it, and i would, still to function. >> thank you very much. >> this is a good start to a discussion, what i would like to do now is to open the discussion to members of the panel to respond to thoughts that they heard expressed by their colleagues and we'll let it go from there and we will leave about a half hour for questions from the audience. >> i agree with i expect at least 95% of what john has just said. i want to touch on -- i think one of the interesting questions

is it's been 60 years, why is it that there is no serious discussion of this? because there are a few of us who have actually written about this. and i think part of it is because the legal academy and the legal culture at large is right success and regards this kind of issue as dull and boring and not worth our attention. but i think for the reasons that john sets out, the discussion is very much worth our attention, and the brunt of work i'm doing these days is that the dull and boring issues that are consigned to high school civics courses, assuming any are taught any longer, are in fact at least as important and i would argue are really more important than most of the rights disputes we get

into because rights can change, for better or worse, you win some elections, you appoint some judges and you will get different sorts of understandings about rights. but if for example you think that one of the unfortunate features of our political system is the extent to which the presidential veto has turned us into a by cameraal veto. but it might have different sorts of results if it were a 55%, or switching to a majority of the actually membership of the senate, but these all strike people as boring. one thing that frustrates me about the legal academy is that we chop down forests to discuss the difficulty of judicial review and then we'll talk about

other difficulties in our system, including bicameraalism and the veto. the lincoln problem, we have had 44 presidents, so much of discussion turns out to focus as if it's an -- so that proposals are often judged what about abraham lincoln. so let's talk about abraham lincoln for 30 seconds. he captured the white house with 39.8% of the popular vote and it was that election that triggered a war that killed 2% of the population. you may or may not believe the war was a good thing. i'm slightly ambivalent in that i support humanitarian intervention to overcome slavely. but if one is anti-slavery, one ought to believe that the constitution should not itself

have been ratified. but even independently of the war, you know, there's been 44 presidents and a 44 is certainly not a very high end, but at least we might discuss the overall experiences we have had. john, it's right that presidents are legislative leaders at least as early as jefferson, but one thing about jefferson is that he didn't like speaking in public. so we have what my colleague calls the rhetorical presidency that arises with woodrow wilson who takes the president into much more of a cultish figure. and the president's head of state as well as head of government. and i also think that one of the difference between 1787 and

today is that we expect presidents to be highly partisan leaders of their political parties. and that is taken into account with regard to vetoes and appointments. i would trust more a president the only area we disagree on is i would trust more a president who fit the madisonian person interested in the public good than a president who's always looking at the next election and where confidence is based in part on the vote in ohio. i think we really do need to talk about how one integrates the reality of a modern party system into an 18th century constitution that was drafted under what we in retrospect to the almost lunatic system that ---let me just end by quoting james madison and trying

to be credit for being madisonian myself. may favorite passage is the end of the 14th federalist where he emphasizes that we should learn the lessons of experience. and praises the revolutionaries for not being bound up by what he calls names and traditions and instead forging new understandings for a new world. i don't spend much if any of my time bander bashing. the people i want to bash are us today who don't learn, i think, that all important lesson from the generation of the founders which is to look at lessons of experience, and do what mr. jefferson -- i believe in revolution every 19 years, but

he did believe in conventions and actually scrutinizing the extent to which the constitution is working well and it's not. >> this is a lot of fun. i appreciate sandy's comments about lincoln. so i thought when i wrote this last book of mine which is not on sale today unfortunately, about what makes for great and bad presidents. and we do tend to focus on the great ones, but i want to restore some attention to the loser president, the bad ones. and the federal society helpfully did a poll of 300 scholars, they do it every few years asking us to rank presidents and the one that's unchanged over the years, there's not a lot of fluctuation in political party. there seems to be a lot of agreement as to who were good presidents and the ones that were bad ones. if you look at the bottom, they

do have a high level of very accomplished people. so the worst president by unanimous acclimation was buchanan. if i mention this in college audiences, some of the students start thinking buchanan, buchanan, they think pat buchanan might have the one i was talking about. but the president right before lincoln. he had done everything you're supposed to do as president. he thought another person i would actually put down in the bad presidents area, is madison himself. if you look at his presidency, he was probably one of the smartest people to ever be president, but he actually did believe in executive deference to the legislature, in particular foreign policy and he let the country be run into the

war of 1812, which is probably the worst war we have ever been involved with from a strategic decision making perspective. we make a lot of money trading between the two, which we always do in wartime. and we decided to declare war against the only country who has a navy and troops on our border. i don't understand the obsession with taking over canada. all the smart canadians moved here anyway. >> it's for the doughnuts, john. >> we would have had universal health care a little bit sooner, i suppose. and it was a disaster. the british took our capital, burned it to the ground and this is what happens when we have inaction in the area where the framers thugt you should have a vigorous executive, not a

deferential executive. a very interesting point about how exercises of executive power are in response to giving congress more and more duties, passing more and more legislation. i wonder if there's a difference between a president like reagan or a president like clinton. all those cases you mentioned was where the reagan administration was -- executive power to try to pull back the expansion of federal regulation of the economy and society. as opposed a different kind of president who might use their regulatory power to expand as fully as congress would like. so i wonder whether we can distinguish between those two kinds of presidential power in regard to reaction to congress. the second thing, i think you're quite right, i think it's quite right that all presidents have responded to this phenomenon

doing things as mentioned in the last panel, trying to agency wide and i think it is h in that respect are a response again, as to the presidency becoming excessively involved with tex accumulation of the legislative policy. it's just an effort to try to control it. i can totally understand it, i think it's done in the wrong way but i can understand why presidents do it. i thought it was interesting, i i admire his effort, as judge griffith was saying, every federal side of the convention as a panel of presidential power. also ever presidential society -- traces all the world's ills to marvin vs. wilson. and to the loss of control over the removal of power. i think there's something to it. even if marvin versus olson had never happened and even if we lived in the myers versus united

states world where presidents could freely remove any executive of the legislative branch, would it really cure the problems we have had -- enormous administrative state that we have now that's involved in every area of human life. in fact sometimes i worry that it would such a distraction, such a demand on the time and energy of presidents that they would lose focus on important things, which i think is foreign affairs and national security. the last one i will throw out there is fdr, fdr was very much in favorite of a vigorous executive. but he accepted those limits when it came to domestic policy. to play sandy's game, how do president do when they're not in office. i think if had not happened, that fdr would be considered a mediocre president, i don't

think that -- foreign affairs and the coming of world war ii and did violate congressional statutes to try to get us involved in the conflict earlier than congress wanted, that's when we began to consider him a great president. >> this is great stuff. i'm going to be brief because i want to get to the questions. but this gives me a lot of great material to talk to my kids about. i'm still a little crazy here. so the main point i want to make is i'm intrigued by the interest in rethinking what a constitution looks like, should look like. but i would urge us to approach that task with much caution. there is a lot we don't know about how bureaucracies, how governments and how people

respond to changes in structure. and even when we do know something, i think it's important to recognize that in part the institutions we have are probably to some degree adapted to what we are as a people, as a structure and to our history. the -- there's always a question of whether you -- when you observe the behavior of the executive branch, you're observing something that is a -- and i do think it's important about how much the nature of the presidencies to change. think about how roosevelt used his fire side chats. think about the impact of television on the 1960 presidential debates. think about the impact of socme on the 2008 elections.

so as we think again about this whole question of redesigning or reshaping what we expect from the president, we should know that some of what drives that behavior really isn't located in the president itself. >> since we're talking about presidents and discussing some of the underappreciated presidents. i do want to say something, either the first or second most important congressional designer, but if madison is first, the second the martin van bueren. van bueren created the modern political party. and he created the modern political party for two reasons, number one, he didn't like the way the constitution worked. and two, it was too hard to amend the constitution itself. and because he thought there was an overwhelming tendency for power to be centralized in washington. and in particular the executive and the courts to get out of control of the people, he designed an entirely new and an

entirely extra constitutional means of controlling the government. he created the democratic party. which was suppose to be a way of keeping the bad things that he thought had begun to happen under the constitution from happening. it has had a lot of -- the creation of the political party has had some anticipated consequences, it has had some unanticipated consequences, but it has had some powerful consequences. one of the problems with having a constitution that's so hard to amendment, extra constitutional means, will be used to accomplish something that amounts to a constitutional amendment. and if you look at van burr -- exclude from the political process, the people he thought were dangerous. he gave the blueprint for the

party that controls the government outside the constitution. and again, it has pluses and minuses, but the temptation to do that sort of thing, when you have a constitution as hard to change as ours, you -- >> we open the discussion to members of the audience. so if you would come to the microphone and identify yourself and direct your question at a member of the panel. >> i want to put james madison back in the spotlight in terms of foreign affairs and i would like the panel to respond to what madison wrote about the power of the president in the constitution. he wrote in no part of the constitution is more wisdom to be found than in the clause that

confines the question of peace or war to the legislature. he goes on to explain why one man should not have so much power to take the country into war. i want to know if anyone agrees with madison. and if any of the members of the panel disagree with him as to whether that is a wise clause of the constitution? >> you're looking at me, i don't know why. i think this is a great question. i assume you're reading from madison's participation in the specific debates which take place after the ratification of the constitution. this is something people debate about, whether historians and jack raykof here at -- whether madison was consistent when he was acts as -- opposition to the washington administration, which is the context within which he

was writing, i think, one, i think that his comment doesn't really address the issue we have today, which is where you have a large military, that congress has created, voted for and maintains from year to year. at the president's control and the president, i think effectively has the decision whether to employ in hostilities or not. i think madison is right when it comes to declaring war and putting the country on a mobilization or war footing. but i don't think madison's comment or original understanding is how congress was supposed to control the executive once it had created this large military. at the time madison was writing, there was no standing military. if any president wanted to have a war, they would have to go to congress and build the army and navy for that war. and the thing that changed, and

this does go to sandy's point about constitutional design. one of the biggest congressional changes is that we now have the standing military that the framers were worried about. and congress has i think plenty of tools to stop the president from using it if it wanted to. i think what congress prefers is for the executive branch to make these decisions about war and peace and gives that president the military to do it and doesn't want to take any accountability or responsibility for successes or failures. i think that's really what happened in libya. as a matter of constitutional design, the system makes more sense to me if congress gives the military a fair amount of discretion on how to use it then congress has the control via the purse and the control of

the size and shape of the military. i think that i would worry about a system, some people read the question that you read from madison. i have read a quote that was extremely biassed against, in favor of inaction. i think people say, well, congress is a les war like branch, and the president is a more war like branch so we want to -- i think one mistake with that is that it fails to recognize that not acting can harm the country, too. we can think of wars that are bad for the country, and the country has been harmed by not going to war when it should. i think the best example of that is the years leading up to world war ii. to his credit, i think fdr tried his best to try to get afternoon the laws to help britain and france against nazi germany. >> this is my opportunity to use what i had originally prepared too say and then changed at the last minute.

it's important in thinking about the relationship between the executive power and the legislative power. although we tent to think of them as antagonistic, they are in fact complementary to one another. and what the executive does is carry out decisions generally made by the legislature and in turn, the legislature creates the legal environment within which the executive exercises its powers. specifically with respect to war powers, i would go farther in describing the kind of controls that the congress could exercise in standing laws if i wants to. it's not just the size and shape of the military, but congress could adopt a mission statement for the armed forces, congress could enforce that through the power to declare war, by saying what the circumstances are under which the united states will be at war and when it will not be at war. it can enforce those points furthermore by creating war

crimes which it's authority to make -- congress has authority not to micromanage, but with considerable detail as,the military is used, as a general matter, congress has not done, so and one of congress's weakness than the failure to -- attempts to create a default against military action in saying, only if we affirmatively say it, is it authorized. i think that's not an accurate description of congressional power, but the result of congress's approaches, they tend to use the powers that they very clearly have. >> i think if one were trying to envision drafting a 21st century

constitution, one might for example accept the proposition that the president should be elected for a single six-year term among other things so that the president doesn't begin running for re-election the day after the previous election. generally, i have been averse to that but i find myself more than willing to accept that as a possible approach, if it is combined with the ability to fire a president in whom one has lost confidence through a vote of no confidence, that it does seem to me that one of the very bad features of the united states constitution is the rigidly fixed term presidency because if we do have a president whom we view is incompetent or just prone to dad judgment, which i think incidentally is worse than being

a crook, or worse than running afoul of some lawyer's reading of what a high crime misdemeanor, then i wish we had a way to get rid of a president. i'm not sure that the california system of recalling a government is exactly the best way to do it. but then again i have -- they do provide a variety of solutions to the problem of political leadership in whom one has lost confidence. >> professor, i enjoyed your remarks, but there's one point i'm kind of getting stuck on. you sketched out the founder's whose role in politics is limited. assuming that is true, isn't the

stakes too high. does that matter that the founders had that vision. >> i think that's a great point because we you know we have a political system now where we hold the president accountable for everything and we demand that the president solve unemployment, demand that the president have the answer to the budget problem, even though those are things which lie within the hands of congress. i take your point, i think presidents have responded by trying to place more control over passage of legislation and over administration. but what if you had a president who came into office saying all that sufficient is congress's fault and i am not responsible for what congress has done in health care, i'm not responsible

for, a, b, c, and d. it's kind of like what the president said, all the discretion i actually have, i'm going to use to cut back on all the things congress tries to get me to do and actually uses it in a deregulatory fashion or a more limited government fashion. reagan was extremely popular for doing that. i think judge mcconnell is quite right when he described today's administrative state is prone to corruption, makes no sense to regular people. so maybe there's space for a president to do something politically that's actually consistent with the original -- i'm campaigning on the domestic political platform of less and use his powers that way. >> i appreciate the question and

i agree with the thrust of your agree with the thrust of your question, now we just note to echo something that john said, my view is that the prominent legislative role of a president in the domestic atmosphere happened relatively early after our constitutional framework was moved into place. i would note also at least since teddy roosevelt, i have seen a historical role in -- the focus changes, but the extend of the president's ambition to play a coordinating role is there and with respect to john's interesting point about deregulation versus expansion regulation, i would just make two observations. the first is that there's a black letter law of whether there's a distinction or not. anda the answer is basically no. one can disagree with that, but i think that's an important piece of discussion. and the pattern of presidents being concerned about the national implications of regulatory actions cannot be confined to presidents of just one party. it's very striking and --

development of the presidency that following reagan and following george h.w. bush, president clinton basically kept the frame work in place that would be allowed by omb and has continued to this day. >> i just want to make a comment about this point because it has been mentioned and it came up as a quote so i wanted to use it. just like a law student in class. so this question of what happens when jefferson becomes president and hiss heavy cooperation with the legislature. so john marshall, who personally did not get along with jefferson was asked, what did he think jefferson was going to be like as president? and he wrote a letter where he said he felt like jefferson was going to be what dangerous as president. and he said why?