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Untrodden Ground: How Presidents Interpret the Constitution

Online ISBN:
9780226211244
Print ISBN:
9780226211107
Publisher:
University of Chicago Press
Book

Untrodden Ground: How Presidents Interpret the Constitution

Harold H. Bruff
Harold H. Bruff
University of Colorado Law School
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Published online:
17 September 2015
Published in print:
6 March 2015
Online ISBN:
9780226211244
Print ISBN:
9780226211107
Publisher:
University of Chicago Press

Abstract

The most important individual interpreter of the United States Constitution is the President. Presidents both direct and are directed by the stream of American history. In this book, Harold Bruff shows how Presidents have formed constitutional law by behavior that sets or alters precedents. Although Presidents ordinarily obey both court judgments and explicit statutory commands, presidential interpretations of the Constitution are ultimately independent of the views of the other two branches of government. When accepted by Congress and the people, presidential precedents become conventions that form constitutional law. The nature of precedents has depended on each President’s personal character and political values, the problems and incentives he faces, and the influence of precedents generated by his predecessors. This book reviews both the process of formation of precedents by all forty four Presidents and the contents of the constitutional conventions that have evolved. Precedents constantly evolve to adjust to present conditions. Presidential behavior does not support several recently popular constitutional theories: original intent approaches to constitutional interpretation, visions of a constitutionally unitary executive branch, and calls for broad presidential power that is not amenable to statutory control. Presidents have developed emergency powers that are extensive and sufficient, especially in foreign policy and warmaking. Thus, Presidents use their commander in chief power to employ military force unilaterally in all situations that are short of warmaking in the constitutional sense. The book concludes that presidential initiatives that are subject to congressional control ordinarily suffice to protect the nation and the rule of law.

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