Forget the debates over Western Civ and the hospital merger. Never mind the fund raising and speechmaking. What does University President Gerhard Casper think about when he's not presiding over the affairs of Stanford?
Washington. Adams. Jefferson. Hamilton. As a former law school dean and a scholar of the U.S. Constitution, Casper has spent his "idle" time over the last two decades researching and analyzing the work of the Founding Fathers. His new book, Separating Power: Essays on the Founding Period (Harvard University Press, 1997), looks at how the Constitution parcels out power among the legislative, executive and judicial branches of government. By recounting such events as the Algiers hostage crisis of the 1790s, the Whiskey Rebellion and the Louisiana Purchase, Casper shows how the nation's first generation of politicians translated the framers' historic words into public policy.
So how does a university chief find time for research and scholarship? "I did not do this project at the expense of attending to my presidential tasks," Casper likes to say with a grin. Indeed, he finished much of the research before he came to Stanford in 1992. The writing, he says, was "a form of recreation."
On a breezy afternoon in April, Casper discussed the book with Stanford Editor Bob Cohn. Excerpts from their conversation:
STANFORD: Your book is a historical and constitutional analysis of the concept of the separation of powers in the United States. Can you begin by fleshing out the topic a bit?
CASPER: The separation of powers doctrine has been a basic assumption in American constitutional law. When you look at the Constitution, you see how the text is organized: Article One deals with the legislative powers, Article Two with the executive and Article Three with the judiciary. There is clearly some assumption that the powers will be separated. But, on the other hand, it is within a context of a system of checks and balances. For instance, a chamber of the legislature is involved in the appointments process, which is nominally an executive power. And the president has a veto over bills passed by the legislative branch. The American system is in many ways much more accurately described as checks and balances than as separation of powers.
How did you get interested in this subject?
During the 1970s, I was frequently asked to testify on separation of powers issues before congressional committees. I got very frustrated because people frequently created the following kind of syllogism: The Constitution is based on separation of powers, X is in the nature executive and therefore belongs to the executive branch, or Y is in the nature legislative and therefore belongs to the legislature----and any blending of these powers is unconstitutional. But that was not the way I read the Constitution, with its emphasis on checks and balances, and not the way I read constitutional history.
The issues in the '70s that made this such a hot topic were what—impeachment proceedings and war powers?
Impeachment proceedings, war powers, and then there came many others: the presidential impoundment of funds, executive privilege, appointment of independent prosecutors. Later came the fact that Congress legislated sentencing guidelines for federal judges, which was by some viewed as an interference with the judicial power. There was also the very important issue of the legislative veto.
Which issues did you focus on?
I was asked by the Senate Intelligence Committee sometime in the '70s to testify on the interpretation of the so-called Statement and Account clause in the Constitution. In Article One, Section Nine, there is the appropriations clause. It says no money shall be drawn from the Treasury but in consequence of appropriations made by law. Then it continues, saying that a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. This was one of the most obscure clauses of the Constitution, and I was asked to testify on what it meant. The issue at the time was whether the government--that is, both Congress and the executive branch--was under a constitutional obligation to make public the intelligence budgets. I originally knew very little about the Statement and Account clause. I tried to understand what happened in the Constitutional Convention, to get a feel for it, and then I began to look at appropriations acts passed by the first congresses.
I found that, in 1790, Congress passed a law appropriating $40,000 for intercourse between the United States and foreign nations. It then went on to give the president discretion not to account for how he was spending the money if he thought it was inadvisable that it be made public. That was obviously a matter relevant to the question of the Statement and Account clause. I looked at other appropriation laws and found to my utter amazement that, in 1794, Congress appropriated $1 million dollars to defray any expenses in relation to the intercourse between the United States and foreign nations, and said that an account needed to be given only as soon as may be. There was clearly discretion given, and I asked myself, what did they appropriate $1 million dollars for--$1 million was something like one-fifth of all federal expenditures at the time, a huge amount of money. I went back to the state papers and looked at what was being done at that time and what this money went for, and I discovered that it was ransom money for American hostages held in Algiers. It also became clear that Congress wanted to be quite discreet about this.
So Congress knew what this money was for but it didn't press the president for an accounting?
In fact, it took four years for the executive branch to account for the money. Only when the Algiers hostage crisis was resolved--and it was resolved in the last year of the Washington administration--did the Congress then pass a resolution asking the president to account for the expenditures. This all led me to ask more general questions about how the hostage crisis was solved, and how Congress and the executive branch interacted in its resolution.
You mentioned that the Constitution is full of exceptions to the notion of strict separation of power--the Senate ratifies treaties made by the executive branch; the president can be removed by Congress. Were the founding fathers schizophrenic, or did they know what they were doing?
They knew what they were doing. The framers were very concerned about power. My book has the title Separating Power, and therein really lies a very major topic because we sometimes underestimate how radical the American Revolution was. Until 1776, the exercise of governmental powers was based on traditions: In England, the Crown held the executive power, the Commons had a very substantial part of the legislative power and the House of Lords had a substantial part of the judicial power. This was all based on long- standing traditions. When the colonies declared independence, all these traditional bases for conferring legitimacy on the exercise of power were suddenly wiped away. The new state constitutions proclaimed that now there was only one source of legitimacy: popular sovereignty. The sovereignty had shifted to the people, and that was the only basis on which power could be legitimately exercised. Those who exercised such power--such as the governors or the legislatures or the judges--all had to be viewed as agents of the people.
By that theory, the government could never be autocratic--the policymakers and judges were just agents of the people.
But that is something that, in the end, the framers did not believe. They were as worried about exercise of power in a republican form of government as they had been about the Crown's exercise of power. One only has to read The Federalist, No. 10, by James Madison, to understand how great that concern was. The framers of the Constitution worried: Would the executive be too powerful, or the legislative too powerful? The legislature might do things that might interfere with minorities, therefore the president should have a veto. They also had great concerns about the courts. We must remember that most of the provisions of the Bill of Rights actually deal with judicial power rather than other governmental power.
You wrote in the book that searching for the original intent of the Founders--so-called originalism--"is not for the fainthearted." What do you mean by that?
There has been, especially in the last two decades, a very lively debate over the question of constitutional interpretation. Do we have to understand freedom of speech as it was defined when the First Amendment was adopted, or does the concept of the freedom of speech change over time? The same is true for the organizational provisions of the Constitution. Even if one assumes that the Constitution essentially should be read in the way it was conceived, ambiguities do not go away. This is because concepts are not used universally the same way even in a given period, never mind that compromise may change the very meaning of prior concepts. So any attempt to establish the original meaning of the Constitution--a subject on which Professor Rakove of our history department has just written a wonderful book that received the Pulitzer Prize--any such attempt means incredibly comprehensive scholarship, very searching research and not necessarily any clear results.
But I take it from the book that even if we could agree today on exactly what they meant in 1789, you would still be somewhat dubious of the exercise of searching for original intent.
Well, in some ways I'm not. I have written a book that deals really only with the last decade of the 18th century. I think Justice Holmes once put it very compellingly. He said history was only a necessity, we cannot avoid history, we have to study it, we need to have the historical background to understand what they had in mind. I agree that that is a necessity. However, I'm saying that we should not assume that it solves all the problems we face at the end of the 20th century. We may have to allow for some change.
You mentioned compromise a moment ago. I learned from the book that a few of the basic tenets of our government--the president nominates judges with the advice and consent of Congress, the president is elected by the electoral college and not by the Congress--these were 11th-hour compromises and not necessarily firmly held principles. Should we be alarmed that what we view as cornerstones of our government today were in effect last-minute political deals?
I thought about the compromise on judicial appointments just this week when I read in the newspapers of a discussion to increase the role of the Senate in the judicial appointment process, and indeed to give individual senators a stronger voice. Senator Gramm--I think he put forward these proposals--said we have to ask ourselves what was meant when the Senate was given the role of "advise and consent." That is actually a fair question. Until very late in the convention, as I point out in my book, the power of judicial appointments was actually lodged in the Senate. So you could say the constitutional convention really meant the Senate to have a major role in this. However, in the very end, and in the interest of consistency and not because of any deep thought, the power of nomination was lodged in the president, and the Senate was reduced to advise and consent. Now, the first thing to say is that the Senate was not just reduced to voting up or down on a nominee. The Senate does have an advisory role. Of course, that advisory role was given to the Senate, not to individual senators.
Practically, though, doesn't the chairman of the Senate Judiciary Committee have enormous power, as an individual person, to block appointments?
Yes, and that is a highly questionable exercise of power. I think that power has rather frequently been abused by both Democrats and Republicans.
You listed before a number of separation of powers issues that have come up since the '70s: war powers, executive privilege, impoundment, independent counsel. Is the separation of powers doctrine gaining more importance?
Since the '70s, separation of powers issues have multiplied and multiplied. This has been a growth industry. This year alone we have added two big separation of powers issues. One is the Supreme Court decision in the case of Clinton vs. Jones, and the other is the line-item veto that Congress has conferred upon the president.
One has to look at the political conditions in which these discussions occur. There have been in the postwar period two very important developments. The most important in terms of reviving the separation of powers topic has been the fact that, most of the time since 1945, we have had divided government, one party controlling the White House and the other controlling the Congress or one house of the Congress. If Congress is unhappy about the policies pursued by the executive, Congress will then say the president is stepping constitutionally out of bounds.
Another reason has to do with the extraordinary increase in claims for executive power that occurred during the Cold War. That reached a high point with President Johnson's claims during the Vietnam era that the Gulf of Tonkin resolution was sufficient basis for him to conduct the entire war in Indochina. Similar claims then were advanced by President Nixon. Under President Nixon, there was also a major conflict over the right of one branch to ask questions about the activities of the other, the Watergate hearings and the like, and the increased claims of executive privilege.
It may seem striking to some that the thorniest public policy questions today, from abortion to affirmative action to school prayer, end up in the courts. In looking at the three branches, do you have the sense that the legislative and the executive are shirking their duties and these issues end up in the courts due to lack of political will?
Yes. The answer is one simple word: Yes.
You have a fairly busy day job. How did you find time to write this book?
When I became dean of the University of Chicago Law School, I no longer had the time to teach large classes. So I decided to teach, instead, a class on constitutional history, which would be smaller. I began to gather source materials for a history of the separation of powers. So this book is actually the result of teaching.
When I stepped down as dean in 1987, I took a sabbatical year and accepted an invitation to give a major paper at a separation of powers conference at the College of William and Mary. It was a historical paper, so I went back to my course materials and did additional work. That year, I wrote a very long piece for separate publication that now forms the substance of the first two chapters in this book.
Then I returned to being a regular faculty member, and I did some more work. In 1989, before I became provost [at the University of Chicago], I had been invited to give the keynote address at the bicentennial celebration of the Judiciary Act that took place in the Supreme Court. Chapter Five came out of that. Thus, I was able to do most of the work only when I had returned to the preferred status of just being regular faculty.
The only chapter that was written when I had a job that did not really allow this was the chapter on Jefferson that I did since I have been president at Stanford. I did that nights, on weekends and in lieu of vacation. It became recreation for me; it made it possible for me to get absorbed in something that was completely different from my job. Others play golf. I just wrote.
Why did you publish with Harvard Press and not Stanford?
For a simple reason: If I had submitted this manuscript to Stanford, they might have thought it would be difficult to turn it down. I needed to go where I knew they could turn me down.
