Much of the criticism aimed at Trump for taking the United States into the ruinous Iran war concerns his alleged authoritarian departure from constitutional norms. A loud chorus online and in the press denounces him for flouting the Constitution’s separation of powers principle with regard to the provision granting Congress the role of declaring war. That Congress has surrendered this role since World War II suggests that something other than Trumpism bears the responsibility for the imperial presidency under which we now live. This is not to take away from the Trump administration’s unprecedented levels of incompetence and malfeasance. The fundamental problem, however, lies in the Article II qualifications and powers of the presidency in the U.S. Constitution itself.
It might be well to review some of the key anti-Federalist arguments of 1787-1789 for insight into the origins of the abyss now stretching before our feet. The anti-Federalists thought that the machinations of any fool or knave who happened to occupy the presidency would be furthered by the 1787 Constitution devised in Philadelphia. In the vast literature that they produced, two speeches by Patrick Henry before the Virginia Ratifying Convention synthesized the dangers lying in wait for the American people under the proposed new government.
In the first of these addresses, on June 5, 1788, it is as if Henry were looking ahead to the murders of Renee Good and Alex Pretti in Minneapolis this past January 7 and 24, respectively. Henry observed that under the new Constitution, the people had no power against tyranny, should it come to pass. He foresaw the prospect of American citizens who could not assemble “without the risk of being shot by hired soldiers, the engines of despotism.” The existing law of the land, the Articles of Confederation, did not make allowances for a chief executive or for direct taxation by the central government to support vast military capabilities against which the power of the citizenry would prove unavailing. What resistance could be made, Henry asked, by ordinary people against a Federal establishment thus armed.
Two days later, in a second speech, Henry expanded on his fears about Article II of the Constitution: “there is to be a great and mighty President, with very extensive powers, the powers of a King.” The framers of the Constitution supposed that the government would be honest, but Henry countered, “If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute.” The panoply of government power is in his hands. The constitutional provisions to remove such a man seemed highly technical and abstract to Henry, not in the least equal to an easily imagined scenario involving a ruthless seizure of power. Who would be there to stop such a president?