#1588 Presidential Norms

David and I are old friends now. We met probably 15 years ago. I've been two or three times to Radford University and we'll be going again and we'll be catching up with him, of course, in my travels over the next couple of years for Listening to America. This week, presidential norms, executive norms. So the Constitution is pretty quiet on a lot of these things.

It doesn't require that the president stay to see his successor take the oath of office. It doesn't require that the incumbent or the loser in the election concede the election. Nothing requires the person who lost to say, I'll do everything in my power to help you have a successful term as president. There are many things that are not built into the Constitution, which have emerged as norms, and they have a kind of small C constitutional status. And we took them for granted until very recently.

But we've learned in the last eight or nine years that we should not take them for granted, that the Constitution is silent on these things. And if you get a person who's a sore loser, or, let's say, who believes that the election was stolen, nothing requires that person to be gracious. So we'll talk about this. I don't know what his questions will be. We never really know in advance.

We don't rehearse. I like to have open discourse and to see what happens. So we've gone from the early presidencies, Washington, Adams, Jefferson, Madison, in which we had a much more constrained profile of the presidency. And Jefferson called the national government the foreign department. And he spoke of a few plain duties performed by a few honest men.

He was a very busy president. He took his work as an administrative officer extremely seriously. He was one of the most efficient men who ever lived, really. But he didn't think that the presidency had that much power, nor did he wish it to have very much power, because as a small-R Republican, he believed strongly that the people were sovereign, and that it was the legislative branch, and there, the House of Representatives, that's closest to the people. And the legislative branch should be supreme, that there should be checks and balances between the legislative, the executive, and the judicial branches.

But far and away, the most powerful of the three should be. the legislative branch, should be Congress. And because of that, Jefferson was sort of a hands-off president. He had a very strong sense that he should not aggrandize that office. So here comes David Horton.

So we'll leave it at that for the moment, and I'll pick this up after our extraordinary conversation. You're seeing how the sausage is made here at Listening to America. So welcome back. So I've done the program with my friend, David Horton. It's fascinating.

And David Horton is always a really well-prepared host. I always enjoy our conversations with him. And he thinks about the programs and takes the conversation in directions that I would not necessarily have expected. And that's really a good thing, because the whole point of this is not to have a heavily-produced, heavily-scripted program. It's never been that.

It's meant to be spontaneous. It's meant to have humanities scholars—in this case, I—thinking on their feet and really wrestling with these questions with you, with you in mind, you, the listener. So if you can help us, you know, I'm getting so close now. I have a 1960 Atlas. I have my Airstream.

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We're working on all of that, but I think you're going to like where we are. I'm really delighted by the developments and more to come, so let's go to the program. If you can help us, financially or in any other way, we so deeply appreciate that. Let's go to this week's program with David Horton, Presidential Norms.

You don't often think of Radford in the first tier, but there it is, a splendid university on the western flank of Virginia. Mr. Jefferson would like that extending into the west.

And recently, we had a great discussion about executive orders. that, I think, is mentally stimulating and a great conversation to have, as we're in a presidential election year. There's a lot of focus on presidential power and what people choose to do with the office. So, if it's okay with you, this week, I would like for us to talk a little bit about presidential norms, what's written, what's tradition, and how all that evolved.

Let's say that a president went out for a couple coffee and beat somebody up on the street. Would the president be immune under those circumstances? And what's so interesting about this, David, is that the constitution is silent on questions like this. The constitution is quiet on so many questions. And so then we have to try to figure it out.

And everybody knows that the president needs a very large grant of immunity while serving as president. And at the same time, we believe in America, as John Adams first told us, that no person is above the law. And so trying to make these two things coordinate in a reasonable way, not to hamstring the powers of the executive, but to hold the executive, like everybody else, accountable if they commit crimes or are alleged to, these are really difficult things. And when you start to try to wrestle with them, you think, well, where in the constitution is this all specified? And the answer is it's not.

And this causes a lot of consternation because people have to interpret what's best for the country within the limits of constitutional fiat, but also in terms of the accumulated cases and situations that have brought us from 1787 to 2024.

I think it's interesting when we talk about George Washington and the things that began during his administration, just simple choices that could have gone many different ways, how that affected the presidency and also how we view that person in office. Can you talk a little bit about some of your impression of Washington and our earliest leaders, as the presidency was sort of this new thing and we were trying to figure out exactly where the guardrails were for this role?

And then we called him out of his private life to preside over the Constitutional Convention against his better judgment, but he did it for the good of the country. And then it became clear that he would be the first president of the United States. He didn't particularly want that. He thought it might actually damage his historical reputation. It might make him seem as if he were more ambitious than in fact he was.

And then both Hamilton and Jefferson, who could agree on almost nothing else, begged him to stand for a second term, which he very reluctantly did. It's fortunate that he didn't die in office. He died just three years, really two and a half years after he finally relinquished his status as the first president of the United States. We were lucky to have him, because Washington understood that he was creating protocols and precedents that would continue down the stream, and that if he made terrible mistakes about how to define the presidency, this would be damaging to the capacity of the people of the United States to govern themselves. And so he was very thoughtful about this.

And I'll give you a couple of examples. He did not shake hands with people. He was still living in a time when there was a pretty strong class system and a sense of aristocracy. He came, he has since become an American aristocrat, and we were still living in the shadow of monarchy. And so he thought, well, should a president shake hands with people?

And the answer was no. And so when he would have these moments, he would, he would sort of bow, but he would not allow people to touch him. So that's changed, of course. You sort of think of someone like Jimmy Carter. Then he decided that he would have a levy once every week.

A levy was sort of a European thing, where the king comes out and a bunch of courtiers and others are in a circle and the king acknowledges each person and so on. So he had these levies, which drove Jefferson nuts to think this is too like a kingship for a small our republic. Then the constitution says that he can have advisors and that he should check in with them. It doesn't say he should have a cabinet, but pretty soon, in his first administration, Washington built a cabinet, very tiny cabinet, just a couple of offices, but he had this formalization of this. And of course, everyone, with very few exceptions, has wanted and had a cabinet ever since.

I think there were four members of Jefferson's cabinet. Now it's, I think, 13 or more. And so that's something that's not in the constitution, but it's sort of maybe slightly invited by clauses in the constitution, and Washington solidified it during his time and everybody, including Jefferson, has had a cabinet thereafter. These are the sorts of things that Washington did and they became American habits. So Jefferson shook hands with people.

He wasn't going to go down that path, but he didn't think that getting rid of the cabinet was a good idea, because he wanted advice, and particularly from his closest friend, the secretary of state, James Madison. So, and Washington also then tried to figure out, well, what's my relationship with Congress? And there's a famous incident in which he went up to Congress to talk about Indian affairs and Congress sort of kept him waiting, which really annoyed him. And then, when he started to explain himself, he got interrupted. And finally he kind of threw a fit and said, this defeats the purpose of my coming here.

And so he left and he never went back. And presidents don't go to Congress on a routine basis because Washington said, that's not working for me. That's too frustrating. You can't keep the president waiting. You can't interrupt him.

You can't table the thing. If I'm going to do this, then I have to be taken seriously. And so he had a certain pride and a certain kind of formality and stiffness. Jefferson thought that was too pronounced and relaxed the presidency somewhat. But you see how these early traditions, norms, let's call them, got started, because the constitution is largely silent on the exact procedures for most of the things that occur in the national government of the United States.

And so somebody had to fill that vacuum, and Washington filled it with great dignity. In Jefferson's mind, a little bit too much dignity.

We probably need to add some majesty to the thing so that people will understand the importance of our new national government. So he wanted the president to be called His Excellency and the Protector of American Liberties, and so on. And he was devising titles for everybody. And finally, James Madison, who was serving in the first Congress of the United States, pointed out that there was a title, that this being was to be called the President of the United States. And, of course, that's how things have been ever since.

But because John Adams was so obsessed with this, unnecessarily, the wits of Congress began to call him His Rotundity, because he was a chubby man. And also they called him the Duke of Braintree, which was the town that he lived in, which was a suburb of Boston. And so this backfired on poor John Adams. He also used to wander around with a ceremonial sword. You think, well, what is a ceremonial sword doing in a republic in the United States?

That's Napoleon. That's George III, or something. That's Frederick the Great. But Adams wore the ceremonial sword, and the reports we get are that he sort of tripped on it. He wouldn't have known how to use it any more than he would know how to use a modern chainsaw.

But he had it. And so I guess the point is that we were struggling. We were experimenting. We were trying to figure it out. The presidency needed to have enough majesty so that it would really mean something, that he wasn't just like the chief clerk, but it also needed to be different from monarchy.

And Jefferson was very serious about this, David. So when he became president, in an act of political theater, he walked to his inauguration. He eschewed a military escort. He wore gentleman's clothes, but he didn't wear a sword or anything like that. He handled his own grocery shopping in Washington, D.C.

He rode his horse without an escort around the city. He greeted people at the entrance to the White House himself. He didn't have liveryed servants doing this sort of thing. He eschewed all of those monarchical forms as he saw them and believed that the president should not be an exalted figure. He should be the first citizen and that he was going to show us that that was the proper style.

So, just within the first two presidents, three presidencies, you have a kind of a whiplash effect. Washington leaning towards monarchical forms and Jefferson leaning in the other direction.

Hello and welcome back to Listening to America with Clay Jenkins. And we're having a fascinating discussion today about presidential norms and how that affects presidential power. I'm David Horton. I'm serving as your co-host today, coming to you from Radford, Virginia. Clay, when we were last talking, we were just getting into the start of the Jefferson years and how Mr.

Jefferson viewed the presidency a bit differently. First,

You know, Rousseau said the people are right even when they're wrong. That wasn't Jefferson, but he believed that the people are sovereign and they have a right to have their will distilled and enacted into law. and the proper place for that, if not state government, which he preferred. The proper national arena for that, was Congress, and that the president should then advise Congress. The president should administer the laws that come, veto those, not on policy questions that he disagreed with, but veto those that he thought were unconstitutional.

He read the presidency in a very limited way, very limited power. And he underplayed the president. He was a master of political theater. Jefferson, you know, he once entertained the British ambassador in his slippers and the ambassador said his linen was none too clean and he had some egg on his sleeve, and so on. Jefferson played down the majesty of the executive, maybe too much, but it was a correction of what he thought had been the problem of the two predecessors, George Washington and John Adams.

He was afraid if it begins in this monarchical way, it's only a matter of time before we move into an actual monarchy. And that takes us back to two terms, by the way, David. So Jefferson would surely have been elected to a third term in 1808, even after the disaster of the embargo crisis. But he decided that he would reinforce what Washington had done by voluntarily retiring after two terms. And he said, now nobody will dare go beyond two.

The norm. that is not in the constitution. There's no limit on presidential terms in the constitution until after the death of FDR in 1945.. But before then, a president could serve two terms, or 10 terms if he could be reelected. But Washington quit after two because he was tired, mostly.

Jefferson decided he would retire after two and that this would, he said, kind of lay it in concrete that no one will dare violate this. And he was right that for the rest of American history until 1941, no president had earned a third term. So this is a norm. that became what I call a small c constitutional measure. And then, after FDR's four terms, and he died in office, of course, an amendment was passed to the constitution that said two terms only.

And then it specified a whole number of sort of problems that could also come about, including the incapacitation of a sitting president of the United States. So that was, that's now a norm. And in the very popular presidencies of the last couple of decades, let's say Bill Clinton, Ronald Reagan, Donald Trump, there were moves by their partisans to eliminate that amendment and make it possible for a president to serve third term. I'm.

When Andrew Jackson came along, there was an evolution of the presidency and it became a different animal to a degree from what it had been before. And I think some of his piece was in his relationship with the legislature and talking about how he just really didn't want much to happen that the legislature did. He expected the president to have the control there. Can you speak?

So the Jeffersonians, the Virginians, had six terms, 24 years, a quarter of a century. Those three governed the country in a very mild way. And if anything, Madison was even milder as president than Jefferson had been. Jefferson boldly, for example, purchased the Louisiana territory, which was technically probably unconstitutional. And so you have that 24-year period.

And then comes John Quincy Adams, who's also one-term president, the son of the great John Adams. He had begun as an Adamsite. He sort of became a Jeffersonian over time. And he had a limited presidency. And then along comes Andrew Jackson.

And Andrew Jackson is our first populist. And there's a famous story at his inauguration that his well-wishers came and trashed the White House. They tore down drapes and stood on sofas and tracked in mud and broke windows and were handing ale and Applejack around. And it was like, uh-oh, here come the people, or the capital P. And so that's why Donald Trump, for example, had a bust of Andrew Jackson in the Oval Office, because Jackson was our first true populist president.

And for all that's wrong with Andrew Jackson, and particularly on Indian affairs, Jackson believed that this country belongs to the people and that these kind of aristocrats in buckled shoes like Jefferson and Monroe didn't really represent the actual citizen body of the United States. And so he sort of threw open the doors, metaphorically, too. And he was a very strong personality. He fought duels. Of course, he was a war hero.

He was our second war hero president. The first was George Washington. And then Andrew Jackson, who won the Battle of New Orleans after the peace had actually been worked out in Europe, but nobody knew that in New Orleans at the time. He won this stunning victory. And it sort of saved our understanding of the War of 1812, because it really was a tie.

But then we had this stunning last victory in 1815.

. And because of that, we were able to feel like we had vindicated American independence. So Jackson was a strong man. And, you know, he famously challenged the Supreme Court on cases involving Native Americans. It's not probably true that he said the court has made its decision, now, let it enforce it.

But that was his attitude. And so he was our first really strong president. And then things went quiet again. You know, there are two types of presidents in American history. There are caretakers, and then there are changemakers.

And most presidents have been caretakers. Think of someone like Gerald Ford, or Calvin Coolidge, or Grover Cleveland, or William McKinley. Those are caretaker presidents. And then there are changemaker presidents like Abraham Lincoln, and Theodore Roosevelt, JFK, and so on. And it really works out along that line.

But most presidents in the end wind up being caretakers. And you know this because if you start to try to name all the presidents in the 19th century, you get to about Millard Fillmore, and then it's just like Tweedledee and Tweedledum for a long time. And then you sort of perk up again at Theodore Roosevelt. And basically, most people can then name most of the presidents, although it gets a little rough after Woodrow Wilson for a couple. So those are caretakers, and they're rightly regarded as not particularly important in the history of the executive branch and its powers.

But then along, as we're anticipating ourselves, but then along comes Theodore Roosevelt, and everything changes basically forever. One more thing about Jefferson and Washington. Washington went on two tours of the country. One year he toured the New England states and the Middle States. He would go in his carriage, and he would meet people and go to balls and have teas, and crowds would form along the route, and they would take him.

They would unhitch horses from his carriages, and he would have, you know, be treated as kind of royalty. This is sort of like what's called a progress in British history, where the monarch, like Queen Elizabeth I, would go on what was called a progress, and would go see her aristocratic citizens, and they would entertain her. And then, the next year, he went on a southern tour of the country. So Washington toured essentially the whole nation while serving as president. He thought it was important.

He thought important for two reasons. First, the president should be seen, because of course, there was no photography in those days, and nobody knew what the president looked like, and people living in Georgia were hundreds and hundreds and hundreds of miles from any seat of power. And so he thought that the president, as a figure of the people, should be visible. So he went on those tours. And secondly, he thought that this would add to the strength of the national government, that people would feel stronger about their national government if it were more visible, and not some faraway thing that raises some taxes and sets some foreign policy.

He also believed that he should have a chance to hear what people had to say. That didn't happen very much, because he was kind of sheltered from the actual people by wealthy planters and other wealthy merchants in all the states. But he did believe it. But then, when Jefferson came to power, Jefferson thought, no, that's not good. That's monarchical.

That's what a king would do. I'm not going to do that. I'm not going to go parade myself around the country. I'll just be a really good administrative president. And don't you think that's interesting,

And Jefferson would just assume not anyway, even if he was required to do it. But I will argue this too. I think it's very hard to represent or govern an area you have not visited. There's something about spatial recognition, being in a place, being around the people, experiencing it the way that they experience it, because only hearing about it from someone, no matter how good that representative may be, is secondhand. And for you to truly have a fundamental understanding of this nation, of this new thing that we're trying to create, at that time, I think it was crucial that Washington made that decision to go.

do that. Now, you know, Jefferson may have been correct. It may have been based on a tradition from the monarchy and something that would be deemed as unnecessary. But as someone who would have to make a decision, I would think you would want that familiarity. So when you're speaking with a representative of a New England state or a representative of a Southern state, there's more than just that casual relationship.

I agree with you, David. I think.

Others did. Jefferson went to New England a couple of times. He actually got as high as Lake Champlain in a botanizing tour, they called it, that he and James Madison did in 1791.. So far as we know, he never stepped foot in North Carolina, and certainly not South Carolina or Georgia. So he missed the entire Deep South.

His Virginia was the South, but it was much less Deep South than it became later in the buildup to the Civil War. Of course, he was in Maryland. So he saw about half the states, but he didn't see the West. And yet he had the vision to buy the Louisiana Territory. And he, of all the presidents of that era, he was the one who really understood that the West was going to fulfill the destiny of the United States.

So that's Jefferson. Washington, I think, felt, as you say, that you need to know what you're legislating for. And I think that's one of the things that is good about the Electoral College is that it has forced a lot of political candidates to go to most of the states. Whereas once you realize that California and New York and Texas and Florida really are the election, then the incentive to go to Wyoming or North Dakota or Idaho goes way down. And so that's one defense of the Electoral College.

But just to take an example, if you've never been to North Dakota and you then have to figure out what to do about the Red River of the North, which floods every eight or nine years, but is also subject to drought, now the president is dependent upon others to give him or her that information. But if you actually get to the ground and see the Red River of the North, or if you go see the Colorado River and the current status of Glen Canyon Dam and Hoover Dam and their lakes, Lake Mead and Lake Powell, you're going to be in a much better position to try to understand how diverse the country is, how many different Americas there are, regional difference in accent, regional difference in cuisine, regional difference in ethnicities. And so we need today, certainly we need, our presidents, even in an age of saturation.

You know, certainly a maverick, certainly different, certainly had a boisterous personality, and in many ways, his presidency represents that.

You know, what do we want to do here? What are the things that need to be done? Let me tell me, let's start doing some things. And so he's like, champing at the bit always. And it was inevitable, almost, that he was going to become the 26th president of the United States, or president at some point.

And so when he did, he said, you know, what are we going to do? And he stepped back. And I think this is what makes him a great man and said, where is America in 1900?? And how can we make it a more perfect union? And what's our place in the world?

And are we denuding our natural resources? And what are we going to do about the recent immigrants who don't speak English and they're living in squalor? And how are we going to solve the problem of the few and the many with respect to the economy? And what should we do with these giant corporations that have sprung up since the Civil War and could not have been anticipated by the constitution makers? And what are we going to do about Native Americans now that we've placed them on reservations and so on?

So he stepped back and he was a great intellectual. He was arguably the greatest intellectual of any president. And that's some pretty rare company, John Adams, Thomas Jefferson, John Quincy Adams. And he had ideas, of course, because he's Theodore Roosevelt. The thing is, he also realized, oh, our constitutional system doesn't really favor a strong executive.

And he said, who cares? I'm going to be a strong executive. And he famously said, the constitution exists for the people, not the other way around. And he contrasted himself with Jefferson. Jefferson believed that the president and government should not do anything that was not enumerated in the constitution.

That would have been a terrible straitjacket to stay in. Roosevelt's view was, I can do anything that's not explicitly forbidden by the constitution. So he blew the doors off of the national government, the concept of the national government and of the presidency. And he created essentially the monarchical executive that we have had, and some more, some less, ever since. But his view was, things need to be done.

This is a great country. I'm not going to let the constitution get in the way of the things that we need to do as a great nation. And how much had things changed in more.

And they didn't necessarily see the solutions that they might be able to accomplish as president. But I would like to talk about that with Roosevelt and how some of his first steps were really building that new version of the presidency. Yes, of course. So let me give.

And the coal miners were really treated badly in all sorts of ways, both work accidents and pay and overtime and so on. And so they went on strike. And most presidents up until this time, if they had not been completely aloof from this sort of thing, sided with business and often sent troops to put down strikes. Roosevelt was the first president to refuse to do that. And so he brought in the coal mining operators, the managers, the capitalists, and brought in one labor leader to the White House.

And he said, we're going to work this out because we can't have a coal strike. Winter's coming. And coal then was the same as oil or natural gas are to us vital for the economy. I said, I can't let people die of hypothermia. We've got to solve this.

And nobody would give an inch, particularly the operators. And finally, he said, all right, if you can't come up with a solution, I'm going to nationalize the coal industry until we get through this winter and then we'll figure it out. But I, but I'm, I'm going to use U.S. troops. I'm going to make members of the armed forces dig coal and make sure there's peace, so that we can keep carbon flowing into the houses and the businesses of this country.

And everyone was shocked. First of all, he had no right to do that, as there's no constitutional provision that allows a president to nationalize an industry. And Truman would later be rebuked deeply by the Supreme court for trying it with steel. And Roosevelt was threatening people using the presidency, siding with labor. I mean, this, this was appalling to the capitalists and to the establishment.

Who would side with labor? These are just these working class, dirty, uneducated people. Many of them recent immigrants from the Slavic countries. Why would government side with these people? And Roosevelt did.

And by doing so, he changed the world. He was not afraid to use power in this way. And I give him great credit for this. And, you know, it reminds me a little bit about Ronald Reagan and the, and the air traffic controllers, the first great labor crisis of his presidency, he sided with the air traffic system and fired, summarily fired the striking workers. And this was an inflection point in the history of labor in the United States.

Be that as it may, whatever you think about the justice of what he did, it consolidated his power. And the same thing happened with Roosevelt. When he successfully intervened in the anthracite coal strike in 1902, everyone stepped back and thought, oh, we thought he was just this kind of crazy cowboy, maverick, grandstanding blowhard war hero. Turns out. he is a deeply purposeful president and he's not afraid of power, and he's used it with great effectiveness.

And after that, even the people who were frightened of his character, his weird personality, began to deep respect for Theodore Roosevelt because they knew, wow, this is somebody who took a very great risk. If this had backfired, it would have been sort of the end of his power, but instead he.

And I'd like to talk a little bit about his decision on the use of some of the Western lands. Right. So he had been out in.

And these are real issues for all of the national parks, but particularly in this case, for Theodore Roosevelt National Park, which he did not create, but which was created in his honor in 1947 in the Badlands of North Dakota. And so he realized as a Westerner that we were cutting down too many trees and not replanting, that we were sort of denuding the land, that many animals were about to go extinct or become exceedingly rare. We were overgrazing the public domain, that we had inefficient farming practices and so on. And that these were because of these large monopolies like the Timber Trust and the Railroad Trust and the Coal Trust, and so on. And so he decided to step in, in two ways.

First of all, he filed antitrust suits against several of these giant trusts, these giant monopolies. And one, surprisingly, another great moment in the history of this country, when the Northern Securities case was won by the administration and that monopoly, that trust, was broken up. But he also had seen environmental damage, and so he became the conservation president. And by executive order, he set aside 230 million acres of the American West as permanent national park, national monument, national game preserve, national forest, national wildlife refuge, and so on. And he had the power to do this under the Monuments and Antiquities Act and under the National Forest Act.

But he took it much more emphatically than anybody could have imagined and shocked and angered a lot of people in doing it. But he deserves almost unlimited praise and admiration for what he did. And this was done in seven years and 127 days. He didn't even have a third term.

You're listening to Listening to America.

Welcome back to Listening to America with Clay Jenkinson. I'm David Horton serving as your co-host, and we're having a fascinating discussion about presidential power and how things have evolved over the last 200-plus years. We've had a good discussion up to this point of where things are going to go from here and how things are going to evolve over the next 200-plus into the 20th century. And one of the big change-makers for the 20th century was obviously Franklin Roosevelt. And certainly, when he came along, he did a number of things that were completely unprecedented in the presidency.

But also, he faced some crisis that had not been previously anticipated or encountered in the presidency. I'd like to talk about four areas in particular with regard to the National Recovery Act, with regard to the courts, and those are very much related, internment camps, and then finally, in terms of presidential terms, because all of those are kind of interrelated and connected to the Depression, the recovery, the war, and everything that took place. But can we talk a little bit particularly about the courts? Because I think this is one area where folks are not clear and where presidential power was.

But if anyone ever grew in office, it was Franklin Delano Roosevelt. He was sort of a rich playboy, bit of a wastrel, a mama's boy, and did not have the right stuff in the way that TR had had. But then he was stricken with polio. He heroically overcame this extraordinary disability by incredible discipline. Amazingly, when you read these stories, they make you weep at the capacity of this man to rise above what should have been a terminal disability for a person in public life.

He gained a deep compassion for those who suffer, thanks in part to his own suffering, and he wound up being one of the greatest presidents in American history. And his predecessor, Herbert Hoover, was a caretaker president who believed that the economy should work itself out, that it would work itself out, that the government should not play a role in this, that it's not the role of government to intrude on the workings of capitalism, that that would only distort the process. And so he was terminated after a single term, and FDR comes into power in 1932. And he looked at this crisis, the Dust Bowl plus the Great Depression and the collapse of Wall Street, and he thought, how are we going to survive this? So he began throwing sort of alphabet soup at the wall, these different acts that were, especially the National Recovery Act, to try to bring government in, to stabilize it, to stabilize the banks, to make sure that people at least got food in their tummies, to begin to put people to work and to figure out the places in the country that were suffering inordinately, and to target them.

And so he did all this sort of alphabet soup work. Much of this offended people who were political conservatives and people who were constitutional conservatives, and the nine-member Supreme Court began to strike down key parts of the Roosevelt agenda. At that point, A, believing that this was an unprecedented national emergency, and B, just feeling the usual annoyance that the courts are stymying the work of Congress, Roosevelt decided to pack the court, to raise the number from nine till twelve, and he would put his own people in, and they would therefore have a majority, and his New Deal legislation would survive judicial scrutiny. He was shocked at the pushback. The pushback was powerful, even from his own party.

It's amazing. We talk about these norms, David. There's no constitutional requirement that there be nine members of the Supreme Court. It could be five, it could be thirty, it could be two hundred and thirty. And it was five and six in Jefferson's time, and it only rose to nine.

It got up beyond nine for a short time, but it finally settled around 1870 at nine, and it's been that way ever since. But Franklin Roosevelt thought, nothing stops me from getting Congress to pass a law that increases the number. I'll just do that. And the pushback was so powerful that he had to back down, and thank goodness he did, even though nine is just an arbitrary number, and probably we need to do some very serious reform of our judicial system, particularly life tenure on the Supreme Court. But he needed to lose that battle.

The whole point of the judiciary is that it's a non-political check against excesses in the other two branches. And if you politicize it, if you weaponize it, to use the current term, politically, you defeat its capacity to stand outside of the process. Now it needs some major reforms because it has failed to stay outside the process. But nevertheless, he rightly was rebuked, including by members of his own party, in that attempt. So then he said, all right, now we have to find another way to get this stuff done.

And it chastened the New Deal just enough that it became palatable to the conservative forces of the country. So, you know, all this was happening in the 1930s. He did not know, when he became president, that the big crisis was not going to be the Dust Bowl and the collapse of the American economy, that the big crisis was going to be Adolf Hitler and the Japanese attack on Pearl Harbor. And that's why he becomes an even more important president of the United States, because he presided over two colossal national crises.

But imagine a 21-member Supreme Court or a 30-member Supreme Court trying to battle through the decisions when it's challenging enough among the nine that are there now. But I would pose this, that had it not been for the need for the Senate to confirm the presidential appointment, he very well may have attempted it. If it could have just been a straight appointment from the presidency to the court, would that have happened? But enough, probably, on that subject, but moving on to the internment camps, that was something we spent a good deal of time talking about with our executive orders program. and what a monumental point in American history, as a group of people were imprisoned simply based on their background, simply based on their nationality, simply based on the crisis of the day, and talking about how that fundamentally changed the presidency in some ways.

We're still the beneficiaries of it. But when he signed the executive order to round up and intern Japanese Americans and Japanese nationals within the borders of the United States, he did not consult Congress. He just did it. And he felt that it was important to do. We look back on it now and we cringe, but we weren't there.

And there was war hysteria and it wasn't clear whether Japan would continue to attack the west coast of the United States. They actually did a little of it up in the Puget Sound area. And there was a concern that people of Japanese descent might become terrorists from within. And so he made this decision. But when we talked about this a few weeks ago, we both came to the same point, which is that things of this magnitude, and this is one of the most important events of the 20th century, and it continues to have ramifications to this day, that things of this magnitude really need to be worked out in deliberative bodies.

That that's where you really don't want a president, even in a time of emergency, to have such sweeping power. You want there to be some check on presidential behavior. And of course, Congress could have passed a law ending the internments. The Supreme Court could have weighed in. They did not.

In fact, they endorsed what Roosevelt had done. But it sits uneasily with us because that's a lot of presidential power, and Roosevelt did it. But he understood that the presidency can be a caretaker presidency most of the time. But if you're George W. Bush and 9-11 occurs, it can't be a caretaker presidency at that point.

If you're Abraham Lincoln and 11 states, leave, it's no longer a caretaker presidency. If you're FDR and Pearl Harbor happens, and it's not clear what the Japanese intentions are, you're going to fill the vacuum of power, if necessary, as an executive. And so this tends to happen in times of national emergency. And luckily, when the emergency ends, we tend to pull it back down, relax it a little, often, second guess what happened. And in this case, in the last 20 years or so, Congress has passed legislation providing recompense to families who had their relatives interned.

There's been essentially a formal apology by the United States government for this. That's what a great republic is. A great republic is a self-reflecting republic that understands that sometimes things get a little out of control, and then works to bring things back more tightly within constitutional norms or the actual provisions of the Constitution of the United States. So FDR was a very, very powerful president. But even more than that, he seduced us into the war.

He wanted us to join England to save the world. The country was in a very isolationist mood. There was still a lot of grumbling about World War I and how we'd sent our boys over there. And then what happened at Versailles and the 14 points? and everything had kind of been a debacle, that we hadn't been repaid by some of the countries that we had provided loans to.

And there was a deep isolationist spirit, like. this is not our war, when 1939 came along. And Roosevelt knew it's going to be our war. It's inevitable that we're going to have to enter this war. And it's not clear that England and the West can survive without American help.

And so he first played games with Lend-Lease and found all sorts of ways to supply Britain and do loans and things that were technically not legal. He was certainly stretching such laws as existed, but he knew that the country wasn't ready. And so he patiently worked to build the spirit of intervention. He took us along, step by step by step. And although the isolationists grumbled and were quite upset by all of this, and rightly so, he managed to get away with it.

And then, on December 7th, 1941, the Japanese settled the issue for us by attacking Pearl Harbor. And at that point, we had in a sense, no choice. Now, as you know, David, there's been a long and sort of silly debate about whether FDR welcomed the attack and maybe even helped to bring it about. That's silly. I don't think history reinforces that view whatsoever.

But of course he was sorry for what happened in Pearl Harbor, but he was also relieved that this settled the question. It might've been something that had.

And so he decides to run for a third term and wins. Well, so all those make sense. This is a time of unprecedented emergency, the Great Depression, the Dust Bowl, and the coming of World War II. And so I'm glad that our constitution had the flexibility to keep so able a person in power during that period. And I think, frankly, we made a mistake by demanding by constitutional amendment that a third term is an impossibility.

The time may come when we need it. The conundrum is the fourth term. When he stood for reelection in 1944, unprecedented fourth term, he was easily reelected. Everyone understood the importance of Franklin Delano Roosevelt, but he was a dying man in 1944.. And he did not prepare us for his inevitable death during his fourth term.

He died quickly. He died in April 12, 1945.. So just a few weeks really into his fourth term. And he had chosen someone regarded as a non-entity to be his vice presidential running mate, Harry S. Truman.

Truman inherits the presidency inevitably, I think, but there's not a lot of talk about it in 1944.

. You would have thought two things. One would have been that Roosevelt might have said, I'm too old now. I'm dying. I'm not.

well. Somebody else needs to lead the country. But of course, he loved power. If ever anyone loved power more than TR, it might have been FDR. And then, secondly, you would have thought he would have said, we need to be extraordinarily careful about choosing my running mate this time, because there's a very good chance that person will wind up filling out my term.

And he didn't. And so this put Harry Truman, as we've spent a good deal of time talking about before, into an untenable position, which he handled with great grace and really a kind of majestic capacity to rise to the occasion. Talk about presidents who grew in office. But that, I think, was a strategic error, politically selfish, of FDR. I think the people around him should have protected us better in that situation.

Fortunately, Truman turned out to be terrific. But imagine if you chose, I don't mean this necessarily as it's going to sound, but imagine if you had Dan Quayle and suddenly he becomes the president and he really isn't up to it. He really doesn't have the right stuff. He doesn't have the gravitas. He doesn't have the mastery.

He doesn't have the mind. He doesn't have the character. And maybe I'm being unfair to Dan Quayle, but you get the point. Somebody that is considered a lightweight, and I think our current vice president, in the minds of some, is considered a lightweight. I think when that happens, this creates another sort of constitutional problem.

And it's really important that, let's just say that, and we don't know what's going to happen, but let's say that Joe Biden stands for the presidency in 2024 and wins. I hope there are very serious conversations occurring now about what would happen if he's stricken during a second term. Or, for that matter, if Trump wins, what would happen if he's stricken during his second term? Because the actuarial tables tell us this.

Donald Trump, when he ran, basically told everyone, I'm not going to be a president that you've seen before. And he was one of the only, if not the only, people to ever run for president and be successful, who had never served in government, who had never served in the military, who had never served in an organization that would have required him to balance the expectations and norms of a system against personal decisions. I think it's an interesting, again, another inflection point for us to talk about, and to talk about how that presidency has changed the face of the.

He chose not to do that. I think a lot of people, including his own partisans, were a little surprised by that, but he wanted to shake things up. And, you know, the fact is, things needed to be shaken up and they still need to be shaken up. Whether you agree with his methods is another question, but he wanted to, he said the thing's not working, so I'm not going to do it that way. And this goes back to our main theme.

There are constitutional requirements and then there are small c constitutional norms. He did not stay to watch his successor inaugurated. He did not concede. Virtually everybody in American history has conceded after the loss. He did not congratulate his, the victor.

I did not say that I'll do everything in my power to make your administration a success and to smooth the transition. He violated a whole range of norms, but the important thing to remember is they're only norms. He isn't required by the constitution to concede. He's not required by the constitution to leave office gracefully. He's not required by the constitution to attend the inauguration of his successor.

These are things that we believe in and we feel strongly about, and he violated, but he was within his legal rights to do all of that. He was not within his legal rights to try to prevent Congress from fulfilling its ceremonial duty to certify the election. That's a whole different question, and that's why he's being tried in federal courts for those very actions, but he was a norm breaker and he told us he was going to be a norm breaker. and he's telling us now that if he's reelected, he's really going to be a norm breaker, and we have been warned as explicitly as a people can ever be warned of what he intends to do. So it's really about us now.

Do we wish, do we think that the system is sufficiently broken and that the Biden administration has been sufficiently bad? that this is, that, even if Trump is, is a, is a willful, crazy norm breaker, that that will be better than the current situation. If, if so, he'll, he'll win the election, or the American people will say, however bad we think the Biden administration is, or whatever, whether Biden's too old or whatever, we can't go down that other path, because the constitution and the norms, the guardrails barely held before. It's not clear that they would hold this time. We had better not do that, but I think it puts everybody in a very difficult position, because what you want is two viable parties of responsible individuals who accept the system and want to live by the norms.

It's not that they won't disrupt, but you, you want them to be basically devoted to the norms and traditions of American life within limits. And if you get into this position, where you might not like the incumbent, but the, the challenger is really promising mayhem. that doesn't give the average intelligent voter much room to maneuver. And so then you wind up holding your nose and voting for one or the other, or staying home or, you know, searching vainly for a third party miracle. So we're in a very difficult position, but I just want to make the point that, that nothing required president Trump to honor existing norms, but some things required him to honor existing constitutional law.

And that's where the real crisis came. And I think, interestingly enough,

Uh, Congress did not. Congress could have stepped in and said that, that the, the outgoing president, uh, must attend the inauguration if invited. They did not. In other words, they could have done a number of things. that said, these norms turn out to be so important to us that we had better codify them into law so that we can avoid some of these things happening.

They didn't do that. We're too divided for that. And I think it's going to come back to haunt us. actually. I think, at the very least, every presidential candidate should be required to divulge taxes for at least 10 years and maybe longer.

So we are in a position to know certain things about their financial dealings. I think that, and everyone is doing it, except president Trump and his cronies. So that's one that could easily have been fixed, and Congress simply refused to do so. And I think we're going to have to make some clarifications on how the electoral college works. And I would have liked to see a national voting regulatory act to unify certain voting procedures across the country.

Because, as you know, one of the arguments made by president Trump and his allies was there were a lot of irregularities in 2020 and there were largely brought on by the pandemic and emergency things to try to figure out how to make an election happen during a pandemic year. And that then became a kind of a ripe ground for conspiracy theories to attach to, et cetera, that did not happen. And I think we're going to rue the day that we didn't make those reforms, but that's all. Stay tuned.

Jefferson will make an appearance again on Listening to America.