The Unitary Executive Theory Feeds the Grandiose Narcissism of Trump's Despotic Dominance

 

           Napoleon Crowns Himself Emperor with Pope Pius VII Looking On, December 2, 1804

The biographical history of the unitary executive theory is the personal history of the American presidents.  According to Steven Calabresi and Christopher Yoo (2008), all of the presidents have believed in the theory of the unitary executive, because they have all claimed that Article II of the Constitution gives them the power to remove and direct all of those officials who exercise executive power.

But no president has ever interpreted the presidential power in Article II as expansively as Donald Trump has.  Hearing about the theory of the unitary executive from his legal advisors excited Trump because he could then declare: "I have an Article II, where I have the right to do whatever I want as president."

The right to do whatever he wants as president!  Nothing could be more exhilarating for a man like Trump, who is unique among all the presidents in the grandiosity of his grandiose narcissistic personality.  (I have written about Trump's grandiose narcissism compared with the personalities of other presidents and chimpanzees.)

Trump is interpreting Article II as the constitutional justification for overturning the Constitution by crowning himself Emperor, just as Napoleon did.  Trump has even repeated words attributed to Napoleon when he became Emperor: "He who saves his country violates no law."  To show that he identifies this remark as Napoleon's, Trump has posted it along with a famous painting of Napoleon by Jacques-Louis David.

                                       Trump Has Posted This Screenshot on "Truth Social"

As I have argued, the proponents of the unitary executive theory are mistaken in their interpretation of the Constitution.  But their biggest mistake has been in not anticipating how their theory would feed the Napoleonic ambition for dictatorship in someone like Trump.

Steven Calabresi is one of the leading advocates of the unitary executive theory who came to regret his support for Trump's election in 2016.  In 2020, he warned that Trump was showing the traits of a fascist dictator, and he voted for Biden.  In 2021, he recommended that Trump should be impeached for inciting the January 6 insurrectionary attack on the Capitol.  In 2024, Calabresi argued that under Section 3 of the 14th Amendment, Trump should be disqualified from running for president again because he had violated his oath of office by engaging in "insurrection or rebellion" against the Constitution.  But then, strangely, a few weeks later, he announced that he had changed his mind because the President was not an "officer" of the U.S. government under the 14th Amendment.  Trump should be allowed to run again, Calabresi advised, but the voters should reject him because of his fascist propensities.

In 2021, Calabresi wrote a response to Skowronek, Dearborn, and King's Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive.  They showed how Trump had used his interpretation of the unitary executive theory to move towards a presidential dictatorship unrestrained by the constitutional system of checks and balances.  Calabresi agreed that Trump's tyrannical ambition had threatened the constitutional order.  But still Calabresi insisted that this was no reason to reject the unitary executive theory.

We should not "remake" the Constitution because of a once in 232 years oddball-president like Trump.  And, liberals should realize that originalists who want a unitary executive like me also want a vigorous non-delegation doctrine; an Article III administrative law judiciary; and, above all else, a government of checks and balances.  We abhor fascist as well as socialist dictators, which is why, in 2020, I voted for Joe Biden (Calabresi 2021).

Calabresi is right in saying that Congress has delegated too much of its lawmaking power to the President and administrators, and that administrative law judges should be nominated by the President and confirmed by the Senate with tenure during good behavior.  But this does not solve the problem of Trump's dictatorial propensities animated by his belief that a unitary presidency means that since the president has complete control over the execution of congressional laws and court orders, the president can refuse to enforce those laws and court orders.

Calabresi is also right that Trump is "a once in 232 years oddball-president" because he's the only president who has interpreted the unitary presidency to mean that Article II allows him to become a Napoleonic dictator.  But Calabresi and the other proponents of the unitary executive theory could have predicted Trump's "oddball" presidency if they had listened to John Adams, Alexander Hamilton, Abraham Lincoln, and others who had warned about presidential demagogues with grandiose ambitions who would strive to become tyrants.

LINCOLN'S EGALITARIAN DOMINANCE

In 1838, in his "Young Men's Lyceum Address," delivered in Springfield, Illinois, Lincoln warned about the danger of someone like Trump who would thirst for the splendid glory that would come from becoming America's Caesaristic Dictator like Napoleon and thus destroy the American constitutional order.  The subject for his speech was "the perpetuation of our political institutions" that constitute our "political edifice of liberty and equal rights."  This had become an urgent question for Lincoln's generation--he was soon to turn 29 years old--because the generation of the American Revolution and Founding had passed away, and it was not clear that the new generation would preserve and pass on the political legacy that they had inherited.

Lincoln began by dismissing as unlikely any danger from some transatlantic military force. He insisted that all of the combined armies of Europe, Asia, and Africa under the command of a Napoleon could not succeed in conquering America.

The more likely danger to our political institutions must spring up amongst us.  "If destruction be our lot, we must ourselves be its author and finisher.  As a nation of freemen, we must live through all time, or die by suicide."

Lincoln thought he saw a foreboding sign of possible national suicide in the "increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgments of Courts; and the worse than savage mobs, for the executive ministers of justice."  He then vividly described a half dozen examples of such mob violence from every part of the country, from New England to Louisiana to St. Louis.

In explaining how this "mobocratic spirit" threatens "the perpetuation of our political institutions," Lincoln sketched the political psychology of four distinct groups of Americans.  First, there's "the mob"--those many Americans who think that vigilante violence is justified if the legal institutions for law enforcement are too slow in punishing criminals.

Second, the "lawless in spirit" are those who obey the law only because they dread punishment, and therefore when they see that the lawless mobs go unpunished, the "lawless in spirit" become "lawless in practice."

Third, there are the "good men" who desire to abide by the laws, and as long as they enjoy the tranquility of a society ruled by law, they will fight in defense of their country.  But when these good men see their country become utterly lawless, so that there is no rule of law to protect their lives, their families, and their property, this weakens their attachment to their government; and they are willing to see the overthrow of their government.

Fourth, there are "the men of ambition and talents" who see the lawless violence in the country as an opportunity for them to seize power and thus satisfy their ambition for political glory.  Previously, during the revolutionary and founding period of America, these men satisfied their ambition for fame and glory by striving "to display before an admiring world, a practical demonstration of the truth of a proposition, which had hitherto been considered, at best no better, than problematical; namely, the capability of a people to govern themselves."  They succeeded, and their names have been immortalized.

But "this field of glory is harvested, and the crop is already appropriated.  But new reapers will arise, and they, too, will seek a field."  Men of ambition and talents will continue to spring up, and they will seek to gratify their ruling passion for distinction. 

The question then, is, can that gratification be found in supporting and maintaining an edifice that has been erected by others?  Most certainly it cannot.  Many great and good men sufficient qualified for any task they should undertake, may ever be found, whose ambition would aspire to nothing beyond a seat in Congress, a gubernatorial or a presidential chair; but such belong not to the family of the lion, or the tribe of the eagle.  What! think you these places would satisfy an Alexander, a Caesar, or a Napoleon?  Never!  Towering genius disdains a beaten path.  It seeks regions hitherto unexplored.  It see no distinction in adding story to story, upon the monuments of fame, erected to the memory of others.  It denies that it is glory enough to serve under any chief.  It scorns to tread in the footsteps of any predecessor, however illustrious.  It thirsts and burns for distinction; and, if possible, it will have it, whether at the expense of emancipating slaves, or enslaving freemen.  Is it unreasonable then to expect, that some man possessed of the loftiest genius, coupled with ambition sufficient to push it to its utmost stretch, will at some time, spring up among us?  And when such a one does, it will require the people to be united with each other, attached to the government and laws, and generally intelligent, to successfully frustrate his designs.

Distinction will be his paramount object; and although he would as willingly, perhaps more so, acquire it by doing good as harm; yet, that opportunity being past, and nothing left to be done in the way of building up, he would set boldly to the task of pulling down.

Notice that Lincoln divides the "men of ambition and talents" into two groups.   In one group, "many great and good men" can satisfy their political ambition by serving as a congressman, a governor, or a president.  But in the other group, are those who will not be satisfied with filling high political offices in a constitutional republic, because they belong "to the family of the lion, or the tribe of the eagle," who show the "towering genius" of an Alexnder, a Caesar, or a Napoleon.  

These three men overthrew republican governments and claimed the despotic dominance of imperial power for themselves.  Alexander subjugated all of Greece, including Athens, to the Macedonian Empire.  Julius Caesar had himself declared dictator perpetuo of Rome, with all the power of the Roman state concentrated in his person, which meant the collapse of the Roman Republic and the rise of the Roman Empire.  Napoleon Bonaparte overthrew the French Republic in 1804 when he crowned himself the "Emperor of the French."  In speaking about "the family of the lion, or the tribe of the eagle," Lincoln was probably referring to Napoleon:  in designing the heraldic insignia and the official badge of the Empire, Napoleon first chose the lion, but then he changed his mind and chose an eagle with spread wings, because the eagle "affirms imperial dignity and recalls Charlemagne," while also recalling Ancient Rome (Roberts 2014: 347-48).

Napoleon's hereditary Empire was a plebiscitary dictatorship.  In the plebiscite on the establishment of the Empire, the official vote count was 3,572, 329 votes in favor to 2,579 against.

So, Lincoln was warning his audience about the danger to American political institutions of liberty coming from the imperial ambition of an American Napoleonic dictator.  And he advised them that the only way to avoid this danger was for the American People to feel a "reverence for the laws"--for the Declaration of Independence and the Constitution and the laws--that would become "the political religion of the nation," so that the People would never allow a man of Napoleonic ambition to claim dictatorial powers unconstrained by the rule of law.

But then some readers of Lincoln's Lyceum Speech have suspected that Edmund Wilson was right in observing "that Lincoln has projected himself into the role against which he is warning them" (Wilson 1962: 108).  After all, as I have indicated in some previous posts, Lincoln was a man of expansive ambition.  "His ambition was a little engine that knew no rest," as William Herndon said.  As a young state legislator in Illinois, he often became miserably depressed, even suicidal, because he had not yet achieved the greatness that he yearned for.  Joshua Speed--one of Lincoln's best friends--reported to Herndon:

In the deepest of his depression, he said one day he had done nothing to make any human being remember that he had lived; and that to connect his name with the events transpiring in his day and generation, and so impress himself upon them as to link his name with something that would redound to the interest of his fellow-men, was what he desired to live for (Herndon's Life, 172, 422-23).

22 years later, shortly after Lincoln had signed the Emancipation Proclamation, he reminded Speed of this earlier conversation about his ambition for doing something great so that he would be remembered forever, and he told Speed: "I believe that in this measure, my fondest hopes will be realized."

And, indeed, anyone who has ever visited the Lincoln Memorial in Washington, DC, with the imposing statue of Lincoln and the Gettysburg Address and Second Inaugural Address carved into the marble walls, will have to wonder whether Lincoln foresaw this--the mythic grandeur of the Lincoln story--as the only way to satisfy his restless ambition.  Does this mean that he was moved by the Napoleonic ambition for glory, that he belonged to "the family of the lion, or the tribe of the eagle," against which he warned his audience in 1838 in Springfield?

But while Napoleon's ambition could only be satisfied by crowning himself an Imperial Dictator and thus overturning the French Republic, we might argue that Lincoln's ambition did not require that he become a lawless dictator and thus overturn America's Constitutional Republic.  Rather, his ambition was "to link his name with something that would redound to the interest of his fellow-men," which he did by saving the Union, emancipating slaves, and securing for America a "new birth of freedom."

And yet, many historians and law professors have said that Lincoln really did become a presidential dictator in the Civil War by acting outside the laws to prosecute the war (Arnhart 2016: 254-262).  The most commonly noted example of Lincoln's assumption of dictatorial powers outside the law was his suspension of the writ of habeas corpus and his defying a judicial order from Chief Justice Roger Taney declaring that such suspension of the writ was unconstitutional.  Suspension of the writ of habeas corpus is in effect a suspension of the most basic rights of individuals because it allows the government to arrest and detain individuals without the government giving any legal justification for this to a court of law.

But there is a good argument for saying that Lincoln never became a dictator because he acted within the constitutional framework of government, so that he was subject to the checks and balances coming from the Congress, the courts, and popular elections.  We can see that this was true for his suspension of the writ of habeas corpus if we study the case carefully enough to see exactly what happened, particularly in the case of John Merryman that provoked Chief Justice Taney.

After the election of Lincoln on November 6, 1860, the Southern states began debating secession from the Union.  South Carolina was the first to secede on December 20, 1860.  When the war began with the attack of South Carolina on Fort Sumter on April 12, 1861, seven states had seceded.  Virginia seceded on April 17.

When the war started, the U.S. Congress was out of session; and the military situation made it too dangerous for the Congress to come back into session.  So Lincoln had to take command in the war without congressional authorization. 

Washington, DC, was threatened by Confederate armies, disloyal state militias, irregular combatants, and disloyal civilians.  To secure the Capital, Lincoln ordered Union troops to proceed to Washington through Maryland, which was a border state that was deeply divided over the war.  Mobs in Maryland had attacked Union troops.  Bridges and railway lines had been destroyed.  And telegraph lines to the Capital had been cut.  On April 27, 1861, Lincoln issued an order to General Winfield Scott, the Commanding General of the Army, delegating authority to suspend habeas corpus to protect the movement of troops through Maryland. 

John Merryman, a resident of Baltimore, was suspected by military authorities of being involved with a militia group that had destroyed some bridges and railway lines.  At about 2:00 A.M., on Saturday, May 25, 1861, federal military authorities arrested him in his home, and he was locked up at Fort McHenry.  The next day--Sunday, May 26, 1861--Merryman's lawyers presented his habeas corpus petition to Chief Justice Roger Taney at his home in Washington.  Later that same day, Taney issued an ex parte order directing General George Cadwalader, who had command over the military district that included Fort McHenry, to appear the next day before Taney in a Baltimore court room, to explain the legal basis for Merryman's military detention, and to produce John Merryman at that hearing (Ex parte Merryman 17 F. Cas. 144 [C.C.D. Md. 1861] [No. 9487] [Taney, C.J.]).

The next day--Monday, May 27--Taney appeared at the designated Baltimore court room.  Cadwalader did not attend the hearing.  Instead, he sent his aide, Colonel R. M. Lee, who presented a written response from Cadwalader, who made four points.  First, the arrest of Merryman had not been made with his knowledge.  Rather, General William Keim had ordered Col. Samuel Yohe to make the arrest.  Second, Merryman was charged with various acts of treason in supporting the present rebellion against the government.  Third, the president had duly authorized his commanders to suspend the writ of habeas corpus.  Fourth, he requested that the Chief Justice postpone further action on this case until Cadwalader could receive instructions from the President as to how he should proceed.

Since Cadwalader had not produced the body of Merryman as instructed in his order, Taney issued an attachment for contempt of court against Cadwalader, which was to be delivered the next day by a U.S. Marshal.  The next day, the marshal reported back to Taney that when he arrived at Fort McHenry, he sent in his name at the outer gate, but a messenger came back to say that there was no answer to his request, and so he was not permitted to enter the gate.

Taney told the marshal that he had the power to summon a posse comitatus to help him seize Cadwalader and return him for punishment by fine and imprisonment.  But Taney observed, "the power refusing obedience was so notoriously superior to any the marshal could command," the marshal was excused from doing anything more.

Taney then delivered his opinion orally--that the President did not have the constitutional power to suspend the writ of habeas corpus, and therefore that Merryman is entitled to be set at liberty.  Taney elaborated his opinion in writing for delivery to the President, which was filed on June 1, 1861.

Taney cited the one clause in the Constitution that allows for the suspension of the writ of habeas corpus: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (Art. I, section 9, clause 2).  Taney argued that this had always been understood as a power belonging to the Congress rather than the President.  And the fact that this clause appears in the Legislative Article I, along with other congressional powers, should make it clear that this is a congressional power.

Moreover, Taney insisted that since the Congress had not suspended the writ, and since the President has a constitutional duty to "take care that the laws be faithfully executed," it is the President's duty "to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the Executive arm."  And so the President should assist the court in enforcing the writ of habeas corpus in the case of Merryman so that he can be released from detention.

Taney then concluded:

In such a case, my duty was too plain to be mistaken.  I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome.  It is possible that the officer who has incurred this grave responsibility, may have misunderstood his instructions, and exceeded the authority intended to be given him.  I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and under seal, to the President of the United States.  It will then remain for that high officer in fulfilment of his constitutional obligation, to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.

Lincoln's response to Taney came a month later in his Special Message to Congress of July 4, 1861.  This message was to a special session of Congress called by the President, the first meeting of the Congress since the start of the war in April.

Lincoln argued that the clause in the Constitution allowing the suspension of the writ of habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it" does not specify that this power belongs only to the Congress.  And the fact that it's designed for violent emergencies--"rebellion or invasion"--that might prevent the Congress from meeting, as was the case in April, it should be evident that often only the President will be in a position to act quickly to suspend the writ if the public safety requires this.  Thus, the Constitution allows either the President or the Congress to suspend the writ if the public safety requires this in a time of rebellion or invasion.

Lincoln's argument to Congress was persuasive enough that the Congress did not act to revoke his suspension of the writ.  A year later, the Congress enacted a law for the congressional suspension of the writ.

It has been common for scholars to say that Lincoln ignored or defied a judicial order from Taney to release John Merryman, and that this may be the only time that any president has refused to obey a direct judicial order of this kind.  This then would be a clear case of a president acting as a dictator in assuming power beyond or against the Constitution and the laws.

But this is a mistake.  Yes, Lincoln and Taney did disagree in their interpretation of the constitutional clause on suspending the writ.  Lincoln thought the Constitution allowed either the President or the Congress to suspend the writ under the specified circumstances--when the "public safety" requires it in response to "rebellion or invasion."  While Taney thought this power was reserved only to the Congress.

And yet it is a mistake to say that Lincoln ignored or defied Taney's judicial order to release Merryman.  This is a mistake because Taney's written opinion was not a judicial order for Lincoln (or anyone else) to do anything.  As Taney's opinion makes clear--particularly, in the last paragraph--he was recommending that Lincoln reconsider his suspension of the writ in the light of Taney's objections.  Taney directed the court's clerk to transmit a copy of his opinion to the President, but he did not order the President to do anything (Tillman 2016).

Taney's opinion of June 1st and Lincoln's Message to Congress of July 4th were both widely published in newspapers, which stimulated a prolonged public debate over the constitutionality of Lincoln's suspension.  And throughout that debate, Lincoln insisted that he was acting within the bounds of the Constitution and the laws, and therefore he was not acting as a lawless dictator.  At no point did Lincoln say that he had the dictatorial power to ignore or defy a judicial order from the Chief Justice of the Supreme Court.  (See Lincoln 1953: vol. 4, 426-441, 531-532; vol. 6: 262-269, 302-303, 428-429; vol. 8; 52, 100; Lincoln 1989: 250-261, 268-269, 455, 467, 501, 635-636, 641).

Now we are waiting to see if Trump will do what Lincoln never did--openly defy the courts in assuming dictatorial powers outside the Constitution that give him despotic dominance.

I will take that up next in my fourth (and final!) post on Trump's unitary executive theory, which will include a list of references for all four posts.

The Chimpanzee Politics of Trump's "Unitary Executive Theory," Part Two

 FDR, Nixon, Ford, and Reagan

In the 1930s, Franklin Roosevelt continued the expansion of federal administrative power that the Progressives had begun, but he also tried aggressively to bring that administrative apparatus under the control of a unitary executive.  For example, when he saw that a member of the Federal Trade Commission--William Humphrey--was impeding his New Deal policies, he repeatedly asked him to resign.  When Humphrey refused, Roosevelt fired him, even though he was serving a fixed term set by Congress with the legislative stipulation that he could be dismissed only for "inefficiency, neglect of duty, or malfeasance in office."  Roosevelt fired him for purely political reasons.

Roosevelt also proposed to the Congress a plan for reorganizing the executive branch to concentrate control in the office of the president.  The plan included abolishing the Civil Service Commission and moving the independent regulatory commissions into the regular executive departments.

Both the Supreme Court and the Congress rebuffed Roosevelt's efforts to strengthen the unitary executive.  In Humphrey's Executor v. U.S. (1935), the Court ruled that Roosevelt's firing of Humphrey was illegal because officials of quasi-legislative or quasi-judicial agencies established by Congress could only be removed for the nonpartisan reasons set by Congress.  (Recently, Trump's Acting Solicitor General Sarah Harris has notified Congress that the Department of Justice will ask the Supreme Court to overturn Humphrey's Executor as an unconstitutional constraint on the President's executive power to fire anyone in the executive branch.)

The Congress rejected Roosevelt's plan for reorganizing the executive branch.  The Congress did pass a compromise plan that gave the President only limited authority to reorganize the executive branch on his own.

Another attempt to expand presidential power over the executive branch was initiated by Richard Nixon.  He entered the White House in 1969 as a conservative Republican facing a Congress controlled by the liberal Democrats and surrounded by administrative institutions that had been recently expanded by Lyndon Johnson's Great Society programs.  The Democrats controlled both Houses of Congress throughout Nixon's two terms.  He resented the administrative state as an impediment to his presidential leadership.  He insisted: "I don't believe that civil service is a good thing for the country."  He tried to push his political loyalists deep into the federal bureaucracy.  He impounded funds appropriated by Congress when this congressional spending was contrary to his own policies.  When he won reelection by a landslide in 1972, he argued that this showed a popular mandate for the expansion of his presidential power over the bureaucracy.  In trying to establish what Richard Nathan (1975) called an "Administrative Presidency," Nixon was foreshadowing what Trump is trying to do right now.

But all of this was brought to an end by the Watergate scandal and by the exposure of Nixon's attempts to cover-up the White House's involvement in the Watergate burglary, the exposure coming from a secret informant in the executive branch (called "Deep Throat") who passed information to reporters for the Washington Post.  Nixon was forced to resign in 1974 to avoid being impeached by Congress.  Many of the people involved in the Watergate burglary and cover-up were sent to prison.

Congressional revulsion with the Watergate scandal and everything surrounding it spurred Congress into enacting a long series of laws over the next fifteen years designed to constrain administrative presidentialism and increase congressional oversight of the executive branch.  This included laws establishing an Inspector General in many executive departments and agencies.  The Inspector General was granted investigatory powers to look for waste, fraud, and abuse of power, with responsibilities to report to Congress regularly.  (On January 24 of this year, Trump fired 17 IGs by email in violation of the legal requirement that the president give Congress a 30 day advance notice.)

The Congress also passed laws giving protection to whistleblowers, so that civil servants can alert Congress to wrongdoing without fear of being punished by their supervisors.

The Ethics in Government Act of 1978 allowed for the creation of independent prosecutors to investigate and prosecute abuses of executive power.

Coming in the wake of the Watergate scandal, these new congressional restraints on executive power provoked the elaboration of a unitary theory of the executive, beginning in the administration of Gerald Ford and continuing in Ronald Reagan's administration.  Ford felt particularly vulnerable because he came into office after Nixon's resignation without ever having run for the presidency, so he could not claim the authority of having won a popular election.  His only line of defense was to appeal to the power of the presidency as established in Article II of the Constitution to be separated from the legislative and judicial powers.  Ford's advisors--such as Dick Cheney, Donald Rumsfeld, and Antonin Scalia--urged him to interpret Article II as a broad grant of power to the presidency that could resist congressional interference in the Executive Branch (Shane 2006).

Scalia had been nominated by Nixon to be Assistant Attorney General for the Office of Legal Counsel.  He was nominated again by Ford and confirmed shortly after Ford took office.  One of his first acts was to advise Ford to veto some amendments to the Freedom of Information Act because they would infringe the power of the President to protect the secrecy of classified information in the intelligence agencies and the FBI.  Congress overrode the veto by a vote of 371 to 31 in the House and 65 to 27 in the Senate.  This was one of many examples of the Congress's aggressive attacks on the prerogatives of the President.  Scalia repeatedly testified before Congress defending Ford's invocation of executive privilege in withholding documents from Congress.

This battle between Congress and the President was renewed during Reagan's two terms.  When congressional Democrats used their power to impede Reagan's agenda, Republican legal thinkers began looking for ways to interpret the Constitution as giving Reagan the power as president to achieve his goals without congressional approval.  They developed the unitary executive theory to support the claim that Article II of the Constitution gave the President the exclusive power over the Executive Branch that could not be constrained by Congress.

This became one of the ideas advanced by the conservative legal movement that emerged during Reagan's presidency as led by the Federalist Society, which was founded in 1982.  Scalia was one of the founding leaders of the Federalist Society.  His career as a federal judge began when Reagan appointed him to the U.S. Court of Appeals for the D.C. Circuit in 1982.  Then, in 1986, Reagan appointed Scalia to the Supreme Court.  Two years later, he wrote his dissenting opinion in Morrison v. Olson, which became the classic statement of the unitary executive theory.

Morrison v. Olson

The case of Morrison v. Olson (1988) presents the question of the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978.  When this law was passed, the Democrats controlled both Houses of Congress and the Presidency (Carter).  The purpose of the law was to allow for the appointment of special prosecutors who would be independent of the President in investigating and prosecuting high-ranking government officials for violations of federal criminal laws, which could include the President himself.  

This law was passed to prevent something like President Nixon's "Saturday Night Massacre" of October 20, 1973.  Over this one day, Nixon ordered Attorney General Elliot Richardson to fire Watergate Special Prosecutor Archibald Cox, but Richardson refused and resigned immediately.  Nixon then ordered Assistant Attorney General William Ruckelshaus to fire Cox.  But Ruckelshaus also refused and resigned.  Finally, Nixon issued his order to the third ranking person in the Department of Justice--Solicitor General Robert Bork--who carried out the order and did not resign.  The public outcry against this made it the turning point in the Watergate scandal.  The impeachment process began ten days later.  Leon Jaworski was appointed as the new Special Prosecutor on November 1.  Nine months later, Nixon was forced to resign on August 8, 1974.

As required by the Ethics in Government Act, whenever the Attorney General receives information about the possibility that a high government official has violated a Federal criminal law, he must investigate this and report his findings to a special court called the Special Division, which consists of three circuit court judges or justices appointed by the Chief Justice of the United States.  If the Attorney General determines that there are "no reasonable grounds" to believe that further investigation is warranted, then the Special Division has no power to appoint an independent counsel.  But if the Attorney General decides that there are "reasonable grounds" for an investigation, then he must apply to the Special Division for an appointment of an independent counsel; and the Special Division must then appoint an appropriate person as the independent counsel.

An independent counsel can be removed from office either by impeachment and conviction by Congress or by the Attorney General but "only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties."

The Ethics in Government Act also provides for congressional oversight of the independent counsel.  The Act gives certain congressional committee members the power to request that the Attorney General apply for the appointment of an independent counsel, but the Attorney General can turn down this request if he determines that "there are no reasonable grounds to believe that further investigation or prosecution is warranted."  Once an independent counsel is appointed, the "appropriate committees of Congress" are given oversight jurisdiction over the official conduct of the independent counsel, who is required to cooperate with Congress in the exercise of his jurisdiction.

The case of Morrison v. Olson illustrates how this Act works in practice.  In 1982, two Subcommittees of the House of Representatives issued subpoenas directing the Environmental Protection Agency to produce certain documents related to the enforcement of the "Superfund Law."  Acting on the advice of the Department of Justice, President Reagan ordered the Administrator of the EPA to invoke executive privilege to withhold certain documents.  Eventually, the administration agreed to give the House Subcommittees limited access to the documents.

In 1983, the House Judiciary Committee began an investigation into the role of the Department of Justice in this controversy over the EPA documents.  In 1985, the majority members (Democrats) of the Judiciary Committee published a report on the investigation, which included the charge that Theodore Olson, the Assistant Attorney General for the Office of Legal Counsel, had given false and misleading testimony under oath to Congress, which is a federal crime.  This report was sent to the Attorney General (Edwin Meese) with a request that he seek the appointment of an independent counsel to investigate charges against Olson and two others in the Department of Justice.  The Attorney General decided to ask for that appointment.  In 1986, the Special Division appointed Alexia Morrison as the independent counsel.

In 1987, Morrison caused a grand jury to issue and serve subpoenas on Olson and the other two being charged.  Olson and the other two moved in Federal District Court to quash the subpoenas, claiming that the Act's independent counsel provisions were unconstitutional and therefore that Morrison had no authority to proceed.  The Federal District Court upheld the Act's constitutionality.  But the Court of Appeals reversed, holding that the Act violated the Appointments Clause of the Constitution, Art. II, sec. 2, cl. 2; the limitations of Art. III; and the principle of separation of powers by interfering with the President's authority under Art. II.

In an 7-1 decision, the Supreme Court upheld the constitutionality of the Act, with Chief Justice William Rehnquist writing the opinion of the Court.  Justice Kennedy did not take part in the case.

The majority gave three reasons for their decision.  First, the Act does not violate the Appointments Clause in vesting the appointment of independent counsel in the Special Division, because Olson and the other two being charged are "inferior" officers for the purposes of the Clause, which states that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Second, the powers vested in the Special Division do not violate Article III, because the power to appoint independent counsel derives from the Appointments Clause, which is a source of authority for judicial action that is independent of Article III.

Third, the Act does not violate separation of powers by improperly interfering with the functions of the Executive Branch, because while the legislative, executive, and judicial powers are separated, they cannot be totally separate and distinct from one another--checks and balances require "a partial mixture of powers" (as Madison explained in Federalist Number 47).

Scalia's Dissent

Remarkably, Scalia was the only dissenter in this case.  His dissent was also remarkable because he was disagreeing with Rehnquist despite the fact that Rehnquist and Scalia agreed in their conservative ideology and their conservative jurisprudence of originalism.  

Scalia's dissent proved remarkable in another way--in that it became the most influential statement of the theory of the unitary presidency, so influential that in recent years, the conservative justices on the Roberts Court have adopted his arguments, to the point that some observers of the Court are predicting that the Court will appeal to Scalia's theory of the unitary presidency in upholding Trump's dictatorial view of his presidential powers.

But I see Scalia's dissenting opinion in Morrison as clear evidence that Scalia was a spurious originalist:  despite his insistence that he always followed the original meaning of the law--both in the Constitution and in statutory law--his dissenting opinion ignores the original meaning of the constitutional text, and he rewrites the text by adding his own words, so that it appears to support his ideological commitment to the unitary presidency.

This is evident in his primary argument about the meaning of Article II, sec. 1, cl. 1, of the Constitution: "The executive Power shall be vested in a President of the United States."  Scalia insists: "this does not mean some of the executive power, but all of the executive power," and therefore the President must have complete control over the entire Executive Branch, and neither the Congress nor the courts can ever exercise any kind of executive power.  

The powers of an independent prosecutor are clearly executive powers, and therefore the President must have total control over the appointment and removal of an independent prosecutor.  Consequently, the Ethics in Government Act is unconstitutional in insulating an independent prosecutor from the power of the President.  (By implication, then, Scalia was arguing that Nixon's ordering the firing of Cox as Special Prosecutor was a constitutional exercise of his presidential power over the Executive Branch.)

All of this depends on Scalia's claim that the vesting of the executive power in the President means "all of the executive power."  He repeats this five times in his opinion, and in three of those, he italicizes the word all (705, 709, 715, 729, 734).  But notice that the word all does not appear in the executive vesting clause: "The executive Power shall be vested in a President of the United States."

As some constitutional commentators have noted, the Constitution uses the word "all" eleven times to denote exclusivity or indefeasibility (Shugerman 2022).  For example: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives" (Art. I, sec. 1).  It also uses the words "exclusive" (2 times), "sole" (2 times), and "alone" (1 time) to denote exclusivity or indefeasibility.  For example: "The House of Representatives . . . shall have the sole Power of Impeachment" (Art. I, sec. 2, cl. 5).

Clearly then, if the constitutional framers had wanted to vest the executive power exclusively or indefeasibly in the President, they would have used one of these words.  But they did not.  Scalia is silent about this.

He is also silent about the Constitution's grant of the supreme powers over the national government to the Congress.  The Congress is given various enumerated powers that include some executive powers that had belonged to the British monarch such as the power to declare war (Art. I, sec. 8).  But the Congress is also given the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" (Art. I, sec. 8, cl. 18).  Notice what this means:  Congress has the power to make all the laws for the execution of all the powers vested in the government of the United States.  So the execution of all the powers of every department or officer in the Executive Branch will depend upon congressional legislation.  For example, the existence of the Department of Justice and its officers will be determined by congressional legislation.

That this congressional power over the Executive Branch includes the legislative procedures for appointing executive officers is made clear by the Appointments Clause:  

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Art. II, sec. 2, cl. 2.

In the preceding clause, the Constitution stipulates that the President "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices."  So the Constitution distinguishes between "principal officers," who are nominated by the President and confirmed by the Senate, and "inferior officers," whose appointment is vested by Congress in the President alone, in the courts, or in the Heads of Departments.  Distinguishing between the "principal officers" and the "inferior officers" is mostly left up to the Congress.  Therefore, in the Ethics in Government Act, the Congress exercised its constitutional power to vest the appointment of an independent prosecutor as an inferior officer in the Special Division as a court of law.

This supports Rehnquist in his only comment on Scalia's dissenting opinion.  "The dissent says that the language of Article II vesting the executive power of the United States in the President requires that every officer of the United States exercising any part of that power must serve at the pleasure of the President and be removable by him at will."  But this "depends upon an extrapolation from general constitutional language which we think is more than the text will bear."  So, Scalia is not really a textualist after all.  Because the text of the Constitution--particularly, the Appointments Clause--clearly gives to Congress the power to limit and regulate the removal of inferior officers by such laws "as they think proper" (689-90).

But despite this clear language of the constitutional text that supports the constitutionality of the Ethics in Government Act, Scalia insisted that the Act was unconstitutional because it violated the constitutional principle of separation of powers.  Now, the words "separation of powers" never appear in the text of the Constitution.  Nevertheless, the mere fact that the Constitution begins with the Legislative Article I, the Executive Article II, and the Judicial Article III suggests the separation of these three powers.  And yet Scalia is clearly wrong in assuming that this requires a complete and absolute separation because the Constitution stipulates some mixing of the three powers.  For example, the President's power to veto legislation passed by Congress is a legislative power.  And the Congress controls the Executive Branch by legislatively creating and regulating most of the executive offices and departments.

To prove that the constitutional separation of powers really does require a complete and absolute separation of the three powers, Scalia begins his opinion by quoting a passage from the Massachusetts Constitution of 1780:

In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

Scala then cites James Madison's Federalist Number 47 as endorsing this "political truth" of the separation of powers as necessary for securing liberty.  Scalia does not tell his reader, however, that just after quoting this passage from the Massachusetts Constitution about separation of powers, Madison remarks: "In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted" (Hamilton, Madison, and Jay 1961: 327-28).  Madison saw this as confirming what Montesquieu and other proponents of the separation of powers have always understood--that checks and balances require some "partial mixture of powers" so that each power can check the other two powers.

That's why the Constitution's vesting of the executive power in the President is not an exclusive or indefeasible vesting of all executive power in the President alone.

But even if the executive vesting clause of the Constitution (the first sentence of Article II) does not support the theory of the unitary executive.  The proponents of the unitary executive can fall back to two more arguments based on the Faithful Execution Clauses of Article II and the "Decision of 1789."

The Constitution twice imposes a duty of faithful execution on the President.  He "shall take Care that the Laws be faithfully executed" (Art. II, sec. 3).  The president must also take a special oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States" (Art. II, sec. 1, cl. 8).  According to the advocates of the unitary presidency, one or both of these clauses give the president the power to act outside the law to defend the nation in times of emergency, and to refuse to execute statutory laws that he regards as unconstitutional or bad policy.

But scholars who have studied the textual roots of these clauses from medieval England, through colonial America, and up to the constitutional ratification debates have found that this language of "faithful execution" imposed three duties on officeholders: "(1) a duty not to act ultra vires, beyond the scope of one's office; (2) a duty not to misuse an office's funds or take unauthorized profits; and (3) diligent, careful, good faith, honest, and impartial execution of law or office" (Kent, Leib, and Shugerman 2019: 2112).  If this is the original meaning of "faithful execution," then the proponents of the unitary executive are wrong to claim that this language gives the President the power to violate the laws of Congress and the Constitution.

And yet there is still another argument for the unitary executive that appeals to what has been called the "Decision of 1789."  In Seila Law LLC v. Consumer Financial Protection Bureau (2020), the majority of the Roberts Supreme Court declared that the tenure protection for the Director of the CFPB--the President could remove him only for "inefficiency, neglect of duty, or malfeasance in office"--was an unconstitutional violation of the separation of powers.  In their reasoning for this conclusion, they largely adopted Scalia's arguments in his Morrison dissent.  They claimed that the President's unrestricted removal power was confirmed by history--particularly in the decision of the First Congress in 1789 recognizing that "the executive power included a power to oversee executive officers through removal" (Seila L., 140 S. Ct. at 2183, at 2197 [2020]).  The only evidence they gave for this was a Letter from James Madison to Thomas Jefferson (June 30, 1789).

But scholars who have studied the records of the debates in the First Congress (1789-1790) have found that the majority in the House and Senate never agreed that the Constitution gave the President an unrestricted removal power.  After a long debate, the First Congress did ultimately allow the President a unilateral removal power over the Secretaries of Foreign Affairs, War, and Treasury.  But while a small minority seemed to believe that this grant of removal power came from Article II of the Constitution, many in the Congress believed this to be a congressional grant of removal power (Chabot 2022; Shugerman 2023).  The reason for this disagreement is that the Constitution is silent on this question: assigning the President a plenary removal power appears nowhere in the Constitution.

There were at least four factional groups in the debate in the First Congress over the removal power.  The "impeachment only" faction believed that the only constitutional power for removing executive officers was congressional impeachment.  The "senatorial" faction believed that since the Constitution required the President's appointments to be approved by the Senate, this implied that the President's decision to remove a superior officer would have to be approved by the Senate.  The "congressional" faction believed that any removal power of the President would have to be delegated to him by the Congress, and thus it was a matter of discretion for the Congress to say upon what terms an office could be held.  And, finally, the "presidential" faction believed that the President's removal power was implicitly given to him by Article II of the Constitution.

There is some evidence that these disagreements over the interpretation of the Constitution arose from different individuals having different political agendas.  So, for example, those individuals whose political careers might be tied to President Washington's administration might argue for expansive presidential powers.

The First Congress Established Independent Regulatory Structures

In his dissent, Scalia asserted: "It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President.  The Constitution prescribes that they all are" (709).  The First Congress did not agree to this claim--that all the executive powers of government are "within the full control of the President."  The clearest evidence for their rejecting this claim is that the Congress established many independent regulatory structures in the Executive Branch that were insulated from "the full control of the President."

Consider, for example, the Sinking Fund Commission that was established by Congress in 1790.  "Like the Federal Reserve, the Commission conducted open market purchases of U.S. securities with substantial independence from the President" (Chabot 2020: 1).  Contrary to what Scalia claimed, the American Founders in the First Congress did not believe that Article II of the Constitution required that the Sinking Fund Commission should be under the "full control of the President."

In 1790, the Congress asked Alexander Hamilton (the Secretary of the Treasury) to devise a plan to repay the nation's debt.  He submitted a report that outlined a plan for refinancing state and federal debts.  Part of that plan was a proposal was a sinking fund that would repay debt through open market purchases of U.S. securities.  He proposed that this sinking fund would be administered by a Sinking Fund Commission of five members--the Vice President of the United States or President of the Senate, the Speaker of the House of Representatives, the Chief Justice, the Secretary of the Treasury, and the Attorney General of the United States.  Three or more of these five could decide to discharge public debt through open market purchases of U.S. securities.  

This executive agency was almost completely independent of the President.  He could not directly determine their decisions.  He had the power of removal over the two cabinet members--the Secretary of the Treasury and the Attorney General.  But the other three members could not be removed by the President.

On August 12, 1790, the First Congress passed the Sinking Fund Act, which was an altered version of Hamilton's plan.  The Sinking Fund Commission had five members: the Vice-President (John Adams), the Chief Justice (John Jay), the Secretary of State (Thomas Jefferson), the Secretary of the Treasury (Alexander Hamilton), and the Attorney General (Edmund Randolph).  Purchases required the agreement of three or more of the five members and the approval of the President.

While Hamilton's proposal would have made the Commission completely independent of the President, the alterations made by Congress gave the President more but not complete power over the Commission.  The President could not force his will onto the Commission, although he could veto their decisions by withholding his approval.

Three features of the independent structure of the Commission allowed the members to check the President and check one another rather than simply carrying out the will of the President.  First, two of the members--the Vice President and the Chief Justice--could not be removed or replaced by the President.  This violates the unitary presidency, which requires that executive officers be removable at the pleasure of the President.  Second, the President could not force the Commission to obey his commands by removing a cabinet member, because then the deciding third vote would go to the Vice President or the Chief Justice, who are both independent of the President.  Third, the multimember structure of the Commission prompted the members to check one another instead of carrying out the wishes of the President.  Indeed, Jefferson and Hamilton were already political rivals by 1790; and they often disagreed about the Commission's decisions.

The Sinking Fund Commission is only one of many examples of how the First Congress created independent regulatory structures in the Executive Branch that were not under the complete control of the President, which contradicts the unitary executive theory.  Christine Kexel Chabot (2022) has found 71 examples of statutory provisions in the work of the First Congress that create independent executive structures that foster countervailance--power checking power--beyond the control of the President.

Some of these statutory provisions require multiple officers to check each other.  For instance, in the Treasury Act of September 3, 1789, we see: "Officers in the Treasury Department retained financial incentives to turn in other officers who obtained any extralegal 'emolument or gain for negotiating or transacting any business' of all the Department.  Treasury officers who provided 'information' leading to conviction of their peers were entitled to a $1500 share of penalties" (Chabot 2022: 199).

Other statutory provisions enlisted private parties and judges to police executive officers.  For instance, in the Collection Act of July 31, 1789, we see: "Private informers could recover bounties upon conviction of customs officers.  The award to private informers applied in 'all cases' where amounts were recovered 'in pursuance of information given' by the informer" (Chabot 2022: 201).

These laws enacted by the First Congress dispersed executive decisions amongst multiple officers in ways that created a system of checks and balances within the Executive Branch, which denies Scalia's claim that "all" the executive powers must be under the full and direct control of the President

Here and in the previous post, I have argued that to understand the evolutionary science of government through countervailing or balanced powers, we need to understand the natural history and cultural history of governmental countervailance.   

But we also need to understand the biographical history of the individuals who debate the meaning of separation of powers with checks and balances.  That will be the subject for my next post on how the individual history of Scalia and Trump shaped their commitment to the unitary executive theory.

The Chimpanzee Politics of Trump's "Unitary Executive Theory" of Demagogic Tyranny

                                                         "You're Fired!"  By Barry Blitt

"If the President does it, that makes it legal."

"I have an Article II, where I have the right to do whatever I want as president."  

"He who saves his country violates no law."

That first sentence is a remark by Richard Nixon in an interview with David Frost in 1977.  This was three years after Nixon had been forced to resign to avoid impeachment for crimes associated with the Watergate break-in.  Nixon went on to explain to Frost that "in war time, a President does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution." I have written about this as an example of a president claiming the executive prerogative powers of a dictator (Arnhart 2016: 254-262).

The next two sentences are from Donald Trump.  That's what Trump says when he is accused of illegal actions in exercising presidential power.  

The third sentence has been attributed to the French Emperor Napoleon Bonaparte, and it suggests the idea that in a time of national emergency or war, the national leader must have absolute power to do whatever he thinks is necessary to save the country.  

In the second sentence, Trump is referring to the "unitary executive theory," which says that Article II of the Constitution gives the President complete power over the Executive Branch, and therefore any congressional legislation regulating or limiting that executive power of the President is unconstitutional.  So, for example, the President may rightly disregard any congressional laws that set up independent agencies outside of presidential authority or laws restricting the president's power to remove employees within the executive branch.  This theory is what justifies everything that Trump and Elon Musk have been doing to take control of the federal government, even though much of this violates federal law.

The unitary executive theory is based largely on an interpretation of the first sentence of Article II: "The executive Power shall be vested in a President of the United States of America."  The claim is that this sentence vests all of the executive power solely and exclusively in the President.  And, therefore, the Congress cannot deny or restrict the President's absolute power over the entire Executive Branch--all of the Federal administrative agencies and departments and all of the three million civilian employees (including the USPS employees) and 1.3 million active-duty military employees.

Moreover, it is argued that this follows necessarily from the principle of the separation of powers.  To prevent the tyranny that would come from one or a few people having too much concentrated power, the executive, legislative, and judicial powers must be strictly and completely separated.  And that means that in the government of the United States, the Congress and the courts must never exercise any executive powers, which belong only to the President.  Consequently, President Trump in the exercise of his executive powers can do whatever he wants.

It is also argued that the President has the authority to act as the one supreme leader of the government because he is the only person who has been elected by the American people in a national election to fill the Office of the President at the head of the government.  This allows a popular demagogue like Trump to say he must be free to do whatever he wants to fulfill his mandate from the people.

It is likely that the U.S. Supreme Court will soon have to decide whether this unitary executive theory as expansively interpreted by Trump is correct.

There are at least three reasons for thinking that the Supreme Court should rule that the proponents of this theory are mistaken.  First, their interpretation of Article II--and particularly, the vesting clause--violates the original meaning of the constitutional text.  This is remarkable since the advocates of this theory claim to be constitutional originalists who look for the clear meaning of the text as it was written by the constitutional framers in 1787 and ratified in 1789.

Second, the proponents of this theory fail to see that the principle of separation of powers with checks and balances does not dictate a complete separation of powers because securing a balanced government requires some partial mixing of those powers, and this was understood by the constitutional framers.

Third, the proponents of this theory do not grasp how the balancing of powers through a partial mixing of those powers is the only way to prevent a demagogic president like Trump from becoming a tyrant.  The Founders saw this threat to liberty from a Caesaristic demagogue like Trump when they warned "that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying obsequious court to the people; commencing demagogues, and ending tyrants" (The Federalist, number 1).

In explaining these three points, I will show how the need for the balancing of powers in government to check the tyrannical propensities of ambitious demagogues is rooted in the evolutionary history of the human beings.  I will move through three levels of biopolitical history: the natural history of the "chimpanzee politics" of dominance hierarchies, the cultural history of using a constitutional balance of powers to steer the ambitious striving for dominance away from tyranny, and the biographical history of ambitious individuals looking for ways to satisfy their desire for dominance (Arnhart 2009; 2012).  (I will link to previous posts that elaborate some of these ideas.)

We should see that there is a complex co-evolutionary interaction between these three levels of evolutionary history.  Natural history enables and constrains, but does not determine, cultural history.  Natural history and cultural history jointly enable and constrain, but do not determine, biographical history.  Shaped by their social and personal history, individual political actors must decide how best to satisfy their peculiar ambition for political power within the contingent circumstances that they face.

NATURAL HISTORY

Human politics is rooted in an evolutionary history of power-seeking and rivalry for dominance shared with other primates--monkeys and apes.  Frans de Waal found that Niccolo Machiavelli's Prince was the one book that most helped him understand the complex political life of chimpanzees.  Machiavelli analyzed politics as competition for power and glory organized around three orders of human beings--the "prince," who is number one, the "great ones," who are high-ranking individuals with ambition to rule; and the "people," who are the majority of individuals in a society with no ambition to rule, but who do not want to be oppressed by the "prince" or the "great ones."

Just as Machiavelli saw a balance of power as the fundamental mechanism for maintaining a stable political order that would not be despotic, de Waal saw a similar mechanism at work among chimpanzees.  Noticing how the alpha male often had to rely on the support of an ally to keep challengers down, de Waal explained this as a "balance of power: the superiority of one party over another depends on the support of a third, so that each party affects the position of the others."

Although every human society shows an order of dominance, a well-balanced society can achieve egalitarian dominance rather than despotic dominance.  De Waal observed that rhesus monkeys manifest despotic dominance, because a dominant rhesus monkey instills unremitting fear in subordinates.  But among chimpanzees, the dominant chimp often acts to protect subordinates, and if he becomes a bully, he can provoke an alliance of subordinates to throw him out of power.  Something similar seems to happen in egalitarian human communities.

Among human hunter-gatherers, the few people who are ambitious to rule can become leaders; but leaders who become too proud are attacked with social ridicule, and in extreme cases, leaders can be deposed or even executed by their followers.  Christopher Boehm argued that this supported an evolutionary political psychology of dominance, deference, and counter-dominance.  A few human beings who are ambitious for dominance will fight with one another for the highest social ranking.  Most human beings will defer to these dominant few.  But if the few dominant ones become too oppressive in exploiting the multitude, the people will resist and perhaps even overthrow the dominant ones.

CULTURAL HISTORY

Beginning with the emergence of the first archaic states about 5,000 years ago, power became ever more centralized and concentrated in a bureaucratic state under a ruling class of priests and kings that was inclined to autocratic tyranny.  When that despotic dominance became oppressive, it could provoke popular resistance and rebellion.

In this autocratic form of government, all power is concentrated in a few people or even one person with supreme sovereignty.  By contrast, some societies have had a balanced form of government, in which power is divided between independent entities that check and counterbalance one another in a system of countervailance with no supreme sovereignty.

The predominance of these two principles of government--sovereignty versus countervailance--in the cultural history of governments over the past 5,000 years suggests that despite the great diversity in the forms of government, these two principles identify the two basic models of social organization.  According to the model of sovereignty, the authority to command is hierarchically structured with the supreme power at the top.  According to the model of countervailance, the authority to command is distributed across a network of independent powers--so that power controls power--and there is no supreme power.

Scott Gordon--in Controlling the State: Constitutionalism from Ancient Athens to Today--has sketched the cultural history of these two models from Athenian Democracy and the Roman Republic to American constitutionalism and modern Britain.  He coined the word "countervailance" to denote the counterbalancing of powers in a social system.  Although the Oxford English Dictionary does not recognize the word "countervailance," it does recognize "countervailing" as a noun, a verb, and an adjective.

Gordon's two models correspond roughly to what David Stasavage calls "autocracy" and "democracy."

The Balanced Republic of the Founders

The American Founders clearly chose the model of countervailance, although they identified this not as a pure "democracy," but as a "republic" with a balance of powers.  As early as 1775, when the revolutionaries were first discussing what the new American constitutionalism should look like, John Adams proposed:

The Course of Events, naturally turns the Thoughts of Gentlemen to the Subjects of Legislation and Jurisprudence, and it is a curious Problem what Form of Government, is most readily and easily adopted by a Colony, upon a Sudden Emergency.  Nature and Experience have already pointed out the Solution of this Problem, in the Choice of Conventions and Committees of safety.  Nothing is wanting in Addition to these to make a compleat Government, but the Appointment of Magistrates for the due Administration of Justice.

Taking Nature and Experience for my Guide I have made the following Sketch, which may be varied in any one particular an infinite Number of Ways, So as to accommodate it to the different, Genius, Temper, Principles and even Prejudices of different People.

A Legislative, an Executive and a judicial Power, comprehend the whole of what is meant and understood by Government.  It is by balancing each of these Powers against the other two, that the Effort in human Nature towards Tyranny, can alone be checked and restrained and any degree of Freedom preserved in the Constitution (Letter to Richard Henry Lee, November 15, 1775).

What Adams calls "Nature and Experience" is what I call natural history and cultural history.  The natural evolutionary history of the human species explains "the Effort in human Nature towards Tyranny," and the cultural history of balancing the three powers of government shows us how to check and restrain that natural tendency to tyranny and preserve freedom from tyranny.  But then at the individual level of history, Adams recognizes that his sketch for a constitution, which he elaborated in his Thoughts on Government in 1776, will have to be accommodated "to the different, Genius, Temper, Principles and even Prejudices of different People" in constitutional and ratifying conventions.

Adams and the other Founders generally agreed on a form of government that would balance the three powers--legislative, executive, and judicial--so that "ambition must be made to counteract ambition," and none of the three powers could become tyrannical (Federalist, number 51).  But they were unsure of how the presidency should be designed to fit into this scheme of balanced government.  At the Constitutional Convention of 1787, Alexander Hamilton proposed a presidency that looked like an elective monarchy.  But others wanted the president to be constrained by an executive council of people because they feared giving all the presidential powers to one person.

Once they agreed to give the presidential powers to one person, they worried about how he would be selected.  They did not want a national popular election of the president because they feared that the people would choose a popular demagogue who would lead a party faction contrary to the public good.

They devised a complicated indirect system of selection through the Electoral College.  They were confident that "the process of election affords a moral certainty that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications," that the "talents for low intrigue, and the little arts of popularity" would not elevate a man to the presidency, and that "there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue" (Federalist, number 68).  

This was a mistake, perhaps the single biggest mistake in the Constitution.  Within the first ten years of the government, the selection of the president came under the control of two intensely partisan political parties.  And within fifty years, most of the state legislatures had handed over the selection of presidential electors to popular vote.

Republican Remedies for Presidential Democracy

From the beginning, presidents persistently claimed presidential control of the executive branch, which would support the idea of a unitary executive at the head of a presidential government (Calabresi and Yoo 2008).  But beginning in the 19th century, the cultural history of the American state shows the emergence of various extraconstitutional contrivances for constraining presidentialism in favor of republican balancing, which Skowronek, Dearborn, and King (2021) have called "republican remedies" for presidential democracy.

For example, early in the 19th century, Congress controlled presidential nominations: the congressional party selected the national candidates and then coordinated the local electors in supporting the candidates.  By the middle of the 19th century, local party bosses controlled the nomination of candidates.  And presidents were expected to hand out jobs in the executive branch to all the factions of their party.

By the turn of the 20th century, Progressive reformers attacked this control of the executive branch by the spoils system.  They set out to render executive administration nonpartisan by providing civil service protections for the government workforce and by establishing various independent regulatory commissions that were largely insulated from presidential control.

To be continued . . .

Democracy and Autocracy Among the North American Indians

I have written some posts about how John Locke studied the history of government among the American Indians.  From his reading of Jose de Acosta and Gabriel Sagard, he learned that there were at least three stages in the evolutionary history of government in Indigenous America.  

First, among the pure hunter-gatherer Indians, there were no formal governmental institutions, but there were informal leaders selected by the people of each band to mediate disputes and to lead them in war.  Second, among the horticultural tribes, there was a government by councils, in which leaders would have to win the consent of the council members for any decision.  In these first two stages, people enjoyed the freedom that came from government by popular consent that looked like a kind of democracy.

Acosta's third stage was that of autocratic monarchy or empire--like that of the Incas or the rule of Montezuma in Mexico.  Originally, this was a "moderate rule" that is the best, in which the kings and nobles acknowledged that their subjects were "equal by nature and inferior only in the sense that they have less obligation to care for the public good."  But later this monarchic rule became tyrannical as the rulers treated their subjects as slaves and treated themselves as gods (Acosta, 346, 359, 402).

This political history of the American Indians confirms David Stasavage's claim that both democracy and autocracy are natural but not inevitable in human history.

Recently, there have been two general histories of the North American Indians--Pekka Hamalainen's Indigenous Continent: The Epic Contest for North America and Kathleen DuVal's Native Nations: A Millenium in North America.  And they both provide further confirmation for this political history of the American Indians as moving from democracy to autocracy and then back to democracy.

The ancestors of the first people to settle North America came from Upper Paleolithic populations in Siberia and East Asia.  As early as 30,000 years ago, or as late as 14,000 years ago, they migrated into North America by crossing the Bering Land Bridge, and then they probably traveled by boat along the west coast of North America, until some of their descendants reached South America within a few thousand years (Raff 2022).

For thousands of years, these first American Indians lived as egalitarian hunter-gatherer-fishers in bands with informal leaders whose power depended on persuasion rather than coercion.

Somewhere between nine and six thousand years ago, people in the Mesoamerican highlands domesticated corn from the wild grass teosinte.  By 1500 BCE, there is evidence for the systematic cultivation of corn and agrarian village settlements.

Through trading networks, corn seeds from Mesoamerica reached the North American Southwest around 2000 BCE.  Through a long history of domestication, corn evolved into the maiz de ocho variety.  And by 500 CE, farmers were growing beans and squash along with maiz de ocho.  These three domesticated plants became the staples for food production in North America.

A climate shift brought rising global temperatures around 900 CE (the Medieval Warm Period), which lengthened growing seasons and supported more intensive and systematic farming.  Eventually, this allowed for the emergence of cities with centralized power structures (Hamalainen 2022: 12-19).

In North America, the best known ancient cities are in Arizona, Illinois, and Alabama.  In Arizona, it's the Hohokam (or Huhugam) people in the Sonoran Desert (1050-1400).  In Illinois, it's Cahokia, near the Mississippi east of St. Louis (1000-1400).  In Alabama, it's Moundville, near Tuscaloosa (1150-1400) (DuVal 2024: 7-40).

At the peak of their power, these cities were highly centralized power structures ruled by elite chiefs and priests exercising religious, political, and economic dominance over the commoners.  The ultimate source of authority was the claim of the rulers to have access to a sacred realm of supernatural beings.  "Chiefs and priests knew--or claimed to know--how to communicate with other-than-human beings and to control the sun, the Earth, seasons, rains, crops, and game" (Hamalainen 2022: 18).  This power of the rulers extended even into the afterlife.   For example, at Cahokia, to accompany elite people in death, hundreds of commoners could be ritually sacrificed and buried in mass graves.

But then there was another climate shift around 1300 towards colder, drier, and more unstable weather (the Little Ice Age).  Harvests began to fail, and famines became more common.  The elite rulers of the large, centralized agrarian cities lost their supernatural power over the natural forces that determined the success or failure of farming.  The O'odham descendants of the Hohokam people have stories in their oral tradition about ancient people rising up to overthrow their rulers who could no longer provide prosperity.

By 1400, the cities of Cahokia, Moundville, and Hohokam were abandoned.  People no longer wanted to live in centralized hierarchical cities ruled by elites.  Trade, religion, and politics became more democratized in that people lived in small bands and tribal communities where decisions were made by popular consensus (Hamalainen 2022: 12-24; DuVal 2024: 41-74).

At this point, North America became what Hamalainen has called "The Egalitarian Continent."  And this is the continent that the European colonists saw.  All across Native North America, the Europeans saw a remarkably egalitarian and democratic style of politics among the Indians.

For example, when the British missionary David Jones journeyed through the Shawnee towns north of the Ohio River in 1772-1773, he reported:

They look on it that God made them free--that one man has no natural right to rule over another.  In this point, they agree with our greatest politicians, who affirm that a ruler's authority extends no further than the PLEASURE of the people. . . . Every town has its head men, some of whom are by us called kings; but by what I can learn, this appellation is by the Indians given to none, only as they learned it from us.  The chief use of their head-men is to give counsel, especially in the time of war (Jones 1774: 54).

This confirmed what Locke had seen a hundred years earlier in the European reports about the Indians, who originally lived as free people who were ruled only by those leaders to whom all individuals had consented (ST, 103-107).

REFERENCES

DuVal, Kathleen. 2024. Native Nations: A Millennium in North America. New York: Random House.

Hamalainen, Pekka. 2022. Indigenous Continent: The Epic Contest for North America. New York: Liveright Publishing.

Jones, David. 1774. A Journal of Two Visits Made to Some Nations of Indians on the West Side of the River Ohio, in the Years 1772 and 1773.  Burlington, NJ: Isaac Collins.

Raff, Jennifer. 2022. Origin: A Genetic History of the Americas. New York: Twelve.

The North American Indian Declaration of Independence: A Darwinian Lockean Liberal Perspective

FREE AND INDEPENDENT STATES

The Declaration of Independence seems to be hypocritical in its handling of the American Indians.  While it appeals to the "self-evident" principles of government by the consent of the governed to justify the right of the American colonies to become "Free and Independent States," it refuses to consider the possibility that the American Indians have the same right to be free and independent from European or American imperial rule.  

In the Declaration, one of the grievances against the King is that he "has excited insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions."  

The Declaration is silent about the claim of the American Indians that their warfare on the British colonists was in defense of their self-governing sovereignty over their ancestral territory that was being invaded by colonial settlers who were stealing land that belonged to the Indians.

In 1763, the Treaty of Paris ended the French and Indian War (a theater of the Seven Years War) with a victory for the British over the French.  American Indians had fought on both sides of the conflict.  In the Royal Proclamation of 1763, the King divided the lands in North America taken from the French.  This created an "Indian Reserve" west of the Appalachian Mountains, prohibiting the British colonists from settling there.  But many colonial settlers and land speculators refused to accept this, which was one of the grievances against the King that led to the American Revolution.

                   Map of North America Established by the Treaty of Paris and the Proclamation of 1763

In 1783, another Treaty of Paris ended the American Revolution with a victory for the Americans.  Although American Indians had fought on both sides of the Revolution, they were not represented in the diplomatic negotiations over the Treaty, and they were shocked when they learned that the Treaty carved up the North American continent with no territory for the Indian Nations.  What had been set aside in 1763 as Indian Territory west of the Appalachians was given to the new American Empire.

But while the United States claimed all of the Trans-Appalachian West east of the Mississippi, most of that territory was actually controlled by Native American Nations.  Moreover, almost all of the continent west of the Mississippi was controlled by Indians.  In 1783, North America was still, as Pekka Hamalainen has argued, predominantly an "indigenous continent," just as it had been for thousands of years.

                            Map of North America Established by the Treaty of Paris of 1783

In 1783, Joseph Brant (Thayendanegea), a Mohawk chief, became the founding leader of the Northwestern Indian Confederacy (1783-1795), which brought together Indian nations in the central Mississippi Valley and the Ohio Country to stop the United States from stealing Native land.  The member nations--Shawnees, Illinis, Miamis, Lenapes (Delaware), Potawatomis, Wyandots (Huron), Odawas, Ojibwes (Chippewa), Piankashaws, and Wabash--agreed that no nation could sell its land without the consent of the others.  They called themselves the "United Indian Nations."  This was the largest pan-Indian resistance movement in the history of North America.

They fought the U.S. in the Northwest Indian War (1785-1795)--the first of the American Indian Wars fought with the U.S. Army.  They won some remarkable victories--most notably in 1791, they drove U.S. soldiers under the command of General Arthur St. Clair, the federal governor of the Northwest Territory, into a retreat and killed over 97% of the soldiers, making it one of the worst defeats of the U.S. Army.  But in 1794, the Indians were badly defeated at the Battle of Fallen Timbers.  And in 1795, they were forced to sign the Treaty of Greenville that ended the war and also ended the Indian Confederacy.

In 1794, Brant met with Henry Knox, the U.S. Secretary of War.  Speaking for the American Indians, Brant told him: "We are of the same opinion with the people of the United States; you consider yourselves as independent people; we, as the original inhabitants of this country, and sovereigns of the soil, look upon ourselves as equally independent, and free as any other nation or nation.  This country was given to us by the Great Spirit" (Ablasky 2019: 591).

Here Brant was echoing the language of the Declaration of Independence: "That these United Colonies are, and of Right ought to be Free and Independent States."  And he was claiming that the Native Indian Nations had the same right to be recognized "as equally independent, and free as any other nation or nation."

Actually, Brant was invoking an international legal principle of equal Native nationhood that had been accepted as federal policy in the presidential administration of George Washington.  Secretary of War Henry Knox had told Washington shortly after his inauguration: "Independent nations and tribes of Indians ought to be considered as foreign nations."  Washington's Secretary of State Thomas Jefferson advised him "that the Indians had the full, undivided and independent sovereignty as long as they chose to keep it and that this might be forever" ("Notes on Cabinet Opinions," February 26, 1793).  

The phrase "Free and Independent States" was a reference to the law of nations, particularly as stated in Emer de Vattel's Law of Nations (1758).  Vattel repeatedly identified sovereign nations as "free and independent" (68, 71, 74, 77, 84-85, 214, 265).  This must be so because "nations being composed of men naturally free and independent, and who, before the establishment of civil societies, lived together in the state of nature,--nations or sovereign states are to be considered as so many free persons living together in the state of nature."

As I have argued previously, this follows John Locke's account of how people naturally free and independent in the state of nature can establish civil societies that become sovereign nations that are free and independent in the international arena, which is itself a state of nature because there is no world government over all nations.

According to Vattel, a nation is "free and independent" as long as it is self-governing:

"Every nation that governs itself, under what form soever, without dependence on any foreign power, is a sovereign state.  Its rights are naturally the same as those of any other state.  Such are the moral persons who live together in a natural society, subject to the law of nations.  To give a nation a right to make an immediate figure in this grand society, it is sufficient that it be really sovereign and independent, that is, that it govern itself by its own authority and laws" (83).

By this standard, as Brant and other Indian leaders indicated, the self-governing Native American polities of North America could claim the rights of sovereign statehood equal to the United States.  Locke also saw this because he recognized that the Indians in America were divided into self-governing "nations" or "peoples"--"little Independent Societies" (FT, 144, 153, ST, 41, 102, 105, 107-108).  Consequently, the European imperial powers had no authority over the Indians: "Those who have the Supream Power of making Laws in England, France or Holland, are to an Indian, but like the rest of the World, Men without Authority" (ST, 9).

THE AGRICULTURALIST ARGUMENT

And yet, both Vattel and Locke sometimes seemed to suggest that being a self-governing nation is not enough to make that nation a "free and independent state."  Those people in America who "live only by hunting, fishing, and wild fruits," Vattel observed, cannot rightly object when nations that live by cultivating the land appropriate some of the land of the Indians that they have left uncultivated, because the agricultural development of the land supports a much larger human population than would be possible if the hunter-gatherer Indians were allowed to claim all the land for themselves (128-131, 213-217).

Similarly, in his chapter on "Property" in the Second Treatise, Locke recognized that the hunter-gatherer Indians could claim property in the deer that they had hunted and killed or the acorns and apples that they had gathered, because they had mixed their labor with those natural resources and thus appropriated them to themselves (ST, 26-31).  But he also saw that once human beings engaged in agriculture, then they needed to claim property not just in the wild plants they had gathered or the wild animals they had hunted, but in the land that could be rendered productive through agriculture.  "As much Land as a Man Tills, Plants, Improves, Cultivates, and can use the Product of, so much is his Property" (ST, 32).  

In appropriating such land for farming, they were obeying the command of God in Genesis 1:28 after He had created human beings in His image: "Be fruitful, and multiply, and replenish the earth, and subdue it."  The English colonists in America used this as Biblical sanction for their taking land from the Indians (Seed 1995: 16-40).  Since the Indians lived by hunting and gathering and were not engaged in agriculture, they had no right to exclude the colonists from appropriating land for farming and thus rendering productive what the Indians had left as the "uncultivated wast of America" (ST, 37).

It has been common for "post-colonial" theorists to cite this as evidence that Locke justified colonial settlers in their oppression of indigenous people and that this shows inherent contradiction in early liberalism--claiming to defend liberty against tyranny but denying the liberty of indigenous people facing colonialist oppression (Tully 1993).

But there are at least four lines of Lockean argument that support American Indian claims for national freedom and independence (Goldie 2015).  The first argument is that many of the American Indians engaged in agriculture: they grew corn, beans, and squash (Hamalainen 2022: 12-13).  And Locke knew this because in his writing about the American colonies, he recognized the importance of "Indian corn" for the colonial settlers (Kammen 1966: 154).  So, if ownership of land depends on cultivation, these agrarian Indians had good claims on their land.

On the other hand, if the Lockean claim on land ownership depends on laboring upon the land, then one can make a good argument that Indian hunting, gathering, and grazing over a certain territory is a rightful claim of territory: occupying the land is a form of labor.  In 1725, John Bulkley insisted that by Locke's standard, the Indians had no claim on their lands because they had not engaged in agricultural cultivation (Bulkley 1725).  But in 1781, Samuel Wharton offered a different interpretation of Locke: "the very act of occupancy alone, being a degree of bodily labour, is from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title."  He also appealed to the "self-evident" truths of the Declaration of Independence as justifying the equal rights of the Indian Nations (Wharton 1781: 15-16, 24-25).

A third Lockean argument for the claims of the American Indians is that Locke saw that most of the Indians were no longer in a state of nature, governed by natural property rights, but rather, as indicated above, they were living as Indian Nations with established governments, and "in Governments the Laws regulate the right of property, and the possession of land is determined by positive constitutions" (ST, 50).  The Europeans recognized the nationhood of the Indians by dealing with them through treaties, which are international agreements between sovereign nations.  The Royal Proclamation of 1763 recognized American Indian nationhood and its territorial claims: "It is just and reasonable . . . that the several nations or tribes of Indians . . . should not be molested or disturbed in the possession of such parts of our dominions and territories as, not having been ceded to or purchased by us, are reserved to them."

The fourth Lockean argument for the independence of the American Indian nations is the most fundamental:  the same Lockean reasoning for the American colonists revolting against British imperial rule--the reasoning in the Declaration of Independence--can be used by the American Indians to revolt against American imperial rule.

AMERICAN WARS OF INDEPENDENCE

The Declaration of Independence is what John Searle calls a Declaration of Status Function, which has the form "X counts as Y in C."  So, for example, a twenty-dollar bill has monetary value as long as we recognize that a twenty-dollar bill (X) counts as currency (Y) in the monetary system of the United States (C).  Similarly, the American Revolutionaries declared that "these United Colonies [X] are, and of Right ought to be Free and Independent States [Y]" in the European system of states [C].  The success of that Declaration depended on whether in their "decent respect to the opinions of mankind," they could persuade world opinion to recognize their status as "Free and Independent States."  

Their success depended on both the intellectual persuasiveness of their reasoning in the Declaration and the forceful persuasiveness of their winning the Revolutionary War.  Of those people both inside and outside the American colonies who were not persuaded by the intellectual argument of the Declaration, many were persuaded to accept it once the Americans had won the war.  Going to war to settle the dispute was what Locke called the "Appeal to Heaven"--the appeal to the "God of Battles."

In March of 1776, the Continental Congress asked for prayers "that it may please the Lord of Hosts, the God of Armies, to animate our officers and soldiers with invincible fortitude."  In the following October, King George III issued a Proclamation "putting Our Trust in Almighty God, that he will vouchsafe a Special Blessing on Our Arms, both by Sea and Land" (Shain 2014: 407-408).  This is the same as what Abraham Lincoln saw in the Civil War: "Both read the same Bible and pray to the same God, and each invokes His aid against the other" (Second Inaugural Address).  The "God of Armies" will decide.

The first major victory for the Americans was in the Battle of Saratoga in 1777.  When French King Louis XVI saw this, he agreed to a formal Franco-American alliance.  This proved to be a turning point in the war (Weddle 2021).  If the British had won that battle, that might have been enough to refute the Declaration of Independence.  As I have argued in previous posts, there is a sense in which might does make right.

The Continental Congress was a practical demonstration of the truth of the Lockean principles of the Declaration of Independence.  Acting in a state of nature, the Congress exercised the Lockean executive power of the law of nature in punishing Great Britain for violating that natural law, in establishing the Continental Army to settle the dispute by force of arms, and in instituting a new government to secure their natural rights.

Similarly, just as the American patriots had formed a confederacy of the "United States" to fight a war of independence from the British Empire, the American Indians formed the Northwest Confederacy of the "United Indian Nations" to fight a war of independence from the newly emerging American Empire in 1783.  That phase of the war came to an end with their defeat in the battle at Fallen Timbers in 1794, which forced them to sign the Treaty of Greenville in 1795, which opened two-thirds of the Ohio Country to American settlement.

Although Brant had insisted that American Indian Independence was granted to them by the Great Spirit, it seemed that the God of Armies had not favored the Northwest Indian Confederacy.

THE GREAT SPIRIT'S CHOSEN PEOPLES FIGHT HOLY WARS OF INDEPENDENCE

Brant's appeal to the Great Spirit as supporting American Indian resistance to European and American colonialism expressed a religious cosmology of Indian resistance that had arisen in the 18th century among some Indian prophetic mystics.  This continued in the 19th century as new Indian prophets had supernatural visions of the Creator or the Great Spirit promising His providential care for the American Indians in their holy war for independence from the white colonial imperialists.  This series of Indian prophets included Neolin (the Delaware Prophet), Tenskwatawa (the Shawnee Prophet), and Kenekuk (the Kickapoo Prophet) (Cave 1999; Mohammedi 2002).

One of the persistent themes in this prophetic teaching was that while God had created all human beings, He had created them to live in separate groups in different parts of the world.  Roger Williams heard this from the Narragansett Indians early in the 17th century: "although they do not deny that Englishman's God made English men and the Heavens and Earth where the English come from.  Yet, they also believe their Gods made them and the Heaven and the Earth where they live" (Williams 2019: 108).  Later prophets reported mystical visions of the Great Spirit who taught them that He had created Indians, Negroes, and whites separately, and favored the Indians and the Negroes.

Sometime around 1762, Neolin had a vision of ascending into Heaven and seeing the Master of Light, the Creator of the heavens and the earth.  (This resembles the mystical vision of Saint Paul who ascended into Heaven.)  The Master of Light condemned the Indians for being corrupted by the vices of the white people.  He declared that to regain His favor, the Indians would have to expel the Europeans from the Indian lands.  He told Neolin: "As to those who come to trouble your lands, --drive them out, make war upon them.  I do not love them at all; they know me not, and are my enemies. Send them back to the lands which I have created and let them stay there."  Later, Neolin reported this vision to his people and promised them that "the Great Spirit will give success to our arms.  He will give us strength to conquer our enemies" (Cave 1999: 273).

In 1763, the Odawa (Ottawa) war leader Pontiac brought together many of the Indian tribes in the lower Great Lakes region to form a confederacy to fight against the British and to expel them from their lands.  Pontiac was a shrewd military leader.  As many as eight small British forts were captured, and three major forts--Fort Pitt, Fort Detroit, and Fort Niagara--were put to siege but not captured.

Although the Indians did not defeat the British, they did fight to a military stalemate that was ended by a treaty in 1766.  Pontiac's War was the first pan-tribal confederacy of Indians fighting the first of a series of wars of independence.  The Northwest Indian War was the second of those wars.

The third of those Indian wars of independence was also sparked by an Indian prophet.  Beginning in 1805, the Shawnee Prophet Tenskwatawa fell into an ecstatic trance in which he saw the Master of Life in Heaven.  He began preaching sermons about a new religion that combined elements of Christianity with the traditional Shawnee religion.  He taught his people that they needed to return to traditional Shawnee ways, to reject the corrupt practices of the white people, and to fight against the American settlers who were stealing their land.  He attracted a large group of followers who gathered in western Ohio near Greenville.  He was criticized by some Indian leaders who thought it was foolish to challenge the white settlers with violent resistance, and that it was more prudent to compromise with them and seek some peaceful accommodation with them.  Tenskwatawa charged these rivals to his leadership with being witches who should be punished (Mohammedi 2002).

                                                   George Catlin's Portrait of Tenskwatawa

In 1806, General William Henry Harrison was governor of the Indiana Territory, and he was disturbed by the reports of Tenskwatawa's accusing some Indians in Indiana of practicing witchcraft and ordering that they be tortured and executed.  Harrison denounced this as barbarous.  He also told the Indians that they should test the power of this "notorious imposter."  On April 18, he wrote a letter to them that was published in newspapers advising them: "If he is really a prophet, ask him to cause the sun to stand still--the moon to alter its course--the rivers to cease to flow--or the dead to rise from their graves.  If he does these things, you may then believe that he has been sent from God."  

This was a big mistake because he had forgotten that astronomers had predicted a total eclipse of the sun that would pass over the lower Great Lakes area on June 16, 1806.  Tenskwatawa had heard about this from the scientists who were setting up observation stations across Indiana and Illinois.  So, after Harrison's letter had been published, Tenskwatawa said that the Great Spirit was angry at Harrison; and that as a sign of His anger, on June 16, He would hide the Sun at noon in His hand, and the day would turn dark.  This miracle confirmed that he was a true prophet.

In 1809, Harrison began to push the Indians into signing a treaty for selling some of their lands that could be opened to white settlers.  Some Indian leaders signed the Treaty of Fort Wayne that ceded some extensive lands north of Vincennes along the Wabash River.  

Tecumseh, a Shawnee political leader and brother of Tenskwatawa, denounced the treaty.  Like Brant, 25 years earlier, Tecumseh argued that the Indians should form an intertribal confederacy that would refuse to sell any lands unless all the tribes agreed and that would go to war to defend their lands.  He also invoked his brother's religious visions in claiming that the Great Spirit would give His divine sanction to their war.  Tecumseh traveled widely as he spoke to different tribes trying to persuade them to join the confederacy.  Many Indians moved to Prophetstown, north of what is now Lafayette, Indiana, where Tenskwatawa has established a city for his followers.

On November 7, 1811, Harrison led an army to Prophetstown that fought Tenskwatawa's warriors, defeated them, and burned the city.  This became known as the Battle of Tippecanoe, named after the Tippecanoe River.

Tecumseh continued to build his confederacy with the support of British allies.  In the War of 1812, he led his Indians in fighting in Canada on the side of the British.  Tecumseh was killed in the Battle of Thames in Canada in 1813.

All of these wars of Indian independence, as led by people like Pontiac, Brant, and Tecumseh, were inspired by the religious belief that the Great Spirit would give the Indians victory in war, and thus they were what Locke had called an Appeal to Heaven.  But the failure of the Indians to win these wars suggested to some Indians that either the Great Spirit was not on their side, or that the Indian prophets in their mystical visions had misunderstood the true message of the Great Spirit.  The Kickapoo Prophet Kenekuk then had his own vision of the Great Spirit, who advised that the Indians should take a stance of peaceful coexistence with American culture and nonviolent resistance to American imperialism, which would allow them to preserve their tribal cultural traditions.  

The life of American Indian tribes today shows the success of this strategy for the cultural evolution of American Indian life through adaptation to American liberal pluralism so that the Indian tribes have survived and even thrived.

KENEKUK AND THE VERMILLION KICKAPOOS

                                                        George Catlin's Portrait of Kenekuk

The Kickapoos are an Algonquin-language indigenous tribe originating in the lower Great Lakes region, particularly along the southern Wabash River near what is today Terre Haute, Indiana.  The Vermillion Kickapoos are a distinct band of Kickapoos who by the early 19th century were living along the Vermillion River in eastern Illinois.

Kenekuk was a Vermillion Kickapoo who as a young man was a hard-drinking ne'er-do-well who was thrown out of his band after he killed his uncle in a drunken rage.  After a time of wandering among frontier settlements, begging for food and shelter, he was finally taken in by a charitable Catholic priest who instructed him in Christianity and the ways of the white people.  Kenekuk then decided that he must atone for his past sins, swear off drinking, and preach the word of God to the Kickapoos.  He was welcomed back into his Kickapoo band.  And by 1816, he had emerged as a leading chief (Herring 1985; 1988).

Kenekuk became a charismatic preacher who claimed to have received from the Great Spirit a religion that combined elements of Catholic Christianity and traditional Kickapoo religious beliefs.  His followers believed in Heaven, Hell, and Purgatory.  They worshipped Jesus, the Virgin Mary, and the Saints.  But they also practiced traditional Indian singing and dancing in their ceremonies.

To maintain the stable order of the community, Kenekuk taught them that they must abstain from all alcohol because drunkards would be punished in Hell.  Their sobriety saved them from the ravages of alcoholism that had ruined so many Indian tribes.

He also taught them that they should be hard-working farmers.  Unlike other Indian tribes, the Kickapoo men gave up hunting, gathering, and the warrior's ethos, so that they could devote themselves to farming, along with the women.

Having seen that the violent anti-Americanism of Tecumseh and Tenskwatawa had been disastrous for the Indians, Kenekuk taught his followers to practice peaceful coexistence with the white frontier settlers.  They should love their neighbors as themselves and turn the other cheek in response to attacks.  But he also taught them to stand up for their rights to religious liberty, to their tribal lands held in common, and to the survival of their Kickapoo Indian culture.

Although Kenekuk's Kickapoos were resolute in defending their eastern Illinois homeland, in obedience to the Great Spirit's command that they should never sell tribal lands, in 1832 they were forced by pressure from President Jackson's Indian Removal Bill and the public reaction to the Black Hawk War of 1832 to sign the Treaty of Castor Hill that ceded all Indian claims to Illinois lands, which compelled them to move west of the Mississippi.

In 1833 they settled on the west bank of the Missouri River a few miles north of Fort Leavenworth.  They reestablished their customary way of life in the new land, with promises in the treaty that the federal government would provide money, food, and farming tools.  They soon became some of the most prosperous Indian farmers in America.

Many Protestant and Catholic missionaries came to their land in the attempt to convert them into orthodox Christians.  But their devotion to the Prophet and his distinctive syncretic religion could not be broken.

Kenekuk died in 1852 from smallpox.  But even after his death, the Kickapoo abstinence from drinking and other vices, their agricultural work ethic, and their religious unity created a social solidarity in preserving their tribal culture against white encroachments on their lands.

While most of the Indian tribes in Kansas were forced to move out to make way for white settlers, the small Kickapoo reservation remains today as one of only three Indian reservations in the state.

INDIGENOUS IMPERIALISM

So far, I have written about the American Indian fight for independence and resistance to conquest as if it were a binary struggle between Indians and settlers.  But that is not true.  Indigenous tribes fighting for their independence were fighting as much against other tribes as they were against colonial powers.  And tribes allied with other tribes to fight against yet other tribes.  Some tribes committed genocide against their neighboring tribes.  Tribes conquering other tribes often enslaved those they had subjugated.  Moreover, there is plenty of archaeological and ethnographic evidence that intertribal warfare, conquest, and enslavement pervaded the history of the North American Indians long before the arrival of Europeans (Chacon and Mendoza 2007).

And while we commonly think of the Indians as fighting against European or American imperialism, much of the Indian fight against imperialism was against the indigenous imperialism of other Indian tribes.  Consider, for example, the indigenous empires established by the Powhatans, the Iroquois, the Lakotas, and the Comanches.

In 1607, when the English colonists landed in Virginia and established Jamestown, they were surrounded by the Powhatan people, who were under the rule of the Powhatan Empire (Hamalainen 2022: 59-69).  The Powhatans were ruled by Wahunsenacawh, the paramount chief of the Powhatan Confederacy with the title of mamanatowick, which suggested manito--his "spiritual power."  He was quioccosuk, a "god on Earth," ruling by divine right over his empire.  He had subjugated several rival nations, who were forced to pay tribute to him--providing soldiers and over eighty percent of their possessions.  He ruled over more than thirty towns and twenty thousand people.  He had as many as a hundred wives.  His ten-year-old daughter was known to the English as Pocahontas.  Captain John Smith observed that "the form of their Commonwealth is a Monarchical government, one as Emperor rules over many Kings or Governors."  The will of the chief ruler "is a law and must be obeyed: not only as a King, but as half a God they esteem him.  His inferior Kings whom they call Werowances, are tied to rule by customs, and have power of life and death at their command."

At about this same time, the Five Nations of the Iroquois Confederacy were beginning to expand by conquest in the eastern Great Lakes region to become the dominant imperial power in the Eastern Woodlands by the middle of the seventeenth century (Hamalainen 2022: 97-141).  Previously, I have written about how the Huron were devastated by Iroquois attacks, which forced the Hurons who survived abandon their native territory, which was taken over by the Iroquois.  At least a dozen Indian nations were forced by Iroquois expansion to abandon their ancient homelands and retreat into the western Great Lakes region along the southern shore of Lake Superior and the western shore of Lake Michigan.  This was the first large-scale westward expansion of a conquering people in early American history.

                                                         Expansion of the Iroquois Empire

The largest westward expansion of Indians west of the Mississippi was by the Lakota people, who eventually transformed themselves into one of the most powerful empires in North American history (Hamalainen 2019; 2022: 400-408).  The Lakotas are one of three subcultures of the Sioux, along with the Eastern Dakota and Western Dakota.  They might have originated in the Great Lakes region.  They migrated west along the Missouri River Valley until the first Lakota explorers arrived in Paha Sapa, the Black Hills, in 1776.  They identified Paha Sapa as their spiritual birthplace.  It also provided the natural resources they needed, such as pastureland for their horses and bison herds for their hunting.  But several Indian nations believed that the Great Spirit had given the Black Hills to them.  And so the Lakotas had to form an alliance with the Cheyennes and Arapahos to push the Crows, Kiowas, and Shoshones out of the Black Hills.  Later, they expelled the Pawnees, Omahas, and Otoes from the river valleys of the central plains.  According to the Treaty of Fort Laramie (1851), the Platte River was the southern border of Lakota territory.

                                                         Lakota Sioux Treaty Lands

But the Lakotas claimed a two-hundred-mile southward extension of their territory to the Arkansas River by the right of conquest.  The Oglala leader Black Hawk explained: "These lands once belonged to the Kiowas and the Crows, but we whipped these nations out of them, and in this we did what the white men do when they want the lands of the Indians."  This proved that the Great Spirit was on the side of the Lakota Empire.

To the south of the Lakotas, there was another indigenous empire--the Comanches.

                                                                  The Comanche Empire

The Comanches expanded their empire by attacking the Spanish, Mexican, and white settlers and also other Indian tribes such as the Lipan Apaches.  Eventually, what the Spanish called Comancheria encompassed forty thousand Comanches living on a quarter million miles of land, making it the largest indigenous territory in North America.  In 1846 and 1847, the Comanches even sent thousands of soldiers deep into Mexico--attacking the city of Queretaro, only 135 miles north of Mexico City (Hamalainen 2008; 2022: 409-29).

THE EVOLUTIONARY ECOLOGY OF POWER

As Pekka Hamalainen has observed, Darwinian science allows us to explain the evolutionary ecology of Lakota and Comanche power that came from harnessing the stored energy from the Sun in horses, bison, domesticated plants, and human slave labor (Hamalainen 2022: 12-15, 249-58, 421-23).  (I have pursued a similar line of thought in writing about the Big History of photosynthesis and the cosmic evolution of complexity as measured by energy rate density.)

The modern domesticated horse (Equus ferus caballus) is a subspecies of the wild horse (Equus ferus).  The wild horse evolved over 45 million years ago.  Humans began domesticating horses around 4,000 BCE.  There were horses in North America until around 10,000 years ago, when they went extinct there.  They were reintroduced into North America by the European colonists.  When they arrived in the North American West early in the eighteenth century through a trade chain from Spanish New Mexico, the Native Americans in the west entered a new technological age.

Previously, the Indians had domesticated the dog.  But the domesticated horse was a bigger and stronger dog and a better energy converter.  Horses transformed the Sun's energy stored through photosynthesis in the biomass of the continental grasslands into immediately available muscle power, which the Indians could harness for hunting bison and waging war on their enemies.

The grasses on the North American Great Plains coevolved with large grazers like the bison.  And the bison were good at converting the energy stored in the grasses into an animal body that was a source of meat, bones, and hides for Indian hunters.  As they became more dependent on the bison meat as a source of protein, the hunters reduced their gathering of plants.  They developed trade relations with Indian farmers so that they could trade bison meat and hides for corn (maize), squash, and beans, which the farmers had genetically modified through domestication.

Many Indian tribes--including the Lakota and Comanche--also used Indian slaves as like domesticated animals, which was another way of harnessing the energy of the Sun stored in the muscle power of the slaves that could be put to useful work.

THE SURVIVAL OF THE AMERICAN INDIANS IN A LOCKEAN LIBERAL SOCIETY

By the 1880s, the U.S. Army had defeated the American Indian warriors.  This was beneficial for the Indians insofar as it ended the intertribal warfare and indigenous imperial conquest that had run through thousands of years of Indian history in North America.  But this benefit brought with it the cost of surrendering the Indians to American imperial conquest, and this subjugation made them vulnerable to violence and oppression.  Over the past 50 years, some historians have even spoken of the Americans as committing "genocide" against the Indians, so that Native American life was essentially extinguished --perhaps finally, as Dee Brown argued (in Bury My Heart at Wounded Knee)--with the U.S. Cavalry's 1890 massacre of more than 150 Sioux at Wounded Knee.

But recently, some scholars of American Indian history--including American Indian scholars like David Treuer (in his Heartbeat of Wounded Knee)--have complained that this story of the "dead Indian" denies or demeans the vibrant life of American Indians in America today.  The story of American Indian genocide is refuted by the simple fact of the stunning demographic growth and diversity of American Indian lives today.  As many as 5 million Americans identify themselves as American Indians today, which probably exceeds the population of Indians in North America in 1800.  Over the past 50 years, the average income of American Indians has been rising, and the poverty rate has dropped.  Indian-owned businesses have been growing.  The number of college-educated Indians has increased.  The youthful reservation population has been growing.  But most Indians live in urban areas.  Many move back and forth between a reservation and the city.  Indians are actively engaged in preserving Indian cultural traditions, including American Indian religious practices and beliefs.  In the 135 years since Wounded Knee, the Indians have not only survived, but they have even lived flourishing lives

As Treuer indicates, there are two reasons for this.  The first is that while the Indians' violent resistance to conquest was defeated in battle by the U.S. Army, their nonviolent resistance to oppressive subjugation has succeeded in securing their rights as American citizens to life and liberty.  This illustrates what I have argued about the importance of Lockean nonviolent resistance to oppression, which explains what John Adams meant when he said that America's Revolution of Independence was achieved "in the minds of the people" in the resistance movement from 1660 to 1775, long before any blood was shed at Lexington.

The second reason why American Indians have been able to live good lives as Indians in America is that a Lockean pluralist society allows for a culturally diverse social order in which one can live as both an American and an Indian.

Treuer conveys both of these points in this passage:

While Wounded Knee was the last major armed conflict between Indian tribes and the U.S. government, there have been many battles since 1890: battles fought by Indian parents to keep their children, and by the children far away at boarding schools to remember and keep their families and, by extension, their tribes, close to their hearts; battles of Indian leaders to defeat allotment and other destructive legislation; battles of activists to make good on the promises their leaders couldn't or wouldn't honor; battles of millions of present-day Indians to be Indian and modern at the same time.  We are, in a sense, the children and grandchildren and great-grandchildren of those hundreds who survived Wounded Knee and who did what was necessary to survive, at first, and then--bit by bit--to thrive (453).

When he speaks of the battle of Indians "to be Indian and modern at the same time," what he calls "modern" is what I call--in my convoluted professorial language--Lockean liberal symbolic niche construction, which is based on Adam Smith's principle of "allowing every man to pursue his own interest his own way, upon the liberal plan of equality, liberty, and justice."  

In other words, American Indians have discovered that they can be citizens in America's bourgeois pluralist society while preserving their Indian tribal identity.  This shows the evolution of Indigenous peoples through cultural adaptation so that they can live and live well as American Indians.

In 1877, the Nez Perce under Chief Joseph surrendered to General Nelson Miles in northern Montana.  Two years later, Chief Joseph gave a speech in Washington, D.C., which was directed to the government and to the general American public.  Treuer quotes the entire speech, which includes this passage:

I know that my race must change.  We can not hold our own with the white men as we are.  We only ask an even chance to live as other men live.  We ask to be recognized as men.  We ask that the same law shall work alike on all men.  If the Indian breaks the law, punish him by the law.  If the white man breaks the law, punish him also.

Let me be a free man--free to travel, free to stop, free to work, free to trade where I choose, free to choose my own teachers, free to follow the religion of my fathers, free to think and talk and act for myself--and I will obey every law, or submit to the penalty.

That's the American Indian's Declaration of Independence. 

 

REFERENCES

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Bulkley, John. 1725. An Enquiry into the Right of the Aboriginal Natives to the Land in America.  In Mark Goldie, ed., The Reception of Locke's Politics, vol. 6: Wealth, Property, and Commerce, 1696-1832, 191-223.  London: Pickering & Chatto, 1999.

Cave, Alfred A. 1999. "The Delaware Prophet Neolin: A Reappraisal." Ethnohistory 46 (Spring): 265-290.

Chacon, Richard J., and Ruben G. Mendoza, eds. 2007. North American Indigenous Warfare and Ritual Violence.  Tucson: University of Arizona Press.

Hamalainen, Pekka. 2008. The Comanche Empire. New Haven, CT: Yale University Press.

Hamalainen, Pekka. 2019. Lakota America: A New History of Indigenous Power. New Haven, CT: Yale University Press.

Hamalainen, Pekka. 2022. Indigenous Continent: The Epic Contest for North America. New York: Liveright Publishing.

Herring, Joseph B. 1985. "Kenekuk, the Kickapoo Prophet: Acculturation Without Assimilation."  American Indian Quarterly 9 (Summer): 295-307.

Kammen, Michael G., ed. 1966. "Virginia at the Close of the Seventeenth Century: An Appraisal by James Blair and John Locke." The Virginia Magazine of History and Biography 74: 141-169.

Locke, John. 1988. Two Treatises of Government. Ed. Peter Laslett. Cambridge, UK: Cambridge University Press.

Mohammedi, Sara. 2002. "The Interpretation of Christianity by American Indian Prophets." Indigenous Nations Studies Journal 3 (Fall): 71-88.

Seed, Patricia. 1995. Ceremonies of Possession in Europe's Conquest of the New World, 1492-1640. Cambridge, UK: Cambridge University Press.

Shain, Barry, ed. 2014. The Declaration of Independence in Historical Context. Indianapolis, IN: Liberty Fund.

Treuer, David. 2019. The Heartbeat of Wounded Knee: Native America from 1890 to the Present. New York: Riverhead Books.

Tully, John. 1993. "Rediscovering America: The Two Treatises and Aboriginal Rights." In An Approach to Political Philosophy. Cambridge: Cambridge University Press.

de Vattel, Emer. 2008. The Law of Nations. Indianapolis: Liberty Fund.

Weddle, Kevin J. 2021. The Compleat Victory: Saratoga and the American Revolution. New York: Oxford University Press.

Wharton, Samuel. 1781. Plain Facts: Being an Examination Into the Rights of the Indian Nations of America, to Their Respective Countries. Philadelphia; R. Aitken.

Williams, Roger. 2019. A Key into the Language of America. Eds. Dawn Dove, Sandra Robinson, Loren Spears, Dorothy Herman Papp, and Kathleen J. Bragdon. The Tomaquag Museum Edition. Yardley, PA: Westholme.