Taking the Prerogative out of the Presidency: An Originalist Perspective

Abstract

Claims for the inherent authority of the executive over issues of national security imply that the adopters of the Constitution relied on prior British definitions equating executive power and royal prerogative. These claims cannot survive the scrutiny of key sources, including Locke's treatment of the federative power in his Second Treatise, the Federal Convention's debates over the presidency, and the famous 1793 exchange between Hamilton and Madison over the nature and sources of presidential power. When Hamilton relied on the Vesting Clause to stake his claim, he was engaging in interpretive innovatio, not providing a historically faithful account of how the presidency had been contrived.