The presidency is a loaded gun, for better or worse
Patrick Henry warned us that the president's vast powers could go unchecked
In February, 1954, President Dwight Eisenhower invited Chief Justice Earl Warren to a “stag dinner” at the White House. It was two months after the Supreme Court heard arguments for a second time on the case of Brown v. Board of Education, and it would be three months before the court would issue its historic ruling striking down racial segregation in schools.
The president’s seating plan for the all-male dinner put Warren near the lawyer who had argued the case in favor of keeping students separated by race.
After dinner, historian Corey Brettschneider wrote, “Eisenhower took Warren aside, a conversation Warren recounted in his memoirs. ‘These are not bad people,’ Eisenhower reportedly said. ‘All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.’ (A professor to whom Warren told the story said Warren’s book sanitized the quote, saying Warren told him Eisenhower had used the phrase ‘big black bucks.)’”
Clearly Eisenhower wasn’t at all eager for the court to strike down school segregation, though he did allow his attorney general to file a brief supporting integration.
In fact, biographer Jim Newton noted, “When [Attorney General Herbert] Brownell told him that the Court apparently wanted to defer issuing an order for as long as possible, Eisenhower laughingly said he hoped they could put it off until the next administration.”
Yet the president ultimately had to confront the issue in the starkest way. The former head of allied forces in Europe during World War II felt he had no choice but to deploy the 101st Airborne Division to a southern state to face down a recalcitrant governor defying a court order. “Mob rule cannot be allowed to override the decisions of our courts,” Eisenhower declared.
The city of Little Rock, Arkansas was in the process of slowly complying with judicial rulings enforcing the integration of its schools when Gov. Orval Faubus got in the way. His opposition to integration encouraged racist mobs to hoot at black students entering Central High School, and it was only the arrival of federal troops that brought a peaceful end to the standoff. It became a classic case of a president using his power for the good of the country.
President Donald Trump’s mobilization of troops this month in response to protests against ICE enforcement actions in Los Angeles is a much less clear-cut case. In the LA protests, Trump’s troops are serving as backup to police who are maintaining order.
California Gov. Gavin Newsom condemned Trump’s action as inflammatory, unnecessary and illegal, but a three-judge appeals panel ruled Thursday that the sometime violent protests were sufficient grounds for Trump to federalize parts of the state’s National Guard. The judges are following a long tradition of courts giving presidents wide latitude to exercise emergency powers.
Constitutional recovery
In the Arkansas case, Eisenhower was responding to a potentially explosive confrontation caused by state officials who refused to enforce a court order. As Corey Brettschneider argued in his compelling 2024 book, The Presidents and The People, the 1957 Little Rock crisis was one of countless episodes in the long history of Americans exerting pressure on presidents to honor the values and pledges of democracy and equality in the nation’s founding documents.
Repairing the damage caused by presidents who abuse their power isn’t quick. And it isn’t easy. But it is only through the work of “constitutional recovery” by journalists, activists and attorneys that the U.S. has reversed efforts to deny citizens their rights.
In his book, Brettschneider, a professor at Brown University, advanced this thesis in a narrative shorn of extraneous detail. He has a knack for citing just the right anecdote to illuminate the relationships between presidents and outside leaders — among them, Thomas Cooper, Frederick Douglass, Ida B. Wells, Martin Luther King Jr. and Daniel Ellsberg — who call them to account.
Underlying the push-and-pull of presidential history is a fundamental flaw in the Constitution itself. As Brettschneider writes, Patrick Henry warned delegates to Virginia’s 1788 constitutional ratifying convention that “the vast powers granted to the president—serving as the singular head of the executive branch and commander in chief of the military—rendered the nation vulnerable to a criminal occupying America's highest office. Such a president, Henry predicted, would realize that his powers could be deployed to aid and abet his criminal ambitions.”
Henry warned, “Your President may easily become king.”
In Brettschneider’s words, this was the essence of Henry’s message: “The presidency was a loaded gun and its ostensibly benign powers might be used for ill.”
He contended that the constitutional recovery involved in President Richard Nixon’s resignation after the Watergate scandal was thwarted by President Gerald Ford’s decision to give Nixon a complete pardon.
That ensured Nixon would not be held accountable for the widespread criminality of his administration, including the break-in to the office of the psychiatrist for Daniel Ellsberg, who leaked the Pentagon Papers.
Instead of serving time in prison, Nixon was free to give an interview to David Frost in 1977 in which he asserted, “When the president does it, that means that it is not illegal.”
Stunningly, the U.S. Supreme Court lent some support to Nixon’s view last July in the case of U.S. v Trump. Chief Justice John Roberts wrote, “We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.”
Back to John Adams
Nixon’s stance harked back to the views of the second president, John Adams, who believed a president could not be prosecuted because that would subordinate the executive to the judicial branch of the government.
The thin-skinned Adams took an expansive view of presidential power that led to the disastrous Alien and Sedition Acts of 1798. Among them was the Alien Enemies Act, which President Donald Trump has used to deport migrants without due process. The Sedition Act gave the Adams administration a cudgel to use against its critics in the press.
“Presidents have the power to push the government off the rails, crashing through constitutional constraint,” Brettschneider noted. “Typically, these conflicts are rooted in crisis presidents who confuse their personal ambitions with the office's requirements, or in those who are overcome with personal paranoia or excessive fear of threats to American security.”
Under the Sedition Act, the Adams administration prosecuted as many as 126 defendants, some for relatively mild criticisms of the president. Of course, the 1790s press was rabidly partisan. Aurora, the newspaper run by Benjamin Franklin’s grandson, Benjamin Bache, published a letter referring to “querulous and cankered murmurs of blind, bald, crippled, toothless Adams."
Another editor, James Callender, called Adams a "hideous hermaphroditical character, which has neither the force of a man, nor the gentleness and sensibility of a woman." The offensive remark must have stung Adams. But the freedom to write such things is built into the Bill of Rights in the form of the First Amendment.
Power grab
“The Sedition Act was a power grab and election manipulation scheme masquerading as a security measure,” wrote Brettschneider.
After Bache’s death due to yellow fever, William Duane took over the Aurora. He was charged with “seditious riot” for merely helping to start a petition to repeal the Alien and Sedition Acts, but was acquitted.
Crucially, Duane exposed a move by the Adams forces to try to decertify electoral votes cast for opposing candidates, an eerie forerunner of the Trump effort to overturn the 2020 election. “It would have created a committee stacked by Federalists to effectively discard and refuse to certify electoral votes on a case-by-case basis, a proposal similar to those floated by Senator Ted Cruz and others regarding certifying the 2020 electoral vote, but more brazen in its attempt to legally codify the scheme,” according to Brettschneider. That scheme died after it was revealed to public view.
But other aspects of Adams’ repressive regime survived for a while. And as so often in American history, the courts backed up a president riding roughshod over the limits set out in the Constitution.
In 1801, the Sedition Act expired with the election of a new president, Thomas Jefferson. He pardoned all those prosecuted under that law. That was the first constitutional recovery cited by Brettschneider. Jefferson proclaimed a unifying message: “We are all Republicans; we are all Federalists,” though he didn’t always live by his principles and privately urged the governor of Pennsylvania to prosecute a journalist critical of Jefferson under state law.
Jefferson’s successor as president, James Madison, rightfully resisted overwhelming pressure in his party to clamp down on press freedom. His support of constitutional rights was in stark contrast to the behavior of General, and later President, Andrew Jackson, whose administration reflected his authoritarian instincts.
In the late 1850s, President James Buchanan improperly encouraged the U.S. Supreme Court’s Dred Scott decision denying citizenship to Black Americans, including freed slaves. The court ruling widened the gulf between north and south that led to the Civil War.
A country for white men
As the war progressed, Frederick Douglass helped persuade President Abraham Lincoln to end slavery, only to see Lincoln cut down by John Wilkes Booth in 1865. That prompted Douglass to again lobby a president for Black civil rights, but he could gain no support from Lincoln’s successor, President Andrew Johnson.
Johnson made his views plain in a letter to the governor of Missouri: “This is a country for white men, and by God, as long as I am President, it shall be a government for white men.”
It would take a much longer account than this post to do justice to the generations of struggle that ensued: With Presidents like Ulysses S. Grant, Harry Truman and Lyndon Johnson becoming genuine supporters of multiracial democracy in response to pressure from activists and journalists, and Woodrow Wilson carrying on the tradition of the south’s hostility to freedom for all.
Wilson’s decision to show the racist film The Birth of a Nation at the White House helped set the stage for the revival of the Ku Klux Klan.
“The presidency is so powerful,” observed Brettschneider,”that one reckless occupant of the White House can throw the country into crisis in a single term. Rebuilding from this crisis to recover a new and stronger version of the Constitution, on the other hand, requires time—a process that involves mobilizing a constituency, persuading citizens, and winning elections.”
Little Rock endgame
In 1957, Arkansas’s governor, Orval Faubus, ordered the National Guard to prevent Black students from entering Central High School. And then, after meeting with President Eisenhower, Faubus withdrew the National Guard, declining to order them to protect the nine black students seeking to enter the school.
“Egged on by a friend of the governor's who insinuated himself into the crowd,” Eisenhower biographer Jim Newton wrote, ”hundreds of white men and women—their ranks swollen by Klansmen and White Citizens' Council members—wheeled on any black person they could find. Four black reporters were among the first victims. ‘Kill them, kill them,’ one person screamed. The students themselves, neatly dressed, dignified, and frightened, were surrounded by a spitting, screaming mob.”
The famous photograph by Will Counts at the top of this post sums up the scene: student Hazel Bryan shouts insults at one of the Little Rock Nine, Elizabeth Eckford, as she heads to the school. The photo was the unanimous choice of the Pulitzer Prize jury for photography, but the Pulitzer board overruled the selection. Bryan and Eckford later reconciled and became friends, for a time. David Margolick’s book Elizabeth and Hazel tells the story.
With the crisis worsening, Eisenhower federalized the Arkansas National Guard and sent 1,000 paratroopers to end the confrontation in Little Rock.
"If resistance to the Federal Court order ceases at once, the further presence of Federal troops will be unnecessary," he said, "and the City of Little Rock will return to its normal habits of peace and order, and a blot upon the fair name and high honor of our nation in the world will be removed."
And that did happen.
As Newton wrote, “Under the orderly supervision of the 101st Airborne, Little Rock's black boys and girls were escorted into school to exercise their constitutional rights. Eventually, the mob lost heart and melted away. By November, the federal troops had been withdrawn, and though the students continued to suffer brutish indignities, they persevered. On May 25, Ernest Green became the first black student ever to graduate from Central High.”
“A young black minister sat with Green's mother: Martin Luther King Jr.”
As another Eisenhower biographer, William L. Hitchcock, noted, Eisenhower “would not be drawn into King's movement. Although he managed the civil rights problems of 1953-56 with dexterity, compiling a record of progress as good as that of any of his 20th century predecessors, he refused to lead the country to embrace a new era of civil rights.” That was left to his successors, Presidents John F. Kennedy and Lyndon B. Johnson.
With their support, civil rights activists Martin Luther King and Thurgood Marshall would lead the greatest constitutional recovery of them all.