Welcome back to our tour of America's Unwritten Constitution.
One of the reasons we kind of need an unwritten
constitution to supplement the, the terse text of the written
constitution is that there are places where this document, really
important places, where the text kind of gives out very quickly.
The Ninth Amendment signals that there are these unenumerated rights.
Unspecified, they are not textualized.
And the Fourteenth Amendment privileges or immunities clause echoes
that idea that there are these rights But then
neither the Ninth nor the Fourteenth tells us exactly
where to find them and how to find them.
So we've got to in order to, to do a justice to
text we, we have to take the idea of unenumerated rights seriously.
But we're going to have to go outside
the texts to to find those rights. I suggested one easy way
is to go look at actual lived customs and practices of ordinary Americans.
To find the privileges and immunities of citizens in actual citizen practices.
To find the rights of the people in how the people actually lived their lives.
Now here's another patch of text that, where the
words give out very quickly, and don't really give us enough guidance.
It's Article Two of this document.
The article about the executive branch, about the presidency in particular.
It's very terse.
And there are lots of things that presidents do today and
have always done that don't really seem to be itemized in this,
this text. [COUGH] Excuse me.
The, the language of Article One, about Congress,
specifies all sorts of powers that the Congress has.
It's a sort of a long laundry list
and, and Article Three identifies for federal courts the,
the different cases over which the, and controversies, over
which the court is supp-, the courts, the federal
courts, are supposed to have judicial power, have jurisdiction.
Article Two contains a list of certain executive functions.
But executives have always really done more than on that list.
Now there's a way you can read actual practice, unwritten practice
so to speak, our, our traditions to cohere with the text.
And that's by reading the first
sentence of Article Two as a kind of residual catchall.
Okay, there's some more powers above and beyond the things that are itemized.
Here's the first sentence.
The executive power shall be vested in the President of the United States of America.
So the idea is there is this kind of free floating executive power that goes beyond
some of the specific itemized things, Commander in Chief, pardon power take
care that the laws be faithfully executed give
the State of the Union address, and so on.
There's these specific items and then
there's this overall residual, catchall oh,
and you're generally vested with the executive power of the United States.
But the question is well, why were they so, unspecific
about what that executive power should mean, does mean, and should mean.
And how are we supposed to go about figuring out what a president
properly does and properly does not, does do and properly does not do?
to, to discharge this executive power of the United States.
So why are they so vague and what's a president supposed to do today?
And I think the answer to both of these questions is a quite simple one.
The answer is George Washington.
