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Walter Bagehot's still-admired study of the English Constitution distinguished between its "dignified" and "efficient" parts. Bagehot argued that the English Constitution's "dignified" theory of parliamentary supremacy masked the (then) dominant reality of cabinet government. Attacking what he described as the "literary" theory of the American Constitution, Woodrow Wilson posited a similar distinction. Writing in 1885, Wilson asserted that the "literary" theory of American government embodied in Federalist's "ideal checks and balances of the federal system" obscured its efficient principle: "government by the chairmen of the Standing Committees of Congress." An ardent admirer of ministerial government, Wilson especially lamented the condition of the American presidency:

The business of the president, occasionally great, is usually not much above the routine. Most of the time it is mere administration, mere obedience of directions from the masters of policy, the Standing Committees. Except in so far as his power of veto constitutes him a part of the legislature, the President might, not inconveniently, be a permanent officer; the first official of a carefully graded and impartially regulated civil services system.

When Wilson revisited this topic a little more than two decades later, he had undergone a conversion. He now believed that the President could become a figure comparable to the Prime Minister: "The President is at liberty, both in law and conscience, to be as big a man as he can." Wilson insisted, however, that this position was contrary to the "Whig" theory of the founding generation:

The makers of the Constitution seem to have thought of the President as what the stricter Whig theorists wished the king to be: only the legal executive, the presiding and guiding authority in the application of law and the execution of policy. His veto upon legislation was only his 'check' on Congress – was a power of restraint, not of guidance.

Wilson saw no tension between his belief that the Constitution contemplated only a Whig Executive and his conception of the President as Prime Minister because he was quite dismissive of the relevance of constitutional theory; his concern was with the realities of governmental power. Among modern students of the presidency, Wilson's pragmatic orientation has flourished. Thus, in his influential book Richard Neustadt insisted that “the probabilities of [presidential] power do not derive from the literary theory of the Constitution"; he argued that its real source stems from the President's power to persuade.


Constitutional Law | Law