Academic Work

“Franklin D. Roosevelt, World War II, and the Reality of Constitutional Statesmanship,” Texas National Security Review 7, no. 2 (Spring 2024): 56-94.

(Click here to listen to a podcast where I discuss the article.)

Abstract

Is statesmanship compatible with constitutional government? Scholars have posited the possibility of “constitutional statesmanship” in America but have done little to probe its historical reality or evaluate its consequences. To illustrate some of the limits, possibilities, and ambivalences of constitutional statesmanship in practice, this article examines Franklin Roosevelt’s leadership on the home front as the country contemplated and later waged war abroad. I argue that while the president applied constitutional statesmanship to prepare his nation for war, this brand of circumscribed statesmanship later struggled to resolve the tensions between the demands of war and the dictates of constitutionalism. After explaining how distinct notions of constitutionalism generate unique expectations of statesmanship, I show how Roosevelt’s own conceptions of the U.S. Constitution and American statesmanship, developed before World War II, elucidate his leadership decisions during wartime. His leadership, for good or ill, indelibly shaped the powers of the U.S. commander in chief and the constitutional order we live under today.

Roadmap

This article proceeds in six parts. First, I urge the rehabilitation of “statesmanship” as an evaluative standard, a standard undervalued in presidency studies and ill understood in American public discourse. To this end, I define constitutional statesmanship and posit a method of evaluating leadership against its standard. Because evaluating a leader against this standard requires an appreciation for the conceptual relationship between constitutionalism and statesmanship, I also illustrate how distinct notions of constitutionalism generate distinct expectations of statesmen. Second, I discuss my case selection, Roosevelt in World War II, the sources dictated by that case, and the intellectual and historical contexts that framed prevailing understandings of American constitutionalism and statesmanship in that era. Third, I outline FDR’s own conceptions of the U.S. Constitution and the place for statesmanship within it. Fourth, I explain FDR’s prewar, national defense–oriented leadership in terms of those conceptions and then evaluate his leadership against the standard of constitutional statesmanship. Fifth, I likewise explain and appraise his wartime actions. Finally, I conclude by comparing Roosevelt’s contemporaries’ evaluations of his constitutional leadership, demonstrating what the standard developed herein adds to those evaluations, and illustrating how precedents Roosevelt established have been used and abused by his successors.

Work in Progress: “A Council of Grand Strategists: The Original Hope, Fear, and Intent of the U.S. Senate in Foreign Affairs.”

(Winner of 2023-2024 Stanford Law School Legal History Paper Prize)

(Winner of 2024 Federalist Society Young Legal Scholars Paper Competition)

(Click here to watch a conference presentation of a draft; my remarks begin at 1:17:35)

Working Abstract

The United States struggles to craft and execute a “grand strategy,” i.e., a long-term, holistic, prioritized plan to secure its interests abroad. This is so, I argue, because the U.S. Constitution divides authority over foreign affairs and prescribes frequent transfers of power. The upshot is that the U.S. government is rarely able to agree on foreign-policy priorities, maintain those priorities over time, and implement a whole-of-government plan to accomplish them. But it did not have to be this way, and very nearly was not. Until the proverbial eleventh hour of the Constitutional Convention, in fact, nearly all delegates assumed the Senate would enjoy the conclusive, near-exclusive, power to run the nation’s foreign affairs.

This article reconstructs a vision of the Senate as a “council of grand strategists” — a body imbued with the qualities and vested with the authority necessary to unilaterally direct and manage American grand strategy. This “original hope” for a council of grand strategists, alongside the “original fear” that eventually extinguished that hope, animated the delegates’ debates over the Senate’s form and functions. Together, this hope and the fear it engendered, sheds new light on the Founders’ original intent for the role of the Senate in U.S. foreign affairs.

This article unfolds in four parts. First, in Part I, I sketch a theory of the relationship between constitutional arrangement and grand strategy. Only by understanding what grand strategy entails can we appreciate how the Convention’s nationalist delegates envisioned a Senate that could provide for it and further, how compromises the nationalists made sacrificed grand strategy as a realistic expectation of American constitutional government. Part II then introduces those nationalists who hoped for a Senate of grand strategists, as well as their antagonists who feared the same. Part III, the bulk of the article, traces the debates at the Convention over the Senate’s tenure, composition, selection, and powers. At stake in these debates, I argue, was not only the Senate’s role in foreign affairs but also the nation’s very ability to do grand strategy. Finally, Part IV concludes by suggesting that the judiciary’s disposition of foreign-affairs cases today reflects an attempt to enable American grand strategy in spite of U.S. constitutional design.

Work in Progress: “The Executive Travels Alone: Presidential Prerogative and Judicial Abstention in War.”

(Draft available upon request.)

Working Abstract

Not infrequently, presidents exercise what John Locke called executive prerogative, or “the Power to act according to discretion, for the publick good, without the prescription of Law and sometimes even against it.” Or at least they used to. From Jefferson’s response to the Chesapeake affair to the many unilateral actions Lincoln undertook in response to the Confederacy’s initiation of war, nineteenth-century presidents asserted prerogative in ways Locke would have recognized. That is, they exercised an extraconstitutional tool of statesmanship justified by necessity and subjected to popular ex post judgment. Since at least the administration of Franklin D. Roosevelt (FDR), however, presidents have increasingly pointed to within the Constitution to justify their expressions of prerogative power and have sought legal (and often preemptive) sanction for them.

This conversion of Lockean prerogative into an essentially legal tool threw prerogative out of the political arena and into the courtroom for scrutiny. And it put courts in a bind that I call (for want of a cleverer name) the “judicial dilemma.” Aware of the executive’s occasional need to resort to extraconstitutional prerogative, on the one hand, but also recognizing that sanctioning the use of prerogative power might routinize it, on the other hand, judges have constructed canons of abstention that accommodate extraconstitutional prerogative without perverting constitutional meaning. Beginning with Justice Robert Jackson’s jurisprudence in World War II but resonating today in our courts’ political-question doctrine, the abstention solution to the judicial dilemma is commendable in its aim, elegant in its resolution, and also indefensible as a matter of constitutional law.

This paper traces courts’ accommodation of extraconstitutional prerogative: its origins, its evolution in form, and its practical merits and constitutional flaws. I illustrate how a change in political practice — namely, presidents’ substitution of legalized prerogative for extralegal Lockean prerogative — engendered a change in judicial behavior. In response to the political change, judges first turned to abstention before later settling on the political-question doctrine to resolve the judicial dilemma. I proceed in six parts. First, in Part I, I explain Locke’s theory of executive prerogative: what it is, why it exists in Locke’s framework, how it was to be performed and judged, and why it is central to the dilemma interrogated in this essay. Then, to illustrate how American presidents converted Lockean prerogative, an essentially extraconstitutional political tool, into a legal one, I compare the use of prerogative by two wartime presidents. In Part II, I show how Lincoln exercised Lockean prerogative and, in Part III, how FDR legalized it with the aid of his attorney general Robert Jackson. Part VI explains how Jackson, once on the bench, attempted to resolve the judicial dilemma (self-imposed by his work in FDR’s administration) through judicial abstention. Part V argues that Jackson’s then-lonely position has since been subsumed by the Court’s political-question doctrine, which incorporates both the merits of Jackson’s solution but also its constitutional infirmities. Finally, Part VI concludes with a qualified defense of Jackson’s abstention solution as well as an appeal to resurrect the nineteenth-century practice of Lockean prerogative.