The Chief Magistrate

by Daniel D. Slate

Abstract

This Article recovers an overlooked historical source for the American presidency and identifies its implications for executive power. Founding-era portrayals of the “‘Hebrew Republic”’ not only had not only an exclusionary influence that forever delegitimized kings in America but also shaped the creation of the Article II executive. Cognate scholarly disciplines, including history and political theory, have recently acknowledged the decisive influence the Hebrew Republic had on early modern theories of constitutional government, including those of the American Revolution. The legal community has yet to grapple with the implications of these recently rediscovered sources for current debates about executive power. Additionally, although the broader scholarly recovery of Hebraic republicanism and its influence has focused on its antimonarchism, to date there has to date been little study of the model of executive power internal to the Hebrew Republic. This Article initiates that study and argues that model had a significant effect on Founding-era thinking about what made for an ideal republican executive and ultimately shaped the Article II presidency. Although the delegates to the 1787 Federal Convention arrived divided, differing sharply on about what an executive for a national republic ought to look like, by the end of the Convention the president they instituted shared a remarkably close resemblance to the chief magistrate of the Hebraic republicans, including: (1) being commander in chief of a federated polity’s national military efforts, yet being neither king nor dictator; (2) operating through the rule of law and being subject to legal process, including criminal penalties and removal from office; (3) sharing significant powers concurrently with a senate; (4) being constitutionally required to be a natural-born citizen; (5) being the only national figure acclaimed as the representative of the people at large; and (6) bearing the non-kingly title of President. My claim is not that the writings of the Hebraic republicans are the only pertinent source material, but rather that studying their effect on Founding-era America is necessary for any analysis of the original presidency that aspires to be comprehensive and account for all relevant historical evidence. One implication of my argument is that we should resist recent attempts to give a “royalist” interpretation to the Article II presidency. Instead, this Article argues that our law should reflect that the president shares many of the features of the Hebraic republicans’ chief magistrate, including: being always and immutably subject to the rule of law (and not in any way above it); being a decidedly republican and not a royalist executive; and, when exercising discretionary powers, doing so in ways controlled by respect for the worth of the individual person, even under the exigent pressures of emergency and crisis.