The oath and the office A guide to the Constitution for future presidents

Corey Lang Brettschneider

Book - 2018

Constitutional law scholar and political science professor Corey Brettschneider guides us through the Constitution and explains the powers--and limits--that it places on the presidency. From the document itself and from American history's most famous court cases, we learn why certain powers were granted to the presidency, how the Bill of Rights limits those powers, and what "the people" can do to influence the nation's highest public office--including, if need be, removing th...e person in it. In these brief yet deeply researched chapters, we meet founding fathers such as James Madison and Alexander Hamilton, as well as key figures from historic cases such as Brown v. Board of Education and Korematsu v. United States.

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New York : W.W. Norton & Company [2018]
First edition
Physical Description
xxvi, 289 pages ; 22 cm
Includes bibliographical references (pg.231-274) and index.
Main Author
Corey Lang Brettschneider (author)
  • Introduction: The oath
  • Section I. The powers of the president. Article II and the limited presidency
  • The bully pulpit
  • The power to execute the laws
  • The power to hire and fire
  • The power to nominate Supreme Court justices
  • The commander-in-chief power
  • Section II. "We the people" and the Bill of Rights. Madison and the creation of the Bill of Rights
  • The First Amendment and free speech
  • The First Amendment and the freedom of religion
  • The Eighth Amendment and the ban on cruel and unusual punishment
  • The Fourteenth and Fifth Amendments and the guarantee of equal protection of the laws
  • Section. III Checks of the president
  • How to stop a president
  • The judicial check on a president
  • Federalism
  • The congressional check and impeachment
  • Conclusion.
Review by New York Times Review

popular books about the Constitution are something of a countercyclical phenomenon. When all is well in the polity, they are relatively scarce on the ground. Their recent profusion - and, in particular, the development of the this-book-is-about-timeless-constitutional-truths-not-aboutTrump-wink-wink subgenre - is not a great sign, then, for the health of our body politic. But even as the very existence of these works signals danger, it also suggests a kind of optimism, a belief that American political institutions will continue to exist in recognizable form. Corey Brettschneider's "The Oath and the Office: A Guide to the Constitution for Future Presidents" fits well into this category: It presupposes that there will be "future presidents," even as it seeks to instruct them in behavioral patterns radically different from those of the current occupant of the Oval Office. Brettschneider's book, addressed to a presidential aspirant, begins with the question "What do you need to know to be president?" The answer: "Most of all, you need to know the U.S. Constitution." This framing is one of the book's great virtues: It moves the focus away from the too-common and too-narrow question of what the courts might force a president to do in the name of the Constitution to the more capacious question of how a president herself should understand her constitutional role. For instance, Brettschneider devotes an early chapter to an examination of how presidents should use their bully pulpit - not an issue the courts are likely to involve themselves in, and yet one of the most consequential parts of the modern presidency. "There are things Americans should hear from their president, and also things they should not," he writes. Specifically, "You should never use the bully pulpit to speak in a way that is contrary to the values of the Constitution." Indeed, Brettschneider's core claim is that the Constitution embodies values, not just prohibitions and commands, and a constitutionally conscientious president has an affirmative duty to promote those values, among them equality under the law, respect for individual rights, limited political power and political deliberativeness. These are excellent values to be sure, but our constitutional tradition also embodies much uglier ones, like white supremacy, patriarchy, xenophobia and militarism. How does Brettschneider pick out the constitutional traditions to which future presidents should be faithful? The answer appears to come via a kind of Whig history according to which the Constitution has always embodied liberal ideals and has simply been working itself pure for the last two and a quarter centuries. Thus, Brettschneider, a professor of political science at Brown University, criticizes Republicans' late-20th-century "Southern strategy" as inconsistent with American constitutional values, rather than recognizing the messier and sadder truth that it was a choice to embrace one grand constitutional narrative, that of white supremacism, over another, more egalitarian one. But Brettschneider's Whiggery also comes out in myriad smaller ways, as when he says that a couple of early-20thcentury Supreme Court cases on the fireability of federal officers give rise to a coherent constitutional principle, rather than seeing them for what they in fact were: disjointed attempts to respond to the emergence of the modern administrative state. This sanding down of our constitutional tradition until it is smooth facilitates the book's optimism. Brettschneider's insistence on a coherent, unified constitutional narrative allows him to claim that the liberal values he favors are dictated by the Constitution itself. Presidents take an oath to the Constitution; therefore, those values come with the office. But if, instead, those are only some of the values in our constitutional tradition - if, indeed, they are in deep tension with other, equally embedded values - then we have to turn somewhere other than to the Constitution for guidance. We have to bring values to the document, not expect them to be there waiting for us. The Constitution alone won't save us.

Copyright (c) The New York Times Company [August 23, 2019] Review by Publisher's Weekly Review

Brettschneider, a Brown political science professor, delves deeply into the U.S. Constitution for legal guidance to the historically controversial question of the scope of U.S. presidential powers. He approaches the topic through an unusual-and occasionally awkward-conceit, positing himself as the legal adviser to an imagined reader who aspires to be the next president. Brettschneider begins with an exploration of Article II of the Constitution, which sets out the presidency's explicit powers, then considers the implicit limitations on those powers imposed by the Bill of Rights, and completes his tutorial with a discussion of the Constitution's provisions for impeachment. Among the questions considered are a president's right to hire and fire members of the executive branch, constitutional prohibition of cruel and unusual punishment as it applies to torture, and the Constitution's guarantee of equal protection under the law as it pertains to minorities and immigrants. Some readers will disagree with Brettschneider's left-leaning conclusions, as when he rejects originalism, a literalist way of interpreting the Constitution associated with the late conservative Supreme Court justice Antonin Scalia, because "it does not account for some of the most widely recognized... rights that we have today." However, all should find his core discussion of the many considerations inherent in the exercise of presidential powers to be accessible and timely. (Sept.) © Copyright PWxyz, LLC. All rights reserved.

(c) Copyright PWxyz, LLC. All rights reserved Review by Kirkus Book Review

A legal scholar advises presidents to read the Constitution with great care.During the 2016 presidential campaign, Brettschneider (Political Science/Brown Univ.; Civil Rights and Liberties: Cases and Readings in Constitutional Law and American Democracy, 2013, etc.) was shocked that "proposals to violate the Constitution that had been the stuff of far-fetched classroom hypotheticals" were part of Donald Trump's agenda. The author responded in articles for Politico,, and the New York Times, which became the basis for this pointed, cogent, and authoritative analysis of presidential policy and power. Addressing future presidents (and certainly the current office holder) and all citizens, Brettschneider parses the text of the Constitution and Bill of Rights, offers historical background to illuminate the reasons for and controversy over provisions, identifies salient exemplary cases, and concludes with recommendations for any president. He distinguishes between an originalist position, which reads the documents "according to the historical meaning of the words at the time of their passage," and a "value-based reading," which asks, "what is our best understanding of the moral principles of the Constitution enshrined in its text and in our case law?" Clearly, the author advocates a value-based reading, since originalists sometimes fail to investigate the history underlying certain provisions. Focusing on a question that arose during the George W. Bush administration regarding the use of "enhanced interrogation," Justice Antonin Scalia argued that the ban on cruel and unusual punishment did not apply, since extracting information is not technically punishment. Brettschneider argues, however, that the prohibition against cruel and unusual punishment, as stipulated in the Bill of Rights, was imported from the British Bill of Rights to end "the arbitrary and cruel abusesespecially torturecommitted by kings and queens against their subjects." The author offers a clear explanation of many complex issues, such as the provisions of the 14th Amendment, which guarantees equal protection under the law; and the process involved in impeachment, including the question of whether obstruction of justice is an impeachable offense.A cleareyed, accessible, and informative primer: vital reading for all Americans. Copyright Kirkus Reviews, used with permission.

Copyright (c) Kirkus Reviews, used with permission.