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The Constitutional Legacy of
Forgotten Presidents
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The Constitutional
Legacy of Forgotten
Presidents
MiChaeL J. Gerhardt
1
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Contents
Acknowledgments vii
Introduction ix
Chapter 1: Martin Van Buren 3
Chapter 2: William Henry Harrison 23
Chapter 3: John Tyler 33
Chapter 4: Zachary Taylor 60
Chapter 5: Millard Fillmore 72
Chapter 6: Franklin Pierce 84
Chapter 7: Chester Arthur 100
Chapter 8: Grover Cleveland 113
Chapter 9: Benjamin Harrison 126
Chapter 10: Grover Cleveland 139
Chapter 11: William Howard Taft 154
Chapter 12: Calvin Coolidge 171
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Chapter 13: Jimmy Carter 194
Conclusion 215
Appendix 218
Notes 224
Bibliographical Essay 258
Index 260
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Acknowledgments
I have never had more fun writing a book than I did in writing this book. I enjoyed
discovering things about our presidents, oftentimes things that my colleagues did
not know or had forgotten. Most of the time, I met with curious but supportive
colleagues. I was particularly gratified when skeptics became enthusiastic about
the project, which happened, thankfully, much more often than not. I benefited
enormously from the constructive comments I received from participants in
workshops at the Politics departments of Princeton University, Boston College,
and University of North Carolina–Chapel Hill and at the law schools at Cleve-
land State, Cornell, Duke, Fordham, Indiana University–Bloomington, Ohio
State, Seton Hall, the University of California–Irvine, and UNC–Chapel Hill. I
owe special thanks to Josh Chafetz for extremely useful feedback on more than
one draft of the book and am grateful for the support and helpful suggestions I got
from Akhil Amar, Stuart Benjamin, Jack Boger, Greg Caldeira, John Coyle,
Kareem Crayton, Michael Dorf, Marty Flaherty, Robby George, Fred Greenstein,
Ken Kersch, Mac McCorkle, Kevin McGuire, and Georg Vanberg. I benefited
greatly from the research assistance I received from UNC Law School students
Alica Kerr, James Tristan Routh, John Noor, Ashley Holmes, Miriam Mirten-
baum, Evan Bolick, Paul Zimmerman, Alex May, Norah Warren, Mark Vaughn,
Tina Eagle, Trevor Pressler, Andrew Salek-Raham, Joana Spruill, Cara Richards,
and Emily Evans. Another UNC law student, Greg Day, deserves special com-
mendation. Greg, who received his Ph.D. in political science from the University
of Mississippi shortly after beginning law school in Chapel Hill, provided invalu-
able help in conceiving and constructing the appendix. My editor, David McBride,
deserves special thanks for support above and beyond the call of duty.
I reserve my most heartfelt gratitude to my family—my wife Deborah and
our wonderful children Ben, Daniel, and Noah—for their unwavering support,
devotion, and confidence. Their enthusiasm for the book, day in and day out,
kept me going, and so it is to them that I dedicate this book, forever and always.
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Introduction
When the economy tanked just before the presidential election and inaugura-
tion, the new president understood he had to act quickly. As a senator, he had left
little mark and carefully avoided controversy, but expectations were high. The
president’s fellow Democrats quickly rallied to his side, while opposition leaders
vowed to oppose everything he did. To the surprise of many, he promised bold,
radical reform. His proposal split the nation. But, by a largely party-line vote,
Congress approved it. His critics denounced his plan as extremist, unprece-
dented, dangerous, despotic, un-American, and plainly unconstitutional. While
one might have expected the conservative Supreme Court to strike his plan
down, it did not.
Someone reading this description might think that the new president was
Barack Obama, though it best fits Martin Van Buren. As the second Democrat
elected president, he presided over the nation’s first great depression. His bold
plan required reorganizing federal depositories and opposing the production of
paper money. He based the proposal on his convictions that the federal govern-
ment had limited authority to address a national economic crisis and none to
coin money in any form other than gold or silver. His plan did nothing to ease
the nation’s economic woes, and Van Buren became the first president to lose
reelection because of the economy. Subsequently, every president, including the
next four Democratic presidents who entered office in the midst of economic
crises—Grover Cleveland, Franklin Roosevelt, Bill Clinton, and Barack
Obama—understood that, as Clinton said, “It’s the economy, stupid.” Each
avoided Van Buren’s example and, unlike Van Buren, read the Constitution as
investing the national government with the flexibility to address economic—
and other national—crises.
In the more than a century after Van Buren’s death, Americans often forget
that the Supreme Court is not the only institution that grapples with constitu-
tional questions and that the crises they confront are not unprecedented. Harry
Truman’s observation that “the only surprises are the history we do not know”
applies to a wide swath of constitutional activity, including the constitutional
impact of Van Buren and many other presidents whom we have largely forgotten.
This book tells the stories of Van Buren and these other presidents. Their
stories enrich our understanding of the relationship between the presidency and
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