ABOUT THIS BOOK

When Thomas Jefferson struck a deal for the Louisiana Purchase in 1803, he knew he was adding a new national power to those specified in the Constitution, but he also believed his actions were in the nation’s best interest. His successors would follow his example, setting their own constitutional precedents. Tracing the evolution and expansion of the president’s formal power, Untrodden Ground reveals the president to be the nation’s most important law interpreter and examines how our commanders-in-chief have shaped the law through their responses to important issues of their time.

Reviewing the processes taken by all forty-four presidents to form new legal precedents and the constitutional conventions that have developed as a result, Harold H. Bruff shows that the president is both more and less powerful than many suppose. He explores how presidents have been guided by both their predecessors’ and their own interpretations of constitutional text, as well as how they implement policies in ways that statutes do not clearly authorize or forbid. But while executive power has expanded far beyond its original conception, Bruff argues that the modern presidency is appropriately limited by the national political process—their actions are legitimized by the assent of Congress and the American people or rejected through debilitating public outcry, judicial invalidation, reactive legislation, or impeachment. Synthesizing over two hundred years of presidential activity and conflict, this timely book casts new light on executive behavior and the American constitutional system.

AUTHOR BIOGRAPHY

Harold H. Bruff is the Rosenbaum Professor of Law at the University of Colorado Law School. He is the author, most recently, of Bad Advice: Bush’s Lawyers in the War on Terror.

REVIEWS

“Everyone knows that the Supreme Court interprets the Constitution. But in this magisterial book, Bruff shows that presidents have played the most important role in interpreting the Constitution over the course of the nation’s history—and have done so in a way that teaches us not just about the presidency but about the nature of the American Constitution itself. Bruff gives us an engaging account of how presidents from George Washington to Barack Obama have used the powers of their office, and anyone who is interested in the Constitution will learn from, and be challenged by, his original and subtle analysis of what our Presidents have done.”

— David A. Strauss, University of Chicago Law School

"There is no better book for understanding how presidents interpret the Constitution than Untrodden Ground. No one knows the subject better than Bruff. His book is an instant classic, drawing on a lifetime of learning, invaluable experience, extraordinary research, and unique and profound insights. Everyone, including presidents and the people who work for them, can learn a great deal from this terrific book. Indeed, I would suggest, no one should work in the White House or executive branch—or seek to critique what they do—unless they have first read this book and taken its lessons to heart."

— Michael Gerhardt, University of North Carolina School of Law

“A considerable achievement. Bruff has brought together in an admirably coherent fashion more than two hundred years of complex presidential activity to consider how presidents have shaped the Constitution’s concrete meaning. Constitutional law scholars will appreciate the book’s thoughtful and nuanced analysis. An even wider readership simply interested in presidential power will value Bruff’s lively writing, clear organization, and provocative insights.”

— Martin Flaherty, former law clerk to Justice Byron R. White

“Bruff’s historical approach to explaining how presidents’ interpretations of their constitutional powers have established precedents that form a common law of presidential power is a welcome push in the direction of uniting historians’ interest in change over time with political scientists’ interest in theory building. . . This book is a useful reference for those interested in how the meeting of constitutional text and presidential practice has propelled the development of the presidency.”

— Choice

“A magnificent book . . . [with] immense value. . . . Bruff brings a wealth of knowledge to his subject, and his book makes a valuable contribution to the study of the presidency, constitutional interpretation, and the president as constitutional interpreter. It illustrates that the Constitution belongs to politicians as well as jurists, that constitutional meaning comes from ethical and pragmatic as well as historical argument, and that the creative contributions of presidents have played an important role in the Constitution’s ability to endure through the years.”

— Congress and the Presidency

“Bruff, through a painstaking and thorough analysis of the historical record, contends that presidential interpretation is appropriately constrained by Congress, by public opinion, and by judicial intervention. He concludes that presidents have played, and continue to play, a vital role in the contestation and development of the meaning of the Constitution.”

— Harvard Law Review

“Untrodden Ground is a must read for those interested in understanding the myriad dynamics that shape presidents’ impact on constitutional interpretation. The author assesses each administration in chronological fashion to shed light on our understanding of the US Constitution. No other book to my knowledge has been so ambitious in assessing each president’s contributions to constitutional interpretation, and few other books are infused with such lively prose.”

— American Historical Review

“Through a painstaking and thorough analysis of the historical record, [Bruff] contends that . . . presidents have played, and continue to play, a vital role in the contestation and development of the meaning of the Constitution.”

— Harvard Law Review

“This study offers a perceptive, deeply researched, and thoughtful analysis of how presidents interpret the Constitution. Bruff builds on his prior service with the Justice Department, decades of teaching at law school, and impressive scholarship over the years. The writing is crisp, clear, coherent, and develops each topic systematically.”

— Louis Fisher, the Constitution Project and William and Mary Law School, The Federal Lawyer

TABLE OF CONTENTS

Introduction: Only a Necessity

Part I. Durable Consequences

Chapter 1. Responsibility: The Constitution
Chapter 2. Summoned by My Country: Washington and Adam
Chapter 3. The Fugitive Occurrence: Jefferson and Madison

Part II. A New Nation

Chapter 4. Independent of Both: Jackson, Tyler, and Polk
Chapter 5. A Rough Time of It: Lincoln
Chapter 6. Unmindful of the High Duties: Andrew Johnson

Part III. Steward of the People

Chapter 7. Facing the Lions: McKinley, Theodore Roosevelt, and Wilson
Chapter 8. What Must Be Done: Franklin Roosevelt

Part IV. One Single Man

Chapter 9. Going to Hell: Truman and Eisenhower
Chapter 10. Bear Any Burden: Kennedy and Lyndon Johnson
Chapter 11. Not Illegal: Nixon, Ford, and Carter

Part V. A New Era

Chapter 12. First a Dream: Reagan
Chapter 13. The Vision Thing: George H. W. Bush and Clinton

Part VI. Deciders

Chapter 14. No Equivocation: George W. Bush
Chapter 15. The Last Mile: Obama

Conclusion: The Stream of History

Notes
Index

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