Is the gerhardt professor of constitutional law and director of the university of North Carolina center on law and government. He is the author of five books. The Financial Times has named the forgotten president s is one of the best books of 2013. Michael has advised congressional and white house officials on many constitutional issues. He has participated in no fewer than five Supreme Court confirmations hearings and was the only joint witness in the house judiciary history of impeachment. Ladies and gentlemen, join me in welcoming michael gerhardt. [applause] it is such an honor. Lets begin by asking why you decided to write this book. Chance to bete the here. Us, thisgood for me. Ecca for i am moving my officer later. My office here later. Why this book . As you well know, a lot of what i have done, not just write also taken very seriously and opportunity to consult with congressional leaders. , i encounter a lot of questions about constitutional law. How much of that work turns on history. A lot of what i ended up working it turns out no arenas the answer to that question nobody knows the answer to that question. I thought it would be interesting to put all that Work Together and look at it from the perspective of what it teaches us about the constitution. We do have a strong anticell phone rule. It is all being monitored by the nsa. That is a very good reason to write this book. What you learned is tremendously useful. What does it take to be a forgotten president . There was a poll at my dinner table to see who remembered what. You did say your son was quizzing you. Me on triviao quiz about the president s. How do you measure what is a forgotten president . In the course of figuring out that question, i went through a lot of possibilities. Looking at the history books there is ased Wonderful Library there with all of the books used in school. We read every line of every history book. We have a chart on the back and who comes out at the bottom of that. We also looked at Major Research libraries. What books to the kerry . What books dont they carry what books do they carry . What books dont they carry . We had an amazing discussion last week with the author of the is hear fdr series the most remembered president . Close, but it turns out is lincoln. It is lincoln, roosevelt, washington as the top three. To some extent in that order. We have 13 president s with the distinction of being forgotten, although one appears twice and that is grover cleveland. He is forgotten for separate reasons. [laughter] i would like to go through them. They have such powerful constitutional legacies. Lets begin with martin van buren. He had a rather distinctive constitutional vision which was associated with the jacksonian party. Was. Us what the vision flex i will try to keep you as awake as possible i will try to keep you as awake as possible when i do this. For the jacksonian, a couple of things central. If you think of one person being representative of all of the people, jacksons approach was to say, it will be the president. Every president thinks that way today. They believe strongly in small democracy. They brought into government the rulethat the people should and should have a critical say about how the government is run. Were formed because they hated the jacksonians. The especially hated jackson. They felt that what i said to you was completely false. They thought jackson was a dictator and a tyrant. The idea that the president , theybe that powerful thought that was wrong and corrupting. They oppose the idea of factions. Lastly, they simply felt they formed themselves because they wanted to become a platform for henry clay. He could use that to defeat jackson. Tell us why jackson failed in defending why van buren failed in defending the jacksonian view of executive power. Bender and comes into office after Jackson Van Buren comes into office right after jackson. Think of van buren as jacksons third term. The problem was he was not jackson. He could not bring to the job all of the different skills and powerful personality that jackson had. Van buren came into office with the objective of trying to expand what jackson had done. It includes trying to force that will on the congress. People generally dislike van buren. They thought of him as a shady and corrupt character. For much of his life, he was called the red fox. They could not pin him down on what he believed. Not marshal a lot of support. He gets his preferred legislation through congress, but it is not very effective. It on the basis of the jacksonian philosophy. The federal government did not have much power to do this. You have a massive depression and you do not think you can do much at the federal level. He passed a law that involved an independent treasury. It did not do much to relieve the depression. Therefore, he got voted out of office. It is not a modern view of executive power. The whigs believe in a powerful congress. Weakey believe in a president. They preferred a very Strong Congress and they would prefer the president to do what congress wanted. That will not work out either. With van buren, he believes in a modest role for financial matters. There are still folks who believe that. That was the case on 19th century. With van buren, he ended up not being very innovative either conservatives would have been the van buren crowd. Every solution was a modest and small and. Small one. The more constitutionally minded the president s were, the less effective they were. To a degree to that contribute to his failure . That the federal government had very limited power. One of the patterns i found doing the book is how many historians dismiss these president s as weak and ineffective. I do not see them that way. Found is they would take very strong stands at political risk. There is van buren taking a fairly strong plan stand and having to deal with the political consequences. Had he been craftier, he would have figured out, lets figure out a way to appease everybody politically. He was willing to take the heat for doing something because of the constitutional principle. When the federal problem persisted, he was going to be the person blamed for it and he took the blame. Our next failed president is William Henry harrison. Opportunity. Ted in those 31 days, he contribute it something important, which was a growing resistance of congressional supremacy. Tell us about that. Least remembered . A great and strong candidate, he was the first candidate not meted for president nominated he is the first whig president. Harrisontation is that would be a very weak president. Someone who would do the bidding of the whig party. And so what you see from the day he is elected and david a of his inauguration is almost like a where clay isde chasing harrison around the country trying to nail them down on certain appointments and policies and harrison is resisting that. Which is an interesting response from somebody that is supposed to be a big president listening to a leader of congress who is henry clay. When they do talk, harrison resists saying to play that he will do what he wants. By the time harrison is inaugurated although he dies shortly thereafter he is barely speaking to clay. Presidency,to his clay leaves town, they are so alienated. But as an odd thing to expect from somebody who is a weak president that is an odd thing to expect from somebody president. Ig harrison was beginning to say that a whig presidency would not work so much. That he could go to his end of pennsylvania avenue and they would keep it that way and clay was not happy about that. He was a large character. Grant had a similar moment when the cabinet tried to impose a choice on him and he stood up and said he was the president. Both harrisons are in the book and both are forgotten, they both came into office seeming to be week from parties that wanted weak president s but ce. Y took a principled stand strongly resisting congressional pressure and what to do. Saying they would protect the prerogatives of this office. For William Henry harrison, that meant determining his own appointments, not congress. It also meant that he would determine when to call a special session of congress on the depression. Those were big issues and he wanted to take a lead on them. Was the debate between the jacksonians and the whigs similar as that between the tea party and mainstream republicans and democrats today . To some extent. You do not want to overstate the similarity but to some extent, especially if what you are talking about is going to first principles. If your first prince falls r, 14 party folks, to go back to a very limited federal government no department of education, limit what you can do under the Commerce Clause, drawback a good deal that is to some extent where you find van buren. The strong conclusion of this book is that president s who ofrace that limited view president ial and ultimately federal power fail. Well, they fail, but not for lack of principle. That they arests failing because of the principle they are trying to defend is just not a popular principle. It turns out that sometimes the principle does not produce policies that are effective and popular, that the people want in an executive. That seems to be a theme we run into time and time again. Problem people want to see is solved and sometimes they want a president to be a part of that. One thing these presents have in common is they either do not solve the problems or they defend some principles which turn out to be not popular either within the party or in the general electorate. Tyler,s turn to john most famous for resolving the question of whether the Vice President becomes president on the death of the president. There was a dispute, as you know, over with a very phrase in the constitution that says in the case of the removal of the president from office or his death, the same shall devolve on to the Vice President. The question was whether the same referred to the office. Tyler stood his ground. He is not even in washington when harrison dies, that is how fast it happens. The get sick in his inauguration and goes downhill from there. Which is interesting because with everything we have said with harrison euro to think about him dying while this is going on. He is taking strong stance but his health is deteriorating. He dies, tyler figures that he should get to washington. He figures all the way he is a good lawyer out of william and mary, which is produced lawyers like John Marshall when he gets to washington he has it plan, and that is to take the oaths of office to become the president of the United States. We think that makes sense but few of the people he encounters agree. The cabinet says to him that he is not a president. The president. He is the Vice President acting as president but he is not the president. No, i am the them, president , if you do not like that, you can leave. They have a stare down. Tyler prevails. Not long thereafter, his entire cabinet except one resigns in protest because they do not like the fact that he is trying to be president. Over the next four years he has some of the most active presidency of anybody in history. Is encountering resistance rns, so hishe tu presidency is quite constitutionally rich. Was the attempt to impeach him, there was an attempt to impeach him, Congress Tries to get information on appointments, but he writes seminal documents about the Things Congress is doing to push against them. I should mention that he is ig and heto be a wh is resisting congress of every turn. You have a two president s in a row who are whigs but not popular with them. By the end of it, clay does not like him. Are getting very fed up of all these people who are supposed to be the person taking strong stances to consolidate president ial power. You say tyler far more with president than any congress, more be does than anyone except for jackson, more nominees rejected. Was the core of the debate his strict constructionism and is of states . Part of it was his philosophy , but it was not just his philosophy about something else. The fact that he was not just elected. Said, i should have becomes harrisons Vice President and has to leave his party to do that. D had been a big democrat. They dont trust him or think he is one of them and that turns out to be accurate. He ends up alienating both parties, so some of what is going on here, especially in the senate, is that they are not happy and tyler is not doing what they want by giving them the patronage that they want. He is trying to preserve the priority for name people he prefers. Manning are not facts. They are reputable and excellent people getting rejected all the time. He makes nine nominations to the Supreme Court to cell to spots. O human gets one confirmed. He only gets one confirmed. In the factpect that his nominees are defeated but he wins in the fact that other president s are watching. From this book that fraction was Supreme Court battles are not new. You see that in the difficulties that have getting nominees through. Especially with tyler, who, again, as all of these able and qualified nominees that are being rejected. What you see, in the 19 century, is that the senate is not shy about rejecting people or simple enough having simply not having a hearing. Tyler comes up with this innovation called recess appointments. It is creating more and more friction between congress and the president as things go on. A pattern that is worth talking about is that even if a president fails, it is important to understand how that affects the balance of power between congress and the president. Andyler is doing Something Congress is resisting you can see that as an effort on it congresss part to retain authority and remain strong. Even if there is a president that is ineffective, that can work to congresss benefit. Throw the 19th century, congress is strengthening itself in opposition to the president throughout the 19th century, congress is strengthening itself in opposition to the president. Talk about examples. This happened with van buren with the famous amistad case. We will not go through the movie but that is one of the early slave cases that comes to the Supreme Court. Van buren is trying to use the situation with the slaves that were built on the ship and rub them sent back to cuba and havely elsewhere them sent back to cuba and ultimately elsewhere. To doan buren is trying is game the system and he loses at every level in that situation. He is ultimately forced to abide by what the judges say and he does. That is remarkable. At the end it, then bureau does not say he will reject what the courts say. He says that he has to abide by it. That is an interesting precedent and other president s and up following it. In the introduction that many of these forgotten president s influence the viewpoints of our most famous president s. We give a pop quiz, who luenced lincoln the most you give a pop quiz, who influenced lincoln the most . Any guesses . Excellent. Zachary taylor. Very good. [laughter] wherever we get our information is fine. I think you get a free president ties from the gift shop, although we will have a version that blots out all of the remembered president s. Why was it that Zachary Taylor was so influential on lincoln . The influenced link and in a couple of respects. You have to remember that megan began his clinical career as a whig his political career as a whig. Two years ine has congress before he becomes president. Those are critical because they coincide with taylor. When taylor dies, lincoln gives the eulogy. Lincoln really revered taylor first is a general. As a general. He had been a general in a mexico. One of the things that lincoln really loved about taylor as a general was that he would always be able to figure out a way to win against the odds. This is something you might want to think about for lincoln later. He loved the idea that somehow taylor was always able to snatch victory from the job defeat. He loved his ability to job of defeat. Jaw of defeat he loved his ability to improvise and prevail. He talked about a lot in the eulogy. N the can is about to be he talked about that in the eulogy. When he is about to be president he says that the person he credits for his political education is accurate taylor, because he ends up not doing his Political Partys bidding but is his own man. That he isthe idea not going to be president of his party or do what Congress Wants or create a triangle. He is trying to be president in his own right and dictate to congress what it does read lincoln like that. We can thought that was a good thing. Lincoln thought that was a good thing. You also like that he was president for only one month and had a critical policy. To only have two slave states committed to the union. Congress did not want to do that because it would have the balance of power in the favor of antislavery. Congress at this point was perfect balance between the two. Taylor wouldve been happy to. Ip the Balance Congress said no and lincoln had to respond by being innovative. They can loved all of that. Lincoln loved all of that. Say that lincoln that was also influenced by recess appointments. After Congress Resists what taylor wants in the senate does not act on his nominations, if that sounds familiar, is that taylor then turns to his attorney general and says lets make recess appointments. And they do. He has his attorney general opinion on recess appointments and he makes over 400 of them, a record for the time. He much a record for all time. Pretty much a record for all time. It is a very robust view which the Supreme Court has largely confirmed which is that anything can count as a recess, any breaking congress will count as a brief recess. The president can use that time to make an appointment. For president rk obama because the core is going to say that does not turn out to have been a break. Otherwise if there is a break the president can use that to make a recess appointment and that viewpoint gets its full of circulation from taylor and the 19thcentury fullest articulation from taylor in the 19th century. Is the Supreme Court decision faithful to that