President George W. Bush’s re-election with 51 percent of the vote has already been the occasion of much debate over whether Bush gained a popular "mandate" to proceed with his policy agenda. The debate reminds us how far Americans have drifted from their constitutional moorings.

The President himself declares the election to have been a mandate, as do Vice President Dick Cheney, Republican National Committee chairman Ed Gillespie, and a host of other Republicans and conservative commentators. They marshal a number of serious arguments, including the fact that this president is the first candidate since 1988 to win a majority of the popular vote and that he won more raw votes than anyone in American history, in excess of 59 million, about 9 million more than he won in 2000. They can also point to Republican successes in Senate and House elections, where Bush clearly had modest but real coattails.

Democrats and liberal commentators demur, noting that Bush’s 51-48 win with 286 electoral votes was the narrowest reelection of an incumbent since Woodrow Wilson was returned in 1916. They also point out that only 140,000 votes in Ohio separated John Kerry from an electoral vote majority and that Kerry received more votes—a total of 56 million—than anyone in American history save Bush himself.

Where one stands on this question, as the saying goes, depends on where one sits. Republicans who denied that Bill Clinton had a "mandate" when he beat Bush pere by 6 percentage points now argue that 3 points is enough (of course, Clinton had only 43 percent of the total). Democrats who had no problem urging Jimmy Carter to proceed with his agenda after the squeaker of 1976 now urge Bush to realize that his (much larger) margin is insufficient to give him the moral authority to act. Of course, Democrats also argued that Ronald Reagan’s 49-state sweep in 1984 was not a mandate, so it would seem that Republicans never get a mandate, no matter how many votes they receive.

What all of this back-and-forth obscures is that the entire "mandate" concept is highly dubious under most circumstances, for two reasons.

First, from a practical standpoint, voters make their decisions on the basis of a broad range of criteria, and prospective assessments of programmatic promises by candidates are only one factor. Other key factors include party evaluations; assessments of character, life experience, leadership qualities, and record in public life; general philosophical orientation; and, especially when an incumbent is running for reelection, a retrospective assessment of his performance. Indeed, when voters have a record of performance to consult, it is a wonder that they ever look to the uncertain promises of the candidates. Given what we know about voting behavior, it is always questionable to assume that a vote for a candidate automatically means an endorsement of that candidate’s entire policy program. In President Bush’s case, he might reasonably be able to claim a public mandate for his leadership style, his general philosophical inclinations, or his proven record of going on the offensive against terrorists, but not for a particular Social Security reform plan much less tax simplification, which was, at best, a tertiary issue in the campaign.

Second, from a constitutional standpoint, the "mandate" debate is highly misleading, if not dangerous. The people give the president authority by the act of electing him, but the authority itself properly resides in the Constitution, not in a plebiscite. The theory of the presidential mandate was constructed largely by the progressives, who, led by Woodrow Wilson, saw popular election as a source of presidential power and energy in itself, separate from (and perhaps superior to) the Constitution. The problem, of course, is that presidential mandate claims are used most frequently to undermine separation of powers and short-circuit deliberation, as presidents brow-beat Congress into accepting their proposals because "the people endorsed them." This is exactly what Wilson and others had in mind, but it is far from clear that it is good for the American system.

The aftermath of the 2000 election was blessedly free of mandate claims, for the obvious reason that the circumstances of the election did not allow them. The President was forced to go to Congress and win on the merits of his proposals—which he was, more often than not, able to do. The nation came face to face with a reconstitutionalization of the presidency, and came to discover that it need not mean paralysis. Bush had an opportunity to reinforce that lesson by refraining from making the mandate argument in 2004, as well, but the progressive influence on the presidency was too strong and the temptation too difficult to resist. Thus, George W. Bush may leave in his wake a number of accomplishments, but whatever else he may do, he missed a golden opportunity to remind Americans of their constitutional heritage and to strike a blow for the rule of law over the rule of men.

Andrew E. Busch is a Professor of Government at Claremont McKenna College and an Adjunct Fellow of the Ashbrook Center.