Academic

Legal Theory Bookworm

By Lawrence Solum

The Legal Theory Bookworm recommends The Executive Unbound: After the Madisonian Republic by Eric A. Posner & Adrian Vermeule.  Here is a description:

Ever since Arthur M. Schlesinger Jr. used "imperial presidency" as a book title, the term has become central to the debate about the balance of power in the U.S. government. Since the presidency of George W. Bush, when advocates of executive power such as Dick Cheney gained ascendancy, the argument has blazed hotter than ever. Many argue the Constitution itself is in grave danger. What is to be done? 

The answer, according to legal scholars Eric Posner and Adrian Vermeule, is nothing. In The Executive Unbound, they provide a bracing challenge to conventional wisdom, arguing that a strong presidency is inevitable in the modern world. Most scholars, they note, object to today's level of executive power because it varies so dramatically from the vision of the framers of the Constitution. But Posner and Vermeule find fault with James Madison's premises. Like an ideal market, they write, Madison's separation of powers has no central director, but it lacks the price system which gives an economy its structure; there is nothing in checks and balances that intrinsically generates order or promotes positive arrangements. In fact, the greater complexity of the modern world produces a concentration of power, particularly in the White House. The authors chart the rise of executive authority, noting that among strong presidents only Nixon has come in for severe criticism, leading to legislation which was designed to limit the presidency, yet which failed to do so. Political, cultural and social restraints, they argue, have been more effective in preventing dictatorship than any law. The executive-centered state tends to generate political checks that substitute for the legal checks of the Madisonian constitution. 

Piety toward the founders and a historic fear of tyranny have been powerful forces in American political thinking. Posner and Vermeule confront them both in this startlingly original contribution.

And from the reviews:

"This is a book that will, for many readers, both illuminate and infuriate. It is the most full-throated embrace in recent years of the very important (and always controversial) jurisprudential theories associated with Carl Schmitt, particularly with regard to the accretion of power in the Executive Branch. If their views become widely accepted, American law--or at least the American legal academy--will never be the same again."--Sanford Levinson, Centennial Chair in Law and Professor of Government, University of Texas-Austin, and author of Our Undemocratic Constitution

"Opponents of presidential power may be discomfited by Posner and Vermeule's argument that the imperial presidency is unavoidable in the modern world. Proponents of presidential power may be equally discomfited by the authors' argument that presidential power is constrained in practice by politics. Both sides will find it difficult to identify the cracks in a provocative argument with which everyone interested in the twenty-first century Constitution must contend."--Mark Tushnet, Professor of Law, Harvart Law School, and author of Why the Constitution Matters

"Posner and Vermeule argue that in the most important public law fields of the day-- administrative law, the war on terrorism, and the financial crisis--the President of the United States is weakly constrained, if constrained at all, by law, and that any limits on presidential power come not from Congress and courts, but instead from politics and public opinion. This exciting, contrarian, and learned book challenges the core of liberal legalism."--Jack Goldsmith, Professor of Law, Harvard Law School, and author of The Terror Presidency

"In a relentlessly challenging attack on Madisonian pieties, Posner and Vermeule use contemporary examples to argue with verve and style that only politics can realistically check the inevitable dominance of the modern executive. Particularly provocative is the invocation of the authority not of Aristotle and Locke, who they acknowledge might be available for that purpose, but the political theorist Carl Schmitt."--Charles Fried, Professor of Law, Harvard Law School, and co-author with Gregory Fried of Because It Is Wrong

"The title of Posner and Vermeule's book is as provocative as its argument, since the executive is, on their view, bound--but by politics, not law. If they are right, then standard courses in law school should be re-titled 'Constitutional Politics' and 'Administrative Politics', not to mention 'International Politics', and perhaps even moved out of the law schools and into political science departments. For that reason alone, there will be strong resistance to their book's central thesis, which is the mark of a highly successful work."--David Dyzenhaus, Professor of Law and Philosophy, University of Toronto, and author of Hard Cases in Wicked Legal Systems

Full post as published by Legal Theory Blog on March 05, 2011 (boomark / email).