Legal Commentary

Mansfield on Posner and Vermeule

By Jonathan H. Adler

Harvard?s Henry Mansfield reviews The Executive Unbound: After the Madisonian Republic by Eric Posner and Adrian Vermeule.    Here?s a taste:

To judge this book, let us return to the Madisonian Constitution, which has one central feature not discussed or even mentioned by Posner and Vermeule. For Madison, the main danger addressed by the Constitution is not executive tyranny but majority tyranny. Any government has to worry most about the abuse of power by those with whom power is placed ? and in a republic, that is the people. Madison?s fear, stated very prominently in Federalist No. 10, is about majority faction, not usurpation by a minority or a single executive. He and Alexander Hamilton wanted a strong executive that would show its strength by standing up to the people, avoiding (in the phrase of Federalist No. 71) ?servile pliancy? to their random wishes. For them, the sort of executive we today consider strong, in the image of Andrew Jackson and Franklin Roosevelt, is actually weak because it excites and furthers the majority?s possibly tyrannical desires.

In fact, the people today both love and hate the administrative state, and together our two parties register that ambivalence. With regard to welfare, Democrats are for it, Republicans against it; with regard to national security, the situation is reversed. We do have two recent examples of presidents who have stood up against majority opinion: George W. Bush with his surge in Iraq and Barack Obama with his health care plan. But Posner and Vermeule would say, with reason, that both the surge and the health care plan extended the administrative state. For them, democracy consists in giving the people what they want, and the test of a good president is his credibility with the majority, not his responsibility to the law or the Constitution.

Full post as published by The Volokh Conspiracy on March 20, 2011 (boomark / email).