Is the Madisonian Republic dead?

Eric Posner and  Adrian Vermeule have an interesting new book out that is going to raise the ire of folks on both the right and the left: “The Executive Unbound: After the Madisonian Republic.” Are we in a post-Madisonian republic?

I’ve not read it yet, but just the description on Amazon seems to indicate that what the book proposes–that the modern state requires a strong executive, to the detriment of the legislative and judicial branches–is form of government more akin to Schlesinger’s “imperial presidency” than Madison’s “checks and balances.”

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.

At a time when biographies of John Adams, George Washington, and Thomas Jefferson are more popular than ever, I can’t help but ask myself if the efforts of the right to channel the spirit of ’76 in the modern Tea Party are too little too late.

On the other hand, do we really want to turn the clock all the way back to 1789? Is a strong executive entirely evil?

Said one reviewer:

“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

I don’t know that the political system we live with now–far larger and more complex than Madison and Hamilton and others designed in 1789–is in fact evil, but I don’t necessarily think I am ok with it purports to do, either. I do know I look forward to reading Posner and Vermeule’s arguments.

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