Academic journal article Constitutional Commentary

Constitutional Faith, or Constitutional Stealth? the Puzzling Resurgence of American Monarchism

Academic journal article Constitutional Commentary

Constitutional Faith, or Constitutional Stealth? the Puzzling Resurgence of American Monarchism

Article excerpt

THE ROYALIST REVOLUTION: MONARCHY AND THE AMERICAN FOUNDING. By Eric Nelson (1) Cambridge, Mass.: Belknap Press, 2014. Pp. 400. $29.95 (cloth).

THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC. By Eric A. Posner (2) & Adrian Vermeule. (3) New York: Oxford University Press, 2011. Pp. 256. $31.95 (cloth), $19.95 (paper).

SECRETS AND LEAKS: THE DILEMMA OF STATE SECRECY. By Rahul Sagar. (4) Princeton: Princeton University Press, 2013. Pp. xiii + 304. $35.00 (cloth), $24.95 (paper).


Veneration for the Constitution is a staple of American political culture, as is vigorous debate about the meaning of specific terms. Yet events of recent years have raised pointed questions about the Constitution's viability: is it truly well-adapted in today's world for delivering on the promises of its Preamble; or is it, rather, maladapted, ineffective, and obsolete? Does the Constitution adequately describe how we are actually governed; and, if not, need we be concerned?

Short of formal amendment, the common way to remedy perceived defects of the Constitution has been by shifts in interpretation. The Supreme Court has done this on many occasions, with varying political impact. Some of these shifts focused on personal rights, others on governmental powers. Some were enabled by transformative Court appointments, but others reflected shifts in opinion prompted by dramatic national and world events or successful political movements. All were able to draw support from scholarship that criticized the previously dominant interpretations. Perhaps the most significant shift was the abandonment in the 1930s of doctrines that had severely restricted both governmental regulation of the economy and broad delegations of power by Congress to bureaucratic agencies. A major consequence was a tremendous increase in the size of the federal executive branch, the scope of its powers, and the money it spends. These changes have aroused continued controversy as to their wisdom, with some supporters and critics regarding them as tantamount to constitutional--or unconstitutional--revolution. The controversy, however, has played out largely in political and academic discourse, not in the judiciary.

In recent years, the discourse has shifted in surprising ways. As late as 1988, Sanford Levinson's Constitutional Faith (6) sought to find coherent meaning in a close and reverential reading of the Constitution's text. By 2006, Levinson was calling for a new Convention to remedy its profound defects. (7) Other scholars, however, see no need for formal amendment or replacement. Instead, they contrive to find in the Constitution, as it stands, principles and virtues wildly different from the familiar literal readings and traditional understandings. The conventional discourse shows signs of exhaustion.

This essay considers three recent books that boldly but differently defend remarkably strong views of the powers our Constitution bestows on the presidency: The Royalist Revolution, by Eric Nelson; The Executive Unbound, by Eric Posner & Adrian Vermeule; and Secrets and Leaks, by Rahul Sagar. All three come from prestigious presses, with jacket blurbs from a diverse group of prominent scholars. These may surprise, until we reflect that veneration for the presidency has never been confined to a narrow ideological faction. Presidents of all parties have consistently appealed to it, argued for it before Congress and the courts, and gained significant, often bipartisan support. Political leaders deeply opposed to incumbent presidents have historically tended to attempt capturing the office, not to weaken it.

Presidential powers, as Madison observed, thrive most dangerously in times of war: "Of all the enemies to public liberty war is, perhaps, the most to be dreaded.... [T]he discretionary power of the executive is extended.... No nation could preserve its freedom in the midst of continual warfare. …

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