The Executive Unbound: After the Madisonian Republic

By Eric A. Posner; Adrian Vermeule | Go to book overview

CHAPTER 4
Constraints on the Executive

The modern executive enjoys vast discretion to govern, yet we are far from “tyranny,” the outcome Madison predicted would result from the accumulation of powers in one office. Even during emergencies and war, when executive power is at a zenith, and congressional and judicial checks at their lowest ebb, tyranny is not the result. This point can be put in a number of ways. Through its long history and all of its wars and crises, the U.S. government has generally been responsive to the public interest, and has always ranked as a leader among countries around the world in protecting civil liberties. Indeed, the national government was instrumental in dismantling slavery and the Jim Crow laws in the southern states, which were the closest thing to tyranny that the United States has ever experienced. Political science indicators of various sorts confirm that, compared to the other countries around the world, the United States is a leader in democratic responsiveness and civil liberties.1 And American practices in these respects have only improved over the decades and centuries, during the same period in which the separation of powers has eroded.

In this chapter, we discuss this puzzle. Our argument is simple: the system of elections, the party system, and American political culture constrain the executive far more than do legal rules created by Congress or the courts; and although politics hardly guarantees that the executive will always act in the public interest, politics at least limits the scope for executive abuses. After briefly making these points, we focus on the way that American political culture—which features deeply entrenched suspicion

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The Executive Unbound: After the Madisonian Republic
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Introduction 3
  • Chapter 1 - The Constitutional Framework 18
  • Chapter 2 - Constitutional Change 62
  • Chapter 3 - The Statutory Framework 84
  • Chapter 4 - Constraints on the Executive 113
  • Chapter 5 - Global Liberal Legalism 154
  • Chapter 6 - Tyrannophobia 176
  • Conclusion 206
  • Acknowledgments 211
  • Notes 213
  • Index 243
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