The Executive Unbound: After the Madisonian Republic

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

CHAPTER 6
Tyrannophobia

So far we have attempted to show that the administrative state relaxes legal constraints on the executive, but generates political constraints in the form of public opinion. In this chapter we fit this picture together with the fear of unbridled executive power that is such a prominent strand in liberal legalism. We suggest that liberal legalists overlook the importance of de facto constraints arising from politics, and thus equate a legally unconstrained executive with one that is unconstrained tout court. The horror of dictatorship that results from this fallacy and that animates liberal legalism is what we call “tyrannophobia.”

Tyranny looms large in the American political imagination. For the framers of the Constitution, Caesar, Cromwell, James II, and George III were antimodels; for the current generation, Hitler takes pride of place, followed by Stalin, Mao, and a horde of tyrants both historical and literary. Students read 1984 and Animal Farm and relax by watching Chancellor Palpatine seize imperial power in Star Wars. Unsurprisingly, comparisons between sitting presidents and the tyrants of history and fiction are a trope of political discourse. Liberals and libertarians routinely compared George W. Bush to Hitler, George III, and Caesar. Today, Barack Obama receives the same treatment, albeit in less respectable media of opinion. All major presidents are called a “dictator” or said to have “dictatorial powers” from time to time.1

Yet the United States has never had a Caesar or a Cromwell, or even come close to having one, and rational actors should update their risk estimates in the light of experience, reducing them if the risk repeatedly fails to materialize. By now, 235 years after independence, these risk estimates

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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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