The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive

By Skowronek, Stephen | Harvard Law Review, June 2009 | Go to article overview

The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive


Skowronek, Stephen, Harvard Law Review


TABLE OF CONTENTS

I. A NEW FORMALISM                                  2074
II. EARLY CONSTRUCTIONS                             2077
III. THE PROGRESSIVE CONSTRUCTION                   2083
IV. THE UNITARY EXECUTIVE AS THEORY                 2092
V. THE UNITARY EXECUTIVE AS POLITICS                2096
VI. THE TRANSPOSITION OF IDEAS IN THE CONSTRUCTION  2100
OF PRESIDENTIAL POWER

A government, by an unlimited power of construction, may stretch constitutions ..., or interpret them as synods do scripture, according to the temporal interest of the predominant sect.

--John Taylor of Caroline (1)

The American Constitution was designed to render political change slow and difficult, and that has put it at odds with the various insurgencies that have, from time to time, swept over it. Indeed, few things in American political development are more impressive than the ingenuity of empowered movements in confounding the checks and balances that thwart their ambitions, and nothing has proven more consequential for American government over time than the ideas and institutions they have conjured to ease those constraints. The underlying political dynamic has long been familiar. Commenting on the drift of American government in the early nineteenth century, Virginia theorist John Taylor of Caroline decried the tendency of ideologically charged movements to change the Constitution without amendment. The "predominant sect" simply reinterpreted the text, proceeding by means of "construction" to render it more amenable to attainment of the new political purposes in view. Constraints on programmatic action gave way before a "machine called inference," a machine that works by "conceding [constitutional] principles, and then construing them away." (2)

The American presidency, as we know it today, is one of the chief products of the political machinery of constitutional inference. Time and again, the office has proven indispensable to the political ambitions of newly empowered reform movements, and each has brought to it a new set of legitimating ideas and institutional resources designed to attain them. Looking back, it may seem obvious that the presidency is uniquely suited to the promotion of transformative ambitions. But the attraction of insurgent movements to the presidency is, in fact, one of the great paradoxes of American constitutional design. The Framers feared leaders of the sort who would appeal directly to the people on behalf of one political program or another, and they created the presidency in large part to check popular enthusiasms. (3) Far from endorsing presidential leadership, their assumptions in separating executive and legislative power were that Congress, with its vast repository of expressed powers and its close proximity to the people, was the branch most likely to exploit public sentiments, and that a properly constituted executive would help to stabilize the affairs of state. (4) The separation of powers, the provision for indirect presidential elections, the charge to "preserve, protect and defend the Constitution," (5) the presidential veto of legislation--all marked the presidency as a counterweight to impulsive majorities and a prod to a more deliberative stance in national affairs. (6) It might be said that the Framers anticipated moments like the mid-1860s and the mid-1990s when congressional insurgents flush with power and emboldened by a radical vision of new possibilities squandered precious time and energy trying to weaken and circumvent an uncooperative occupant of the White House. (7) What they did not anticipate was that handicapping the legislative branch in the enactment of popular mandates and reconstructive programs would spur the development of alternative instrumentalities designed to work through the executive. The unintended effect of their division of powers has been to direct proponents of programmatic action to elaborate upon the endowments of the presidency and to refashion that counterweight to insurgency into its cutting edge. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.