The Madisonian Constitution: Rightly Understood

By Kleinerman, Benjamin | Texas Law Review, March 1, 2012 | Go to article overview

The Madisonian Constitution: Rightly Understood

Kleinerman, Benjamin, Texas Law Review

The Madisonian Constitution: Rightly Understood THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC. By Eric A. Posner & Adrian Vermeule. New York, New York: Oxford University Press, 2010. 249 pages. $29.95.

Eric Posner and Adrian Vermeule begin The Executive Unbound: After the Madisonian Republic by announcing the failure of what they call liberal legalism.1 They write: "[T]he simplest version of liberal legal theory holds that representative legislatures govern and should govern, subject to constitutional constraints, while executive and judicial officials carry out the law."2 Associating legal liberalism with James Madison, they draw on the thought of the Weimar legal theorist Carl Schmitt in order to conclude, like Schmitt had about seventy years ago, that the Madisonian constitutional republic has been eclipsed by the political reality of the unconstrained Executive.3 Of course, unlike Schmitt, they do not suggest that the Executive is utterly unconstrained.4 Instead, they claim: "[T]he major constraints on the executive, especially in crises, do not arise from law or from the separationof- powers framework defended by liberal legalists, but from politics and public opinion."5 Legal liberalism, they argue, goes wrong when it equates "a constrained executive with an executive constrained by law."6

One of the first major reviews of this book rightly noted that one of the crucial mistakes made in this book comes in its simplistic equation of liberal legalism with the thought of James Madison.7 It is almost too easy to show that Madison was never, not even in his later post-Federalist affiliation with Thomas Jefferson's Republican Party, a liberal legalist of the sort described by Posner and Vermeule. Part of my aim in this Review will also be to demonstrate this same point. I will do this not so much, however, so as to show the obvious-that Posner and Vermeule simply get Madison wrong on this question-as to show that getting Madison right would have provided a far more subtle and interesting portrait of our contemporary situation. Similarly, it is ultimately insufficient to let the authors off the hook by suggesting that they were simply using Madison as a stand-in for the liberal legalism that tends to dominate the contemporary legal academy. It is surely true that the type of liberal legalism that Posner and Vermeule describe can be found in the legal academy.8 And it is also true that some of these same scholars sometimes do look to Madison as their guiding light.9 But, in claiming to dethrone James Madison, Posner and Vermeule have bigger ambitions than just to criticize the legal academy and its inspiration. They choose James Madison as their target because their argument is ultimately aimed at the constitutional order itself. They want to criticize not just the reigning manifestation of legal liberalism in the academy but the fundamental assumptions of the constitutional order; as the "father of the Constitution" that they aim to bring down, or at least make seem fundamentally irrelevant, James Madison is their natural target.

If their real target is the constitutional order itself, however, one might ask why they do not spend more time on the actual constitutional thought of its principal founder, James Madison. I suspect the answer to this question lies in their own cramped view of the meaning of a constitutional order-a view that derives entirely from the very same liberal legalism that they attempt to overcome. Most revealing in this context is an early footnote discussing Nomi Lazar's book, States of Emergency in Liberal Democracy.10 Her work represents a number of recent books, all of which use the recent questions about the range of executive power in a constitutional democracy to show that the liberal constitutional tradition has a much more robust accommodation for discretionary executive power than had become the conventional wisdom.11 In other words, taken seriously, her work should have raised a profound challenge to Posner and Vermeule's claims about the irreconcilability of a wide-ranging, discretionary executive with a constitutional order. …

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
Cite this article

Cited article

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,

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

The Madisonian Constitution: Rightly Understood


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?

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

    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,

    New feature

    It is estimated that 1 in 10 people have dyslexia, and in an effort to make Questia easier to use for those people, we have added a new choice of font to the Reader. That font is called OpenDyslexic, and has been designed to help with some of the symptoms of dyslexia. For more information on this font, please visit

    To use OpenDyslexic, choose it from the Typeface list in Font settings.

    OK, got it!

    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.

    Author Advanced search


    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.