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. …