"Is the Imperial Presidency Inevitable," review of The Executive Unbound, by Eric A. Posner and Adrian Vermeule, New York Times, 13 March 2011.
In “The Executive Unbound,” Eric A. Posner and Adrian Vermeule, law professors at Chicago and Harvard, respectively, offer with somewhat alarming confidence the “Weimar and Nazi jurist” Carl Schmitt as their candidate to succeed James Madison for the honor of theorist of the Constitution.
James Madison — until now the father of the Constitution — a theorist of rights, the social contract and consent of the governed, is to cede his place to a man who when confronted with the choice between liberal democracy, Communism and Nazism, chose the last. Let’s see what our authors say on behalf of this remarkable substitution.
Madison, taken as spokesman for all the founders, provides, they argue, the basis for “liberal legalism,” the view that the rule of law can be sustained by the separation of executive, legislative and judicial powers. This, Posner and Vermeule say, is legalism because Madison supposes that the formal separation of the three powers in the Constitution can of itself prevent the tyranny of one of them. True, Madison himself, in Federalist No. 48, disparaged mere formal limitations with his famous phrase “parchment barriers,” declaring that strong words on fancy paper will have no power to deter tyranny and support the rule of law. But neither do the Constitution’s words, the authors respond. They see little difference between mere words of exhortation demanding good behavior and words backed up by separate powers in the Constitution that are intended to prevent one power from acting alone.
According to Posner and Vermeule, we now live under an administrative state providing welfare and national security through a gradual accretion of power in executive agencies to the point of dominance. This has happened regardless of the separation of powers. The Constitution, they insist, no longer corresponds to “reality.” Congress has assumed a secondary role to the executive, and the Supreme Court is “a marginal player.” In all “constitutional showdowns,” as they put it, the powers that make and judge law have to defer to the power that administers the law.