The Executive Unbound: After the Madisonian Republic [Hardcover]

Eric A. Posner (Author), Adrian Vermeule (Author)

Book Description

Publication Date: March 16, 2011 | ISBN-10: 0199765332 | ISBN-13: 978-0199765331 | Edition: 1

Ever since Arthur M. Schlesinger Jr. used "imperial presidency" as a book title, the term has become central to the debate about the balance of power in the U.S. government. Since the presidency of George W. Bush, when advocates of executive power such as Dick Cheney gained ascendancy, the argument has blazed hotter than ever. Many argue the Constitution itself is in grave danger. What is to be done?

The answer, according to legal scholars Eric Posner and Adrian Vermeule, is nothing. In The Executive Unbound, they provide a bracing challenge to conventional wisdom, arguing that a strong presidency is inevitable in the modern world. Most scholars, they note, object to today's level of executive power because it varies so dramatically from the vision of the framers of the Constitution. But Posner and Vermeule find fault with James Madison's premises. Like an ideal market, they write, Madison's separation of powers has no central director, but it lacks the price system which gives an economy its structure; there is nothing in checks and balances that intrinsically generates order or promotes positive arrangements. In fact, the greater complexity of the modern world produces a concentration of power, particularly in the White House. The authors chart the rise of executive authority, noting that among strong presidents only Nixon has come in for severe criticism, leading to legislation which was designed to limit the presidency, yet which failed to do so. Political, cultural and social restraints, they argue, have been more effective in preventing dictatorship than any law. The executive-centered state tends to generate political checks that substitute for the legal checks of the Madisonian constitution.

Piety toward the founders and a historic fear of tyranny have been powerful forces in American political thinking. Posner and Vermeule confront them both in this startlingly original contribution.

Editorial Reviews

Review

"This is a book that will, for many readers, both illuminate and infuriate. It is the most full-throated embrace in recent years of the very important (and always controversial) jurisprudential theories associated with Carl Schmitt, particularly with regard to the accretion of power in the Executive Branch. If their views become widely accepted, American law--or at least the American legal academy--will never be the same again."--Sanford Levinson, Centennial Chair in Law and Professor of Government, University of Texas-Austin, and author of Our Undemocratic Constitution

"Opponents of presidential power may be discomfited by Posner and Vermeule's argument that the imperial presidency is unavoidable in the modern world. Proponents of presidential power may be equally discomfited by the authors' argument that presidential power is constrained in practice by politics. Both sides will find it difficult to identify the cracks in a provocative argument with which everyone interested in the twenty-first century Constitution must contend."--Mark Tushnet, Professor of Law, Harvart Law School, and author of Why the Constitution Matters

"Posner and Vermeule argue that in the most important public law fields of the day-- administrative law, the war on terrorism, and the financial crisis--the President of the United States is weakly constrained, if constrained at all, by law, and that any limits on presidential power come not from Congress and courts, but instead from politics and public opinion. This exciting, contrarian, and learned book challenges the core of liberal legalism."--Jack Goldsmith, Professor of Law, Harvard Law School, and author of The Terror Presidency

"In a relentlessly challenging attack on Madisonian pieties, Posner and Vermeule use contemporary examples to argue with verve and style that only politics can realistically check the inevitable dominance of the modern executive. Particularly provocative is the invocation of the authority not of Aristotle and Locke, who they acknowledge might be available for that purpose, but the political theorist Carl Schmitt."--Charles Fried, Professor of Law, Harvard Law School, and co-author with Gregory Fried of Because It Is Wrong

"The title of Posner and Vermeule's book is as provocative as its argument, since the executive is, on their view, bound--but by politics, not law. If they are right, then standard courses in law school should be re-titled 'Constitutional Politics' and 'Administrative Politics', not to mention 'International Politics', and perhaps even moved out of the law schools and into political science departments. For that reason alone, there will be strong resistance to their book's central thesis, which is the mark of a highly successful work."--David Dyzenhaus, Professor of Law and Philosophy, University of Toronto, and author of Hard Cases in Wicked Legal Systems

"A thought-provoking book." -- Library Journal

"Their book makes a refreshingly straightforward case that the modern presidency is unconstrained by law--and that you should like it that way. Even those who...disagree vehemently with the latter proposition will find Posner and Vermuele's arguments provocative and challenging..." --American Conservative

"Provocative" -- American Prospect.org

"Powerfully argued, this book is an important part of the debate over presidential power in the present world. Highly recommended." -- Choice

About the Author

Eric A. Posner is Kirkland and Ellis Professor of Law at the University of Chicago Law School, and is the author of The Perils of Global Legalism, Terror in the Balance (written with Vermeule), and Climate Change Justice, among other books.

Adrian Vermeule is John H. Watson Jr. Professor of Law at Harvard Law School, and is the author of Law and the Limits of Reason, Mechanisms of Democracy, and Judging Under Uncertainty, and is the co-author with Posner of Terror in the Balance.

Product Details

• Hardcover: 256 pages
• Publisher: Oxford University Press, USA; 1 edition (March 16, 2011)
• Language: English
• ISBN-10: 0199765332
• ISBN-13: 978-0199765331
• Product Dimensions: 6.4 x 0.9 x 9.3 inches
• Shipping Weight: 5.4 pounds (View shipping rates and policies)
• Average Customer Review: 1.5 out of 5 stars  See all reviews (2 customer reviews)
• Amazon Best Sellers Rank: #949,792 in Books (See Top 100 in Books)

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Most Helpful Customer Reviews

20 of 22 people found the following review helpful

2.0 out of 5 stars Crisis of the Republic, or Just in Our Law Schools? May 12, 2011

By Martin Salvucci

Format:Hardcover

Spurred by the severity of the crises that bookended the Bush Administration, a growing cadre of left-leaning academic authors has unleashed a spate of popular monographs announcing inevitable fiscal, military, and political ruin. Chief among them, Bruce Ackerman's recent book, The Decline and Fall of the American Republic (2010), argues that the steady agglomeration of executive power threatens the fundamental nature of the American Constitution.

The much-anticipated publication of The Executive Unbound: After the Madisonian Republic (2011) marks the first book-length response to Ackerman's concerns, as well as the second book-length collaboration between Eric Posner and Adrian Vermeule, after their outstanding Terror in the Balance (2007). Law professors at the University of Chicago and Harvard, respectively, Posner and Vermeule claim to offer a strong rejoinder to the pessimism of the likes of Ackerman, with whom both authors share a longstanding academic feud. Given the high quality of the authors' previous collaborations - to say nothing of the aforementioned personal drama - it is not difficult to understand why expectations for The Executive Unbound were so high.

Posner and Vermeule begin with the provocative premise that the American Constitution - on whose behalf founding father James Madison is posthumously elected spokesman - has failed. Madison is taken to represent a perspective the authors label liberal legalism, which holds that the rule of law is grounded upon a system of checks and balances that maintains a more-or-less equal separation of powers. But the separation of powers, Posner and Vermeule opine, requires that each branch of government - executive, legislative, and judicial - claim some genuine political power vis-à-vis one another.... Of course, that notional equality has - in practice, at least - proven to be a whimsical farce since the advent of the New Deal.

In the land of power politics that Posner and Vermeule describe, the executive branch has achieved near-hegemony over matters of state. Congress, then, is little beyond a sideshow, and the Supreme Court, well, is a nice building. The authors seem to think they've discovered something profound in detailing the rise of the executive-dominated administrative state. But the only reader for whom this ascendancy would be newsworthy is one that has spent the past sixty years in a coma. In fact, nearly every major social theorist of the postwar era - Jürgen Habermas chief among them - has grappled, more or less successfully, with the rise of the administrative state. Moreover, if legalistic voices like Habermas are to be believed, the putative demise of liberal legalism might be greatly exaggerated.

Strangely, none of this is of any consequence to Posner and Vermeule, whose cavalier reportage of the death of the American Constitution smacks more of failed aspirations toward an End of History one-liner than it does of dispassionate, scholarly analysis. Some readers might find what comes next to be yet more bizarre, even alarming. Enter Carl Schmitt, the Weimar-era German lawyer whose legacy as crown jurist of the Third Reich has outpaced his legacy as a political theorist. In a perverse twist of fate, it is this moment where the authors argument suggests maximal potential. His political baggage notwithstanding, Carl Schmitt was one of the most perceptive modern theorists of politics. Unfortunately, the authors reveal themselves to be painfully unaware of the most basic aspects of Schmitt's thought.

Aside from clichéd tropes like the sovereign is he who decides the exception (taken from Political Theology), and other quotations that may as well have been gleaned from a primer to the hitherto unpublished edition of Carl Schmitt for Dummies, the authors make no substantive use of Schmitt's rich and profound thought. Instead, Schmitt - or the highly superficial rendering that the authors provide - becomes a stand-in for two relatively trivial observations: 1) the executive has centralized all meaningful political power within the ascendant administrative state and 2) the actions of the executive are constrained by political - rather than legal (or constitutional) - concerns.

The combination of these observations yields little in the way of original scholarship. As indicated earlier, the first is available elsewhere to anyone willing to read a book, hardly a fortuitous development, given that there seems little reason then to read this book. Nor need Chicago readers cross the Midway for the second, which is available to any Chicago student willing to brave the prospect of coursework with Gerald Rosenberg, the distinguished scholar of American Politics with dual appointments in the Department of Political Science and the Law School. Rosenberg's well-argued meditations upon the entanglement of law and politics might prove instructive to both authors.

Perhaps because the authors reduce Schmitt to a shallow caricature, the role that he actually plays in their self-described Schmittian Model is relatively inconsequential. Instead, the Schmittian Model is presented with a set of highly simplistic rational-choice arguments, none of which seems to have anything to do with Schmitt. The basic conclusion: as citizens, we need not fear the rise of a unitary executive because the executive - as a rational actor, like any other - is constrained by public opinion. Strangely, the authors barely address the relatively obvious question of how public opinion on these superficially legal (or constitutional) issues is formed. Dare we suggest that quaint notions like the separation of powers might play a role?

Why, exactly, we should take these rational-choice arguments seriously is never stated. And unlike the calculations of economists - whose likeminded efforts may rest upon the majesty of incomprehensible mathematics, if nothing else - the various charts and graphs that the authors present in an effort to bolster and to clarify their claims lack any semblance of dispositive authority. Of course, there is majesty to the study of the law, despite the best efforts of Posner and Vermeule to disabuse their readers of it. Their self-conscious legal realism is so painfully exaggerated that we must wonder why exactly the authors even bother teaching the law. If nothing else, I suppose it's a paycheck.

Regardless, my advice is to skip this one until it is housed in the bargain aisle alongside the latest installments from the likes of Andrew Bacevich and Chalmers Johnson. Otherwise, it is sad to say, the search for a worthy successor to liberal legalism must continue. Until that search is completed, all of us must continue to make due with the naďveté of James Madison. And that's fine with me. Read more ›

8 of 39 people found the following review helpful

1.0 out of 5 stars SKIP IT April 21, 2011

By IHARRISESQ

Format:Hardcover|Amazon Verified Purchase

THESE AUTHORS STATE THEIR OFF-THE-WALL OPINIONS AS ACTUAL FACTS, VIZ., THE SUPREME COURT IS A "MARGINAL PLAYER." THESE ERUDITE LAW PROFESSORS DON'T EVEN CALL THE MEMBERS OF THE SUPREME COURT "JUSTICES" WHICH IS THEIR REAL TITLE. THEY ADVOCATE ABANDONMENT OF THE CONSTITUTION AND ABOLISHMENT OF THE OTHER TWO BRANCHES OF GOVERNMENT: THE CONGRESS AND THE JUDICIARY. THEY DEMEAN THE FOUNDERS AS HAVING MADE ERRORS IN ESTABLISHING THE GOVERNMENT OF THE UNITED STATES. IF WHAT THEY ADVOCATE PREVAILED, WHAT WOULD PREVENT "THE IMPERIAL EXECUTIVE" FROM DECIDING TO REMAIN IN POWER PERPETUALLY WITH NO CONSTITUTIONAL PROTECTION AGAINST SUCH ACTION? THEIR SOLE SOLUTION FOR CORRECTING EXCESSES BY THE EXECUTIVE IS A VOTE OF THE PEOPLE. THEY SHOULD REALLY READ ALEXIS DE TOCQUEVILLE'S "DEMOCRACY IN AMERICA" WHICH THEY SHOULD HAVE READ IN HIGH SCHOOL, WHEREIN HE WARNS THAT THE BIGGEST DANGER TO DEMOCRACY IS THE TYRANNY OF THE MAJORITY OF THE PEOPLE. MANY PEOPLE IN DEMOCRACIES AROUND THE WORLD, INCLUDING GERMANY, SELECTED BAD LEADERS. SEPARATION OF POWERS AND THE CONSTITUTION ARE THE ONLY HOPE FOR PROTECTION FROM THE TYRANNY OF THE MAJORITY, BUT THE AUTHORS ADVOCATE ABANDONING BOTH AS ILL-THOUGHT-OUT BY THE FOUNDERS. I SUSPECT THAT THESE AUTHORS' NEXT BOOK WILL BE WRITTEN TO PROVE THAT THE STATES ARE NO LONGER RELEVANT AND THAT THERE SHOULD ONLY BE A FEDERAL GOVERNMENT. I RECOMMEND THAT YOU READ THE REVIEW OF THE BOOK BY HARVEY MANSFIELD, A PROFESSOR OF GOVERNMENT AT HARVARD, IN THE NEW YORK TIMES, SUNDAY, MARCH 13, 2011, BOOK REVIEW SECTION, AND SKIP READING THE BOOK.