- Hardcover: 258 pages
- Publisher: University of Chicago Press; 1 edition (May 15, 2009)
- Language: English
- ISBN-10: 0226749398
- ISBN-13: 978-0226749396
- Product Dimensions: 6 x 0.9 x 9 inches
- Shipping Weight: 1.1 pounds (View shipping rates and policies)
- Average Customer Review: 7 customer reviews
- Amazon Best Sellers Rank: #2,043,386 in Books (See Top 100 in Books)
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Madison's Nightmare: How Executive Power Threatens American Democracy 1st Edition
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"Peter Shane argues that post-1981 presidentialism is the enemy of the kind of deliberative governance that our founders intended. He shows how the Bush Administration's vision of the "unilateral" Presidency—the reductio ad absurdum of presidentialism—not only misinterpreted the Constitution, but failed as a philosophy and strategy of government for meeting the nation's needs. Shane goes well beyond bashing the last Administration, however. He explains how, if our government is to give us real solutions to our hard problems, the members of every Administration, as well as Congress and the judiciary need to re-read the Constitution and take critical steps to reshape our legal culture in order to resuscitate public accountability and the principle of checks and balances. But, first, they need to read this book."
"Since the Obama administration now has czars for cars, information technology, bonuses, financial products, etc., can a book czar be far behind? Well, here's a memo for the inbox of our book czar to-be. It's about a slender volume that I want our new czar to mandate as a 'must-read' for every American from middle school to grad school and way beyond. The book is titled Madison's Nightmare."
“Shane writes deftly to explain constitutional debates . . . in terms comprehensible to lay readers. His analysis of Bush 43’s use of executive privilege, control over regulatory policy making, and presidential signing statements are particularly illuminating. . . . Highly recommended. All readership levels.”(Choice)
"Shane writes here about the enormous expansion of presidential power and its violation of constitutional principles. In particular, he argues that the rise in presidential power is contrary to the intentions of the framers, who imagined a restrained executive subject to the checks and balances of Congress and the judiciary. In modern history, the author argues, we have seen the rise of an aggressive presidency that too often ignores the will of Congress, which has led to bad decision making and illegal acts. Shane calls this 'presidentialism' and explores this theme throughout the book, giving examples of unrestrained presidential power, such as the Terrorist Surveillance Program of George W. Bush and the conduct of the Iraq War. Although he draws notable examples from the recent Bush administration, Shane is careful to say that many Presidents have been guilty of presidentialism; he traces the concept back to the New Deal and cites Watergate as a notorious instance. Later chapters offer solutions to the problem of expanding presidential power, e.g., election reform and increased access to broadband Internet. Recommended for academic and large public libraries."(Library Journal)
About the Author
Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at the Ohio State University Moritz College of Law. He is a coauthor and coeditor ofA Little Knowledge: Privacy, Security and Public Information after September 11.
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This is a detailed and extensively researched look at the interactions among the three branches of our federal government, and the checks and balances employed - or the lack thereof. Shane takes a long view and sees 1981 and the Reagan presidency as the most radical break with the past, albeit the creation of a new era dramatically advanced by George W. Bush, following lesser advances by his father and Bill Clinton. Shane looks at domestic governance as much as foreign policy, and examines the relationships that departments and agencies have with the White House and with Congress.
It is now routine for the White House to send cabinet secretaries to swing electoral districts for political purposes. No department head sneezes without the president's permission. And the entire federal government is thought of as part of the executive branch -- with the exception of Congress, which is left to constitute the legislative branch all on its own. But look at how the Constitution viewed things. It devoted Article I and over half the length of the entire Constitution to Congress, which it gave virtually every power conceived of, touching on many of the current departments of the federal government, and then explicitly stipulating that Congress should have any other necessary powers as well. Congress, according to the Constitution, has the power . . .
"To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof."
Stubby little Article II gives very few powers to the president, nowhere suggesting that he or she should have ownership or command over the various agencies of government, and in fact not mentioning any other than the military, except to say that the president can make appointments, and to say this:
"He may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices."
This does refer to the departments as "executive departments," and Article II does begin by giving "the executive power" to the president. But it's worth pausing and stepping outside our own era for just long enough to wonder what "executive" means. Article II also says what the president is required to do, namely:
"He shall take Care that the Laws be faithfully executed."
Congress, until relatively recently, was understood to be central to our government. Only Congress is given the power to borrow money, to regulate commerce with foreign nations, to handle immigration and bankruptcies and the creation of money, transportation, the post office, the punishment of crimes, establishment of courts, defining and punishing crimes by other nations, declaring war, ending war, raising and spending money, creating and maintaining and overseeing the military, repelling invasions, and so on. These days, the White House is considered central to everything. Laws are made by "executive order" (an "executive order" is something like a faithful betrayal, a self-contradiction), by "signing statement" (a "signing statement" is a statement that one is NOT signing a bill as written) and by drafting legislation in the White House and insisting that Congress pass it out of loyalty to the president.
Imagine the absurdity today of suggesting that a president has the right to ask department heads to report on what they are doing. They are doing what he has told them to do. What Shane suggests is not that the EPA or the Department of Labor should be moved from the executive branch to the legislative, but that there are appropriate roles for both Congress and the president, not just the latter.
I cannot touch here on all of the rich and informed discussions in "Madison's Nightmare," which include perceptive condemnations of the secretive and unaccountable decision-making processes that led to wars in Vietnam and Iraq. I would fault Shane here only with too much generosity in assuming that the presidents in these cases were trying to learn anything that they failed to learn. But Shane is right that Congress must not only have the power to declare war or refuse to; it must also have the power to make public the deliberations that precede that decision. Shane is wrong, however, in my opinion -- and this seems to follow from his analysis -- in omitting from his recommendations at the end of the book any sort of accountability, prosecution, impeachment, or punishment. He does propose that the lawyers who facilitated torture be fired. However, they are -- with a couple of key exceptions -- already out of office. And why would someone as smart as Shane believe that lawyers should be dismissed for writing what they were asked to, but propose no penalty whatsoever for the president or vice president who did the asking? Indeed, how does Shane not notice that (had his book come out earlier) it would have been the torturer in chief who would have had to dismiss his own obliging lawyers?
This proves to be immensely valuable. When Shane published this book in 2009, Vice-President Cheney was publicly approving of the use of torture (waterboarding) torture having been a statutory criminal offense since 1994. It mattered to very few citizens that the President was breaking the "Supreme Law of the Land." When I began studying the subject for The End of Kings, soon after Watergate, legal history was of little help. American courts had recorded only three, rather tentative and contradictory opinions on what the Constitution's clause guaranteeing the states "a republican form of government" might mean. Shane understands that the Framers, especially the principal Framer, James Madison, meant the famous "checks and balances" of our old Civics textbooks, the checks and balances Madison outlined in Federalist 51.
So kudos to Shane. As far as I can tell, no other law professor has done what he does in Madison's Nightmare, and we desperately need it. He seems to understand that the rule of law is not just violated by executive prerogative, but nullified.
There is, however, one criticism to make: that Shane makes no use of the venerable and still growing literature in other disciplines on the meaning and history of republican (non-monarchical, checked-and-balanced) government. Madison himself was writing a history of republican federations in 1787, which he generously pillaged in order to write his contributions to The Federalist. John Adams completed his history of anti-monarchical governments (Defence of the Constitutions of the United States of America) in time for the Constitutional Convention. More recently there have been The Machiavellian Moment (1978) by intellectual historian J.G.A.Pocock, Republicanism: A Theory of Freedom and Government (1997) by political scientist Philip Pettit, and The Republican Legacy in International Thought (1998) by Nicholas Onuf who teaches international politics. Shane does make use of the work of superb journalists like Jane Mayer, Charlie Savage and Scott Shane (a relative?) who have uncovered and written about the more recent outrages to constitutional republican government by the last few presidential administrations, but he misses the larger picture---which is probably why, like so many legal professionals, he misdefines "republic" throughout as "democracy." "Democracy" is something the Framers were very wary of because it implied that those without property could vote. And democracy, unfortunately, is one of the principal forces behind the surge of power to the presidency since Franklin Roosevelt or even Andrew Jackson. Thus, writes Shane:
"The pluralist account of democratic legitimacy--which is incidentally truer to the founders' vision--is more nuanced and more credible. Its fundamental insight is that governmental legitimacy--the commitment of government to promote individual autonomy and the equal consideration of all citizens' interests--demands a complex network of competing, but interdependent sources of authority. For the Framers, it was only their new amalgam of different political institutions, constructed as competing branches of government, that could hope to fulfill their republican or, in our word, 'democratic,' aspirations."
It would be nice if it was a democratic aspiration to take powers away from the presidency.