Reply to Comments

 In this, my last post on The Executive Unbound, I had intended to respond to as many comments as I could, but it turns out that there is a single theme of many of the comments, and I will focus on it with apologies to others whom I neglect. Before I continue, let me thank Eugene for permitting me to guest-blog on my new book. (Let me also respond to commentators who believed that I was trying to criticize the Obama administration or defend the Bush administration or perhaps vice versa. That was not my intention: while my arguments have implications for evaluating both administrations, those implications are complex, and discussion of them is best left for another forum.)

 The most widespread reaction is that Vermeule and I misperceive the Constitution. The original document did not establish a system of executive primacy but a system of checks and balances where the legislature was first among equals. A system of executive primacy could be put into place only through constitutional amendment that complies with the procedures set out in Article V, and no such amendments exist. If our current political system no longer complies with the Constitution, then it needs to be reformed forthwith.

 At a minimum, if only to achieve descriptive clarity, we need to distinguish the original design and the actual operations of the political system as it currently exists. Scholars tend to use the word “constitution” to refer to both phenomena, no doubt with the British example in the back of their mind—no one doubts that the British constitution has “evolved” over the centuries, and so there is no debate about whether the current British constitution is different from the “original” version, if an original version can even be identified. In the United States, the theory of originalism throws this type of thinking into disarray. Originalists (or some of them) argue that only one Constitution exists—the original written version plus amendments—and that if our current system departs from the original meanings, those departures are simply unconstitutional.

 The words used don’t matter much. The problem for originalists is the next step. One can argue that the current system is illegitimate and should be reformed because it violates the letter and spirit of the original understanding, but that argument was available to critics of executive power from the beginning yet made no headway against forces that favored constitutional (or, if you want, institutional) development in the direction of executive primacy. Those forces were simply too strong. Today, originalists—or at least those who enjoy influence such as judges—occupy themselves with the Bill of Rights, and, with the exception of the second amendment, the whole tenor of the movement has been oriented toward eliminating the various civil-liberty related rights manufactured during the last half century. Another group of people—not all of them originalists—want to dismantle New Deal regulatory institutions but this effort has utterly failed.

 There is no constituency for reforming the executive. That is a simple political fact about the United States, and therefore no one with real influence is willing to follow the necessary implications of originalism for executive power. Why not? Because Americans want a strong president. They want a strong president to defend the United States from terrorists, to deliver humanitarian interventions, to respond to natural disasters like Katrina, to resolve financial crises, to combat climate change, to fix the deficit. The call for leadership by a strong executive in response to the crisis du jour is reflexive. When a crisis strikes, and the government does not respond adequately, everyone complains that the president has failed to display leadership. This type of response is so reflexive that it is applied even to events that occur outside the United States.  Thus, a few days ago the New York Times attributed Japan’s travails to “the absence of a strong leader capable of rallying the nation.” Everyone understands the theoretical risks of a powerful executive—that was the now completely forgotten theme of the Bush administration—but, as a matter of mainstream thinking at least, those risks are worth taking.

 If nothing else, I want to convince you that arguing that we should return to the original Madisonian design is tilting at windmills—and will enjoy no more success than arguments that we should live in a night watchman state, return to the gold standard, create an agrarian republic, abolish private property, or set up a benevolent world government. All of these arguments are on the fringes—not because they violate the rules of logic but because they have no constituency—and that is where the Madisonian argument belongs as well.

 I don’t know what to say to people who continue to insist that because executive primacy violates the (original) Constitution, something must be done about it. Arguing that our current system of government is unconstitutional is like arguing that the original Constitution was unconstitutional because it violated the amendment procedures of the Articles of Confederation. It is a logical argument that makes no difference in the real world because ultimately what matters is popular sentiment, and popular sentiment has acquiesced in constitutional change without regard to the rules established to control it.