Living Presidency, The: An Originalist Argument against Its Ever-Expanding Powers

- Blurb -

A constitutional originalist sounds the alarm over the presidency's ever-expanding powers, ascribing them unexpectedly to the liberal embrace of a living Constitution.Liberal scholars and politicians routinely excoriate the imperial presidency-a self-aggrandizing executive that has progressively sidelined Congress. Yet the same people invariably extoll the virtues of a living Constitution, whose meaning adapts with the times. Saikrishna Bangalore Prakash argues that these stances are fundamentally incoherent. A constitution prone to informal amendment systematically favors the executive and ensures that there are no enduring constraints on executive power. In this careful study, Prakash contends that an originalist interpretation of the Constitution can help to rein in the "living presidency" created and legitimated by the living Constitution.No one who reads the Constitution would conclude that presidents may declare war, legislate by fiat, and make treaties without the Senate. Yet presidents do all these things. They get away with it, Prakash argues, because Congress, the courts, and the public routinely excuse the executive's constitutional violations. Eventually, these transgressions are treated as informal constitutional amendments. Whatever good comes from excusing presidential imperialism in particular circumstances, the end result is an executive liberated from the Constitution. The solution is originalism. Though associated with conservative goals, originalism in Prakash's argument makes the strangest of political bedfellows: almost all Americans decry the presidency's escalating powers, especially when they dislike the incumbent. Republicans and Democrats alike therefore have good reason to embrace originalism as a constraint on presidential power. Toward this end, The Living Presidency proposes a baker's dozen of reforms, all of which could be enacted if only Congress were to assert its lawful authority.