By Adrian Vermeule
A trope of tyrannophobic political discourse compares the American presidency with the government of the Caesars. T.B. Macaulay addressed a comparison between the Caesars and the Tudor monarchs (Henry VII, his son, and his grandchildren) in terms both withering and illuminating:
It has been said … that the Tudors were as absolute as the Caesars. Never was a parallel so unfortunate. The Caesars ruled despotically, by means of a great standing army, under the decent forms of a republican constitution. Our Tudors, on the other hand, under the titles and forms of monarchical supremacy, were essentially popular magistrates. Though the legal checks on their activities were feeble, the natural checks were strong. It was impossible for them to carry oppression beyond a certain point. They knew that, if the patience of the nation were severely tried, the nation would put forth its strength, and that its strength would be found irresistible.(Macaulay, Burleigh and His Times, in the Essays).
In The Executive Unbound: After the Madisonian Republic, Eric Posner and I offer a picture of the American presidency, and the executive branch generally, that partakes of both the Caesars and the Tudors (as Macaulay portrays them). On one hand, the President commands a great standing army or indeed several of them, if we count his army of bureaucrats and advisers. Although the President rules “under the decent forms of a republican constitution” – the one from 1789 – his powers vastly exceed anything that could be inferred from the text of that document, principally because of the ever-increasing rate of change in the policy environment in the 20th century and the ever-diminishing institutional capacities of the Congress, both of which conspire to ensure that an ever-increasing amount of policy is made by the executive under broad and vague statutory delegations. Moreover, the presidency is the sole institution capable of acting in the real world, beyond the law books, and often proceeds through unilateral action, wielding “power without persuasion.”
On the other hand, the President, like the Tudor monarchs, is substantially constrained by the ambient force of mass public opinion and the implicit threat of political backlash. “Though the legal checks on [his] activities [are] feeble, the natural checks [are] strong.” Any modern President is a curious pushme-pullyu: possessing sweeping statutory and constitutional powers, he is enslaved to the opinion polls. Indeed, the administrative state over which the President reigns, and which is both a wellspring and a symptom of his power, itself tends to generate and sustain those political checks, in part because it helps to create a large class of secure, educated and wealthy elites who have both time and inclination to scrutinize executive action, donate to the American Civil Liberties Union and the Center for Constitutional Rights, and agitate against executive abuses.
So the answer to “the Caesars or the Tudors?,” as to the American presidency, might be “some of both.” But the even better answer – and this is actually the answer we give – is “neither,” because neither the Caesars nor the Tudors were elected (putting aside the need to maintain the loyalty of the legions or nobility). We envision the Constitution in 2020 as a plebiscitary, president-centered electoral democracy in which Congress and the courts have been reduced to marginal actors , who carp fr
Megan Branch, Intern
The Constitution in 2020, edited by Yale Law professors Jack M. Balkin and Reva B. Siegel, contains progressive essays on the future of the Constitution from over twenty contributors. The book is the result of a conference held at Yale in 2005, where the year 2020 was chosen because it was close enough to be practical and realistic, yet far enough away for the writers to imagine that the Constitution could be interpreted very differently. About half of the essays are available on the Constitution in 2020 website, free of charge. In the excerpt below, from the introduction, the editors use the Constitution’s flexibility in the past as the basis for the idea that we must interpret it flexibly in the future so that the Constitution can accurately express the beliefs of the many individuals that it belongs to.
To say that we have imperfectly realized the Constitution’s commitments is not to deny the nation’s achievements. To the contrary: this understanding of our Constitution is the source of the nation’s greatness. Each generation builds on the best of the past and strives, as the Preamble instructs us, to create a better future for our posterity.
For proof of this idea, we need only look to history: The Constitution once protected slavery. It does no longer. It once sanctioned Jim Crow. It does no longer. The Constitution once permitted a wide variety of forms of political and artistic censorship; it once treated women as men’s servants, and gays and lesbians as criminals. It does no longer. All these changes came about because people believed in their Constitution and in the importance of continually examining our practices in the light of our principles.
Because each generation must honor the Constitution’s commitments in its own time, the Constitution as it is applied in practice will inevitably change, responding to altered circumstances and conditions. This is not a defect; it is a feature of our constitutional tradition. It is how each generation makes the Constitution its own.
Americans honor their constitutional heritage, but they do not worship it uncritically. The Constitution of today draws on a rich history of past accomplishments, starting with the Declaration, the Revolution, the founding, the second founding of Reconstruction, the New Deal, and the civil rights revolution. In these great epochs, those who forged the constitutional understandings that we today take as foundational did not treat the past as sacrosanct—it was their opponents who did.
There have been long periods in which unjust policies and defective interpretations of the Constitution reigned supreme. We often hear people talk as if the greatness of our nation and the justice of our Constitution were fixed and guaranteed at the founding; if we only would bind ourselves to the wisdom of the framers, all would be well. But those who fetishize the founders do not keep faith with them; those who framed the Constitution forged a framework for nation building, a framework for developing a political community committed to justice. As we strive to realize this commitment, we are more faithful to the constitutional project than those who supported slavery, segregation, sex discrimination, and religious intolerance in the name of the fathers. In every generation, people have defended injustice in the name of an imagined past. And in every generation, people have countered this complacency by invoking a different conception of our origins and traditions, remembering our history as a people in quest of justice.
Constitutional argument appears backward-looking, to consist in little more than appeals to text, history, and precedent. But this obscures its true genius. Americans appeal to history to make claims on one another about our deepest commitments as a nation. We appeal to history as we debate with one another how to face the future.
The Constitution, Justice Oliver Wendell Holmes once said, is made for people of fundamentally different views. We live in a world of heterogeneous beliefs and sustained conflicts about values. And we live in a democracy: a system of government in which we must live together and rule together despite deep normative disagreements. We turn to the past not because the past contains within it all of the answers to our questions, but because it is the repository of our common struggles and common commitments; it offers us invaluable resources as we debate the most important questions of political life, which cannot fully and finally be settled. In this process, we draw on the text, history, and traditions of the U.S. Constitution to make the founders’ Constitution our own. Over and over again, we have looked to our collective past to imagine our collective future.
