Just a short post, before I head to bed for the night. It struck me more forcefully than ever, reading Mason and Madison in the Virginia debates on ratification, that originalism or textualism is a double-edged sword for the Republican party and the conservative movement in general.
For although they have a point about originalist understandings of things like the Commerce clause, the modern doctrine of Executive power, and especially the John Yoo-types who preach about the “Unitary Executive” have to stay awfully quiet about original understandings and texts.
Because the Founders were emphatically clear on this point, and left behind a stark record of their fears on Executive power. In keeping with a short post, I’ll simply point you to Farrand’s Records of the Philadelphia Convention, and the Federalist Papers, as key texts in elucidating the Founding opinion concerning executive power. The “elevator pitch” is this: the Founders had just rebelled against the tyranny of a strong Executive who appropriated legislative and even judicial authority in his dealings with the Colonies, and the original “constitution” for the newly free states — the Articles of Confederation — reflected this general fear and left the Confederal government nearly powerless in most respects.
Indeed, the Founders who gathered in Philadelphia in 1787 to revise the Articles, but who decided to write a new Constitution instead, gave much thought to the proper limits on Executive power. Alexander Hamilton, himself in favor of a relatively strong Executive branch and Federal government, took pains in Federalist No. 69 to demonstrate the many ways in which the new Constitution rendered the Presidency unlikely to transgress the limits set forth for it. It is well worth reading — not because the Founders got it right, the 20th and 21st centuries amply demonstrating how presidents can escape these bounds — but for the tone and mode of Founding thought. Even Founding advocates of a strong Executive branch had major concerns about the dangers that lie in interpreting the powers of the Presidency too broadly.
And this is merely a sample. Read any of the Federalists, who supported the new structure, and you’ll see the same fear of an overreaching executive. Read any of the Anti-Federalists, who opposed the entire idea of a strong Federal government, and you’ll see even stronger arguments for limits on Presidential and Federal power.
What you won’t see is an originalist or textualist basis for the “Unitary Executive” or the “National Security State” or any of the other modern justifications for the massive erosion of the separation of powers now underway.
And that has to make you wonder, are they simply employing originalism, textualism, and “strict construction” when it suits them? The answer seems clear: originalist legal scholars are largely consistent, while political appointees and elected officials appear fairly “opportunistic” in their deployment of interpretive principles.
So just say “no” to John Yoo and other scholars who purport to have evidence that the Founders wanted a strong, activist Executive Branch all along. Read the Founders for yourself and understand why they trusted Congress far more than the Presidency. Read the Founders and I think you’ll come away with the same feeling I have: there is absolutely no question that James Madison, George Mason, Alexander Hamilton, and others would look at the modern Presidency and conclude that we had recreated monarchy, without inheritance. That contrary to the spirit of the Founding generation, the modern Presidency is headed towards — or has already become — an elected monarchy.
One wonders what James Madison, not to mention Thomas Jefferson, would think about our blind acceptance of what they fought to escape.