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- The Executive Unbound: After the Madisonian Republic!
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In Federalist 48, Madison writes: Mere laws are inefficacious: But that theory looks to the ambition or interests of political actors who occupy independently empowered branches of government to prevent the concentration of power. One might critique Madison for his assumption that political ambition will lead to the imposition of constraints: But Posner and Vermeule never get this far because they simply do not concentrate much on the actual political thought of James Madison.
Instead they use Madison only as a stand-in for what they claim is the reigning opinion in the legal academy. The problem, however, is that in failing to understand Madison on his own terms, they fail to understand the true grounds of the system of separation of powers that they spend the book critiquing.
The Executive Unbound
Members of the current legal academy did not craft our Constitution. That Madison might be fairly critiqued for his assumptions about the ambitions of Congress points to a further problem with The Executive Unbound. In their characterization of Madison, they turn him into a legislative supremacist. Thus, so far from expecting them merely to carry out the will of the legislature, Madison here worries that they can remain independent from it.
In the s, Madison does end up worrying more about the power of the executive than he had at first. But, again, he worries precisely because he knows that the laws will not be enough to restrain the powers of the executive. So far from an easy confidence that the executive will be constrained by the law, he begins seeking constitutional and political solutions to the problems posed by the failure of the law as a constraint.
Much recent scholarship has shown—and very little of which they cite—the liberal tradition is much more aware of the problems inherent in legal limitations on government than Carl Schmitt admitted or realized.
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Rather than blind faith that legal limitations will be enough, the liberal tradition starts from the fact that, although such legal limitations are essential, they are not self-enforcing. Quoting from the blurb: Jul 10, The American Conservative added it Shelves: Moreover, the evidence that Posner and Vermuele compile should spur those who recoil from the power and presumption of the modern presidency to a greater appreciation of the role of political—as opposed to legal—checks in restraining executive power.
Dec 05, Charles rated it it was ok Shelves: I like seeing mainstream legal folks working with Schmitt, but this is a pretty poor example.
Very simplistic reduction of the argument. David Schwartz rated it it was amazing Nov 28, Milind rated it it was amazing Jan 24, Benjamin rated it it was ok Sep 10, Milton Regan rated it liked it Jul 06, Jonathan rated it it was ok Jun 25, Todd rated it liked it Jan 19, Russell Brown rated it it was ok Nov 16, William rated it it was ok Mar 13, Jonathan McGaha rated it really liked it Feb 13, Matthew Reade rated it really liked it Dec 02, Chris rated it it was amazing Jun 28, Kirk rated it it was amazing Jul 04, Chris rated it liked it Mar 26, Josh Owens rated it it was ok Feb 25, Shane Hunt rated it really liked it Jun 25, UChicagoLaw added it Dec 06, Aaron Benson marked it as to-read Dec 07, Chengyi marked it as to-read Jan 30, Janet marked it as to-read Mar 17, Vanessa added it May 10, Michelle marked it as to-read May 22, Charles marked it as to-read Jun 09, Mark Schnell marked it as to-read Jun 25, Shelly marked it as to-read Aug 12, The book charts the rise of executive authority, noting that among strong presidents only Richard Nixon has come in for severe criticism, leading to legislation which was designed to limit the presidency, yet which failed to do so.
Political, cultural and social restraints, it is argued, have been more effective in preventing dictatorship than any law.
Executive Unbound: After the Madisonian Republic - Oxford Scholarship
The executive-centered state tends to generate political checks that substitute for the legal checks of the Madisonian constitution. Adrian Vermeule, author John H. Don't have an account? Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use for details see www.
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