The Living Presidency

An Originalist Argument against Its Ever-Expanding Powers

Saikrishna Bangalore Prakash

• Publisher: Belknap Press
• Year: 2020
• Print ISBN:
  9780674987982
• eBook ISBN:
  9780674245211
• Topic: Politics & International Relations
• Subtopic: Legal History
• Index: Politics & International Relations

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 denounce the imperial presidency—a self-aggrandizing executive that has progressively sidelined Congress. Yet the same people invariably extol the virtues of a living Constitution, whose meaning adapts with the times. Saikrishna Bangalore Prakash argues that these stances are fundamentally incompatible. 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 rein in the "living presidency" 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 these violations. With the passage of time, these transgressions are treated as informal constitutional amendments. The result is an executive increasingly liberated from the Constitution. The solution is originalism. Though often associated with conservative goals, originalism in Prakash's argument should appeal to Republicans and Democrats alike, as almost all Americans decry the presidency's stunning expansion. The Living Presidency proposes a baker's dozen of reforms, all of which could be enacted if only Congress asserted its lawful authority.

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Introduction
• 1. Kingly Beginnings
• 2. Why Presidents Amend the Constitution
• 3. How Presidents Amend the Constitution
• 4. The Living Presidency in a Living Constitution
• 5. From Constitutional Defender to Constitutional Amender
• 6. From First General to Declarer of Wars
• 7. From Chief Diplomat to Sole Master of Foreign Affairs
• 8. From Dutiful Servant of the Laws to Secondary Lawmaker
• 9. How to Recage the Executive Lion
• Conclusion
• Notes
• Acknowledgments
• Index