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01/14/2021

Shalev Roisman Reviews "The Living Presidency" by Saikrishna Prakash
Michael Ramsey

At Lawfare, Shalev Roisman (Arizona): The Originalist Presidency in Practice? (reviewing Saikrishna Bangalore Prakash's "The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers" (Harvard University Press 2020)).  From the introduction;

Saikrishna Prakash, the James Monroe Distinguished Professor of Law at the University of Virginia, has written a terrific book. In “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers,” Prakash provides a wide-ranging and deeply researched account of the expansive understanding of presidential power today and how it compares to the Constitution’s original meaning. In brief, the comparison is not favorable—at least if one is looking for a close fit. As Prakash explains in detail, the modern president’s power has vastly expanded relative to the prevailing conceptions of the Founding era.

Prakash provides several case studies of this phenomenon, examining how the president’s power to use military force, to conduct foreign affairs, and to make policy on his own, rather than simply executing Congress’s, has grown over time. Prakash concludes the book with an interesting and inventive set of proposals to “recage” the president’s power, which are worth reading in full.

In this review, I focus less on whether the president’s power has expanded and more on Prakash’s story of how we got here. Why is it that the modern president’s power is so much more expansive than that of the Founding era? Prakash discusses developments in public expectations of the president and the corresponding shift in presidential behavior to meet such expectations. But his main focus centers on an interpretive methodology that, in his view, has enabled the expansion of presidential power. As the title suggests, Prakash pins most of the blame on what he calls “living constitutionalism.” Prakash uses the term broadly to include any form of interpretation that allows for “informal constitutional change” outside the Article V amendment process (see pp. 112-13, 130). Prakash’s main target, though, is the common interpretive practice of relying on historical branch practice in determining the constitutionality of presidential exercises of power.

And from later on:

Prakash clearly thinks originalism is a superior alternative—the book is subtitled “An Originalist Argument Against [the Living Presidency’s] Ever-Expanding Powers.” But, if the primary critique of the “Living Presidency” is how it has operated in practice to expand the scope of the president’s power, it seems important to ask whether originalism would operate any better in its stead. But the focus of Prakash’s important and erudite book is elsewhere. Prakash’s book operates largely as a comparison of how a rigorous and principled form of originalism (i.e., Prakash’s) compares to how the interpretive method of looking to past branch practice has fared in reality. It is thus largely a comparison of originalism in theory versus resort to past practice in practice. Largely left out of the picture is the more apples-to-apples comparison of how originalism in practice compares to resort to past practice in practice. It is this comparison that lingered with me after reading Prakash’s terrific book and the one I’ll explore in the remainder of this review.

In my view, this comparison is well worth making. If the major critique of “living constitutionalism” is how it has operated in practice to produce a more expansive, less originalist vision of presidential power, then it seems fruitful to ask whether potential alternatives would fare better in practice. After all, as noted above in relation to the historical gloss approach, resort to past practice in theory could result in much narrower views of presidential power than have resulted in reality. Comparing how these methods are likely to operate in the world seems important in assessing their relative strengths and weaknesses.

Admittedly, how originalism would fare in practice as compared to so-called “living constitutionalism” is largely a counterfactual question, so we’ll never really know the answer. But I confess that I have my doubts that originalism as practiced in the executive branch, at least, would necessarily fare better than what Prakash terms “living constitutionalism.” Below I flesh out two reasons for these doubts—the first, institutional, and the second, empirical (albeit anecdotal)....