By Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University, and the author of Madison’s Nightmare: How Executive Power Threatens American Democracy. This post is a response to yesterday’s BookTalk post by Professors Eric Posner and Adrian Vermeule, and a critique of their new book.
I disagree so deeply and at so many points with The Executive Unbound: After the Madisonian Republic, the new book by Eric Posner and Adrien Vermeule, that I feel compelled to begin on a positive note. Theirs is a challenging, provocative work. Regular engagement with interlocutors as thoughtful and well-read as these two authors would deepen anyone’s thinking. To those who remain normatively committed to a robust rule-of-law vision of presidential authority, they pose a more interesting challenge than do putative constitutional originalists who find the founding generation oddly sanguine (and modern) in their thinking about executive power.
In addition, two implications emerge from The Executive Unbound that I wholeheartedly support. One is a recognition of the challenge (the authors would say “impossibility,” which I do not endorse) of reshaping the political landscape in a way that would make the revitalization of legal checks and balances a realistic program. This is really the point of their blog post. The second is the importance of strengthening the institutions that check the President politically, not just legally. I agree enthusiastically.
For Professors Posner and Vermeule, professorial contestation about Framer intent is quaintly beside the point. As they describe it, the Madisonian vision of checks and balances simply fails as a description of how the administrative state works. And, because, as they depict that vision, it actually cannot be implemented, it ought not to be our normative framework either. Instead, we should recognize that, under current institutional arrangements, we have an executive branch that can pretty much do as it pleases within constraints that are significant, but almost always more political than legal. Our normative ideal should be the strengthening of these extralegal institutional constraints to try to ensure that what the executive branch winds up doing with its inevitable discretion is at least consistent with public opinion.
So here are my four essential points of disagreement. First, they misrepresent – or perhaps “ignore” is more accurate – the core aim of Madisonian constitutionalism; it is not just to avoid dictatorship, but chiefly to thwart the spirit of faction and to produce government in the public interest. Second, I find them too uncritically enamored of a rational choice perspective on how politics operates. Third, I think the wooden checks-and-balances/rule of law vision that the authors dismiss is largely a straw man. At least, although they do me the honor of including me by name among those whose views they are rebutting, I am quite sure they are not describing the Madisonian vision outlined in my own work. Fourth, I reject the idea that we should dismiss a normative vision because it cannot be perfectly instituted, especially given that calls for the rule of law and calls for bolstering extralegal forms of accountability are far from mutually exclusive.
At the heart of the legal tradition that Professors Posner and Vermeule attack is supposedly what the authors call “tyrannaphobia,” a “horror of dictatorship” that, in the American context, the authors think to be largely irrational. But tyrannaphobia of this sort – a fear of legally unchecked rule by executive authorities who cannot be replaced by democratic means – is not what chiefly animates Madisonianism. Madison’s central preoccupation was the curbing of faction. “By a faction,” Madison wrote in his famous Federalist No. 10, “I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
Fears of imminent American dictatorship are plainly overblown in contemporary America – one wishes Glenn Beck’s viewers would take Posner and Vermeule’s argument to heart on this point. But “faction,” in the Madisonian sense, could hardly be a more serious problem. Americans who worried about Bush and Cheney calling off elections were paranoid. But progressives are right on target in worrying whether our politics are driven unduly by the self-interest of the very rich and the corporations through which they wield much of their economic and political power. What appears to be government’s frequent, even systemic inattention to equity for the poor and for the middle class is a profound democratic defect, and one that Madisonian constitutional design might have been expected to check.
Part of the problem here, I suspect, is that the preferred Posner-Vermeule analytic toolset – chiefly, rational choice political theory – has no convincing way of understanding “the permanent and aggregate interests of the community” apart from the expressed preferences of the citizenry at any given moment. How to understand the “public interest” is a tough and enduring debate, and the authors pretty much sidestep it. In appearing to accept public opinion as measured in polling or in elections as a full expression of the public interest, however, the authors run into a very obvious problem. It is a problem that the authors actually diagnose astutely with regard to Congress.
Posner and Vermeule argue that members of Congress are likely always to under-protect checks and balances because the benefits of checks and balances will largely inure to later generations and thus cannot be captured by contemporary political actors. But this is every bit as true of contemporary voters. Contemporary voters, if they act totally according to rational self-interest, will quite likely under-protect America from the effects of climate change and deficit financing. They will undervalue education, pure research – and even checks and balances and the rule of law. But, whatever the public interest is, it must surely involve some degree of care for future welfare even at the cost of short-term sacrifice. Nudging America towards a yet more plebiscitary politics, as Posner and Vermeule seem to prefer, is thus quite risky for the public interest for just the reasons Madison feared. This is one of the two most fundamental reasons why I think the authors’ exclusive reliance on rational choice theory to evaluate both political behavior and institutional design is misguided.
The second reason is that rational choice theory largely ignores the mix of ideology, identity and self-conception that motivates much political behavior. In my own discussions of the rule of law, I emphasize the importance of these factors as they operate within government institutions to undergird the norms, customs and conventions that give life to the rule of law. Posner and Vermeule dismiss any reliance on such emergent behaviors as having explanatory or normative value because champions of their importance, such as I, have not rigorously specified exactly how such behaviors work. That is a fair challenge, although I hasten to point out that it’s a challenge to Posner and Vermeule’s own work, as well. In relying on Americans’ skepticism towards executive overreaching and their practices in becoming informed citizens, Posner and Vermeule are also relying on norms, customs and conventions. They just locate the relevant norms, customs and conventions in the electorate, not in the government.
The “rule of law” vision that Posner and Vermeule expressly dismiss is a vision in which rules enacted by Congress and enforced by courts are sufficient, in and of themselves, to constrain executive behavior. The more discretion that the executive enjoys that is unchecked by enforceable rules, the less “law” there is in our “rule of law.” But the “rule of law” for which I yearn in Madison’s Nightmare: How Executive Power Threatens American Democracy (2009) is not this either/or version. To quote myself:
What [I describe] is a version of the rule of law that is not formalistic, but institutional. Checks and balances, in operation, depend on an assemblage of norms, cooperative arrangements, and informal coordination activities that actually fit the political science definition of an “unstructured institution.” James March and Johan Olsen have usefully defined an “institution” as “a relatively enduring collection of rules and organized practices, embedded in structures of meaning and resources that are relatively invariant in the face of turnover of individuals and relatively resilient to the idiosyncratic preferences and expectations of individuals and changing external circumstances. Sometimes the relevant “rules and organized practices” are exceedingly clear and documented, like the rules inside the cover of a board game. But sometimes, as political scientist Kenneth Shepsle has pointed out, these rules and practices “are more amorphous and implicit rather than formalized.” We still recognize them as institutions because they “may be described as practices and recognized by the patterns they induce,” but compared to, say, a game of golf, they are, relatively speaking, “unstructured institutions.” Understanding the rule of law as an unstructured institution provides a far more attractive account of what citizens expect from a “government of laws” and a far more plausible account of why they might just get it; it provides an account of government behavior that rests on observable patterns of actual human behavior, not just the formal specification of legal rules in the form of written documents.
Posner and Vermeule may regard this account as insufficiently rigorous, or they may say that “norms, cooperative arrangements, and informal coordination activities” are really politics, not law. To those who participate in them, however, they arerecognizable as law, and that recognition is a great deal of what gives them whatever institutional power they have.
At the proverbial end of the day, it may be that Posner and Vermeule would be content to accede to all these objections, at least for argument’s sake, but might still say: They don’t matter. In their opening footnote, they are generous enough to group me with Bruce Ackerman and Theodore Lowi as authors of “diagnoses of decline” that are “so convincing” that we should recognize our “prescriptions for revival” of the rule of law as “futile.” What Ackerman, Lowi, and I describe of political behavior, in other words, “if true, rule[s] out [our] prescriptions.” It may be that the authors are more right about this than I would like to acknowledge, although either accepting or rejecting their proposition involves as much faith as analysis, and I have always been the optimist in my particular household.
I do want to say, however, that the impossibility of vindicating the rule of law at every turn is not a persuasive argument for abandoning the rule of law as a normative vision. Every ethical system worth its salt aims for a pervasiveness of virtue that no one expects to be realized fully. Moreover, along with Cynthia Farina (most notably among administrative law scholars), I have long argued that democratic legitimacy cannot be convincingly grounded on any one foundational principle. The rule of law is important, but not everything.
Abandoning the rule of law as a normative vision seems especially foolish when embracing a political agenda for the reinvigoration of checks and balances is arguably consistent with the reform program that Posner and Vermeule would prefer. They urge reformers to shift attention away from the rule of law “to the political constraints on the president and the institutions through which those political constraints operate–chief among them elections, parties, bureaucracy and the media.” But the reform agenda they advocate would significantly enhance the prospects for the rule of law, as well. Near the end of Madison’s Nightmare, I wrote: “[T]he practice of constitutionalism within the halls of American government will be shaped, most profoundly, by changes in the quality of our collective democratic life in society at large.” Rule of law advocates would surely be enthusiastic if Americans constructively turned to the checking potential of our extralegal institutions.
To return to my positive note, I do hope readers more sympathetic to my critique than to The Executive Unboundwill nonetheless take time to wrestle with the Posner-Vermeule line of reasoning. They have pitched their ideas in a distinctly academic voice, but the debate they are seeking goes to the heart of American constitutionalism. At the core of the debate are very different approaches to both democracy and public welfare. Professors Posner and Vermeule render a service in adding to that debate an important and distinctive set of arguments.