logo for Harvard University Press
America’s Unwritten Constitution
Science, Religion, and Political Responsibility
Don K. Price
Harvard University Press, 1985
Don K. Price seeks the cause of the nation’s inability to develop coherent policies and manage consistent programs and finds it in American attitudes toward authority. This country’s managerial disarray can be traced to religious and philosophical roots of our informal system of government and its development. Price shows how a native American skepticism toward all establishments, combined with a belief in the role of science as advancing progress, has given us a moralistic, reformist view of government that rejects compromise even for the sake of coherence and continuity. This is unlike the experience of Great Britain and Canada, which he relates in a series of incisive comparisons.
[more]

front cover of Between The Branches
Between The Branches
The White House Office of Legislative Affairs
Kenneth Collier
University of Pittsburgh Press, 1997
Because of the power-fearing drafters of the U.S. Constitution, the president’s tools for influencing Congress are quite limited.  Presidents have had to look beyond the formal powers of the office to push a legislative agenda.  In Between the Branches, a book of unprecedented depth, Kenneth Collier traces the evolution of White House influence in Congress over nine adminstrations, from Eisenhower to Clinton.  It will enlighten students of the presidency, Congress, and all those interested in American politics.
[more]

front cover of Constitutional Construction
Constitutional Construction
Divided Powers and Constitutional Meaning
Keith E. Whittington
Harvard University Press, 1999

This book argues that the Constitution has a dual nature. The first aspect, on which legal scholars have focused, is the degree to which the Constitution acts as a binding set of rules that can be neutrally interpreted and externally enforced by the courts against government actors. This is the process of constitutional interpretation. But according to Keith Whittington, the Constitution also permeates politics itself, to guide and constrain political actors in the very process of making public policy. In so doing, it is also dependent on political actors, both to formulate authoritative constitutional requirements and to enforce those fundamental settlements in the future. Whittington characterizes this process, by which constitutional meaning is shaped within politics at the same time that politics is shaped by the Constitution, as one of construction as opposed to interpretation.

Whittington goes on to argue that ambiguities in the constitutional text and changes in the political situation push political actors to construct their own constitutional understanding. The construction of constitutional meaning is a necessary part of the political process and a regular part of our nation's history, how a democracy lives with a written constitution. The Constitution both binds and empowers government officials. Whittington develops his argument through intensive analysis of four important cases: the impeachments of Justice Samuel Chase and President Andrew Johnson, the nullification crisis, and reforms of presidential-congressional relations during the Nixon presidency.

[more]

front cover of The Constitution’s Text in Foreign Affairs
The Constitution’s Text in Foreign Affairs
Michael D. Ramsey
Harvard University Press, 2007

This book describes the constitutional law of foreign affairs, derived from the historical understanding of the Constitution's text. It examines timeless and recurring foreign affairs controversies--such as the role of the president and Congress, the power to enter armed conflict, and the power to make and break treaties--and shows how the words, structure, and context of the Constitution can resolve pivotal court cases and leading modern disputes. The book provides a counterpoint to much conventional discussion of constitutional foreign affairs law, which tends to assume that the Constitution's text and history cannot give much guidance, and which rests many of its arguments upon modern practice and policy considerations.

Using a close focus on the text and a wide array of historical sources, Michael Ramsey argues that the Constitution's original design gives the president substantial independent powers in foreign affairs. But, contrary to what many presidents and presidential advisors contend, these powers are balanced by the independent powers given to Congress, the Senate, the states, and the courts. The Constitution, Ramsey concludes, does not make any branch of government the ultimate decision maker in foreign affairs, but rather divides authority among multiple independent power centers.

[more]

front cover of Controlling the State
Controlling the State
Constitutionalism from Ancient Athens to Today
Scott Gordon
Harvard University Press, 1999

This book examines the development of the theory and practice of constitutionalism, defined as a political system in which the coercive power of the state is controlled through a pluralistic distribution of political power. It explores the main venues of constitutional practice in ancient Athens, Republican Rome, Renaissance Venice, the Dutch Republic, seventeenth-century England, and eighteenth-century America.

From its beginning in Polybius' interpretation of the classical concept of "mixed government," the author traces the theory of constitutionalism through its late medieval appearance in the Conciliar Movement of church reform and in the Huguenot defense of minority rights. After noting its suppression with the emergence of the nation-state and the Bodinian doctrine of "sovereignty," the author describes how constitutionalism was revived in the English conflict between king and Parliament in the early Stuart era, and how it has developed since then into the modern concept of constitutional democracy.

[more]

front cover of The Crown and the Courts
The Crown and the Courts
Separation of Powers in the Early Jewish Imagination
David C. Flatto
Harvard University Press, 2020

A scholar of law and religion uncovers a surprising origin story behind the idea of the separation of powers.

The separation of powers is a bedrock of modern constitutionalism, but striking antecedents were developed centuries earlier, by Jewish scholars and rabbis of antiquity. Attending carefully to their seminal works and the historical milieu, David Flatto shows how a foundation of democratic rule was contemplated and justified long before liberal democracy was born.

During the formative Second Temple and early rabbinic eras (the fourth century BCE to the third century CE), Jewish thinkers had to confront the nature of legal authority from the standpoint of the disempowered. Jews struggled against the idea that a legal authority stemming from God could reside in the hands of an imperious ruler (even a hypothetical Judaic monarch). Instead scholars and rabbis argued that such authority lay with independent courts and the law itself. Over time, they proposed various permutations of this ideal. Many of these envisioned distinct juridical and political powers, with a supreme law demarcating the respective jurisdictions of each sphere. Flatto explores key Second Temple and rabbinic writings—the Qumran scrolls; the philosophy and history of Philo and Josephus; the Mishnah, Tosefta, Midrash, and Talmud—to uncover these transformative notions of governance.

The Crown and the Courts argues that by proclaiming the supremacy of law in the absence of power, postbiblical thinkers emphasized the centrality of law in the people’s covenant with God, helping to revitalize Jewish life and establish allegiance to legal order. These scholars proved not only creative but also prescient. Their profound ideas about the autonomy of law reverberate to this day.

[more]

front cover of Divided Power
Divided Power
The Presidency, Congress, and the Formation of American Foreign Policy
Donald R. Kelley
University of Arkansas Press, 2005
Divided Power is a collection of eight original essays written for the Fulbright Institute of International Relations that focuses on timely yet unanswerable questions about the relationship between the executive and legislative branches in the formation of American foreign policy. In trying to answer questions about what the nation’s foreign policy is, and who has the upper hand in making it, these essays examine the struggle between the constant of the division of powers mandated by the Constitution (ambiguous though it may be) and the ever-changing political realities and conventional wisdoms of the day. Within that context, the authors also examine the society and culture in which those realities and wisdoms are nested. The goal of these essays is to offer a snapshot in time of the interaction of the executive and legislative branches in the shaping of our foreign policy, framed and informed by the intellectual and political realities that characterize the post–Cold War, post–September 11 world.
[more]

front cover of The Failure of the Founding Fathers
The Failure of the Founding Fathers
Jefferson, Marshall, and the Rise of Presidential Democracy
Bruce Ackerman
Harvard University Press, 2005

The ink was barely dry on the Constitution when it was almost destroyed by the rise of political parties in the United States. As Bruce Ackerman shows, the Framers had not anticipated the two-party system, and when Republicans battled Federalists for the presidency in 1800, the rules laid down by the Constitution exacerbated the crisis. With Republican militias preparing to march on Washington, the House of Representatives deadlocked between Thomas Jefferson and Aaron Burr. Based on seven years of archival research, the book describes previously unknown aspects of the electoral college crisis. Ackerman shows how Thomas Jefferson counted his Federalist rivals out of the House runoff, and how the Federalists threatened to place John Marshall in the presidential chair. Nevertheless, the Constitution managed to survive through acts of statesmanship and luck.

Despite the intentions of the Framers, the presidency had become a plebiscitarian office. Thomas Jefferson gained office as the People's choice and acted vigorously to fulfill his popular mandate. This transformation of the presidency serves as the basis for a new look at Marbury v. Madison, the case that first asserted the Supreme Court's power of judicial review. Ackerman shows that Marbury is best seen in combination with another case, Stuart v. Laird, as part of a retreat by the Court in the face of the plebiscitarian presidency. This "switch in time" proved crucial to the Court's survival, allowing it to integrate Federalist and Republican themes into the living Constitution of the early republic.

Ackerman presents a revised understanding of the early days of two great institutions that continue to have a major impact on American history: the plebiscitarian presidency and a Supreme Court that struggles to put the presidency's claims of a popular mandate into constitutional perspective.

[more]

front cover of The Founding Fathers v. the People
The Founding Fathers v. the People
Paradoxes of American Democracy
Anthony King
Harvard University Press, 2011

As pundits and politicians remind us at every election cycle or turn of the television dial, the United States sees itself as the world’s greatest democracy. But what citizens might also hear, if they knew how to listen, is the grinding of two tectonic plates on which this democracy was established. In the venerable tradition of keen foreign observers of American politics, Anthony King exposes the political paradoxes in our system that we may well be too close to see—founding principles of our great democracy that are distinctly undemocratic.

In an extended essay eloquent in its plainspoken good sense, King begins, on the one hand, with the founding fathers who emphasized moderation, deliberation, checks and balances, and the separation of powers—a system in which “the people” were allowed to play only a limited role. On the other hand were radical democrats who insisted that the people, and only the people, should rule. The result was a political system tangled up in conflicts that persist to this day: unelected and unaccountable Supreme Court justices who exercise enormous personal power; severe restrictions on the kind of person the people can elect as president; popular referendums at the state and local level but none at the federal level, not even to ratify amendments to the Constitution.

In King’s provocative analysis, we see how these puzzles play out in the turmoil of our nation’s public life and political culture—and we glimpse, perhaps, a new way to address them.

[more]

front cover of Madison's Nightmare
Madison's Nightmare
How Executive Power Threatens American Democracy
Peter M. Shane
University of Chicago Press, 2009

The George W. Bush administration’s ambitious—even breathtaking—claims of unilateral executive authority raised deep concerns among constitutional scholars, civil libertarians, and ordinary citizens alike. But Bush’s attempts to assert his power are only the culmination of a near-thirty-year assault on the basic checks and balances of the U.S. government—a battle waged by presidents of both parties, and one that, as Peter M. Shane warns in Madison’s Nightmare, threatens to utterly subvert the founders’ vision of representative government.

Tracing this tendency back to the first Reagan administration, Shane shows how this era of "aggressive presidentialism" has seen presidents exerting ever more control over nearly every arena of policy, from military affairs and national security to domestic programs. Driven by political ambition and a growing culture of entitlement in the executive branch—and abetted by a complaisant Congress, riven by partisanship—this presidential aggrandizement has too often undermined wise policy making and led to shallow, ideological, and sometimes outright lawless decisions. The solution, Shane argues, will require a multipronged program of reform, including both specific changes in government practice and broader institutional changes aimed at supporting a renewed culture of government accountability.

From the war on science to the mismanaged war on terror, Madison’s Nightmare outlines the disastrous consequences of the unchecked executive—and issues a stern wake-up call to all who care about the fate of our long democratic experiment.

[more]

logo for Georgetown University Press
Making Policy, Making Law
An Interbranch Perspective
Mark C. Miller and Jeb Barnes, Editors
Georgetown University Press, 2004

The functioning of the U.S. government is a bit messier than Americans would like to think. The general understanding of policymaking has Congress making the laws, executive agencies implementing them, and the courts applying the laws as written—as long as those laws are constitutional. Making Policy, Making Law fundamentally challenges this conventional wisdom, arguing that no dominant institution—or even a roughly consistent pattern of relationships—exists among the various players in the federal policymaking process. Instead, at different times and under various conditions, all branches play roles not only in making public policy, but in enforcing and legitimizing it as well. This is the first text that looks in depth at this complex interplay of all three branches.

The common thread among these diverse patterns is an ongoing dialogue among roughly coequal actors in various branches and levels of government. Those interactions are driven by processes of conflict and persuasion distinctive to specific policy arenas as well as by the ideas, institutional realities, and interests of specific policy communities. Although complex, this fresh examination does not render the policymaking process incomprehensible; rather, it encourages scholars to look beyond the narrow study of individual institutions and reach across disciplinary boundaries to discover recurring patterns of interbranch dialogue that define (and refine) contemporary American policy.

Making Policy, Making Law provides a combination of contemporary policy analysis, an interbranch perspective, and diverse methodological approaches that speak to a surprisingly overlooked gap in the literature dealing with the role of the courts in the American policymaking process. It will undoubtedly have significant impact on scholarship about national lawmaking, national politics, and constitutional law. For scholars and students in government and law—as well as for concerned citizenry—this book unravels the complicated interplay of governmental agencies and provides a heretofore in-depth look at how the U.S. government functions in reality.

[more]

front cover of The Myth of Coequal Branches
The Myth of Coequal Branches
Restoring the Constitution’s Separation of Functions
David J. Siemers
University of Missouri Press, 2018
The idea that the three branches of U.S. government are equal in power is taught in classrooms, proclaimed by politicians, and referenced in the media. But, as David Siemers shows, that idea is a myth, neither intended by the Founders nor true in practice. Siemers explains how adherence to this myth normalizes a politics of gridlock, in which the action of any branch can be checked by the reaction of any other. The Founders, however, envisioned a separation of functions rather than a separation of powers. Siemers argues that this view needs to replace our current view, so that the goals set out in the Constitution’s Preamble may be better achieved.
[more]

front cover of The Myth of the Imperial Presidency
The Myth of the Imperial Presidency
How Public Opinion Checks the Unilateral Executive
Dino P. Christenson and Douglas L. Kriner
University of Chicago Press, 2020
Throughout American history, presidents have shown a startling power to act independently of Congress and the courts. On their own initiative, presidents have taken the country to war, abolished slavery, shielded undocumented immigrants from deportation, declared a national emergency at the border, and more, leading many to decry the rise of an imperial presidency. But given the steep barriers that usually prevent Congress and the courts from formally checking unilateral power, what stops presidents from going it alone even more aggressively?  The answer, Dino P. Christenson and Douglas L. Kriner argue, lies in the power of public opinion.

With robust empirical data and compelling case studies, the authors reveal the extent to which domestic public opinion limits executive might. Presidents are emboldened to pursue their own agendas when they enjoy strong public support, and constrained when they don’t, since unilateral action risks inciting political pushback, jeopardizing future initiatives, and further eroding their political capital. Although few Americans instinctively recoil against unilateralism, Congress and the courts can sway the public’s view via their criticism of unilateral policies. Thus, other branches can still check the executive branch through political means. As long as presidents are concerned with public opinion, Christenson and Kriner contend that fears of an imperial presidency are overblown.
[more]

front cover of Pack the Court!
Pack the Court!
A Defense of Supreme Court Expansion
Stephen M. Feldman
Temple University Press, 2021

The United States Supreme Court has numbered nine justices for the past 150 years. But that number is not fixed. With the Democrats controlling the House and Senate during the Biden presidency, they could add justices to the Supreme Court. But would court packing destroy the Court as an apolitical judicial institution? This is the crucial question Stephen Feldman addresses in his provocative book, Pack the Court! He uses a historical, analytical, and political argument to justify court-packing in general and Democratic court-packing more specifically.

Republicans and Democrats alike profess to worry that court-packing will destroy the legitimacy of the Supreme Court as a judicial institution by injecting politics into a purely legal adjudicative process. But as Feldman’s insightful book shows, law and politics are forever connected in judicial interpretation and decision making. Pack the Court! insists that court packing is not the threat to the Supreme Court’s institutional legitimacy that many fear. Given this, Feldman argues that Democrats should pack the Court while they have the opportunity. Doing so might even strengthen the American people’s faith in the Court.

[more]

front cover of Pivotal Politics
Pivotal Politics
A Theory of U.S. Lawmaking
Keith Krehbiel
University of Chicago Press, 1998
Politicians and pundits alike have complained that the divided governments of the last decades have led to legislative gridlock. Not so, argues Keith Krehbiel, who advances the provocative theory that divided government actually has little effect on legislative productivity. Gridlock is in fact the order of the day, occurring even when the same party controls the legislative and executive branches. Meticulously researched and anchored to real politics, Krehbiel argues that the pivotal vote on a piece of legislation is not the one that gives a bill a simple majority, but the vote that allows its supporters to override a possible presidential veto or to put a halt to a filibuster. This theory of pivots also explains why, when bills are passed, winning coalitions usually are bipartisan and supermajority sized. Offering an incisive account of when gridlock is overcome and showing that political parties are less important in legislative-executive politics than previously thought, Pivotal Politics remakes our understanding of American lawmaking.
[more]

front cover of The Powers That Be
The Powers That Be
Rethinking the Separation of Powers
Hans Martien ten Napel
Amsterdam University Press, 2016
Both democratic legitimacy and the separation of powers as concepts have very much evolved alongside the state and over the last decades the state has been giving up ground to other power holders, particularly international (and even supranational) actors. This brings up the question of whether the combination of these concepts is still viable outside a traditional state context, and if so, in what form? This is the central question the current volume seeks to answer. In 2013 Christoph Möllers published his impressive monograph, The Three Branches; A Comparative Model of Separation of Powers. This inspirational book led to the idea to pitch it against both the agenda of us as researchers of the Institute of Public Law at Leiden Law School (resulting from a 2012 conference) and our own insights, as well as that of fellow travellers in the field.
[more]

front cover of The Pursuit of Happiness in the Founding Era
The Pursuit of Happiness in the Founding Era
An Intellectual History
Carli N. Conklin
University of Missouri Press, 2020

Scholars have long debated the meaning of the pursuit of happiness, yet have tended to define it narrowly, focusing on a single intellectual tradition, and on the use of the term within a single text, the Declaration of Independence. In this insightful volume, Carli Conklin considers the pursuit of happiness across a variety of intellectual traditions, and explores its usage in two key legal texts of the Founding Era, the Declaration and William Blackstone’s Commentaries on the Laws of England.

For Blackstone, the pursuit of happiness was a science of jurisprudence, by which his students could know, and then rightly apply, the first principles of the Common Law. For the founders, the pursuit of happiness was the individual right to pursue a life lived in harmony with the law of nature and a public duty to govern in accordance with that law. Both applications suggest we consider anew how the phrase, and its underlying legal philosophies, were understood in the founding era. With this work, Conklin makes important contributions to the fields of early American intellectual and legal history.

[more]

logo for Harvard University Press
Separating Power
Essays on the Founding Period
Gerhard Casper
Harvard University Press, 1997

The separation of powers along functional lines--legislative, executive, and judicial--has been a core concept of American constitutionalism ever since the Revolution. As noted constitutional law scholar Gerhard Casper points out in this collection of essays, barren assertions of the importance of keeping the powers separate do not capture the complexity of the task when it is seen as separating power flowing from a single source--the people. Popular sovereignty did not underlie earlier versions of the separation of powers doctrine.

Casper vividly illustrates some of the challenges faced by Washington, Adams, Hamilton, Madison, Gallatin, Jefferson, and many others in Congress and the executive branch as they guided the young nation, setting precedents for future generations. He discusses areas such as congressional-executive relations, foreign affairs, appropriations, and the Judiciary Act of 1789 from the separation of powers vantage point.

The picture of our government's formative years that emerges here, of a rich and overlapping understanding of responsibilities and authority, runs counter to rigid, syllogistic views. Separating Power gives us a clear portrait of the issues of separation of power in the founding period, as well as suggesting that in modern times we should be reluctant to tie separation of powers notions to their own procrustean bed.

[more]


Send via email Share on Facebook Share on Twitter