Monday, February 27, 2012

The end of the constitutional presidency?

Provocative essay by Dylan's friend Steve Hayward.


Dylan Wulderk said...

Hahaha. I love how we've become ideological foils.

My two comments are this: first, would a man with a degree in Constitutional law from the most prestigious law school in the country--who taught Constitutional law at one of the most prestigious universities in the country-- not be incredibly qualified to do what Heyward wants? I'm surprised(ish) he didn't reference that.

Second, I can't watch Fox News for one minute without someone harping on the Constitution. I feel like it's all conservatives talk about. Certainly the Tea Party--whether or not anyone in the movement can explain what's in it, aside. Does he want a lecture on ConLaw from each candidate for office? They mention it all the time otherwise.

Dylan Wulderk said...

My question for you, Professor, and any conservatives who read this--and it's an honest question--is how important is the idea of strict constructionism to right-leaning ideologies.

I honestly thought it had died out at the highest levels when Jefferson, the champion of the ideology, realized it to be nice in theory but impractical in governance, and abandoned it for a more realist approach.

Then again, there's Bork. Is Robert Bork held in high regard in this circle? I'm not very familiar with the deep specifics of the modern conservative movement. Just the policy issues and the historical stances.

So I'm actually curious. Real questions.

TJE said...

Akil Amar, a liberal Yale law Prof, makes a point similar to Hayward's in his book about the constitution. Amar argues that the framers expected not just the Supreme Court but also the presidency to be arbiters of the constitution. In this regard, the low point of Bush presidency was when he questioned the constitutionality of McCain Feingold but passed the buck to SCOTUS.

How often does President Obama make constitutional arguments of the sort Hayward would like to see?

Dylan Wulderk said...

Never. But I wasn't saying he did. I just meant that I would think Hayward would mention Obama's background as a good starting point for a president. I don't really expect the president nowadays to be a constitution buff, and Obama technically is. He hasn't done the theorizing, but I half-expected Hayward to mention that Obama is in the best position of any recent president to do what Hayward's asking.

And I don't disagree with the Hayward/Amar point. But I also think a lot has changed since then. I'm not saying it's a living, breathing Constitution, but I do think there's a bit of nostalgia (not unjustified nostalgia--I agree with it--but nostalgia nonetheless) weaved in to the thought that things could be changed. This is entirely theory level argument, which is fine, but I don't see it having any practical implementation.

For example, I think the president has way more power than the Constitution intended him to. The Supreme Court has made itself the final arbiter, though. If the president stepped in, no matter what the original intent of Madison and Co. was, he'd be seen as overreaching even further and critiqued by those who favor a limited government. It would never fly.

To go further, if Obama came out and defended his health care policy with a constitutional interpretation, a loud portion of the right wing would bring up that "professor-in-chief" critique again. When the President turns teacher, he tends to be criticized. That goes back to Harry, too.

TJE said...

“Political scientist Andrew Busch conducted a content analysis of major presidential speeches from Lyndon Johnson through Reagan and found that Reagan cited the Founders three to four times as often as his four predecessors,” Steven F. Hayward writes in his masterful The Age of Reagan. “Reagan mentions the Constitution ten times in his memoirs, often in a substantive way; Carter, Ford, Nixon and Johnson mention the Constitution a grand total of zero times.”

Dylan Wulderk said...

I believe that. I also believe that using the Constitution in speeches has become a worn-out political tool used to evoke the idea of limited government. The problem is, many of the politicians who use the Constitution as a spoon in the pot of anti-government fervor aren't drinking what they themselves are brewing. Many times it seems to be nothing more than a hollow commitment. I think that has a lot to do with this being an ideology, not a governing strategy. Reagan had to face the realities of governance, as did Jefferson. I don't think the two are reconcilable.

Though I wish, to some extent, they were.

And this isn't to say I see big government ideas as plausible either--the people won't allow it, and that is the ultimate reality of governance.

Dylan Wulderk said...

That sounds like I hate the Constitution. I don't. I don't want it to be a tool. Some things really are borderline unconstitutional, and those need to be addressed as such. But they're overplaying the card. That's my point.