Constitutional faith, or constitutional stealth? The puzzling resurgence of American monarchism.

• Author: Hoffman, Daniel N.

THE ROYALIST REVOLUTION: MONARCHY AND THE AMERICAN FOUNDING. By Eric Nelson (1) Cambridge, Mass.: Belknap Press, 2014. Pp. 400. $29.95 (cloth).

THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC. By Eric A. Posner (2) & Adrian Vermeule. (3) New York: Oxford University Press, 2011. Pp. 256. $31.95 (cloth), $19.95 (paper).

SECRETS AND LEAKS: THE DILEMMA OF STATE SECRECY. By Rahul Sagar. (4) Princeton: Princeton University Press, 2013. Pp. xiii + 304. $35.00 (cloth), $24.95 (paper).

1. INTRODUCTION

   Veneration for the Constitution is a staple of American political culture, as is vigorous debate about the meaning of specific terms. Yet events of recent years have raised pointed questions about the Constitution's viability: is it truly well-adapted in today's world for delivering on the promises of its Preamble; or is it, rather, maladapted, ineffective, and obsolete? Does the Constitution adequately describe how we are actually governed; and, if not, need we be concerned?

   Short of formal amendment, the common way to remedy perceived defects of the Constitution has been by shifts in interpretation. The Supreme Court has done this on many occasions, with varying political impact. Some of these shifts focused on personal rights, others on governmental powers. Some were enabled by transformative Court appointments, but others reflected shifts in opinion prompted by dramatic national and world events or successful political movements. All were able to draw support from scholarship that criticized the previously dominant interpretations. Perhaps the most significant shift was the abandonment in the 1930s of doctrines that had severely restricted both governmental regulation of the economy and broad delegations of power by Congress to bureaucratic agencies. A major consequence was a tremendous increase in the size of the federal executive branch, the scope of its powers, and the money it spends. These changes have aroused continued controversy as to their wisdom, with some supporters and critics regarding them as tantamount to constitutional--or unconstitutional--revolution. The controversy, however, has played out largely in political and academic discourse, not in the judiciary.

   In recent years, the discourse has shifted in surprising ways. As late as 1988, Sanford Levinson's Constitutional Faith (6) sought to find coherent meaning in a close and reverential reading of the Constitution's text. By 2006, Levinson was calling for a new Convention to remedy its profound defects. (7) Other scholars, however, see no need for formal amendment or replacement. Instead, they contrive to find in the Constitution, as it stands, principles and virtues wildly different from the familiar literal readings and traditional understandings. The conventional discourse shows signs of exhaustion.

   This essay considers three recent books that boldly but differently defend remarkably strong views of the powers our Constitution bestows on the presidency: The Royalist Revolution, by Eric Nelson; The Executive Unbound, by Eric Posner & Adrian Vermeule; and Secrets and Leaks, by Rahul Sagar. All three come from prestigious presses, with jacket blurbs from a diverse group of prominent scholars. These may surprise, until we reflect that veneration for the presidency has never been confined to a narrow ideological faction. Presidents of all parties have consistently appealed to it, argued for it before Congress and the courts, and gained significant, often bipartisan support. Political leaders deeply opposed to incumbent presidents have historically tended to attempt capturing the office, not to weaken it.

   Presidential powers, as Madison observed, thrive most dangerously in times of war: "Of all the enemies to public liberty war is, perhaps, the most to be dreaded.... [T]he discretionary power of the executive is extended.... No nation could preserve its freedom in the midst of continual warfare." (8) Today, we find ourselves in an era of permanent war, or at least its threshold. In addition, Congress, the primary institutional check on executive power, is held these days in unprecedented contempt. This suggests the question, how far are we from outright (if elective and term-limited) monarchy? The books at issue argue that in effect we already have one, and it's a good thing, too.^ (Full disclosure: I have long argued that our Constitution imposes lawful restraints on the president, withholding monarchical powers. (10)

2. THE ROYALIST REVOLUTION

   Eric Nelson's work is an intellectual history of the presidency, exploring the views about monarchy of prominent Americans during the colonial, revolutionary, and Constitution-framing eras. His thesis is that pre-revolutionary colonists loved and admired the king, whose predecessors had chartered their colonies and granted them substantial self-rule. When Parliament began to impose new taxes and commercial regulations, they saw this as usurping the king's prerogatives, and looked to him, the foremost guardian of the rights of British subjects, to preserve their liberties. Only after he ignored their many pleas did they turn against him and pursue independence. While some thereafter followed Thomas Paine's lead in Common Sense, (11) opposing anything that smacked of monarchy and adopting "whiggish" State constitutions with feeble executives, "royalist" leaders like Ben Franklin, James Wilson, John Adams and Alexander Hamilton adhered to the view that the British monarchy had in fact proven too weak, and that a strong republic would require an extremely powerful executive. At the Constitutional Convention, Nelson claims, they prevailed. "The very same principles that had underwritten the patriot campaign to rebalance the imperial constitution in favor of the Crown demanded in 1787 the creation of a recognizably Royalist constitution for the new United States" (p. 7).

   In support, Nelson offers a raft of letters, pamphlets, sermons, etc., from colonists that extol the blessings of monarchical "prerogative," placing these in the context of ongoing debates about the flaws of the British Constitution as the source of the colonies' increasing plight. These writers often denounced the corruption of Parliament and/or their lack of representation therein, even while debating competing theories of representation and different views of the limits of Parliament's power to legislate concerning the colonies. Some highlighted the tyranny over Britain of the Long Parliament after the execution of Charles I, hailing the Stuart Restoration as a return to more balanced government, but lamenting the incompleteness of the restored prerogative, in that the king's veto power had fallen into disuse. Colonists repeatedly reproached George III for failing to veto the laws to which they objected.

   Nelson takes issue with scholars who have dismissed arguments like these as perhaps insincere and self-serving, aimed at justifying actions whose real motives were different. He shows that this "royalist" line of thought survived the advent of independence and had some influence on later constitution-making. His depiction of the Constitution of 1787 as a triumph of royalism, however, falls seriously short. It is utterly clear the colonists' arguments, however sincere, were context-driven, and that none offered a coherent theory of representation or of legitimacy capable of persuading modern readers who believe in majority rule, local self-government, equal human dignity or a fundamental right to vote. All seem to have accepted the obsolete concept of "virtual representation," though differing on its rationale, and many agreed that the colonies were outside the "realm" of Parliament's jurisdiction, governed only as the personal "dominion" of the king. These viewpoints are simply irrelevant to a proper understanding of presidential powers under the U.S. Constitution.

   The terminology of the documents can be confounding to readers today. Quite often, statements seem incoherent or inconsistent with other views of the speaker. For example, we commonly think of the powers of Parliament and of "the Crown" as mutually exclusive. Yet in 1621 we find Lord Baltimore opposing proposed legislation regarding Virginia by arguing that "if Regall Prerogative have power in any thinge it is this ... Virginia is not annex't to the Crowne of England And therefore not subject to the Lawes of this Howse [of commons]" (p. 39). Nelson does wonders trying to make sense of his materials, but one may doubt sometimes whether they really do make sense, or whether his interpretations are the only ones plausible.

   Nelson launches his account with a confusing 1775 debate in Parliament, where the wisdom of Coercive Acts against the colonies became entangled with the question whether to commemorate the "martyrdom" of Charles I. The Whig John Wilkes opposed both measures and depicted the colonists as sharing his opposition to royal prerogative rule. Yet Lord North mocked Wilkes for joining the colonists, who he claims were advocating Tory principles that extended prerogative across the ocean, while halting parliamentary authority at the shore. Nelson's summary, in turn, places the colonists even to the right of 1775 Tories, "drifting perilously close to Jacobitism" (p. 31). The history reviews numerous occasions where colonists pleaded the constitutional theories of "dominion" and royal prerogative mentioned above. Jefferson and John Dickinson were significant exceptions, in that they, while agreeing that Parliament had overreached its powers, voiced concern also at the prospect of unbridled royal tyranny and rejected the Jacobite nostalgia expressed by others. George Ill's determination to defend and enforce the laws passed by Parliament made these constitutional debates largely moot, but Nelson, anticipating the Declaration of Independence, argues paradoxically that in denouncing there only the king and ignoring Parliament, patriots only reaffirmed "their...