The Living Presidency

A constitutional originalist sounds the alarm over the presidency's ever-expanding powers, ascribing them unexpectedly to the liberal embrace of a living Constitution.

Liberal scholars and politicians routinely denounce the imperial presidency-a self-aggrandizing executive that has progressively sidelined Congress. Yet the same people invariably extol the virtues of a living Constitution, whose meaning adapts with the times. Saikrishna Bangalore Prakash argues that these stances are fundamentally incompatible. A constitution prone to informal amendment systematically favors the executive and ensures that there are no enduring constraints on executive power. In this careful study, Prakash contends that an originalist interpretation of the Constitution can rein in the "living presidency" legitimated by the living Constitution.

No one who reads the Constitution would conclude that presidents may declare war, legislate by fiat, and make treaties without the Senate. Yet presidents do all these things. They get away with it, Prakash argues, because Congress, the courts, and the public routinely excuse these violations. With the passage of time, these transgressions are treated as informal constitutional amendments. The result is an executive increasingly liberated from the Constitution. The solution is originalism. Though often associated with conservative goals, originalism in Prakash's argument should appeal to Republicans and Democrats alike, as almost all Americans decry the presidency's stunning expansion. The Living Presidency proposes a baker's dozen of reforms, all of which could be enacted if only Congress asserted its lawful authority.

“With his usual clarity and pith, Sai Prakash explains why both progressives and conservatives should be more principled, condemning not only the expansion of executive authority, but the seizure of new authorities by Congress and the judiciary as well. Whether or not you agree with all his proposed reforms, anyone concerned about the growth of unbridled executive power must read this book.”

The modern presidency—inflated by Congress’s dereliction of its duties and armed with modern technologies of mass communication—has disrupted the Madisonian equilibrium of America’s constitutional architecture and weakened the rule of law. With this exquisitely timed book, Prakash explains how we arrived at today’s urgent need to ‘recage the executive lion.’ -- George F. Will, author of The Conservative Sensibility
Prakash has given us a refreshingly balanced understanding of the illegitimate expansion of presidential power throughout American history. Explaining that the Founders may well have intended a ‘limited monarch,’ he effectively and colorfully repudiates the dangerous idea that presidents can add to their powers without limitation. The current assertions of presidential power are indeed, in Prakash’s words, ‘a funhouse-mirror version of the Founders’ presidency.’ -- Russ Feingold, former United States Senator
Everything this sort of book ought to be: it is smart, clear, full of important distinctions and thought-inducing observations, and has an unambiguous vision for how we ought to approach our constitutional framework. -- David Murphy Open Letters Review
[A] trenchant debut on the subject of modern-day Oval Office overreach…Prakash chronicles the metastasis of presidential prerogatives over the past 50 years to encompass the almost untrammeled ability to declare war, make foreign policy, stop enforcing laws, and informally make new laws, all without constitutionally mandated congressional consent…A persuasive case against presidential usurpations—and for a more respectful reading of the Constitution. Publishers Weekly
Couldn’t come at a better time…Prakash’s book is well-written, well-researched, and dead-on in walking the reader through the history of the American presidency…He puts the presidency within the broader parameters of culture and political institutions—something that many books on the presidency fail to do. -- Gary L. Gregg II Law & Liberty
-- Randy E. Barnett, author of Our Republican Constitution
Many people imagine that free-form ‘living constitutionalism’ can be counted on to produce outcomes that they like. Sai Prakash’s The Living Presidency warns that this is a mistake: without fixed constitutional meaning, based on text and history, we have no defense against unwelcome changes, such as an all-powerful executive. Prakash has produced a powerful critique of the living Constitution. -- Michael W. McConnell, Director of the Constitutional Law Center at Stanford Law School
A timely and challenging overview of the development of the modern presidency. Although his primary criticisms are directed at devotees of a ‘living Constitution’ who countenance ‘informal’ constitutional amendment, he is also critical of purported ‘originalists’ who have embraced presidential overreach. One need not agree with all of his arguments in order to recognize that Prakash has made an important contribution to an ever-more-vital national discussion. -- Sanford Levinson, coauthor of Fault Lines in the Constitution
A terrific book…As Prakash explains in detail, the modern president’s power has vastly expanded relative to the prevailing conceptions of the Founding era. -- Shalev Roisman Lawfare
This excellent volume conveys important constitutional history and highlights major contemporary constitutional problems. Choice

Saikrishna Bangalore Prakash is the James Monroe Distinguished Professor of Law and Miller Center Senior Fellow at the University of Virginia. He clerked for US Supreme Court Justice Clarence Thomas and Judge Laurence H. Silberman of the DC Circuit. He has been a James Madison Fellow at Princeton University and a Visiting Research Fellow at the Hoover Institution at Stanford University.

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