Living or Imperial? The Mutating Presidency Under 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.

Saikrishna Bangalore Prakash is James Monroe Distinguished Professor of Law and Miller Center Senior Fellow at the University of Virginia. Previously, he was Herzog Research Professor of Law at the University of San Diego School of Law and an associate professor at Boston University School of Law. He has been a visiting professor at the Northwestern University School of Law, the University of Chicago Law School, and University of Illinois College of Law. Professor Prakash was also a James Madison Program Visiting Fellow at Princeton University and Visiting Research Fellow at the Hoover Institution at Stanford University. Before entering academia, he clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Clarence Thomas of the U.S. Supreme Court. Among his articles are "50 States, 50 Attorneys General and 50 Approaches to the Duty to Defend," published in the Yale Law Journal; "The Imbecilic Executive," published in the Virginia Law Review; and "The Sweeping Domestic War Powers of Congress," published in the Michigan Law Review.  His most recent book, The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers, was published by Harvard Belknap Press in 2020. He also authored Imperial from the Beginning: The Constitution of the Original Executive (Yale University Press, 2015). He received his B.A. in Economics and Political Science at Stanford University and his J.D. from Yale Law School. 

Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University. He is the author of several books, including Speak Freely: Why Universities Must Defend Free Speech which won the PROSE Award for best book in education and the Heterodox Academy Award for Exceptional Scholarship); Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (which won the Thomas M. Cooley Book Prize); and Constitutional Crises, Real and Imagined. Professor Whittington has also edited and co-authored several volumes on law and politics and on American constitutionalism, and has published widely on American constitutional theory and development, federalism, judicial politics, and the presidency. He has been a John M. Olin Foundation Faculty Fellow, American Council of Learned Societies Junior Faculty Fellow, National Center for Free Speech and Civic Engagement Fellow, a Visiting Scholar at the Social Philosophy and Policy Center, and a Visiting Professor at the University of Texas School of Law, and is a member of the American Academy of Arts and Sciences. He is editor (with Gerald Leonard) of the New Essays on American Constitutional History and editor (with Maeva Marcus, Melvin Urofsky, and Mark Tushnet) of the Cambridge Studies on the American Constitution. His work has appeared in the Wall Street Journal, the Washington Post, the New York Times, and the Atlantic, among other outlets, and he is a regular contributor to the Volokh Conspiracy blog. Professor Whittington received his B.A. and B.B.A. from the University of Texas at Austin and his Ph.D. in Political Science from Yale University.