*This is the tenth post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here.
Peter Shane is one of today’s most thoughtful commentators on separation of powers and the presidency. In numerous articles and two terrific books—Madison’s Nightmare (2009) and the subject of this symposium, Democracy’s Chief Executive (2022)—he has sounded the alarm over “aggressive presidentialism” and the dangers it poses for our democracy. In Democracy’s Chief Executive, Shane takes aim at what he describes as three main pillars of aggressive presidentialism: the unitary executive theory, the plenary discretion principle, and national security unilateralism. Shane convincingly argues that these doctrines not only undermine deliberative representative democracy but are inconsistent with how we should understand and interpret the Constitution. Specifically, he rejects originalist approaches to constitutional interpretation, which posit that the meaning of the Constitution was fixed when ratified, and that the original meaning is the only one that courts may enforce.
Shane’s take down of originalism is at the heart of his project and a must read for anyone interested in constitutional law. There is much here that will enrich our understanding. In a pincer movement, Shane tackles both originalism “done badly” and originalism “done well.” First, he catalogues the many inconsistencies and inaccuracies of originalism “done badly.” These include Chief Justice Robert’s ode to the Framers’ vision of the President as “the most democratic and political accountable official in the government,” which Shane exposes as entirely anachronistic given the selection of the President by electors whom the Constitution did not require to be popularly elected, in contrast to the members of the house of representatives. Indeed, the Electoral College was designed by the Framers specifically to prevent a national popular election of the President. Perhaps it would be gilding the lily to point out that the franchise in most states at the Founding was confined to white men with property. Indeed, even a rudimentary understanding of eighteenth-century history and political theory reveals the Chief’s assertion to be pure fiction. The fact that our Chief Justice would engage in this type of fiction to overturn a congressional choice of how to structure a federal agency, when the design is neither expressly nor impliedly prohibited by any constitutional text or principle, reveals just how bad things have gotten. It is hard to imagine anything other than the justices’ own personal views of government driving such willful blindness.
But Shane does not want to improve on how originalism is practiced, even as he acknowledges that it can be done better. To the contrary, he believes we should largely dispense with searching for answers to today’s constitutional questions in the interstices of texts written in 1787 or 1868. Even a more nuanced understanding of history can do little to overcome clear text that we must ignore all the time. For example, the Constitution only mentions an army and a navy, although we now have the Air Force, the Marines, and even a space force. The Constitution repeatedly refers to the President as “he.” Yet there is no serious objection to female presidential candidates. These are just a few of the most obvious examples. But they point to a more general problem with applying original public meaning to a text meant to provide an enduring framework for government.
Moreover, as dueling originalist legal briefs demonstrate, originalism does little to constrain judges from interpreting constitutional text according to their personal political and policy preferences—one of the primary justifications for the theory. Thus, any form of originalism is troubling because it pretends to be objective while hiding the underlying values driving the analysis. According to Shane, there is no escaping values in constitutional interpretation, and judges should be more candid about the values they are promoting.
Therefore, Shane prefers a form of “moderate” or “common-law constitutionalism” guided by democratic and deliberative values. (136) Such an approach would consider text, precedent, and context, while prioritizing “democracy’s deliberative side, at least to the extent of not allowing the tenuous links between elections and policy outcomes to excuse a reduction in deliberative opportunities.” (145)
Shane skillfully shows how aggressive presidentialism undermines the power of Congress and democratic governance. As Gillian Metzger notes in her contribution to this symposium, however, advocates of a strong president argue it is necessary to get things done. Yet the Trump Administration has illustrated how aggressive presidentialism also undermines effective government by suppressing the broad public inputs necessary for successful policymaking. Federal agencies depend on engagement by diverse stakeholders to ensure they have the information they need to make important policy decisions. Aggressive presidentialism, however, paved the way for the Trump Administration’s wholesale attack on the administrative state and its public input mechanisms. President Trump’s Executive Order 13,771, for example, dramatically narrowed the interests considered in rulemaking by focusing federal agencies on eliminating compliance costs, while ignoring regulatory benefits, and identifying at least two existing regulations to be eliminated for every new regulation issued. At the same time, the political leadership of the agencies shut out career staff from important regulatory decisions and replaced them with representatives from the very industries the agencies were charged with regulating. In addition, Trump’s political appointees disbanded key federal advisory committees with scientific or technical expertise, reduced the influence of other advisory committees, and replaced academic experts with industry scientists. This was not the rule of law, but presidential rule run amok.
The predictable results were regulations that focused on narrow corporate interests, relied on fundamentally flawed technical and legal analyses, and were frequently vacated by the federal courts on judicial review, wasting significant time and resources. While we might take solace in the fact that the federal courts checked many (albeit not all) of these poorly designed policies, the consequences of Trump’s attack on the administrative state may not be entirely reversible. The federal bureaucracy will be hard pressed to attract high performing and committed civil servants when the ability to do their jobs depends on who occupies the White House. An unusually high number of senior civil servants left the government under the Trump Administration, citing political interference and demoralization. Their departure drained the federal government of expertise, experience, and leadership, just as we confronted the greatest threat to public health in more than a century. Is it any wonder that the U.S. had the most deaths per capita from Covid-19 of any country in the world?
Shane concludes with a thoughtful reform agenda for Congress, the Court, and the Executive Branch, along with a call for reinvigorating the democratic engagement of our citizenry. The challenge, however, as Professor Whittington points out in his contribution to this symposium, is that there seem to be few incentives for Congress (or the Court or the Executive Branch) to enact most of them. It is hard to imagine a louder warning bell for democracy than the Trump Administration. Yet even as democrats sought to address some weaknesses revealed by President Trump’s attempt to remain in power after losing the election, they did little to reign in the power of the presidency. Nor is the democratic electorate likely to oppose the exercise of executive power by democratic presidents to achieve their electoral mandates. Look no further than the substantial grassroots pressure for the Obama Administration to implement DACA and DAPA or for the Biden Administration to cancel billions of dollars in student debt. If President Trump did not cause a groundswell of support to limit executive power, it’s hard to imagine what will.
While Shane’s call for infusing constitutional interpretation with deliberative democratic values is a welcome break from the academy’s fixation on finding value-neutral approaches, he himself recognizes that “the recitation of democracy and rule of law as abstract ideals is not enough to rally people against the dangers of authoritarianism.” (220) Democracy promoting reforms and engagement are likely to emerge only when the public is sufficiently galvanized by the failure of their political representatives to implement high-priority policies. At the state level, we have seen this in recent years with the use of citizen initiatives to implement independent redistricting commissions, to legalize recreational marijuana, and to protect the right to abortion in Kansas. Such tools of direct democracy are not available at the federal level. But as Glen Staszewski and I show in Democratizing Rule Development there are untapped opportunities for public engagement with federal regulatory agencies on their substantive policies. Let’s hope that Shane’s book will spur a broader conversation about the fundamental values to which we want our government, including our courts, to commit.
Values have always underlain the constitutional theories of legal scholars and judges. Originalism itself, Shane notes, was a response to the perceived leftward tilt of the federal courts in the twentieth century on issues such as separation of church and state, racial desegregation, free speech, and the expansion of the administrative state. To avoid directly taking on the values at play, originalism cloaked political conservatism in the language of value-neutral objectivity. Shane encourages us to respond to this move not with more purportedly value-neutral approaches, such as originalism done well or perhaps even living constitutionalism, but with a democratic values-laden approach to interpretation. Anyone who thinks about the Constitution or fears for our democracy should take this call seriously. But I hope it is only the beginning of a broader project of interpreting the Constitution in light of the fundamental values to which our citizenry is committed, including such values as privacy, bodily autonomy, and equal opportunity, even as we refine their meaning. Constitutional interpretation is values all the way down.
Michael Sant’Ambrogio is the Professor of Law and Senior Associate Dean for Faculty and Academic Affairs at Michigan State University College of Law.