Bench Memos

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That Wall Street Journal article Ed mentioned below remarks on Judge Alito’s association, since his days at the Reagan Justice Department, with “unitarians.” What, you say? You thought he was Catholic? Well, in a usage that is news to me, the Journal tells us that this appellation (with a lower-case “u”) is used as a self-description by legal thinkers who advocate the “theory” of the “unitary executive.”

Theory, you say? Isn’t it a plain fact that we have always had just one chief executive? Well, yes. But the “theorists” the Journal discusses–some of whom its reporter, Jess Bravin, interviewed–have the apparently earthshaking idea that the Constitution grants the president of the United States all the executive power, in an undifferentiated and indivisible whole that is not subject to congressional nibbling and constraint, and is more than the sum of any specific grants of power given the president in Article II.

The tone of wonderment that pervades this article is the funniest thing. One is led to believe that this “theory” of presidential power was some newfangled invention of Reagan-era Federalist Society nerds who wanted to bend the Constitution to some ideological purpose or other. Trouble is, this is not just someone’s pet “theory” of the Constitution. A serious case can be made that it is a proper and straightforward reading of the authentic Constitution, the Constitution that is. And it is certainly not of recent vintage. Jess Bravin might have mentioned that it was the understanding held by Alexander Hamilton, by far the deepest thinker of the founding generation on the subject of executive power.


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