Jeremy D. Bailey

The New Unitary Executive and Democratic Theory: The Problem of Alexander Hamilton

Central to the recent argument from the “unitary executive” is the claim that the unitary executive is consistent with the text and history of the Constitution. But because this veracity and importance of this claim is contested, unitarians also argue that the unitary executive is consistent with democratic theory. This article examines that argument by addressing a question in the political thought of Alexander Hamilton. Although Hamilton was an important defender of an energetic executive, and is associated with an expansive interpretation of executive power, he wrote in The Federalist that the president and Senate would share the removal power. In contrast with existing scholarship, which either overlooks Hamiltons statement on removals or dismisses it as a careless error, this article argues that Hamiltons statement limiting presidential removals illuminates his larger argument about executive energy. By showing how “duration” would check “unity,” this article clarifies Hamiltons political thought and offers an important critique of the modern argument from the unitary executive.

Reexamining the Use of Unilateral Orders Source of Authority and the Power to Act Alone

Recent debate on the use of unilateral presidential directives suggests that a president’s ability to shape and act without the consent of Congress is largely unchecked by traditional institutional arrangements while other research shows that presidents are more likely to be restrained by Congress. This article contributes to this debate by examining the source of authority used in unilateral orders. Using a new database of unilateral orders and a new theory, we reexamine when presidents use unilateral orders. We find that orders that invoke Congressionally based sources of authority are used when Congress is stronger while those that are presidency-based are used when Congress is weaker. These findings allow us to be more precise about how presidential unilateral strategy is shaped by institutional forces.

Should We Venerate That Which We Cannot Love? James Madison on Constitutional Imperfection

Scholars have long pointed to James Madison’s argument for constitutional veneration in Federalist No. 49 to illustrate what they see as Madison’s fear of democratic politics and frequent constitutional reform. This article challenges that consensus, first, by showing that Madison said the opposite several years earlier and, second, by revisiting the historical and textual context of Federalist No. 49. It argues that even as Madison praises veneration he offers serious reasons to be wary of it.

Constitutionalism, Conflict, and Consent: Jefferson on the Impeachment Power

A problem within liberal constitutionalism is determining whether the majority actually consents to its government, and, in particular, to those extraordinary acts that take place in the silence of the law. This paper explores this problem in the U.S. context by presenting Thomas Jeffersons understanding of the impeachment power. Jefferson preferred a theory of impeachment that, like his theory of coordinate review, would allow each department to participate in the impeachment process, because he believed that executive participation would improve the law bringing its own character, or will, to it. As an alternative to the more common political understanding of impeachment, which leans toward legislative exclusivity, and the dominant legal understanding, which tends toward judicial finality, Jeffersons theory offers a way for the people to judge whether a particular act of lawlessness is in the public good.

Was James Madison Ever for the Bill of Rights

Abstract This article revisits the question whether James Madison believed the Bill of Rights improved the Constitution. In particular, it asks whether the evidence supports the argument that Madison was persuaded that bills of rights serve an important educative function in constitutional government. It concludes that the evidence does not support this argument and suggests that Madison did not believe that the Bill of Rights improved the Constitution.