Can Originalism Constrain the Imperial Presidency?

Abstract

The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers, by Professor Saikrishna Bangalore Prakash, is a readable, systematic, and well-reasoned description of today’s living presidency, as well as a roadmap showing the way back to the constitutionally-authorized office. The Living Presidency’s thesis is that today’s presidents routinely “alter the Constitution and laws” such that the office has “become the amending executive.” But, in the beginning, “the original presidency was not meant to be all-powerful [and] lacked the unilateral authority to amend the Constitution or to make, amend, or unmake statutory law.” Professor Prakash describes the causes of today’s out-sized presidency, details support for his claims that the living presidency departs from the Constitution’s original meaning, and then suggests means to tame the living presidency.

Keywords: originalism, president, presidency