Anchoring Truths co-founder Garrett Snedeker offers qualified praise for Prof. Michael McConnell’s recent book on executive power under the Constitution. While McConnell argues convincingly for public meaning originalism, he implicitly reaffirms judicial supremacy over interpretive disputes between the legislative and the executive branches.
“McConnell’s most significant contribution to the scholarly literature is his thorough evaluation of Article II with a focus on its drafters. McConnell conveys that his book is ‘the first comprehensive account of the entire drafting history relevant to presidential powers.’ In the Introduction, McConnell explains that, ‘[m]uch can be inferred from textual changes made during the Convention, even when they are unaccompanied by an explanation or even a reported discussion.’ Gleaning reasonable distillations from the intent of the drafters of Article II is how McConnell distinguishes himself from other originalists who look only to the words of the Constitution as ratified. The activities of the Committee of Detail provide him with a historical record that allows him to trace changes in many elements of executive power across drafts of the constitutional provisions. These changes ought to inform an interpreter with crucial background animating the various provisions of Article II.”
“McConnell’s approach to look back to the will of the drafters is seemingly at odds with those originalists who swear devotion solely to the original public meaning of the words of the Constitution, but not to an older generation of originalists. Before the rise of Antonin Scalia’s preferred approach, to understand the original public meaning of words and phrases of the Constitution, Robert Bork and Raoul Berger were well known adherents of original public intent originalism. As I have written elsewhere, ‘The “original public intent” inquiry largely focused on what the drafters of legislation sought to enact.’”
“McConnell’s basic thesis is that ‘separation-of-powers conflicts can often be resolved, at least provisionally, on the objective basis of text and structure, without wading into subjective swamps of pragmatism, functionalism, and political expediency.’ The problem is that McConnell’s analysis of Youngstown confirms many of the errors that have led us to a modern juristocracy, emboldened by beliefs of judicial supremacy, without considering how the Founders, and even one of the justices in Youngstown, would have considered the case.”
“Although McConnell would not consider himself a proponent of judicial supremacy, his book’s endorsement to have the federal courts oversee each interpretive dispute by the political branches seemingly constitutes an implicit reaffirmation of judicial supremacy. Constitutionality as an ongoing conversation among the co-equal branches is more faithful to how the Founders understood the system they wrought. It is an indictment of our modern constitutional order that in times of crisis we often expect the executive and the legislative branches to operate only within the boundaries set by federal courts.”