president as chief legislator?

[Sanford Levinson]

Assuming that one takes the Federalist any more seriously than Jefferson, is it not possibly relevant that it was written under the to-us bizarre assumption that presidents would be selected on the basis of their civic virtue rather than as leaders of one particular political party that would, by its opponents, easily be seen as a "faction."  As is true of so much of the Federalist, it's really irrelevant unless, that is, one can come up with a widely shared notion of what counts as "improper laws" that differs from "laws one doesn't personally approve of."  
 
If one really takes the judiciary with such seriousness, then a) shouldn't it take any and all cases that come down the pike (i.e., no "political question doctrine," for starters) and b) should we modify the Oath of Office to clarify that the Constitution we want the President to swear fealty to is the one (and only the one?) articulated by the Supreme Court?
 
sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Sean Wilson
Sent: Tue 2/10/2009 3:59 PM
To: conlawprof at lists.ucla.edu
Subject: president as chief legislator?


 
... my last thoughts (as I have to write exams):
 
1. I would never cite Jefferson for anything but artistry.
 
2. The federalist papers make clear that the veto is not meant as a legal ruling:
 
"But the power in question has a further use. It not only serves as a shield to the Executive, but it furnishes an additional security against improper laws. It establishes a check on the legislative body calculated to guard the community against the effects of faction, precipitancy or any impulse unfriendly to the public good that might happen ti influence a majority of that body." See 73 (in detail), 69  and even 78, which shows how the judiciary is different from the other organs.  
 
3. It seems to me that the central confusion here is not what presidents do, but what judges do. That's the new independent institution. That's the one that Europeans (De Toqueville) couldn't understand. Historically, judges had either been creatures of the King (in absolute monarchy) wherein they in essence performed an agency function, doing the King's bidding. Or they were the upper legislative chamber (the Lords) in parliamentary-driven systems before the idea of judging the law and legislating it were thought to be different occupations. In colonial America, when you claimed foul with the law, you went before what in essence was a Senate (called the General Court). Well, once you separate out these institutions ("the court" and the Lords) and make the former a referee for the legality of the other branches -- and once you claim this function to be its own occupation -- then you have left the other two with a different occupancy.  This is what creates the central confusion in the culture. This is why judges start showing up on revision boards with executives in some early draftsmanship. People confuse "revising" "amending" "judging" and "vetoing" because the engineering at the convention is new.  A proper understanding of American constitutionalism has each of these things meaning something different. 
 
Veto = against the common good
Amendment = discreet change comeing from a strong public desire
Revising = programmatic overhaul
judging = incorrect by professional orthodoxy 
   
Regards.
 
Dr. Sean Wilson, Esq. 
Assistant Professor
Wright State University
New Website: http://seanwilson.org <http://seanwilson.org/> 
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860 <http://ssrn.com/author=596860> 


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