Imperial from the Beginning: The Constitution of the Original Executive. By Saikrishna Bangalore Prakash, New Haven, CT: Yale University Press, 2015. 454 pp.

Imperial from the Beginning: The Constitution of the Original Executive. By Saikrishna Bangalore Prakash, New Haven, CT: Yale University Press, 2015. 454 pp. Never judge a book by its title. At least, not this one. The reader expecting to find a refutation of Arthur M. Schlesinger Jr.'s classic The Imperial Presidency (Houghton Mifflin, 1973) will be sorely disappointed. Schlesinger is mentioned only twice and cited but once. More of a surprise is that Imperial from the Beginning unwittingly confirms Schlesinger's principal arguments about the framers' intent. Schlesinger highlighted four particular aspects of the "constitutional presidency" (p. viii): first, and most important, that the framers vested the power to initiate wars in Congress; second, that the Commander in Chief Clause was to be read narrowly; third, that the Constitution did not give the president an emergency prerogative power; and fourth, that broad claims of executive privilege were foreign to the Constitution. It was the departure from these founding principles that Schlesinger tagged the "imperial presidency." With respect to each of these four pillars of the "constitutional presidency," law professor Saikrishna Prakash's reading of the framers and the Constitution is virtually indistinguishable from Schlesinger's. Of course, this does not mean that Prakash finds the framers' president a weakling. But, then, neither did Schlesinger, who characterized the framers' creation as a "[presidency that would be strong but still limited" (Schlesinger, p. 2). Schlesinger's phrase is an apt description of what Prakash so ably and comprehensively documents, but "strong but limited from the beginning" isn't quite as catchy a title. However, there is more at stake here than a misleading title. Prakash frames his work as if the "common" view (p. 13) is that the framers, fresh off a revolutionary war against a king, could not possibly have created a strong executive. Unsurprisingly, Prakash has no difficulty showing that "this familiar and longstanding narrative" (p. 12) is wrong. But scholars have long recognized that the presidency was created against the backdrop of the Articles of Confederation and that as a result, as Schlesinger himself wrote, many of the founders accepted the Hamiltonian premise that "energy in the Executive is a leading character in the definition of good government" and sought to craft a strong and independent executive that could resist legislative "encroachments" (Schlesinger, p. 2). Misleading title and straw man aside, there is much to admire--and to argue with--in this well-written and stimulating book that offers an impressively even-handed account of the framers' understanding of the presidency. It would take a far longer review to do justice to Prakash's many careful arguments and copious evidence. Much of what he argues is convincing, providing a useful corrective to reflexive invocations of justice Robert Jackson's oft-quoted warning in his Youngstown concurrence that what "our forefathers ... envisioned ... must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah." Prakash shows that "often, the evidence from these materials points rather strongly in a particular direction" (p. 6), particularly for constitutional provisions that were much debated at the Constitutional Convention. However, Prakash is less persuasive about "the original executive" when, as is often the case, the historical materials are sparse and, indeed, enigmatic. In a chapter on "The President as 'Glorious Protector' of the Constitution," for instance, Prakash insists that the presidential oath to "preserve, protect, and defend the Constitution" should be read as requiring presidents to veto any bill that they believe contains an unconstitutional provision (p. 304) and to disregard any law that they believe is unconstitutional (pp. 308-09). But the problem for an originalist is that there is no evidence that the framers understood the oath in this manner. …