It is no surprise that an unprecedented Presidency in the United States should be an occasion for new thinking about the design of Article II of the U.S. Constitution and the scope of executive power in America. But in fact, this rethinking has been happening for some time now, in the form of an emerging body of originalist historical work on core features of Article II and the President’s relation to other branches. Although originalist inquiry emerged in the twentieth century as a decidedly conservative phenomenon, and although the contemporary Supreme Court justices most associated with originalism have favored expansive presidential power, the new historical work on the presidency (from across the political spectrum) offers more evidence against the “imperial” presidency and broad executive discretion.
Some newer work on Article II – authored by the scholars proposing this symposium – addresses other core parts of Article II and finds an original design of a constrained Presidency, subordinate in many respects to the Congress. New research on English and colonial institutional design and practice offer insights into Article II. New readings of the Constitution’s Vesting Clause and of the First Congress spark a fresh debate about legislative delegations to the executive branch and the scope of presidential power. New histories of emergencies in American history help us understand the evolution of executive power, especially after the debate about Trump’s border wall spending and during pandemic measures in the Covid-19 era. New interpretations of nineteenth-century administrations help us understand the construction of presidential power – and the emergence of the separation of powers — over time. And new research into the eighteenth century has sparked new legal debates about fiduciary constitutionalism and non-delegation of legislative power. This conference brings together many authors on opposite sides of these debates to discuss, synthesize, dig deeper into the past, and move forward into the future of constitutional interpretation.