Legal History Essay 122 Harv. L. Rev. 2070

The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive


This Essay traces successive elaborations through to the most recent construction of presidential power, the conservative insurgency’s “unitary executive.” Work on this construction began in the 1970s and 1980s during the transition from progressive to conservative dominance of the national agenda. A budding conservative legal movement took up the doctrinal challenge as an adjunct to the larger cause, and in the 1990s, it emerged with a fully elaborated constitutional theory. After 2001, aggressive, self-conscious advocacy of the unitary theory in the Administration of George W. Bush put a fine point on its practical implications. Much has been written about this theory in recent years, but virtually all of the commentary is by legal scholars seeking to adjudicate the constitutional merits of the case. That is to say, commentators have been debating the soundness of the theory’s claims as an interpretation of texts and precedents. The objective here is different. It is to situate the theory in the long line of insurgent constructions and to address it more directly as a political instrument and a developmental phenomenon.

The guiding assumption of this analysis is that a new construction of the presidency gains currency when it legitimizes the release of governmental power for new political purposes. I do not mean to suggest that candid reckoning with construction as a political process disposes of the constitutional claims of the unitary theory or of any other theory for that matter. I contextualize these claims in order to bring other issues to the fore. Significance is to be found in the practical political problems that conservative insurgents had to confront in venting their ambitions, in the sequence of prior constructions on which their response to these problems was built, and in the cumulative effects of the developmental process of construction itself.