governments and how people respond to changes in struck are and even when we do know something, i think it is important to recognize that in part, the institutions we have have adapted to who we are as a people, to the structure and to our history. so getting inferences or ideas from how things work in other countries should just be done with a lot of caution. >> and the second point i wanted to make is there's always a question when you observe the behavior of the executive branch, you are observing something that's a consequence of a particular structure and decisions. whether you're observing a reaction to social, context and technological context and it is important to highlight the nature of the presidency has changed that allows them to connect with the public. think about the impact of television on the 1960

presidential debates. think about the impact of social media on the 2008 presidential election. so, as we think again, about this whole question of redesigning or reshaping or rethinking what we expect from the presidency, we should know that some of what drives that behavior isn't located within the presidency itself. >> since we can't get beyond talking about presidents and discussing some of the underappreciated presidents, i do want to point out something that a number of us have talked about. even the first or second constitutional diner who also served as president of the united states and maybe madison is first and maybe he is not. the second is martin van buren. van buren created the modern political party and he created the modern political party for two reasons, one is he didn't like the way the constitution worked and two, it was too hard to amend the constitution

itself. and because he thought there was an overwhelming tendency for power to be centralized in washington and for the elites that were in charge of the government and in particular the executive and the courts to get out of control of the people he designed an entirely new and an entirely extra constitutional means of controlling the government. he created the democratic party which was supposed to be a way of keeping the bad things that he thought had begun to happen under the constitution from happening. its has had some anticipated consequences and some unanticipated consequences and it's had overwhelmingly powerful consequences for the country and one of the problems with having the constitution that is so hard to amend is extra constitutional means like the supreme court appointments will be used to accomplish something that amounts to a constitutional amendment, and if you look at

van buren's original design for the way a political party was supposed to work it was disturbingly -- its purpose was to exclude from the political process the people he thought were especially dangerous, the red seekers who seized control of the national government and he gave the blueprint for the party that controls the government outside the constitution and it has plusses and minuses, but the temptation to do that sort of thing when you have a constitution that's as hard to change as ours is going to be overwhelming. >> thank you. i think we're at a point now where we can open the discussion to members of the audience. so if you, please, come to the microphone and identify yourself and direct your question at a member of the panel and we reserve time for professor epstein to ask a question. dean mcgee, i'm from st. johns

university law school. i want to go back to foreign affairs and i would like the panel to respond to what madison wrote about the power of the president in the constitution, and he wrote in no part of the constitution is more wisdom to be found than in the clause which confines the pressent of war or peace to the legislateur and he goes on to say that not one man has the power to take on one war, and i was wondering if any one would agree with the constitution and further, if any members of the panel disagree with him as a matter of whether that issa i wise clause of the constitution. >> i see you were reading from madison's participation and how specific his debate which is of course, take place after the ratification of the constitution and this is something people debate about whether historians

are written a very interesting essay about whether madison is consistent between when he was acting as one of the framers of philadelphia and the ratification and once he became basically one of the leaders of the opposition to the washington administration which is the context within which he was writing. one, i think his comment doesn't really address the issue we have today which is when you have a large military that congress has created and voted for and maintains from year to year at the president's control and the president, i think, effectively has the decision whether to employ it in hostilities or not. i think madison is right when it comes to the idea of declaring war and putting the country on a mobilization or war footing, but what i don't think madison's comment addresses in the original understanding is how congress is supposed to control

it once they created that military. there was no standing military, right? if any president wanted to have a war they asked him to build an army or navy for that war. the thing that changed significantly, and also about the constitution, and things have changed and one of the biggest constitutional changes is that we now have the standing military that the framers were worried about and congress, i think has plenty of tools to stop the president from using it if it wanted to. i think what congress prefers for the executive branch to make these decisions about war and peace and give the military the permission to do it and doesn't want to take accountability for successes or failures and i think that's what happened in libya. as a matter of constitutional design, i actually think that the system makes more sense to me if congress creates the

military, gives the president a fair amount of discretion and congress has the control via the purse and the control of the size and shape of the military. i think that -- i wouldn't worry about a system, some people read the quote, and i'm worried about a system that was biased and extremely biassed and in favor of inaction. people say congress is less like the branch and we want to create as many checks as possible and this was the professor of john hart's theer of war powers and one mistake with that is that it fails to recognize that not acting can harm the country, too. we think of wars that are bad for the country and the country can also be harmed by not going to war when it should, and i think the best example of that is the wars leading to world war ii. when congress used its powers to prevent the united states from

assisting the allies, and i think to his credit, i think fdr tried his best to try to get around the laws to help in france against nazi germany. this is my opportunity to use and say what i changed at the last minute. first, it's important in thinking about the relationship between the executive power and the legislative power and to bear in mind and we tend to ng of them complimentary to one another and what the executive does is to carry out decisions generally made by the legislature and in turn, the legislature creates the legal environment within which the executive exercises its powers and i would go farther than john, in describing the kinds of controls that congress could emphasize the laws if it happeneds to. it seems it's not just the size and shape of the military, but

congress has adopt -- it can adopt a mission statement for the armed forces and congress could enforce that through the power to declare war by saying what the circumstances are under which the united states will be at war and which it will not be at war and not available. it can enforce those points furthermore by creating more crimes with its authority to make rules for the naval forces and congress has a sense of authority not to micromanage and to legislate in considerable detail with respect to how the military is used. as a general matter, congress has not done so and one congress' weakness has been a failure to do so and to resdpreet you see him in the war crimes resolution which attempts to create a default against military action. that's not an accurate description of congressional power, but the result of

congress' approach is they tend not to use the powers i think they clearly have. >> i have to basically agree with what john has just said. i think if one was trying to envision a drafting of the 21st century constitution, one might, for example, accept the proposition that the president should be elected for a single six-year term, among other things so that the president doesn't begin running for re-election the day after the previous election day and generally, i've been versed to that, but i find myself more than willing to accept that as a possible approach if it is combined with the ability to fire a president in whom one has lost confidence through a vote of no confidence that it does seem to me that one of the very bad features in the constitution

is the fixed term presidency because, and prone to bad judgment which i think is incidentally is worse than being a crook or worse than running afoul of some lawyer's meaning of what some misdemeanor is and then i wish we had a way to get rid of a president. i'm not sure that the california system recall into governor is exactly the best way to do it, but again, i come back to my thing that we have 51 constitutions in this country and they do provide a variety of solutions to the problem of political leadership where one has lost confidence. >> next question. yes? >> my name is luke ragland from the university of colorado. i enjoyed your remarks but there was one point that i kind of get stuck on and i want to get your

opinion. you sketched out the founders' vision for president whose role in domestic policy is limited. assuming that that's true aren't the stakes too high for am doestic policy and the structural setup that we have for the presidency. isn't it inevitable that you have the president who is active in domestic policy, does it matter that the founders have that vision? >> i think that's a great point because we have a political system now where we hold the president accountable for everything and we demand, but we had the answer to the budget problem even though those are things that lie within the hands of congress. and the presence had responded by placing more control over the passage of legislation and over

adm administration. and all of that stuff is congress' fault and i am not responsible for what congress has done in health care. i'm not responsible for a, b, c and d. it's their fault and it's my commentis and think that's what reagan did and all of the discretion i actually have i'm going to try to use to cut back on all of the things congress keeps trying to get me to do and uses it in a deregulatory fashion or more limited government fashion and reagan was extremely popular for doing that, and i think the judge was quite right when he described today's administrative state as being more complex and prone to corruption and makes no sense to regular people. so maybe there's a space for a president to do something consistent with the president

and the campaigning, and i'm campaigning on the political platform of less and use his powers that way. >> i appreciate the question, and i agree with the thrust of the question. i would just note to echo something that john said. my view is that the prominent, legislative role of the president in the domestic sphere happened relatively early after our constitutional framework was moved into place. i would note that at least since teddy roosevelt, i've seen historical support for a fairly prominent presidential role in administering government. it vares from presidential administration to presidential administration. the focus changes, but the extent of the president's ambition to play a role is there, and with respect to john's interesting point about deregulation versus expansion regulation, i've just made two observations, and the first is that there is a black-letter law as to whether there is a distinction there or not and the answer is no. that's the state farm case and one can disagree with that, but

i think that is an important piece of the discussion and second, the pattern of the national level implications of regulatory action is not a pattern confined to the presidents of one party and i think it is very striking and as what folks have treated in the presidency and following reagan and following george h.w. bush, president clinton kept the framework in place for review by omb of regulations and that has continued to this day. >> i want to make one more comment about this point because john mentioned it and i looked something up before i came, a quote, so i wanted to use it. just like a law student in class. so this question of what happens when jefferson becomes president and the cooperation of the legislature, so john marshall who personally did not get along with jefferson was asked what

did he think jefferson would be like as president? he wrote a letter where he said he thought jefferson was going to be somewhat dangerous as president and he said why? because jefferson is going to quote, unquote, buy himself a house of representatives which would increase his personal power, but marshall always thought it would lead to the weakening was office of the president to do that and it came to fruition in the years after jefferson which is if the president so closely cooperates with the house and uses a political party system to do that, we start to -- we might start to approach the system where the congress chooses a president in the years after jefferson and basically the republican democratic party created a caulk us and they would pick the priz deshl candidates for the party and you have a situation where the framers didn't want which was the sleshelection of the presids branch. >> there's some sense of not

being tethered to historical precedent here, and i just want to ask you, professor, a follow-up question and you're suggesting that it might be politically palatable for a president to say i would do less. is there any example of that? that seems to run count tore the anthr anthr anthropological thrust. >> that sounds like something dirty. >> no, isn't there a strong, imperative to want a king and to, in fact, that what we see in the constitution is an accession in part. i know this is all in the area of design and none of that is realestic and isn't that perhaps the most realistic thing that we've heard today than say i would do list and is successful? >> first of all, i've said a lot of unrealistic things and it is unfair to pick one thing out.

so i think there are some scholars around this train to rehabilitate calvin coolidge and maybe -- calvin coolidge is an example and he comes in after world war i and wilson does a huge bureaucracy which later comes, and it they do a lot to cut back and people tend -- there are books and i don't know how i feel about coolidge being successful president in this regard. it raises a bigger question and there are certain contradictions in the office and one of the big contradictions is head of state versus being prime minister. we expect the president to be both and what i'm expecting is making a pitch for the prime minister to be more than head of state and sandy, they would want the president being more than a prime minister and less the head of state and you want more

coordination between the president and the leadership in congress in hiring the specialists like in england and the specialist to the cabinet and i don't -- i'm not convinced that that's actually the way to go, and i look at what's going on in europe these days with the european parliamentary model and not necessarily being superior to ours which a lot of people assume is true. part of what i mean by head of state is bands that play to the chief and where you see the great leader's picture on every post office and every federal offi office, and i think that's pernicious precisely because it becomes very difficult, i would quote a great text in h. ross perot when he was running for the presidency. he said he's an employee, and if we don't like our employee we should be able to fire him and

if you have the photographses of the extraordinary secret service details the presidency and it gets much harder to view the president as an employee and it becomes, in a civil religion sense, sacrilegious to say this is someone we would get rid of because in the future he or she isn't up to the job and it would be dangerous to the next election. so in thatness is, i would like a somewhat more parliamentary system, but i don't know that you have to go all of the way, and that's one of the reasons why i want a constitutional convention in order to have systematic discussions about what the 21st century should look like. >> on having a constitutional convention. >> i'm not the most unrealistic person on the panel. i mean, come on! >> here's something else that's

not so likely to happen. it may or may not be possible for a president just to say less, and the political party can and political parties from time to time do so, but if you're going say that that function can be performed by the political party which doesn't have the imperial overtones that come with the presidency then to some extent you'll have a presidency that will be more prime ministerial. >> yes. next question? good afternoon. i'm kevin douglas and second-year student here at stanford law school. i have a question for clarification based on something professor levinson said, and it was basically the comment that the constitution doesn't work. i would think that judging an institution as working or not would depend on what the purpose of the institution is, and i'm curious as to when you said that did you mean the purpose of the authors of the constitution? a more modern purpose or a more modern purpose and if it was the

first, what purpose did you think the authors were failing to achieve? and if it's the second, why would it be val toyed consider a modern purpose as -- in calling the constitution itself a failure or not working, why would it be considered a valid purpose. >> wonderful, wonderful question, i encourage you. i have 400 pages where i tried to answer it. very quickly, one purpose of the original constitution was to create a republican political order that would be as insulated from the democracy as possible and rightly or wrongly that has not really sustained itself as a working definition of the political ideology. in regard to the originalism, there is a chapter in the preamble which is a wonderful part of the constitution and one way to assess any constitution,

which is the constitution of virginia is to get a sense of what are its purposes and that is a function that preambles play and you just ask, to what extent does the constitution allow us to achieve those purposes and i would say not very well. shifting to another realm, entirely, and i think congress has an approval rating of 11% or so and i'm not sure where the president is today, right now, but i think it's well under 50 in terms of an overall axe proval rating and i don't think you find great support for basic american political institutions and it's the military and it is the one and only political institution that has the confidence level of 94%. even the courts are, i think, most generously looking at the data and only in their 60s and if you ask specific questions certain ways and even the

supreme court would say it is under 50%. you know, i think that people -- ordinary people evaluate government on the basis of output, and i think whether you're left, right and center, unless you really love the status quo, you're not going to find the contemporary american national government very satisfying. so that's another waive evaluating. it's the shoe -- does the shoe pinch theory, it's not an originalist theory, but it -- one thing government's supposed to do is to create a relative sense of content among the populous including the feeling that if you win elections you can really do things. one of the things that are extraordinarily complicated and the system ensures is that elections at the end of the day mean much less than one might think and that's something that

we should talk about in the 21st century. >> thank you. next question? >> my question is directed largely to professor harrison, but anyone can answer. i would argue the totality of circumstances surrounding the libyan operation have effectively ended the war powers act as a functional or in any way, meaningful break on presidential behavior, vis-a-vis foreign countries in essentially, warlike conditions. >> there is certainly something to that, but i do think that part of what is going with the war powers resolution is that it was an attempt by congress to constitutionalize an issue that is primarily governed by statutes and that hence, congress could control directly. the first part is simply a declaration about what the constitutional rules are, and if you think that congress is wrong

about those constitutional rules, which i think, then it's just another view of the problem and, that i think, it undermines the effectiveness of the 60-day deadline, and although i don't have -- i'm not much impressed with the argument that there were no hostilities under way because although we were in position to shoot at the libyans and they couldn't shoot back, it seems to me that just as an interpretive matter it's a condition for the forces to be in hostilities and it is permissible for the country to shoot at them even if they don't have the weapons to reach them. the problem is that it is an attempt to build its enforcement mechanism into what i think is a flawed view of the constitutional rule, and if congress had proceeded differently not by saying this is our attempt to build out the

constitution and to replace the vague notion that the president can act only for a while provision alley we'll make it 60 days and if it was legislated in a different format, i think it would have been substantially more effective and it got to where we're constitutionalizing this mode and it paid a price. >> think he's right about the importance of martin van buren. the idea that it's congress against the executor and the like just avoids what darryl "no relation" edison, is that the party structure system is more important than the structures that a republican congress was happy to give george w. bush authority that was actually based on a win-win resolution. and i think that if we're going to talk about checking and balancing and i'm not sure how one does it, but to rely on

congress vigorously, to assert its own prerogatives against the president of their party, so to speak, clearly doesn't work and more power resolution is based on the notion of the national government that hasn't been accurate since 1800. >> i don't think people in congress want to fix the war powers resolution as a convenient symbol as congress was doing something as war powers to avoid doing the things that congress could do. you can cut off funds and not pay for conflicts. libya might have been so small that we could have waged the whole thing by reprogramming money in the defense department. you this h to vote an appropriation for kosovo right away. it was one of the things and the other thing is the political party thing, kosovo's interesting because in kosovo

went to war and the courts were adjudicated and the congress was controlled by the other party at that time and if you remember, one of the ten things in the contract was appeal to the war powers resolutions. where you had the president and the congress of a different party wanted to add to presidential powers and to repeal the powers resolution which was hard to figure out as a political matter and you didn't succeed on this one and he's not bragging about it now, i suppose. the last thing i want to say is that congress can achieve more just through funding power. all of the president needs is the power to run the executive branch, and it can get most its way to the funding power and it's just to start placing riders and start threaten to cut things off