Respect for constitutionalism is back. If political scientists and other social science scholars have anything for which to thank the George W. Bush administration, it is for redirecting the public's attention back to the purposes that fundamental governing principles serve and to the reasons why our system's founders expected adherence to those rules. For the last eight years, the academy has been in the forefront of vigorous, visible, and intense criticism against that administration and its philosophy and practice of executive power. The Bush presidency was derided by many as misguided, at the very least, and, most likely, as straying beyond the bounds of law. Presidency scholars such as James Pfiffner, Louis Fisher, Dick Pious, and David Gray Adler—along with law professors David Cole, Neal Katyal, Jack Goldsmith, and Jeffrey Rosen; and journalists Charlie Savage, Jane Mayer, Eric Lichtblau, and Barton Gellman and Jo Becker—are only a few of the many who have written extensively on the Bush transgressions. There is no lack of scholarship on this issue, and it is a safe bet that there is still much more to come.

Two new entries into this genre come not from presidency scholars but from Scott Matheson, Jr., professor of law at the University of Utah, and Dana Nelson, professor of English and American Studies at Vanderbilt University. These two authors share a hearty disapproval and deep skepticism for the way presidents have governed during wartime, but they approach their common subject from vastly different disciplines and points of departure, and their prescriptions for the future are equally divergent.

Matheson's treatment is the more conventional of the two. His argument is that, throughout history, many presidents have employed their emergency wartime powers in ways that have produced conflicts with both civil liberties and the separation of powers. He is on a quest to find that magic formula that will lead presidents to “address danger and respect individual liberty during war” (p. 2). He is not alone in this search, and, in a way, that is both the strength and the weakness of this book. There is territory here that is well trodden and familiar to informed readers with a basic knowledge of history and constitutional law. The research is generally careful and solid, drawn mostly from appropriate sources (occasionally, secondary sources are cited, rather than primary ones, as on p. 87, where, in discussing military commissions, he cites Louis Fisher's Military Tribunals and Presidential Power [2005] and Barton Gellman and Jo Becker's Washington Post series on Cheney [June 24, 2007] instead of a direct reference to the president's military order, and on p. 97, where, when noting Attorney General Mukasey's disavowal of the August 2002 OLC “torture memo,” he cites news articles about the hearings, rather than referencing the Senate confirmation hearings directly), but there is not enough here that is new or refreshing. He pays homage to all the standard aspirations: striving for responsible and accountable government, ensuring effective checks and balances, finding the right balance between liberty and security—all admirable and predictable objectives with which there can be no disagreement.

The distinctive contribution Matheson brings to the topic is his classification of six models or perspectives of presidential emergency power. He selects five presidents who employed constitutionally questionable authority during wartime—Lincoln, Wilson, FDR, Truman, and George W. Bush—and he analyzes examples of constitutional decision making from each one to determine the extent to which these presidents included elements of his six models: (1) executive supremacy, (2) political branch partnership, (3) judicial review, (4) retroactive legislative judgment, (5) extraconstitutionalism, and (6) executive constitutionalism—this final one being the ideal that he proposes all presidents should try to follow. The illustrations he chooses for these presidents are the predictable ones: Lincoln's suspension of the writ of habeas corpus, imposition of martial law, and use of military commissions; Wilson's support for the Espionage Acts of 1917 and 1918 and prosecution of domestic dissidents; FDR's executive orders implementing curfew and relocation of Japanese Americans; Truman's domestic seizure of the steel mills during the Korean War; and Bush's antiterrorism policies of torture, surveillance, and indefinite detention and trial of enemy combatants. His conclusions are unsurprising, and his analysis of historical examples from Lincoln to Truman sets the stage, inevitably, for his fuller treatment of Bush. A thread that runs throughout much of Matheson's analysis is the measurement of each president's specific action against the tripartite executive-legislative power framework of Justice Jackson's Youngstown concurring opinion. As could be expected, he finds that Bush pushed the executive power envelope farther (and with greater frequency) than most of his predecessors by acting contrary to law (Jackson's third “lowest ebb” category) rather than in the more typical “twilight zone” (Jackson's second category), as well as by relying on unilateral power through resort to the highly controversial “unitary executive theory” of presidential power that, among other tenets, admits of no legislative or judicial checks. Perhaps Matheson's most useful insights arise in explaining why Bush surpasses Lincoln when it comes to extraconstitutional use of wartime powers, citing the following reasons: (1) Lincoln faced an unprecedented domestic rebellion; (2) public understanding of and judicial protection for civil liberties were far less developed during the Civil War than post-2001; (3) Lincoln publicly acknowledged that he was using powers that belonged to the president and Congress; (4) Lincoln sought retroactive legislative authorization for his actions without, as in Bush's case, being pressured by the courts to do so; and (5) Lincoln demonstrated electoral accountability at a politically vulnerable time by proceeding with the 1864 wartime election.

Matheson concludes that, since the courts usually enter these controversies late in the day (often after the emergency has passed), and since Congress operates under political constraints that make effective legislative action difficult to achieve, it is up to the executive to monitor his actions with a “constitutional conscientiousness” that faithfully respects the limits of the office's powers and the roles of the coordinate branches (p. 5). This is the basis of his call for “executive constitutionalism,” the notion that a president should recognize and adhere to constitutional principles even in the face of the gravest national security challenges. There is nothing remarkable or unique here, and nothing with which to disagree.

Nelson's work moves many of these same criticisms in a far different direction, urging a veritable citizen call to arms. She is equally distressed at the unlimited use of power by presidents—all presidents, not only wartime ones (although George W. Bush holds a special place of opprobrium in her pantheon of chief executives)—and argues that Americans have permitted democracy and self-government to atrophy through unwarranted hero worship of the presidency, and that we have been lulled into political complacency and inaction. She asserts that we have reduced our political responsibility to the single act of voting every four years, rather than maintaining a watchful eye over government and urging community activism when policies and presidents serve selfish ends. Similar to Matheson, but with greater intensity, she heaps scorn on “the unitary executive theory” as one source of power that is especially alarming, tracing its modern-day roots to the Reagan presidency, and noting that all presidents since Reagan have routinely exercised certain aspects of it, such as signing statements. To her credit, she explains the unitary executive theory accurately as the belief that “the president should control all administrative power, with an unchecked right to determine how laws are implemented” (p. 3–4, italics in original). All too often, this concept is defined inaccurately or incompletely. But her wrath is directed even more at the public than at presidents, since she has long ago given up on our leaders to restore any sense of balance to the system. She claims that the public responds to the presidency unconsciously and emotionally, through what she terms “the logic of presidentialism” (p. 5), elevating the office to an undeserved status, and that this construct prevents individuals from recognizing the potential power of their own actions.

This book is strident and rhetorical in its tone. It proceeds from an overtly and unabashedly communitarian philosophy, holding that people should take responsibility for government decisions, especially in a system that professes to be “by the people and for the people” (p. 222, italics in original); that we have fallen far from that mark; and that we hold the possibility of reform in our own hands, if only we can recognize and mobilize the will to pursue it.

Nelson builds her argument by discussing in separate chapters (1) how we have mythologized presidents into superheroes, (2) how we have “shrunken” citizenship solely to the quadrennial act of voting, (3) how presidents have used wartime as the excuse to increase their powers well beyond what the Framers intended, (4) how the unitary executive and its use of unilateral “power tools” originated in a corporate model (p. 145), i.e., president as CEO, and (5) how the remedy for an overly powerful presidency must come from the people through “reimagining democracy as an open system” (p. 183), using the organizing and networking potential of technology and new forms of political empowerment.

Although Nelson makes reference to notable political science research, such as the work of Cronin, Genovese, Barber, Mayer, Kelley, Miroff, Neustadt, and Pious, there is other relevant scholarship that is overlooked, such as Greenstein, Rudalevige, Healy, and Savage. More significantly, however, there are no citations in a work that quotes extensively and that builds its argument from history and politics. It makes for unsatisfying reading, at least, to a political scientist, who has the reasonable expectation of appropriate citations. But that may be a consequence, perhaps, of approaching political arguments from a different discipline, that of American studies (still, it leaves one a bit suspicious when the author acknowledges that the book is dedicated to her mentor “who talked me out of a political science major” [p. 225]).

Both books, then, are critical of the current presidency, and both authors yearn for a return to an office whose occupant understands that it is only one part of a larger, more complex governmental system that expects compliance with constitutional principles. Matheson offers a more conventional route, suggesting simply that a president act with a respect for constitutionalism and for the principles of separation of powers and checks and balances, while Nelson promotes a more aggressive approach, arousing a civic engagement to employ activist tactics to advocate for a more direct form of self-government. The first strategy seems overly tame and insufficiently imaginative, and the second seems unduly idealistic. Both books appear to have been completed just prior to the beginning of the Obama presidency. Neither author is likely to be satisfied completely with the changes that have come with this new administration, but one wonders if each might see some sliver of movement closer to each one's vision.