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Friday, December 18, 2020

In Jotwell: "The Two-Body Problem"

At Jotwell, I have a jot this week on Daphne Renan's recent article, The President's Two Bodies. Drawing on Kantorowicz's classic work on the king's two bodies, the article addresses the tension between two visions of the presidency, one focused on the temporary and personal “body mortal” and the other on the "enduring 'body politic': king and kingship, one person with two distinct but indivisible aspects." I think very highly of the article, both substantively and in terms of its exploratory and fairly open-ended approach, and explain why. Here's the opening:

For reasons that remain mysterious, the past four years or so have seen a distinct rise in interest among public law scholars in the concept of “office” and surrounding ideas. What is an office, precisely? Is its defining feature one of powers—or of duties? What is the relationship between the office and the person occupying it? Do the powers and duties connected to that office inhere in the office, the officer, or some mixture of both? Can an officer speak for him- or herself, or is that speech always “official?” What is the relationship between office, officer, and the oath of office? Does the idea of fiduciary duty illuminate such questions, or obscure them? Of course these questions have a long pedigree. But since roughly 2017, this broad topic has seen a distinct upturn in scholarly work. One hopes it is not temporary or expedient.

Scholarly work on the question of office can take different approaches—legal or political, practical or theoretical. It can attain a level of abstraction that may yield general insights but few prescriptions—this is my own preferred sin—or give very precise recommendations that are hard to tie firmly to the legal, historical, or philosophical materials. (This is one way, in my view, to read a recent critique of “fiduciary constitutionalism,” even if one thinks the concept is worth exploring.) If one wants to avoid one or the other extreme, one had better be willing to live with tension and ambivalence. That position makes many law professors uncomfortable, given their own normative inclinations and the political and professional incentives that drive them. But it can be achieved—and beautifully, at that. Such is the case with Professor Daphna Renan’s recent article, The President’s Two Bodies.

As usual, my discussion of the paper is interspersed with hobby-horse complaints about legal scholarship and some thoughts on office and the oath. One question I don't ask here and ought to take up in a post of its own is: Which legal theories or ideas that gained a lot of interest during the Trump presidency, generally accompanied by suggestions that they were not limited to that presidency alone, will be dropped now that he will be leaving office? I think there is a core of scholars who will keep on writing about oaths, constitutional norms, the Take Care Clause, and similar questions, and I'm glad. But I imagine there will be a certain, unspoken drop-off of interest on the part of some who wrote in this vein, and I suspect fancy-law-review editors will be less interested as well. I would be happy to be wrong on one or both fronts.  

Posted by Paul Horwitz on December 18, 2020 at 02:52 PM in Paul Horwitz | Permalink

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