The Constitution Outside the Courts: Apotheosis or Gotterdammerung?

Stephen Griffin

In the 1970s a few scholars, Sandy Levinson among them, started calling attention to how the Constitution was interpreted and enforced outside the federal judiciary. The current administration has, depending on one’s perspective, shown that this point of view is incredibly valuable or unbelievably dangerous. The recent dispute over signing statements and the report the ABA panel prepared in response is only the latest in a long string of examples courtesy of the administration that we ignore this point of view at our peril.

At one level, the collection of views that came to be called “the Constitution outside the courts” was purely descriptive. Scholars often need education in the obvious and Levinson et al. argued that the sometimes obsessive concern with what was going on in the U.S. Supreme Court caused scholars to ignore or downplay the importance of the constitutional interpretation going on in Congress and the executive branch. It is now conventional wisdom, represented most recently in Jeffrey Rosen’s article in The New Republic, that the Bush administration, largely through the efforts of Vice President Cheney, entered office with a fully formed philosophy of executive action, the “unitary executive.” While constitutional specialists paid some attention to how this doctrine became the official legal philosophy of the Republican party in the 1980s, most of the public sphere seems to have been largely unaware of this development and its likely consequences once President Bush II took the oath of office in January 2001.

At the descriptive level then, the Bush administration has been the apotheosis of the Constitution outside the courts, proof positive beyond the wildest dreams of the scholars who thought it up that everyone concerned with the Constitution ought to pay close attention to the sincerely held constitutional views of those who run what Alexander Bickel liked to call “the political branches.”

But there was also a normative side to the Constitution outside the courts, a growing conviction that the Court had gone too far in declaring itself the sole supreme interpreter in cases such as United States v. Nixon. Did Marbury really stand for this proposition, these scholars asked? If not, where and when did the Court assume its role as the dominant re-animator of the Constitution? These questions led in various directions, but the normative push against judicial supremacy, perhaps culminating in Dean Kramer’s book extolling “popular constitutionalism,” suggested the corollary that perhaps the constitutional views of the political branches were deserving of some respect . . . or even deference?

On the normative side, the Bush administration again might be playing a key role in the future of the Constitution outside the courts, but it is one bearing all the marks of a death struggle where the former gods are replaced by a new/old order – the rule of law? That is what is suggested by the arguments of the ABA Report, among other reactions to the obvious excesses of the administration. In this light, perhaps we can cast VP Cheney as Wotan (the blind eye representing hard-won wisdom replaced by a pacemaker), the god who tries to pull the strings, to find that only a free-born hero (that’s President Siegfried) can complete the quest and vanquish the dragon of fetters earlier placed on the presidency. I don’t believe I can complete this avant-garde scenario, however (where is Brunnhilde?). I’ll stop with the thought that John Yoo might be cast as Alberich, who starts the drama by renouncing the tender mercies of human feeling in a fruitless and destructive search for absolute power.

To be a little more transparent, the Bush administration has been so extreme in its quest for unfettered executive power that it has at least temporarily discredited the normative side of the Constitution outside the courts and the attack on judicial supremacy and caused lawyers and scholars everywhere to flee to the safety of Hamdan and the “rule of law.” Bush v. Gore, I hardly knew ye! But I’ll save for a later post some comments on the flight of the ABA Report back to the welcoming arms of what it calls “an independent and impartial Supreme Court.”
Posted 11:14 PM by Stephen Griffin [link]