Balkinization  

Thursday, June 07, 2007

Winner's Constitutions

JB

Sandy points out that many Republicans and conservatives are now up in arms about the Bush Administration's constitutional and legal depredations. Good for them. Some of them, like Bruce Fein and Bob Barr, were speaking out long ago, while Bush was still quite popular. That is because many of Bush's early conservative critics were actually libertarians who were skeptical of the increase in government power that comes with being a self-described "War President." Others, like Peggy Noonan, have spoken out only recently when it became clear that Bush had become a disaster and an embarrassment to their party, an unwanted anchor weighing down the party and its future prospects.

A major determinant in the ability and willingness of Republican and conservative politicians and pundits to attack the President comes from three interlocking facts: (1) he is a lame duck and the 2008 elections are gearing up; (2) the war in Iraq seems increasingly to have been a major foreign policy disaster and, as judged by the polls and the 2006 elections, it is deeply unpopular with the American public; and (3) the President's approval ratings have been hovering in the low 30's for some time now. I should also point out that much frustration with Bush from Republicans and conservatives has not been centered on his constitutional and legal machinations, but on his failure to decrease the size of government and his positions on immigration. If only Bush would just close the borders and get tough with those illegals, Gitmo and domestic surveillance would be just fine with substantial parts of the base. (You may remember that Mitt Romney recently suggested that we double Gitmo!)

It is very easy to attack a president of your party for playing fast and loose with the law and the Constitution when he is political toast. It is much harder to do so when he is holding 50 to 60 percent approval ratings and it looks like he will lead your party to continuing political victories.

What does this have to do with the proper interpretation of the Constitution? Actually, more than you think. If President Bush had handled the Iraq war better, and had brought it to a successful conclusion, his supporters would have forgiven him a lot in terms of his policies on detention and interrogation, his euphemisms about torture, his abuse of Presidential signing statements, his illegal program of domestic surveillance, his suspension of habeas corpus, and what now appears to be his misuse of the Justice department for partisan ends.

Win the war in Iraq and the Republicans probably keep control of Congress; the Democrats are cowed; Congressional oversight remains toothless (as it was during the years of Republican control); and the press increasingly lauds Bush and everything he did to keep us safe. The dominant story in the press and the public would no doubt be that Bush had to break a few eggs to make a successful omelet, and that, after all, the Constitution is not a suicide pact. Bush would be viewed as an aggressive but successful President, an example of how determination and self-confidence through trials and tribulations lead to ultimate vindication in history. (Indeed, this is still Bush's view of himself; it is simply no longer the view of most of the public).

If the Iraq war had not turned into a disaster, any critics of Bush's perversion of the Constitution would probably be dismissed as they were during the period from 2001 to 2004-- as "nabbering nattering nabobs of negativism," to use Spiro Agnew's famous phrase. People like Levinson and myself, who were calling attention to the dangers of this Presidency in the early days after 9-11, would be regarded as deranged bitter enders, a bit like Justice Curtis ranting on about how "nobody cares" about the legality of the Emancipation Proclamation. Nobody would care about the intelligence failures leading up to the war, about the yellow cake debacle, about Gitmo, about Abu Ghraib, about Jose Padilla, about domestic surveillance, about any of it. After all, we won the war, didn't we? Isn't that all that matters?

Within a few years after the Iraq victory, the story would be that Bush had bent the Constitution but not broken it. Perhaps even more to the point, people would argue that what he did was perfectly within the President's constitutionally assigned powers. Constitutional savants like John Yoo, Dick Cheney, and David Addington would have been vindicated; their vision of the Constitution would no longer be "off-the-wall" but a sound and sensible application of basic principles in time of emergency.

What we would have is a "winner's Constitution," a Constitution influenced and shaped by successful ventures judged successful by the American people, leading to new constitutional constructions and constitutional interpretations, and a new constitutional common sense. That is often how the Constitution changes. People fight with each other about how to interpret it in moments of crisis (which are also moments of opportunity), events take their course, and one side or the other ultimately gives way in the face of public opinion. Mark Graber has argued that this is how the constitutional dispute over Texas' admission to the union was finally settled, as well as the legitimacy of the Bush Presidency following Bush v. Gore and the September 11th attacks.

As it turned out, the Bush Administration completely screwed up the Iraq war, the public rebelled against his incompetence in the 2006 elections, and the Democrats took Congress, leading to a whole series of new revelations. The political tides turned, and the Republican presidential candidates are now trying to define their party-- and the very idea of conservatism itself-- in opposition to Bush, even though, during the halcyon days following 9-11, they looked to him as the very model of a modern major conservative. The cult of personality that wrapped itself around George W. Bush has all but disappeared. More and more people have awoken from their Orwellian slumbers. The bitter enders now seem to be the steadily diminishing number of people who, in the face of all evidence to the contrary, still believe he is a Great Leader.

Does this mean that we have dodged the bullet of a "winner's Constitution?" Quite the contrary. We will still have a "winner's Constitution," but the winners will be a different group of people. The lessons of history will simply be different ones. The Bush Presidency will be a negative lesson, not a positive precedent.

Well, almost. As Sandy and I have noted, the next President, whoever he or she will be, will probably try to maintain many of George W. Bush's innovations as he or she continues the development of the National Surveillance State. The next President will do so because Presidents always think they need as much power as they can get to protect the nation and promote its interests. That is, after all, one of the things that Presidents are supposed to do. (Another thing they are supposed to do is take care that the laws be faithfully executed, but let's not quibble about the details).

Even if George W. Bush's legacy is decisively rejected, by both liberals and conservatives alike, we will have a winner's Constitution. That is one way that the Constitution-in-practice (as opposed to your or my particular vision of the ideal Constitution) tends to stay in sync with the center of political power in the United States. The next President will surely castigate and distance him or herself from parts of what George W. Bush and his Adminstration did. That will be partly how he or she gets elected. The more interesting question to consider in the years to come will be what parts of Bush's innovations the next President will quietly continue.

Comments:

I couldn't disagree more with the cause and effect here. I think we have lost or are losing the war in Iraq _because_ of the abuse of public trust and American and International traditions.

Although Bush was able to do what he wanted, the continuing discovery of lies and hype have eroded support for or at least tolerance of the situation. The means does not justify the ends, and that is the basis of our constitution and our form of democracy.

Bush was very successful in telegraphing that lack of interest in the means to his self chosen ends, and I think there is an organic (non-intellectual) resistance which develops in individuals, groups and entire populations. Once the pretense of fairness evaporates, there is no winning, only resistance.

I don't think anyone who is given the opportunity to resist the Bush Administration will pass it up anymore. I think the Gitmo decisions were the most recent example of this, probably more are to follow where what were once mere technicalities which could be overlooked or caught by the SCOTUS bunch, will now be things which need to be clarified by the SCOTUS before moving forward. Those nagging differences of opinion can quickly turn the other way, something called benefit of the doubt.
 

In my view, history would still have judged this Administration's more radical, overreactive incursions on civil liberties unkindly. This has happened before. Although WWII is widely viewed as a good war and Roosevelt is rightly viewed as a great President, there is still consensus that the arbitrary detention of Japanese-Americans was unconstitutional and unnecessary.
 

I believe Agnew's immortal phrase was nattering nabobs, not nabbering. And, BTW, it was penned by one of the enablers of the current Administration's excesses -- William Safire. Perhaps he should be awarded the Medal of Freedom for his efforts -- oh, too late, he already got one.
 

I believe Agnew's immortal phrase was nattering nabobs, not nabbering. And, BTW, it was penned by one of the enablers of the current Administration's excesses -- William Safire. Perhaps he should be awarded the Medal of Freedom for his efforts -- oh, too late, he already got one.

# posted by bluememe : 12:04 PM

Pat Buchanan also did speech writing for such as Agnew. I think he probably takes the prize for successfully articulating Nixon's dark, ugly, mendacious side.
 

>>there is still consensus that the arbitrary detention of Japanese-Americans was unconstitutional and unnecessary.

Well, except for those on the Right clamoring for an Islamic Malkinwald.
 

rmadilo,

I don't think the abuse of Americans' public trust in itself is a matter of much concern to Iraqis, the terrorists who have come to Iraq and the major regional players. Governments lying to their people is hardly a novel idea for them. I agree that the failure to build a true international coalition and to use the wisdom of past ventures in nation-building contributed to the failure. But this is ultimately a matter of how the parties I mentioned above act and react.

There are about 5 major "if onlys" that might have been the difference between success and failure in Iraq:

1) if only we had identified massacres of Shiite and Kurdish Iraqis as the major reasons to depose Saddam, thus positioning ourselves for a humanitarian intervention a la Yugoslavia;

2) if only we had used the State Department plan focusing on rebuilding infrastructure and civil institutions instead of the Rumsfeld's war and democracy on the cheap;

3) if only we had addressed the Shiite problem with the Sunnis up front with a South African style Truth and Reconciliation Commission that required both sides to acknowledge any crimes committed against the other;

4) if only we had put in enough troops to secure Iraq's enormous border from outsiders who have added fuel to the fire;

5) if only.
 

@PG: Your fifth "if only" is so very vague that I can't help but think that your talents are wasted on the blogosphere. Clearly, you should be earning your living by writing authorizations for the use of military force.
 

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