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.
Posted 5:50 AM by JB [link]