Balkinization  

Thursday, February 12, 2009

The Bush Presidency and Theories of Constitutional Change (Part I)

Stephen Griffin

In this post and the next, I will preview an article with the same title that will be posted soon on SSRN. Naturally, I hope to whet your appetite and in this post I have copied in the article’s introduction after the jump. Here, I’ll venture some general remarks on the challenges the Bush presidency poses for theories of change and in the second post indicate how those challenges can be met.

The Bush presidency should spur us to rethink theories of constitutional change. It featured several noteworthy departures from the status quo, yet without the markers made familiar by theories such as Bruce Ackerman’s. Try to imagine a failed constitutional moment that nonetheless resulted in significant informal constitutional changes that were widely acknowledged to be poorly grounded in tradition and had deleterious policy consequences. Can’t quite make the leap? I don’t mean to pick on Ackerman, no one could have foreseen the kind of constitutional havoc wreaked by the Bush administration. All current theories have trouble accounting for the kind of change that occurred in the Bush presidency.

Some theories focus on the important role social movements play in advocating changes to the Constitution. But no such movement existed during the Bush presidency. The changes that occurred inside the executive branch were fostered by a small faction. Other theories provide a key role for public deliberation or “constructions.” But many of the changes of the Bush presidency occurred in secret and Bush did not do much to encourage deliberation after 9/11. Widespread public deliberation over the nature of our response to the terrorist attacks was largely suppressed by Bush’s insistence that we were at war.

Karl Llewellyn offered a theory of the “Constitution as an institution” that has had a subtle influence on generations of scholars, convincing them that our constitutional order has a significant “unwritten” component. But Llewellyn could not explain the continuing relevance of powers based in the text, such as the Commander in Chief power. It would be a mistake to think that Bush wielded powers growing out of some ill-specified unwritten legal order. Rather, he used textual powers to leverage informal constitutional change, change that is better described as institutional, rather than unwritten.

A general problem with current theories is that they have trouble explaining change generated internally by the constitutional system as opposed to change caused by external forces. The constitutional changes of the Bush presidency were intensely intramural. They were the products of the relentless pursuit of positional advantage and the institutional high ground behind closed doors. Accounting for them thus requires a different sort of theory.

[Introduction] The presidency of George W. Bush was widely noted for its expansion of executive power. More than a few commentators found the Bush presidency disorienting in this respect. In a 2007 editorial looking back over the events since the terrorist attacks of September 11, 2001, the New York Times began, “There are too many moments these days when we cannot recognize our country.” The Times referred to “lawless behavior” on the part of the administration motivated by panic after the attacks. A long litany of examples followed – they included the Abu Ghraib prison scandal, the National Security Agency (NSA) wiretapping controversy, the justification of torture, unnecessary increased law enforcement power, the Guantanamo detentions, and inhumane interrogations conducted by the Central Intelligence Agency (CIA) in foreign countries.

In the years following 9/11, lawyers and legal scholars had a similar vertiginous sense that their constitutional universe was changing in unfamiliar ways. A war of indefinite duration (the “global war on terror”) fought against a non-state opponent. The use of torture and other cruel interrogation techniques, military commissions, and detention without judicial review. The use of the Commander in Chief power as a substitute for domestic law enforcement. And all this marked by a lack of congressional oversight and the most aggressive advocacy of unilateral presidential power yet seen in U.S. history. Superlatives have come easily in the post-9/11 era, but I won’t hesitate to claim that the Bush presidency was the agent of unprecedented constitutional change. We had a valuable lesson in the power of a president to transform the constitutional world around us. Yet these changes occurred without constitutional amendments and, for the most part, without the intervention of the Supreme Court.

Theories of constitutional change are in the business of explaining how this could happen. The Bush presidency is only the most recent demonstration of the important role that informal constitutional change plays in our constitutional system. It is an opportunity to learn from theories of constitutional change, but it is also a test of their adequacy. Can existing theories of constitutional change account for the Bush presidency? That is the question I will be addressing in this article.

Assessments of change can be relative to one’s normative perspective on the corpus of constitutional law. For the purposes of this article, I will assume that the critics of the Bush administration were correct to conclude that a number of policies implemented since 9/11 were departures from the status quo in that they were illegal or unconstitutional and the arguments in their favor were unsound. This allows me to get the discussion off the ground without retracing well-worn controversies on topics such as torture and NSA surveillance. So I am bracketing several large areas of controversy between the Bush administration’s defenders and its critics. I believe this is justifiable for the limited purpose of demonstrating what theories of constitutional change can contribute to our understanding of the constitutional system.

With this substantial caveat in mind, I will argue that a theory of constitutional change that focuses on how the Constitution is implemented through institutions over time amid the tensions between the “written” and the “unwritten,” the “legal” and the “political,” offers a better approach to understanding the Bush presidency than the major alternative theories. With apologies to anyone left out, I will be examining the theories offered by Karl Llewellyn, Bruce Ackerman, Jack Balkin and Sanford Levinson, and Keith Whittington. With the exception of Llewellyn, I do not undertake a comprehensive summary and critique of each theory and I do not claim these theories are wrong. Rather, I maintain they are not helpful in explaining the phenomenon of the Bush presidency and are thus incomplete.

The Bush presidency after 9/11 resembled watching a movie with astonishing special effects. How did they do that, one wondered, in light of prior legal understandings. As I will argue, the answer was not simply inventive constitutional interpretations but the deployment of new institutional structures inside the executive branch. At the same time, the invocation of the president’s textual powers, such as his position as Commander in Chief, was clearly a crucial weapon in the administration’s arsenal. The fascinating mix of the aggressive use of textual powers, new institutional structures and creative interpretations to leverage constitutional change vindicates in many respects the theory I have advanced in my previous work.

In Part I I summarize the most significant ways in which the Bush administration changed the constitutional order. This summary is sufficient to allow the review of the leading theories of constitutional change in Part II to go forward. I argue these theories cannot provide satisfactory explanations of the Bush presidency. In Part III I employ my institutional theory to establish a context for understanding the constitutional changes summarized in Part I. I argue that it provides a more satisfactory explanation of the Bush presidency than the alternatives. In the conclusion, I identify some questions about presidential power suggested by the Bush presidency which provide an agenda for further inquiry.

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