an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A deep patriotism as well as optimism toward our republican constitutional experiment has been characteristic of the Yale school of constitutional interpretation, whose distinguished members include Bruce Ackerman, Akhil Amar, Jack Balkin, and Reva Siegel (among others). So the publication of Ackerman’s Decline and Fall of the American Republic is a notable event in that, while not losing one iota of his patriotism, Ackerman is getting off the optimistic bus. All I can say is: it’s about time! I don’t mean to be flippant. But when it comes to the exercise of presidential power, especially in foreign affairs, I’ve long had doubts about the structural integrity of our constitutional system. Ackerman focuses on the presidency as the source of the trouble. For him, it is the “most dangerous branch.” My diagnosis of our condition is somewhat different, but let’s start with points of strong agreement. Ackerman’s central contention is right on target – our constitutional system is in grave difficulty. He points to the right evidence, a recurrent series of crises linked to the exercise of presidential power: Watergate, Iran-contra, and the illegalities of the Bush II administration. These crises must be taken seriously as objects of analysis as they are central to a proper understanding of where we stand. Ackerman is also right to claim that the constitutional triumphalism so pervasive in our political culture has gone stale. As Sandy Levinson has argued on this blog and in his book, we need to take a more critical stancein examining how the Constitution is connected with what has gone wrong in politics and policy. Broadly speaking, we also agree on methodology. The constitutional order should be analyzed from a systematic and historicist point of view.
Let me elaborate on what historicism means for constitutional theory. I see three levels: as Ackerman emphasizes, we study the Constitution from a developmental perspective in order to understand how it changed over all of American history. Second, we seek to understand past constitutional orders as the participants in those orders understood them. Third, constitutional orders include principles such as federalism and separation of powers that do not appear in the document itself as well as the understandings of the time that animated those principles.
Most of my points of disagreement with Ackerman derive from the non-unique qualities of his argument. There is a sense, encouraged by Ackerman, that he is updating Arthur Schlesinger’s The Imperial Presidency. We may agree with aspects of Schlesinger’s argument, but it is no longer an uncontroversial point of departure. The assumed dangers of the imperial presidency ceased to be a point of consensus in constitutional theory once conservative constitutionalists embraced presidential power. The story of why they did so is well described in Julian Zelizer’s recent book Arsenal of Democracy.
From my perspective, the essence of our difficulty is not particular to the executive branch or attributable to presidents with malign intent. It is more properly linked with the radically new tasks the executive and legislative branches were asked to perform, particularly in foreign affairs, in the postwar (really post-Pearl Harbor) world.Let’s start with Schlesinger. We should remember that he favored a strong presidency. Schlesinger wanted the president to be strong enough to handle the problems of the contemporary world, but within constitutional limits. Easier said than done!
Schlesinger argued that the “imperial” presidency or the unjustified expansion of presidential war power was against both the original understanding and our constitutional tradition. But he also thought that Presidents Roosevelt, Truman, Eisenhower, and Kennedy had roughly respected the boundaries of the Constitution. Only Johnson and Nixon therefore qualified as imperial presidents. I doubt whether any scholars today would take this position. Ackerman embraces the contemporary view that the train of presidential power ran off the rails when Truman made his 1950 decision to intervene in Korea unilaterally. I largely agree with this judgment, but this means we have not experienced any non-imperial presidents since Herbert Hoover. This is suggestive of a different relationship between the presidency and history than posited by Schlesinger. Being “imperial” is not something presidents have done, so much as it is something that historical circumstances are doing to presidents.Hence, we cannot get ourselves out of the mess we are in by comparing good presidents to bad ones or endorsing congressional fixes as Schlesinger did (although it should be remembered that he opposed the War Powers Resolution). Although no one would deny that there have been abuses of power, in general, if presidents have acted “imperially,” they have been responding largely to external events and public opinion.To understand this process would have meant confronting directly the legacy of the Cold War for presidential power, something that Schlesinger was mostly unwilling to do. In today’s non-cold world, it means confronting the legacy of decades of militarization in response to external threats. As Zelizer points out, no president, Republican or Democratic, has been willing to do this. It should be noted that this is despite recent clear warnings – from Secretary of Defense Gates no less – of the dangers of an over-militarized diplomacy.
I draw the conclusion that before we accuse the presidency of being dangerous, we should face squarely the probable constitutional consequences of the global and militarized foreign policy that the U.S. has pursued since the end of the Second World War. We need to dig deeply into the early years of the Cold War to thoroughly understand our predicament.
There is a related difficulty with Ackerman’s analysis. Consider this interesting observation from the book:
[T]oday, both major parties are in love with the presidency. Democrats yearn to follow in the footsteps of Franklin Roosevelt and renew the progressive tradition for the twenty-first century. Republicans await the second coming of Ronald Reagan and, in the meantime, defend broad presidential prerogatives in the name of the Founders. Although President Bush’s “war on terror” represents the greatest outbreak of presidential illegality since Watergate, we are not seeing anything like a post-Watergate response: no Congressional hearings probing the deeper causes of the crisis; no strong effort by constitutional conservatives of both parties to press forward with new landmark legislation safeguarding against future presidential abuses.
Indeed, why haven’t we seen an effective congressional response? Arguably, it couldn’t have happened until after the 2006 congressional elections, but let’s set that aside. To me, the inability to explain the relative lack of a congressional response is a sign that something is wrong with the way many scholars have analyzed the ongoing aftermath of 9/11. Ackerman puts the war on terror in scare quotes and attacks the idea that we should make war on a technique. I sympathize with this position, but it is not the whole story. There was and is a widespread consensus in the political system that there should be a war on terror, understood as a war against Al Qaeda and its affiliates. In this respect, perhaps some legal scholars have been out of step. If I remember correctly, former Harvard Dean and Professor Elena Kagan had to agree that we are still at war in her confirmation hearings. Why was this important to the Senate? Because they sense rightly that academia, the world she comes from, does not agree with this premise. To be clear, it is not my view that the “war on terror” is a war on terrorism itself. The government’s position is best understood as follows: it is fighting what might be called the “9/11 War” under the authority of the September 2001 AUMF. This is principally a war againstAl Qaeda, but not exclusively. Going beyond what the government has said, it is reasonable to infer that the war will be over once there is no point in deploying the military against Al Qaeda and its affiliates.
This brings me to Ackerman’s most unique and provocative diagnosis – that part of the trouble with the presidency is an overly politicized military. I agree we need to pay attention to how the relationship of our voluntary and professionalized (and apparently politically conservative) military to the political system has changed. I also agree that some of the military chiefs, especially Colin Powell during the Clinton presidency,were a bit too aggressive in defining their turf acquired under the 1986 Goldwater-Nichols Act. But Goldwater-Nichols was a reform that had to happen, as Ackerman eventually concedes. The devastating effects of interservice rivalry on military performance are well documented and run all the way back into World War II (these rivalries also arguably cost the first two Defense secretaries, James Forrestal and Louis Johnson, their careers). Getting these rivalries under some sort of reasonable control was a decades-long process that was nonetheless absolutely essential.
The civilian-military relationship is a complex topic that cannot be discussed easily in a short review. But in brief, I do not share Ackerman’s alarm over the criticism that Secretary Rumsfeld received from a group of retired generals. Rumsfeld had serious deficiencies that were generally known in Congress and the Washington policy community. The criticism could not have happened without a widely shared consensus that something had gone wrong and that there was a need to speak out. As Ackerman notes, memories are long in the military. The last Secretary of Defense who tried to dominate and overawe the joint chiefs was Robert McNamara. He is not well rememberedby civilians or the military and justly so. The reality is that whatever the flaws of the officer corps, any Secretary of Defense must have their trust and confidence in order to succeed and push whatever reforms are necessary. Rumsfeld could not be bothered to do this.
I will take a pass with respect to Ackerman’s solutions to the problem of a runaway presidency, because I don’t agree with the main diagnosis. However, I think Deliberation Day is a wonderful concept in its own right and deserves a chance. The idea of a Supreme Executive Tribunal sitting in judgment over OLC strikes me as a legalistic response to a political-constitutional problem. My tentative judgment is that the judges on such a tribunal would not be able to make sense of their responsibilities because they wouldn’t have cases to decide in a standard common law sense. Without true parties and factual development, they would be at sea. And some cases would run into the old problem of revealing classified information. In trying to imagine who would serve on such a court, I wish Ackerman would gauge just how deeply the ideology of a strong executive has penetrated into the legal profession. I do not see much hope that the new tribunal would develop a truly independent stance.
All that said, I do not want to finish on a down note, despite Ackerman’s downbeat theme. I saw Ackerman once described as a “liberal gadfly.” This struck me as wrong. A gadfly would not know our constitutional system so well, care so much about it, or be reliably able to bring enormous creativity to bear to solve its problems. For this, we are in Ackerman’s debt. Posted
by Stephen Griffin [link]