Tuesday, August 13, 2013

Reading Justice Jackson: Fulbright and the War Power

Mary L. Dudziak

This week I happened upon an interesting illustration of the impact of Justice Jackson’s Steel Seizure concurrence on war powers politics.  I was doing research in William Fulbright’s papers at the University of Arkansas.  The purpose of the research is for an article that will be a thick description of the politics surrounding passage of the Gulf of Tonkin Resolution, currently titled:  Four Days in August: How Congress Declares War.  More on that topic much later.  But as usually happens in an archive, I looked at other files that piqued my curiosity.  Like a couple of folders containing research materials from Fulbright’s work on the 1973 War Powers Resolution. In one of the folders is a copy of Jackson’s concurrence, marked up.

Most of the attention paid to Jackson’s opinion usually focuses on the way he divides presidential power into three categories (when the president’s action is consistent with what congress has enacted, when it is in opposition to congress, and the “zone of twilight” in the middle).  My personal favorite part of the opinion is where he refuses to call Korea a “war,” and instead calls it a “foreign venture,” arguing that, in essence, the president can’t unilaterally go to war, and then use that conflict as the basis for expansion of his own powers.  Fulbright focuses on neither.  Instead, he gives an attentive ear to what Jackson had to say about Congress and its relationship to the modern presidency.*

The emphasis and underlining begin on page 653 of U.S. Reports, in a passage on the presidency:  "No other personality in public life can begin to compete with him in access to the public mind through modern methods of communication.  By his prestige as head of state and his influence on public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness."

The folder is from 1971-73, but Richard Nixon would not have been the only president on Fulbright’s mind.  He shepherded the Gulf of Tonkin Resolution through the Senate at the request of Lyndon Baines Johnson.  By 1971 he had broken with LBJ, written The Arrogance of Power, and held hearings on whether the Johnson Administration had misled the Senate about the Gulf of Tonkin incidents.

Fulbright appears to have taken away from the opinion just the sort of message Jackson was trying to send to lawmakers.  On page 654, Fulbright underlined one of Jackson’s iconic quotes: “We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”

And then he follows on p. 655 by underlining this: “With all its defects, delays and inconveniences, men have discovered no technique for preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.”  But he doesn’t underline the final sentence, which is about the Court’s own role: it is “the duty of the Court to be the last, not the first, to give them up.”

Fulbright’s engagement with Jackson helps illuminate one of the roles judges play in the war powers arena.  Their impact comes not just from outcomes, but also from their ideas.  Dissents and concurrences can inject an important critique.  (Another opinion in the file is Douglas’s dissent from the dismissal of Massachusetts v. Laird, the case challenging the lawfulness of the Vietnam War.)  Fulbright, as a former law teacher was surely an especially attentive reader, of course. Even if Fulbright was already thinking along Jackson’s lines by the beginning of the 70s, Jackson’s opinion may well have reinforced his views, or given them legitimacy. 

* I should add a caveat: I am pretty sure that Fulbright did the underlining.  I have ways to confirm this (compare ink and type of pen used with passages in other documents written by him, consult with Fulbright biographer about his reading and underlining habits, etc.).  Because I just did this research, I haven’t had a chance to do that yet.  But I thought you all might find this interesting nevertheless.

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