Constitutional Wars
The life of the law has not been logic;
it has been experience.
—Oliver Wendell Holmes
While I am not a great admirer of President George W. Bush, I must admit that he did much to energize public interest in constitutional law. Time and again after one of Bush’s expansive uses of presidential power, students and friends would ask me, “Can he do that? Is it constitutional?” That turns out to be a question that will take a book to answer. The question itself assumes that the text of the Constitution draws bright lines between constitutional and unconstitutional actions. But the United States Constitution does not automatically churn out clear answers. It’s a 200-year-old document whose authors employed broad language to govern a small former colony perched on the Atlantic coast and that offers few clear answers to the issues facing a twenty-first-century superpower. It is Supreme Court justices who give the text meaning relevant to today’s issues. And the meanings they choose are fated to be controversial. To answer the question of the constitutionality of President Bush’s uses of presidential power, we must reject the “one clear answer” picture of constitutional law and accept the fact that constitutional interpretation is an intellectual battlefield where different visions of our collective future compete for dominance.
Not only is certitude in short supply in constitutional argument; we must also accept that the competing constitutional visions are influenced by politics. In fact, they tend over time to reflect the political philosophies of the two major political parties. Liberal justices tend to favor expansive interpretation of congressional powers while conservatives resist such readings in order to support states’ rights. With regard to individual rights, liberals argue for a broad interpretation of civil liberties like freedom of speech while most conservatives usually support the right of government to restrict such liberties. But when the issues involve individual rights affecting economic liberties, the positions are reversed; conservatives support robust interpretations that liberals oppose. All these opposing constitutional positions roughly mirror the respective ideological commitments of the Democratic and Republican parties. We should not be so surprised by this result since the justices themselves are selected by a political process.
I do not mean to suggest that Supreme Court doctrine evolves in lock-step fashion with the legislative programs of the major parties. Certainly individual justices have their own independent views that affect their votes. And the views of an individual justice evolve over time, sometimes away from the views of the party of the president who nominated him or her. The life tenure granted an individual justice also operates to provide more intellectual diversity since justices may stay faithful to policies that the party appointing them has abandoned. All these vagaries ensure that no one master vision ever becomes dominant across the broad array of constitutional issues. Instead, we find more localized wars over the proper interpretation of specific provisions of the constitutional text.
I think our discussions of constitutional issues such as Bush’s use of his presidential powers will be more faithful to the complexity of this dynamic process if we keep in mind four different uses of the word “constitution”: (1) the text, (2) the official Constitution, (3) the constitutional challenger, and (4) the de facto Constitution. The first refers to the actual written text. Here there is no controversy about the words used, but much controversy about what they meant originally and, more importantly, what they should mean today. The Constitution uses too many Delphic terms capable of too many intellectually acceptable interpretations to often give a clear answer to specific issues. It will help if we speak of the “official” Constitution. The official Constitution is the interpretation of the text chosen by the current Supreme Court majority. The official Constitution is what my students and friends meant when they asked whether Bush’s actions were constitutional. But we can only know for sure the meaning of the official Constitution for actions that the Court has recently ruled upon because not only do the facts in every case differ but also there is always doubt about whether the current majority will stick with the official interpretation in a future case. Instead, they may choose an ideological rival to the official Constitution that I call the constitutional “challenger.” The current official interpretation of presidential powers holds that the president must obey congressional laws in the area of national security, but conservative scholars support a rival position that rejects that interpretation. I hasten to add that the terms “official” and “challenger” do not represent a normative judgment about which interpretation is superior; they merely describe a political reality, a reality that is subject to change.
To make matters even more complicated, we should also note the “de facto” Constitution. This is the interpretation that actually operates when the Supreme Court has not spoken on an issue. It is especially important in the area of national security, where courts have often been reluctant to speak. For instance, even though the official Constitution says that the president must obey congressional laws, President Bush appeared to ignore a relevant congressional statute when he authorized the National Security Agency (NSA) to spy on American citizens in national security cases without obtaining a warrant. But the courts have refused to rule on the merits of cases challenging the legality of the NSA program on the technical ground that the plaintiffs did not have “standing” under Article III to bring the suit. This judicial silence means that the president’s view of the extent of his powers, although at odds with the official Constitution, operated as the de facto constitutional rule in that dispute.
Here is a thumbnail sketch of the way I think constitutional interpretation actually operates. While citing the relevant section of the constitutional text is the opening gambit in most constitutional discussions, it seldom determines the outcome of a case. The actual process of making constitutional law consists of a competition between the official interpretation and its challenger. Most constitutional conflicts are about whether the official interpretation of a constitutional text will stand or whether it will be replaced by its rival. But the de facto Constitution is also important in the area of national security because of self-imposed limitations on what cases courts will hear. This cycle then repeats itself over time. Challengers become official and new challengers arise.
Accepting this dynamic model of constitutional interpretation has dramatic effects on the way we discuss constitutional issues. First, it explains why constitutional rulings are so controversial. Once we recognize that a justice’s political vision does and should affect his or her decision, we can no longer be surprised that equally intelligent justices will come to different conclusions in any single case. Also, we will be suspicious of any advocate who attempts to end discussion by appealing to some single criterion (like “original intent”) that claims to produce a single “right” answer to any issue. There will always be more than one intellectually respectable answer to any constitutional question. We should expect conflict and realize that it makes sense to listen carefully to our opponents’ arguments, if only to better refute them.
And while this ideological war is waged over the proper result in every individual Supreme Court case where litigants attempt to secure the five-vote majority necessary to win, we should also recognize that the outcome of the larger war is determined by the appointment power of Article II that allows presidents to appoint Supreme Court justices subject to Senate approval. Over time the political visions of the justices determine the content of the official Constitution more than the briefs they read. Citizens have little impact on the Court’s individual decisions, but they can have a large role in determining who is appointed and confirmed as a justice. Therefore, constitutional argument must go beyond just briefs to the Court to include works that help educate citizens so they can better play their role in the selection of justices. My hope is that this book will do just that.
Some readers may be alarmed by my frank acceptance of a political dimension to constitutional interpretation. I wish to make clear that I do not think that judges should be political in the same way as legislators are. The Supreme Court is not a third legislature. Legislators have few controls on their discretion other than the need to be reelected. Justices, on the other hand, do not have to worry about reelection but are limited by the demands of the judicial role. We expect judges to decide cases within a tradition of rational argument that ignores the short-term political calculations that legislators engage in every day. We would have no qualms about a legislator who admitted that his or her vote was influenced by party loyalty, but a similar admission by a judge would be a clear violation of his or her duties as a judge.1 In this way, the Supreme Court operates as a court of higher politics, influenced by political ideals but immune from short-term political pressures.
A Supreme Court that acts as a court of higher politics provides some real benefits for democracy. The appointment of Supreme Court justices for life removes the individual justice from the passions of partisan political debate at the same time that the political nature of the appointment process ensures that the Supreme Court as an institution is democratically accountable. And when we see the Court make a decision that we believe is “wrong,” we can take comfort in the fact that in the long run the Court’s work is controlled by the democratic process. “Wrong” interpretations are subject to correction by the same democratic appointment process that created them. The clear message is that if you are unhappy with the Court’s rulings, you should work to have justices with your political vision appointed. Presidential candidates should be questioned on their constitutional visions and Senate candidates should be pressed on whether they will vote against judicial nominees who support constitutional policies you oppose.
We all remember the television images of President Bush deftly landing a jet fighter on the deck of an aircraft carrier in the Persian Gulf one morning in May of 2003 and then hopping out of his plane to stand in front of a conveniently placed “Mission Accomplished” banner to announce to a cheering audience of sailors the successful completion of military operations in Iraq. Some people probably still remember that morning as a source of national pride; others see it as evidence of imperial hubris. For me, the Bush “Mission Accomplished” stunt symbolizes the National Security Presidency. Our constitutional tradition prides itself on maintaining a system of “checks” and “balances” to prevent abuses of governmental power. But since the advent of the Cold War, there has been a movement to relax these checks and balances in order to grant the president extraordinary independent powers in the area of national security. Bush’s landing on that aircraft carrier incarnated this “can do” vision of a president who as commander-in- chief will do whatever he deems necessary to protect American national security interests all over the globe. Here was a president who could not only authorize combat operations but also personally carry them out. I question whether this militant vision of the presidency squares with our constitutional ideals or even makes us more secure.
The media spectacle created by the Bush landing also highlights another aspect of presidential power—the modern president’s capacity to orchestrate elaborate media campaigns that employ sophisticated tools of mass persuasion to mobilize public support for his national security policies. Bush’s “Mission Accomplished” team produced a spectacle that used Hollywood techniques to craft a powerful appeal to the television audience’s emotions. The unanswered (even unasked) question is whether such massive propaganda efforts corrupt the reasoned debate on national security issues necessary to democratic government.
Finally, there is the issue of freedom of speech. What the television images did not show us is as important as what they did. No images of dissent were allowed that day. We saw no banners protesting the president’s decision to invade Iraq that would counter the visuals of unanimous support for the president’s policies. And had a flotilla of protesters appeared on the scene that morning, we can be sure they would have been quickly escorted far out of camera range by military authorities on grounds of national security. Freedom of speech is not only a basic individual constitutional right; it is also an important part of our structure of checks and balances. We have to wonder how well our system of free expression is working when only one side of a debate is able to make itself heard.
Perhaps it would be helpful if I provided a short preview of my argument. Chapter 1 introduces the National Security Presidency. This conservative vision claims extraordinary powers for the president in the area of national security, not only the right of the president to act without congressional authorization but even the right to ignore congressional legislation and individual constitutional rights when he feels they impede his programs. The National Security Presidency has never been endorsed by the Supreme Court. It is still a constitutional challenger. In fact, the current majority has rejected its most extreme claim that the president can ignore limits imposed by Congress.2 But the Supreme Court has not rejected another controversial presidential claim: authority to initiate combat without congressional authorization. And the refusal by lower courts to hear many cases has permitted the National Security Presidency to become the de facto Constitution over a large range of governmental activities.
Chapter 2 studies the threat to democratic government created by the power of presidential speech. While it is obvious that the president has a right to communicate his views on both domestic and foreign policy issues, the modern presidency goes well beyond merely making its views known. The “Mission Accomplished” production is just one example of a much larger and more long-standing practice of modern American presidents: using large amounts of government resources to craft extremely sophisticated media campaigns to mobilize support for their policies. Not only do these media blitzes appeal more to emotion than to reason, but many recent American presidents have even felt entitled to mislead the American people in order to attain their national security goals. The crucial constitutional question is not whether the president can speak, but whether Congress can and should use its authority to limit such propaganda efforts where they undermine democratic debate.
Chapter 3 traces the recent history of the First Amendment. The Warren Court dramatically expanded free speech protections to open up the political system to dissenting voices. Since then Republican presidents have appointed conservative justices who have quietly abandoned the Warren Court legacy to construct a new official First Amendment that tilts heavily toward government authority and against open, informed public debate. My primary thesis is that the adoption of a broad vision of presidential power in national security affairs coupled with this current weak official interpretation of the First Amendment dramatically transforms American democracy for the worse.
We could easily see the following scenario become reality. A presidential candidate does not discuss national security affairs during the campaign, but in fact has ambitious foreign policy objectives he keeps to himself. Once elected, the president uses a terrorist incident as an opportunity to propose military action against a foreign country not involved in the incident. In support of his new policy he mounts a massive public relations campaign to persuade the public and Congress that the proposed military action is necessary to defend our country against attack. His speeches concentrate on emotional issues like fear and national pride. Some of his statements are half-truths, others downright falsehoods. But his critics are unable to point out the inaccuracies because the true facts are classified as state secrets unavailable to the Congress, the press, and the public. When groups attempt to organize demonstrations to protest the war, authorities prohibit or severely limit the demonstrations on grounds of national security or fears for public safety. When demonstrations do occur, scuffles between police and demonstrators result in the jailing of demonstrators and more presidential speech connecting all protesters, no matter how peaceful, with the alleged protester violence. The clear implication is that dissent itself is unpatriotic. If the war is not successfully completed before the president stands for reelection, he mounts another massive public relations campaign arguing that victory is near and that national honor requires that we “stay the course.” Most readers will recognize that this scenario is not pure fiction; it is a composite snapshot of our political history from Vietnam to Iraq.
The first three chapters present the problem; the second three present a solution. The primary problem is the president’s ability to dominate debate on national security; the solution is a First Amendment that makes sure that opposition voices are heard. Chapters 4 and 5 present a new challenger to existing First Amendment doctrine, a vision that will reanimate political debate both by making more information available to inform public discussions of national security and by making sure that groups opposing government policies have a realistic opportunity to have their voices heard. Chapter 4 argues that too much information is kept secret under the present constitutional regime. We need a First Amendment that guarantees the press access to information in possession of the government that voters need in order to evaluate the government’s performance. While there are some military and diplomatic secrets that must be kept confidential, these should be the exception, not the rule. Furthermore, independent judges rather than self-interested government officials should make the final decision on whether secrecy is warranted.
Chapter 5 examines the crucial role that citizens groups play in our democratic debate. It is these free speech activists who first nurture ideas that challenge government policies and then organize activities to bring the new ideas to a larger audience. The First Amendment must not only protect the autonomy of these activist organizations from government harassment but also ensure that these groups are given full access to the public forum to make their case to the American people.
Since 9/11, courts have adopted a passive stance toward national security issues, preferring to trust the president’s judgment on issues involving national security. Chapter 6 argues that this passivity constitutes a failure of their duty to say what the law is. The Supreme Court in particular has a duty to state clearly the legislative and constitutional norms limiting presidential power and to stand ready to enforce them if the president ignores them. Conservatives argue that such judicial activism is “undemocratic,” but once we accept the inevitable political dimension to any judicial act, we see that such judicial engagement actually supports democratic values. Conservatives argue that every court ruling for individual rights is a defeat for democracy because presidents and legislators are elected while judges are not. I challenge this assumption on two fronts. First, court-enforced First Amendment rights are a necessary precondition to the full and informed debate that democracy (including the election of presidents and legislators) requires. Secondly, judges themselves have strong, although indirect, democratic pedigrees.
The afterword connects the main arguments in this book to a larger constitutional vision. It argues that First Amendment rights are not enough to support the debate democracy demands. We need court support of a wide panoply of human rights in order to create an informed citizenry. Such human rights range from personal rights like privacy to social rights like a first-class education. In short. we need a human rights constitution.
We must resist the temptation to think that the dangers this book describes ended with the Bush presidency. It is true that President George W. Bush pushed the claims of presidential supremacy to the extreme, but history makes clear that Democratic presidents were the original architects of the National Security Presidency, and all presidents, no matter what their party, have claimed ever-increasing powers over national security. The election of Barack Obama may result in a more moderate exercise of the powers claimed, but not a rejection of the existence of those powers. This leaves them available to later presidents. And President Obama is no less an avid and talented practitioner than Bush of the rhetorical capabilities of his office in the national security area. With regard to the First Amendment, we should remember that a majority of the current Supreme Court presently supports the narrow official interpretation of the First Amendment, and that this majority will be difficult to dislodge. So the constitutional war this book describes over presidential power and free speech is not yet over. We need a new official constitution that limits presidential power and expands human rights. The time to fight is now.