(p.191) Appendix Three Roads Not Taken
(p.191) Appendix Three Roads Not Taken
As the introduction noted, this book presupposes a particular understanding of how one ought to think constitutionally about issues in American government. Chapter Two presents that understanding by discussing two Supreme Court opinions, Chief Justice John Marshall’s opinion for the Court in McCulloch v. Maryland and Justice Robert H. Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, that are widely admired as classic examples of constitutional reasoning. Neither there nor elsewhere does the book offer a sustained justification for treating this understanding as normative, except insofar as a practical justification is implicit in my effort to think constitutionally about the issue of targeted killing along the lines laid out by Marshall and Jackson. An appendix is not a suitable vehicle for presenting a theoretical account of constitutional decision making, and I shall not attempt to do so here: For the purposes of this book, it is enough to observe that the constitutional approach I have adopted is (as my reliance on Marshall and McCulloch suggests) the traditional one followed since the beginning of U.S. constitutional history by most U.S. constitutional lawyers.
A leading constitutional lawyer of the present day, Charles Fried (Solicitor General of the United States under President Reagan and subsequently a Justice on the highest court of Massachusetts) has put the traditional Marshall/Jackson perspective well. The founders, Fried wrote, expected that
the Constitution, like other legal texts, would be interpreted by men who were learned in the law, arguing cases and writing judgments (p.192) in the way lawyers and judges had done for centuries in England and its colonies. Argument from precedent and by analogy would allow the Constitution to be applied to changing circumstances. . . . [P]recedent and analogy are the stuff of legal argument, and . . . legal argument is what moves the Court—or moves it when all involved are doing their work right. Certainly the Justices sometimes ignore or run over or through the arguments, but when this happens it is felt as unfair and wrong. And judges too must feel that precedent and analogy are the straw out of which their bricks are made. . . . This has been the texture of common lawyers’ reasoning for centuries.1
As Fried put it more recently, “to act according to law [c]ertainly … implies knowledge of and judgment according to legal texts, but also precedents, traditions, legal principles, doctrines, and the customs and practices of courts, lawyers, and judges.”2 This book’s presupposition as to constitutional reasoning is, in other words, that we can and should address the issue of targeted killing by drone using what are fundamentally the same intellectual tools that Chief Justice Marshall employed in addressing the issue of the national bank before the Court in McCulloch; the “methods of John Marshall’s judiciary were—and are—entirely appropriate to” the tasks of legitimate constitutional thinking.3
Despite its historical status as (I believe) the constitutional mainstream,4 this account of constitutional thinking is under serious challenge (p.193) at the present time; the criticism is particularly vigorous when the issues involved concern foreign affairs or national security. The reader may therefore find useful a brief critique of three alternative approaches to evaluating the constitutionality of an issue such as the lawfulness of drone strikes.
I. Radical Reform of the Law: Originalism
The first alternative I shall discuss is, in practical terms, the most significant competitor with the Marshall/Jackson/common law understanding of constitutional reasoning: originalism, the claim that the answers to constitutional law questions ought to be governed by what we can make out about the Constitution’s original meaning.5 “Originalism” in this contemporary and controversial sense is not, or not simply, acceptance of the importance of original meaning arguments in determining the sense to be given the text of a constitutional provision: All responsible constitutional lawyers, Marshall and Jackson and Fried included, have agreed on that.6 Originalism, in the sense that the term carries in current debate, is the proposal that properly constructed original-meaning arguments have a priority over all other forms of constitutional argument, that at least presumptively and ordinarily an original-meaning argument persuasive in its own terms (“oh yeah, that must be what the Commerce Clause originally (p.194) meant!”) defeats other claims about constitutional interpretation. The meaning of the Constitution’s spare language is to be fixed by an interpretive lodestar located in the past, beyond the reach of present-day preferences, and constitutional issues are to be resolved on the basis of historically determined textual assertions. This need not mean that constitutional lawyers can never entertain any other considerations at all—originalists differ on what weight (if any) to give Supreme Court precedent—but in principle contemporary originalism reduces legitimate constitutional argument to argument over the original meaning of textual provisions.
The scholarly literature on originalism, in the significant and controversial sense, is voluminous, but my basic objections to it can be simply put. First, despite frequent assertions to the contrary, originalism is not the historically original or historically dominant understanding of how constitutional decisions are to be reached. As Professor Fried has correctly observed, “[o]riginalism was not the original interpretive doctrine of the framers or of the framing generation.”7 The founding-era constitutionalist whose views were closest to those of a modern originalist was Thomas Jefferson, and as Chapter Two showed it was not he but his intellectual nemesis Marshall who decisively shaped the future of constitutional thought. Originalism is a proposal for revolutionary change, for an almost wholesale reformation of constitutional law—an aspect of the originalist project that is often overlooked, not least by originalism’s proponents. If present-day originalists succeeded in persuading the rest of us, the forms in which American lawyers have historically made constitutional arguments would have to be severely curtailed.
The impact on constitutional law of replacing the Marshall tradition with modern-day originalism would therefore be dramatic and unpredictable in detail. Many of the Supreme Court’s greatest decisions have given no sustained attention to original meaning at all: think of Marbury, McCulloch, Gibbons, Strauder, Darby, Barnette, Brown, New York Times v. Sullivan, Reynolds v. Sims.8 In none of these cases (or a myriad others) did the Justices (p.195) find it necessary to make serious originalist arguments, or impossible to reach a decision without doing so. All of these decisions would have to be deemed terribly wrong-headed (at least in their reasoning), and certainly should not be repeated, if originalism prevailed. The guidance that Supreme Court decisions should provide lawyers—and in particular lawyers advising the president and other executive branch policy makers—would therefore become quite unclear: Why should the president’s lawyers follow the reasoning of a restrictive high Court precedent when a plausible original meaning argument points to the opposite conclusion? In the absence of a convincing argument that such drastic intellectual surgery is necessary, I think the American constitutional system should decline—and in the end will reject—the originalist proposal.
For the sake of argument, however, let us assume that sufficient cause exists for reducing constitutional law to the narrow range of arguments that “originalism” licenses. My second objection to the originalist proposal is that there is no obvious answer to the question of which of the many originalisms currently on offer we are to adopt.9 Internecine conflict (p.196) among originalists over how properly to make originalist arguments is pervasive, and originalists generally are dogmatic about the obvious correctness of their preferred version. As a result, card-carrying originalists often reject one another’s interpretive methods with as much vigor as they criticize non-originalists. Michael Stokes Paulsen, for example, insists that “no ‘normative’ argument is necessary to justify original-public-meaning textualism as the sole, legitimate, correct method of constitutional interpretation… . If what one is doing is ‘constitutional interpretation,’ original-meaning textualism is the only enterprise consistent with that description.”10 On the other hand, Walter Benn Michaels defends what he views as the original originalism on the ground that “you can’t (coherently and non-arbitrarily) think of yourself as still doing textual interpretation as soon as you appeal to something beyond authorial intention—for example, the original public meaning.”11 For Professor Paulsen, Professor Michaels is in the grip of “the originalist-intentionalist fallacy,” while Michaels thinks an “original-public-meaning approach” like Paulsen’s is no more a legitimate originalist interpretation of the text than an overtly non-originalist argument.12 And so it goes as one reads originalist literature, leaving even a willing convert wondering where to turn.
The problem is not simply that there are too many flavors of originalism to choose among. More fundamentally, the disputes among originalists demonstrate the fact that there is no basis in existing constitutional practice, or in assumptions generally shared among constitutionalists, that grounds the argument for any particular species of originalism as (p.197) over against the rest. Those of us who defend the Marshall tradition as the proper approach to constitutional decision have just such a basis: The approach to constitutional thinking classically expressed in McCulloch simply is, as a historical matter, the tradition of reasoning that most constitutional lawyers have accepted and followed and that continues to dominate the actual practice of law in litigation, advice, and decision by lawyers and judges.13 Lacking such a historical grounding, arguments for one form or another form of originalism regularly fall back on claims about the definition of their terms, which invite the response that definitional assertions have no persuasive power on their own: They gain purchase on the mind only if one has some good reason to accept the definition being proffered other than the reiteration in a louder voice of the circular or lexicographic claim that X is Y. Smart originalists like Professors Paulsen and Michaels know as much and offer reasons supporting their definitions,14 but their (conflicting) reasons are contestable and contested.
A possible response to my second objection is that the problem lies not in originalism but in the originalists, who have simply failed, as yet, to agree on a disciplined originalist methodology to replace the common law mindset that goes back to Chief Justice Marshall and that originalists agree on rejecting. We simply need to wait for agreement on the correct account of originalism. As a practical matter, this is quite unworkable: What are we to do in the meantime about constitutional questions that must be answered? Furthermore, why should we assume that there will ever be anything approaching consensus among lawyers and judges about which theory of originalism to follow?
The fatal problem with originalism, however is not simply that it isn’t ready yet for prime time; its intellectual flaws are intrinsic. Originalism (p.198) began, in part, with justified professional unhappiness over undisciplined decision making by the Supreme Court in the 1960s and 1970s, and as a critical slogan the rhetoric of fidelity to the Constitution’s original meaning (understanding, intention, etc., etc.) has served a useful purpose, but it is not and cannot be a satisfactory account of how to think constitutionally for several reasons.15 From a practical perspective, originalism is patently an academic exercise in the pejorative sense of that adjective. Few originalists of any stripe actually mean for constitutional lawyers not sitting on the Supreme Court (or in a professor’s chair) to employ originalist methods to disregard Supreme Court decisions: Originalism is an academic theory that the Justices should employ in making their decisions, which decisions, it usually goes without saying, will bind the lower courts and other decision makers. Almost no one thinks that originalism should mean that every federal district judge in the country should enjoy the prerogative of ignoring a relevant Supreme Court decision because in his or her view it is inconsistent with original meaning. In an originalist world, therefore, it would only be in the absence of any relevant high Court precedent that other lawyers be free to adopt the originalist methodology that the Justices would be obligated to employ.
This leaves the question of how to bring the Court’s decisions to bear when, as is usually the case, there is relevant precedent on the specific constitutional issue to be addressed. In the originalist world, lower court judges and others would need some intellectual means for relating binding precedent to novel questions—and the supposedly originalist legal culture would likely evolve a constitutional law of “[a]rgument from precedent and by analogy” for that purpose that would closely resemble what we have today.16 Indeed, it is difficult to believe that an originalist Supreme Court itself would review every constitutional issue from the ground up, and to the extent that the Court applied some form of stare decisis (respect for precedent) to its decisions, and thus was obliged to determine when a (p.199) decision governs a new set of facts and when it does not, the Court itself would be engaged in creating a common law form of constitutional law.
There are other difficulties with any form of originalism when it is offered not as a critical rhetoric but as a limitation on the legitimate forms of constitutional argument, but for present purposes we need not spend further time on the issue. Originalism, in the contemporary and contested sense, is not the original, or the traditional, or (most of the time) the contemporary mode of argument of American constitutional lawyers. The common law approach of Chief Justice Marshall and Justice Jackson remains, as it historically has been, the usual American constitutional practice, and I think that a book addressed to a difficult and important contemporary issue in American constitutional law need not pause to resolve the claim that American government and law should abandon that practice.
II. Skepticism about the Law: Political Constitutionalism
In the past two decades a lively academic debate has sprung up over the distinction between what are often termed “legal constitutionalism” and “popular” or “political constitutionalism.”17 Some of this scholarship is primarily historical and descriptive, and work in this vein is often extremely illuminating about the powerful shaping force that extrajudicial political actors and movements exert on the evolution of constitutional doctrine by the Supreme Court and sources of legal argument and doctrine. For some (p.200) scholars, however, the distinction is normative. Professor Mark Tushnet gives a succinct definition of the contrast from a normative perspective.
For the legal constitutionalist, constitutional restraints on government power and constitutional provisions organizing government power are law in the ordinary sense. Those subject to the constitution’s requirements are legally obligated to comply with those requirements, not merely morally required to do so or urged to comply as a matter of political prudence. … Legal constitutionalism employs the usual way of enforcing legal obligations—a court order directing the actor to comply with the court’s understanding of the constitution—to enforce compliance with the constitution’s requirements. … Political constitutionalism … takes constitutional requirements no less seriously, but insists that they be enforced primarily by political rather than legal mechanisms. For political constitutionalists, actors subject to the constitution’s requirements should comply with them because of political morality. … Not courts, but ordinary political mechanisms—elections, pressure from interest groups, media exposure—lead political actors to conform to a constitution’s requirements.18
Needless to say, there is no consensus on exactly how to describe this contrast or about its implications: In particular, I think that some political constitutionalists would be uneasy with Tushnet’s description of “political morality” as the basis of constitutional obligation.
There are important disagreements on how political constitutionalism as a normative practice or set of practices relates to legal constitutionalism and the institutional location of legal constitutionalism in judicial decision making. Is the primary point of the distinction that many constitutional debates go on in nonjudicial settings rather than in the courts, or that the American constitutional system includes debates of normative import that are conducted through modalities that litigators and judges do not (usually) employ?19 Unsurprisingly, the long-debated issue of “judicial supremacy” takes on a new dimension when one thinks in terms of political constitutionalism. As Tushnet comments, “[m]ost versions of (p.201) legal constitutionalism [treat] the [Supreme C]ourt’s understanding [of the Constitution] as definitive”; in contrast, normative theorists such as Tushnet are skeptical about the extent to which participants in the practices of political constitutionalism should accept the high Court’s case law as controlling.20
Whatever else the idea of political constitutionalism may do, it does suggest a basis for skepticism about the use of ordinary constitutional law reasoning to resolve the constitutionality of the Obama administration’s targeted killing policy. The courts will probably not resolve the question of the policy’s legality in any direct fashion because of justiciability limitations: Debate over constitutional issues must take place in nonjudicial settings and perhaps will take place only there. Furthermore, there are, as the reader knows, no Supreme Court decisions that squarely decide many of the constitutional issues we must address in determining the lawfulness of the killing of Anwar al-Awlaki. This is the sort of issue tailor-made for those who argue that political constitutionalism is both a necessity and a potential rival to the sort of constitutional law announced by the courts: A constitutional question that (let us assume) must be resolved outside the courts, and on which the usual sources of constitutional law argument are opaque, seems a clear candidate for resolution by some approach other than that of the legal constitutionalist.
In order to see why political constitutionalism skepticism is not justified, let us look at a particularly ambitious application of the political constitutionalism perspective, Professor Stephen M. Griffin’s recent book, Long Wars and the Constitution.21 Griffin’s goal is to explain why we do not have a clear grasp of the constitutional dimension of post–World War II U.S. history, which has been characterized in his view by “a continuing series of policy disasters and constitutional crises” that are the result of unilateral presidential decisions to use American military power as a tool of foreign policy in addition to employing that power in circumstances plainly (p.202) implicating the national security of the country. “Beginning with Truman, nearly all post-1945 presidents have claimed the unilateral power under Article II to initiate war, ‘real’ war, full-scale war.”22 The usual response of those opposed to such “presidentialist” claims of authority has been to invert this argument and claim for Congress sole power over decisions to use military force, but Griffin (though he leans in that direction) believes that this response is too narrow and too open to the “eminently defensible [presidentialist] policy rationale” that unilateral presidential action is justified because Congress patently lacks the institutional capacity to make foreign policy. The president is (or claims to be) the primacy formulator of U.S. foreign policy, and the use of military force is a crucial foreign policy tool in a world dominated first by the Cold War and then by the war against terror. “[T]he congressionalist critique has missed the real problem,” which is precisely the constitutional claim that “military force is one tool among others” in the president’s foreign policy toolkit and can be used without any substantive “interbranch deliberation.” Congressional and popular acquiescence in presidential claims of unilateral authority to use military force have led to “the lack of a cycle of accountability” and “a recurrent and, indeed, tragic pattern of interbranch relations and presidential decisions.”23
Professor Griffin disavows any ambition to prescribe in detail a constitutional solution to these problems, although it is clear that he thinks the creation of effective processes of interbranch collaboration is critical. “The most important task with respect to war powers is simply to understand the position we are in,” and he describes the book as “more of an analytical history of presidential decisionmaking than a legal treatise.”24 What that history reveals, in his judgment, is that the original “constitutional order” with respect to foreign policy and national security was transformed after World War II by the actions of presidents and other executive branch officials, often with the approval of or at least acceptance by Congress and the public. The original constitutional order, a concept Griffin defines as a “relatively stable pattern of institutional interaction with respect to basic aspects of the Constitution such as powers and rights,”25 required serious interbranch deliberation between Congress and the president on issues of foreign affairs and national security. While Griffin accepts, “in its broad outlines,” the long-standing presidential claim to “executive leadership in foreign affairs [as] justified by the text and eighteenth-century history of the (p.203) Constitution,” he insists that in the original constitutional order, “among the tools of diplomacy and national security strategy, war [was] special [and this made] approval by Congress obligatory before the nation goes to war.”26
After 1945, or perhaps more specifically after President Truman’s 1950 decision to go to war in Korea without obtaining congressional approval,27 a new constitutional order came into being. The “solid base of the post-1945 constitutional order [lay] in concerns about threats to national security” posed by nuclear weapons and the Cold War, and brought again to the forefront by the events of 9/11 and its aftermath, and the contemporary constitutional order continues to seem unavoidable to many people because of “the obvious inability of Congress to contribute meaningfully to national security policy, at least without major structural reforms.”28 Despite its plausibility, however, the post-1945 constitutional order has repeatedly led to policy errors, some of them catastrophic. This is in part because the post-1945 order cannot be fully implemented due to the continuing presence of the original constitutional order’s basic structure, and because post–World War II history has proven that the president and his advisors are systematically unable to make wise decisions about the use of military force when the executive uses force unilaterally and in pursuit of the president’s unilaterally determined foreign policy goals.29
One might accept all of this—indeed, to a considerable extent I do—and still see a place for legal constitutionalist arguments in addressing issues about the exercise of military force. After all, even if the president ought to consult with Congress, regularly and substantively, the question whether a particular military action is lawful still must be asked and answered by the executive branch itself.30 Perhaps the most obvious reason for doing so using the same methods of argument employed by the courts (p.204) is that executive branch decision makers expect their lawyers to do so. “Legal constitutionalism” is the established mode of constitutional argument, and political office holders, unlike academics, value familiarity over originality: The more the lawyers’ defense of the policy makers’ actions seems boringly orthodox and unremarkable, the better it is from the latter’s perspective. As Professors Gabriella Blum and Philip B. Heymann put it in their insightful discussion of the role of the executive branch lawyer:
When a president asks, in good faith, for advice on the law, he is almost always asking his lawyers what the courts are likely to do, or, in the absence of judicial precedent, what has been the practice and precedent in the executive branch. He will also want to know what most lawyers would think and say and how the legality of the action would be understood by other important groups. He is interested in the repercussions for himself and for the executive branch of appearing to behave illegally or without regard for the law. It is hard to imagine why a president, in seeking advice, would ever be interested in the personal, idiosyncratic judgments of the lawyers he chose.31
We may worry that the pressure to come up with answers the president likes will compromise the lawyers’ objectivity, but that is only to say that giving good legal-constitutionalist advice may be personally difficult, not that it can’t be done. Professor Griffin’s critique of legal constitutionalism is more radical, however: He thinks that legal constitutionalism is essentially irrelevant to constitutional thinking about war, and his reasons for thinking this would, if persuasive, be a convincing reason for skepticism about the value of examining the constitutionality of targeted killing using traditional constitutional law arguments.
(p.205) Griffin’s reasoning begins with the observation that “foreign affairs and war powers are in general outside the legalized Constitution. In the sphere of the legalized Constitution, the judiciary, guided by forms of legal argument influenced by the common law, is supreme.” In contrast, “the norms of the nonlegalized sphere do not … have the same status as those in the legalized Constitution. Given that they are not (or not typically) enforced by the judiciary, they lack the certainty, stability, and authority of legal norms,” since, after all, “[t]he legislative and executive branches swim in a sea of policy and politics. To be sure, they make law, but not entrenched constitutional law.”32 As a rough description of U.S. constitutional arrangements, this is fair enough (although I would not put it quite this way), but he draws from the description a normative conclusion: Ordinary constitutional law arguments, the sorts regularly employed by lawyers arguing cases within “the legalized Constitution,” are inappropriate for addressing an issue located in the domain of political constitutionalism.
Professor Griffin makes this assertion repeatedly throughout the book. “The standard war powers debate [is] occupied with legalistic distinctions not suitable for a sphere of the Constitution unenforced by the Supreme Court”; “contemporary debate … is widely seen as a stalemate [because] both sides approach the debate as if it were occurring in a judicial forum inside the sphere of the legalized Constitution”; “[w]ar powers are not part of the legalized Constitution, and so a garden-variety doctrinal justification … cannot be fully satisfactory [nor would] a president … be satisfied with such arguments”; “this argument [over the meaning of the War Powers Resolution] was surely an example of a rather arcane dispute over statutory construction substituting for a discussion that should have engaged more meaningfully with constitutional values.”33 Griffin does explain at length or with complete clarity why he thinks ordinary constitutional law thinking is “not suitable” for the task of engaging “meaningfully with constitutional values” in questions involving the use of military force, but by teasing out why he makes this assumption, I think we can see why he is wrong, and we need not be overly worried by the political constitutionalists’ skepticism about legal constitutionalism.
Professor Griffin’s central rationale appears to be the fact that there are not very many Supreme Court cases addressing issues having to do with war powers. “American constitutional law,” he writes, “is firmly based on the common law tradition. To oversimplify a bit, this means there is no law without precedents and there are very few meaningful precedents in the area of war powers. This g[ives] competent lawyers very little to work (p.206) with.”34 As Chapter Two demonstrated, Griffin is entirely correct that ordinary constitutional law is, methodologically, a form of common law, but the understanding he suggests here of the capacities of common law thought is not merely oversimplified “a bit”—it is eviscerated to the point of plain error. If competent common lawyers were stymied by the absence of judicial precedents in addressing constitutional questions, then the entire enterprise of constitutional law, including that which lies within what Griffin calls “the sphere of the legalized Constitution,” would never have gotten off the ground. John Marshall famously had very few constitutional precedents to work with, and was disinclined to cite the ones he had, and he seems to have little difficulty in coming to legal conclusions about constitutional issues. This was not simply a product of Marshall’s unique genius or his role as a judge or his special location in constitutional history. Constitutional argument, often of the most sophisticated nature and indistinguishable in its legal character from the decisions of the Marshall Court, began in Congress with the first session of the First Congress, and in the executive branch with, at the latest, President Washington’s 1790 consultation with James Madison, Chief Justice John Jay, and Secretary of State Jefferson over the Senate’s advice and consent power with respect to treaties.35
Move forward two centuries and there is a lot more case law, but the contemporary Supreme Court still addresses constitutional issues about which there is little directly relevant case law. A common law constitutional method is indeed centrally concerned with cases, but it is concerned with them not as unexplained points of decision but as judgments that are the product of reasoning that takes into account the meaning of the text, (p.207) its historical origins and original meaning, the structure of the governmental institutions the text creates, the ethos of limited government that the text reflects, the history of political practice under the text, the impact on government, society, and the individual of different conclusions—in short a broad array of considerations that can still be debated even if there are few or no judicial precedents and indeed may never be any.36 I think the Supreme Court has said considerably more that is relevant to issues involving the use of military force than Griffin acknowledges, but even if that were not the case, the absence of developed judicial doctrine is no reason to reject the applicability of ordinary constitutional law reasoning.
Professor Griffin’s other reasons for banning legal constitutionalism from the resolution of war-related issues are corollaries, I think, of his crabbed view of ordinary constitutional law’s methodological capacities. “Contrary to what originalists may think,” he writes, “there is no way to generate meaningful doctrine from the original constitutional order to answer every contemporary military contingency.”37 This is a striking ipse dixit, but that is all it is. If the original constitutional order required the president to obtain congressional approval for all uses of military force except in response to an actual military attack on the United States (a not implausible but I think erroneous reading), then we would need to develop a reasoned pattern of analysis to determine what counts as “an actual military attack on the United States.”38 I do not think doing so would be significantly more difficult than the generation of meaningful doctrine from the (p.208) first amendment’s laconic prohibition on “law … abridging the freedom of speech.” In both instances, one must bring analogy, and the identification of clear examples of what is “an actual military attack” or “an abridgment of freedom of speech,” to bear on the question, and the full development of doctrine on the scope of “actual attack” would take time and multiple examples of specific issues addressed and satisfactorily resolved, just as has been true with “freedom of speech.” The difficulties are true of constitutional doctrine on any complex issue, within or without Griffin’s “legalized Constitution”; all that this tells us is that sound constitutional law reasoning is not a matter of deduction in the sense that we might solve a problem in formal logic.39
Professor Griffin also expresses concern over the manner in which legal constitutionalist reasoning employs arguments from constitutional history. “Despite the lack of legal doctrine, scholars studying war powers tend to … focus on instances of conflict between the executive and legislative branches and treat them as if they were cases. Scholars using this approach are often trying to answer the abstract question of how the Constitution allocates war powers in any situation involving the use of military force.”40 Since Griffin himself believes that “[h]istorical analogies have a special importance in the realm of the nonlegalized Constitution,” it is not entirely clear what his concern is. Perhaps it is only that in his view post-1945 presidentialists have misused historical examples to justify presidential actions on the basis of “a kind of deliberately constructed tradition … never based (p.209) on systematic and deeply contextual accounts of the past.”41 I have no doubt that has sometimes been true, but it is an accusation of poor reasoning, for which the remedy is better reasoning not an abdication of the enterprise. Griffin’s description of political practice arguments as a misguided attempt “to answer [an] abstract question” is quite tendentious—one can describe any attempt to state the law on any subject outside the context of a specific legal question as necessarily involving a “focus on hypothetical cases” either explicitly or by implication. Professor Griffin’s repeated assertions about the constitutional need for “a cycle of accountability” and “interbranch deliberation” are abstractly stated conclusions he has drawn from the historical instances of presidential unilateralism he discusses, and he clearly and quite properly wishes the reader to imagine hypothetical cases in which a prudent executive and an engaged Congress followed his admonitions.
Professor Griffin’s attempt to excommunicate ordinary constitutional law reasoning from use in addressing the constitutional issues raised by the use of military force gives us no valid reason for skepticism about the applicability of that reasoning to these issues: His attack is on a straw man, not on the form of constitutional thinking presented in Chapter Two, which is as a factual matter the approach to constitutional issues that competent and conscientious lawyers in government would employ in addressing a question such as the validity of the targeted killing policy.
III. Nihilism about the Law: Prerogative Rather than Authority
As anyone who teaches introductory constitutional law in a law school knows, nothing is easier to adopt than the cynical assumptions that constitutional law has no independent substantive content, that constitutional arguments are window dressing for ideological conclusions reached on other grounds, and that the Supreme Court is a group of crafty politicians in black robes.42 Many students come to the class already convinced by this (p.210) story, and if the teacher is incautious, the Justices themselves will appear to confirm its truth. It is doubtless unnecessary to elaborate on the experiences of the much smaller set of academic lawyers who attempt to teach executive branch constitutional law opinions: The president, after all, is a politician, and the widespread assumption that “politics” and “law” are antithetical makes it a heavy lift to persuade students to entertain the possibility that executive branch law is anything other than executive branch policy preferences dressed up in legal garb.
From the popular-cynical perspective, then, worrying about lawyers’ arguments over the constitutionality of targeted killing is self-evidently unnecessary or even delusional: Of course such arguments are of no moment as long as the question doesn’t get before a court, and the same is probably true even then.43 This sort of cynicism is as uninteresting as it is irrefutable. But there are arguments by serious scholars that come to much the same conclusion, and if they are right, then the attempt to work out what the executive branch’s constitutional reasoning about the targeted killing policy should be is a parlor game for academics. The most prominent recent argument to this effect is in a book by Professors Eric A. Posner and Adrian Vermeule, The Executive Unbound, and I shall address all-out skepticism about the practical significance of constitutional law for executive branch decision making by considering their book.44
Posner and Vermeule describe their “main critical thesis” as the claim that what they call “liberal legalism” has failed with respect to the presidency. By liberal legalism they mean a viewpoint that they attribute to mainstream legal thinkers and trace back to the original (Madisonian) constitutional design: The president is limited by the formal legal boundaries on his power and checked by a vigorous, proactive Congress. In fact, (p.211) however, “liberal legalism has proven unable to generate meaningful constraints on the executive.”
Liberal legalism, in short, has proven unable to reconcile the administrative state with the Madisonian origins of American government. The constitutional framework and the separation-of-powers system generate only weak and defeasible constraints on executive action. . . . [T]here is an enormous world of constitutional problems that the judges rarely touch, involving the structure and function of government. . . . [A]s a legal mechanism for ensuring that the executive remains within the bounds of law, [congressional] oversight is largely a failure. . . . Under the civilizing force of hypocrisy, [executive branch] actors will incur a cost if they act too opportunistically, [b]ut that does not require, indeed it implicitly denies, that [executive] actors have internalized [constitutional practice] as legally obligatory.45
In short, we live “in a world of little constitutional constraint,” and Congress’s attempts to create statutory “instruments of executive constraint … having been tried, they have been found wanting.”46 This doesn’t mean that the United States is in the grips of an “imperial presidency,” Posner and Vermeule reassure us, because although “law does little to constrain the modern executive, contrary to liberal legalism’s hopes, … politics and public opinion do constrain the modern executive, contrary to liberal legalism’s fears.”47 “Tyrannophobia” is a cultural neurosis, justified by the false belief, inherited from our Madisonian past, “that the only possible constraints on the executive are de jure constraints.” Once we recognize that power of the political constraints on the executive, we spend no more time worrying about the fact that “Madisonian separation of powers is obsolete.”48
The argument in The Executive Unbound against the meaningfulness of law (and specifically constitutional law) in constraining the president verges at times on being so overheated that its extreme rhetoric threatens to obscure its more sober points.49 It would be a mistake, however, to (p.212) ignore the challenge that Posner and Vermeule rightly put to any easy presumption that constitutional law is an effective constraint on presidential decision making in areas, of which targeted killing is surely one, where judicial review is likely to be highly deferential or completely nonexistent. One need not subscribe without reservation to the proposition that rational choice theory (“the preferred Posner-Vermeule analytic toolkit”50) resolves all puzzles to agree with them that there are obvious reasons for a president to avoid, to the maximum extent possible, any roadblocks to his or her policy goals thrown up by the law. Nor is there any real doubt that the modern presidency has a great degree of initiative in policy making, or that recent Congresses tend to be reactive if not actually passive in the face of executive action, or that smart lawyers can devise colorable arguments out of the Constitution and many statutes to justify a very broad range of executive policy choices.
Posner and Vermeule are right to raise the skeptical question whether constitutional reasoning limits presidential decision making in a significant fashion, but their ostensible preference for an executive that makes no claim to be bound by law renders the question unhelpfully theoretical if taken literally. To be sure, their book fits into an extensive recent literature re-examining the idea of executive “prerogative,” the historical term for the asserted power to act in exigent circumstances extra legem or even contra legem, but that notion probably has no “continuing practical relevance (p.213) to American constitutionalism. … [T]he Jefferson-Lincoln conception of prerogative power—most notably, executive action in open defiance of law or legal authority—is no longer part of a president’s justificatory tool kit.”51 For reasons that Jack Goldsmith (a senior executive branch legal advisor to President George W. Bush) in particular has laid out persuasively, it would be extremely surprising for a modern president even to consider openly using “prerogative” power in its historical sense.52 But we need only adjust Posner and Vermeule’s skepticism slightly in order to state it as a plausible course of action.
One of the leading students of the presidency, Richard M. Pious, has long warned that the executive branch finds constitutional rhetoric to be empowering rather than constraining: “[T]he irreducible core of governmental power rests … with executive officials’ substitution of contestable constitutional prerogatives for congressional authorization.” The strategic use of constitutional reasoning by presidents and their lawyers thus underwrites “the development of ‘prerogative governance’ as a political style” that frees presidents from “checks and balances [and] statutory frameworks requiring interbranch policy collaboration.”53 As revised by Pious, then, the Posner and Vermeule skepticism can be put this way: An attempt to work out the best constitutional reasoning about the problem of targeted killing has no purchase on the real world because in the absence of judicial review a president will adopt the reasoning only if it provides plausible “claims of prerogative power” that can serve as “institutional resources to advance [the administration’s] goals,”54 and will disregard the argument if it creates (p.214) difficulties. One can usefully write briefs for future presidential actions (or against them), if one is so inclined, but worrying over the correct analysis, even if in some jurisprudential universe the word “correct” is meaningful, is beside the point as a practical matter.
There is, to be sure, nothing novel about advancing claims of legal power for strategic political purposes. Justice Jackson referred in his Youngstown concurrence to result-determined constitutional claims about presidential power as a “persuasive dialectical weapon in political controversy” and contrasted such “self-serving press statements” with the kind of serious constitutional arguments that the president’s lawyers would endorse in giving him actual, confidential advice or in representing the administration in court.”55 If Posner and Vermeule’s skepticism were well-founded, constitutional inquiry into presidential authority in areas unlikely to be subject to judicial review would be a study in what is likely to move public or congressional opinion in a political controversy. However, I think that there is a persuasive response to the important question they raise.
The starting point for seeing the flaws in Posner and Vermeule’s portrait of a president unbound by law is to recall that the presidents and their advisors can and in fact usually do prefer to act within legal bounds as a matter of conscious choice. In the middle of World War II, Justice Jackson asserted that the reason the exercise of extraordinary powers during wartime had not, up to that point, “overwhelmed our constitutional system,” was that “[e]ach crisis so far has been handled by those in Executive authority trained in the tradition of the law [whose] fidelity to the Constitution on the whole does not suffer by comparison with that of the Court.”56 (p.215) There is no reason to doubt that this remains the case: In fact, as Professor Goldsmith as noted, “the hyper-legalization of war and national security” in recent decades has, if anything, made executive branch officials even more conscious and concerned about the legal limitations on their actions.57 There are many sources of this strong tendency on the part of presidents and their advisors to seek consciously to remain within the law: personal commitment to constitutional values, the fact that belief in the law’s normative force and fear of being accused of breaking the law influence behavior, and social pressure within executive branch offices and agencies.58 The lawyers who provide advice to the president and the officials on whom the president must rely to carry out his or her policies are alike in that most of the time they are unwilling to advise or act in contradiction to what they perceive the law to be.59 Posner and Vermeule’s assumption to the contrary has neither an empirical nor a historical basis.
The model of human behavior that The Executive Unbound superimposes on the process of executive branch constitutional decision making fails to take into account the conscious reasons presidents and their advisors have for respecting legal limits. The book also neglects for the most part the (p.216) mindset with which executive branch officials are overwhelmingly likely to approach a constitutional question. It is not simply that they have conscious reasons, disinterested or self-serving, for finding plausible answers. Beyond that, most of them will consider the question from a perspective deeply shaped already by the role of law in American life and society. As Mark A. Graber puts it, the Constitution “constitutes politics.”
[C]itizens do not develop values and interests independently from constitutional norms. Legal norms influence the values citizens hold and the interests they pursue in politics… . Such persons, when they vote or hold public office, often have no desire to act contrary to constitutional norms. … Most governing officials and citizens … internalize basic constitutional values.60
A president’s legal advisors, and sometimes the president himself or other high policy makers are “trained in the tradition of the law” (Jackson), which strengthens the general American predisposition to prefer decisions that are seen as respecting the Constitution.61 Professor Pious is certainly right to insist on the possibility, and often enough the reality, of sheerly strategic invocations of constitutional law; at the same time, “much constitutionally constrained behavior, including the practice of providing legal justifications for decisions, cannot easily be explained away as strategic efforts to secure desired policies.”62
It is wildly inaccurate to view human beings as nothing more than the rational choice actors Posner and Vermeule imagine them to be, but there are limitations on even the idealistic decision maker. The construction and evaluation of constitutional arguments are affected by human cognitive limitations, including the distorting effect of idiosyncratic constitutional or ideological beliefs, and of motivated reasoning in general, and against such dangers a sincere commitment to obeying the law is no perfect safeguard against error. “The danger is that legal analysis can be self-serving and mistaken, and that the executive will as a result act extra-legally.”63 There is nothing new about this recognition that cognitive limitations pose a threat to constitutional law, which is a social practice that depends on the exercise of reason: Chief Justice John Marshall wrote in 1805 that “[t]he (p.217) judgment is so much influenced by the wishes, the affections, and the general theories of those by whom any political proposition is decided, that a contrariety of opinion on this great constitutional question [the validity of the national bank] ought to excite no surprise.”64
Marshall did not conclude from this fact, however, that the quest to make sound constitutional judgments is hopeless, nor should we. The difficulty can be addressed in part simply by recognizing the possibility of a “contrariety of opinion” and one’s own likely biases. Nor is it unrealistic to expect the executive to engage in this sort of critical self-awareness. Even in the confidential back-and-forth between presidents and their lawyers there will ordinarily be an imagined and potentially hostile audience whom both president and advisor have in view in evaluating different lines of constitutional argument. This check on unintended error can break down, of course, but it is not insubstantial. It would be naive to deny that motivated reasoning and its group-related cognates render illusory any idea that the president and his or her advisors will make difficult constitutional decisions on the basis of a sheerly objective evaluation of the arguments pro and con—but then that assumption would be equally naive if applied to Supreme Court Justices or members of Congress, or even to oneself and one’s colleagues.65 What is important for present purposes is the fact that while a sophisticated understanding of how human beings make complex normative decisions may complicate our understanding of constitutional law as a practice of reasoned decision making, such an understanding greatly weakens the force of Posner and Vermeule’s skepticism.
The claim that constitutional law is insignificant in executive decisions such as those related to targeted killing, furthermore, is plausible only if one ignores or is unaware of significant features of the actual executive branch of the U.S. government and the ways it functions. Skeptics such as Posner and Vermeule often seem to assume as a background to their discussion of details a simple and stylized image of the executive as a single figure possessed of unity of purpose, an unerring sense of the national interest (particularly with respect to national security), and the unimpeded capacity to control the actions of his subordinates. For such a Titanic figure, constitutional law could only be irrelevant if favorable or a problem to be swept away if not. It is a dramatic if not very democratic picture, but it is not a portrait of the U.S. executive branch. There is indeed, a single president, but the executive branch is in fact a vast, heavily bureaucratized system of (p.218) departments, agencies, and offices, with many different individuals exercising significant authority and doing so much of the time at least partly at cross-purposes with one another and with the president, who has come in recent decades to preside over his or her own mini–executive branch within the Executive Office of the President (EOP). The EOP’s purpose, and to some extent its actual role, is to enhance the president’s ability to shape what the “big” executive branch does, but EOP too has become bureaucratized and Balkanized. In such a complex network, legal constructs such as “the unitary executive” and the removal power as a significant instrument of presidential control are remote from the truth, which is much messier and less rational. Posner and Vermeule imagine a twenty-first-century government in which centralized and unitary executive power has triumphed; the reality is more one of dispersed and often poorly coordinated administrative power, with the president frequently grasping at straws in his efforts to impose a modicum of overall purpose.
In this world, far from being a problem, the law, constitutional law in particular, is often one of the president’s most potent tools. The “official” constitutional law of separation of powers, both the judicial decisions found in the United States Reports and the executive’s own elaboration of doctrine, is tilted quite far in the president’s favor.66 The president’s lawyers assist through the ordinary roles of legal counsel in reducing to more manageable size a problem by identifying options, limitations, and loci of decision-making authority, and they (and their constitutional opinions) are valuable resources in the president’s unending struggle to gain some mastery over “his” or “her” branch of government.67 At the same time, (p.219) the work of the lawyers ensconced in the departments and administrative agencies supports the goal of administration coherence by heading off legal problems or referring difficult constitutional issues to lawyers more closely connected to the president for resolution. The realities of twenty-first-century government thus undergird the importance of constitutional law in the executive: Presidents rely on their lawyers’ valuable work in other respects and become accustomed to soliciting legal advice as one aspect of decision making, and the dispersal of actual governmental authority throughout a vast administrative apparatus, peppered with lawyers socialized to think in constitutional terms and to insist on constitutional analyses, makes “administrative constitutionalism … a necessary corollary of the reality of administrative government.”68 Posner and Vermeule’s story of the president breaking free of the entanglements of constitutional and legal constraints is almost the reverse of the truth in practical, organizational terms. Their dismissal of law as irrelevant to executive branch decision making, far from resting on a hard-headed realism about the world, is as naïve as it is nihilistic.
There is a common thread running through the originalist proposal to eviscerate the traditional range of legitimate constitutional arguments, the political-constitutionalist call for a “nonlegalized Constitution,” and the overt constitutional nihilism of a book like The Executive Unbound. The originalist, the political constitutionalist, and the nihilist share a strong disbelief in the value of the legal tradition that John Marshall played a central role in creating: It is too freewheeling for the first, too unimaginative for the second, too irrelevant for the last. There are, I have argued, specific but equally fatal flaws in the views of each, but their central and common error is their unwillingness or inability to recognize the intellectual and moral force of the Marshallian tradition. The great constitutional lawyer Charles Black once wrote that law is an art, and that as an art it demands both freedom to give “full scope to such intuitive factors as one possesses” and fidelity to the tradition in which one works: “[R]esponsibility to reason, even to technical reason, is the soul of the art of law.”69 To our (p.220) “postmodern” sensibilities, such claims for constitutional law may seem either woolly-headed or disingenuous, but Marshall and Black and Robert Jackson knew better: As Charles Fried has described it, traditional constitutional thinking “assumes intelligence and good faith” on the part of those who undertake it, and “that is a strength, not a weakness.”70 Our constitutional tradition provides the intellectual tools necessary to bring even the most intractable issues of constitutional governance under the rule of reason, while the tradition embodies moral ideals that can inspire the courage to act on what constitutional reason demands.
(1.) Charles Fried, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION—A FIRSTHAND ACCOUNT 66 (1991).
(2.) Charles Fried, On Judgment, 15 LEWIS & CLARK L. REV. 1025, 1043 (2011).
(3.) FRIED, supra note 1, at 68. (The specific reference is to the “authority, powers, and methods” of the judiciary, but I do not think Fried would disagree with my extension of his words.) Neither Professor Fried nor I would deny the existence of change and development in the methods of reasoning and argument over the history of constitutional law, and of course there have been many substantive disagreements and changes of rule and doctrine. Both change and conflict are the marks of a healthy intellectual tradition, not of disarray nor of unwarranted departure from the tradition’s original moorings. Justice Jackson’s Steel Seizure opinion was, in my judgment, a faithful extension of the methods of McCulloch, but it was not a literalistic replication of them.
(4.) Cf. Frederick Schauer, Is the Common Law Law?, 77 CAL. L. REV. 455, 471 n.41 (1989) (“American constitutional adjudication in the Supreme Court seems a central case of common law methodology”). The modes of constitutional thought employed by lower court judges, competent lawyers filing briefs in any court, and executive branch legal advisors, are the same. See, e.g., The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 127 (1996) (“We believe that the constitutional structure obligates the executive branch to adhere to settled judicial doctrine that limits executive and legislative power. … Our analyses are guided and, where there is a decision of the Court on point, governed by the Supreme Court’s decisions on separation of powers.”).
(5.) In referring to original “meaning” I am ignoring the many-sided debate among contemporary originalists about what counts as the authoritative original meaning (or understanding or intention—not even the word “meaning” is uncontroversial).
(6.) Walter Dellinger, another leading constitutional lawyer who, like Professor Fried, served as Solicitor General, calls this respect for the historicity of the constitutional text “moderate originalism.” See H. Jefferson Powell, Grand Visions in an Age of Conflict, 115 YALE L.J. 2067, 2072 n.15 (2006) (Dellinger argues that “the existence of a written Constitution necessarily makes a moderate originalism an indispensable starting point for anything that can plausibly claim to be American constitutional law: A refusal to use original meaning to establish the starting point for the words the document uses would render the text infinitely manipulable.”). “Moderate originalism” in Dellinger’s sense is a starting point but not, as is true of the originalism debated in the law reviews, an outer limit on legitimate constitutional thinking.
(7.) FRIED, supra note 1, at 66. “Founding-era lawyers did not view a constitution as a box the interpretive contents of which were fixed upon its drafting or adoption. Constitutional interpretation wasn’t a strictly historical inquiry into what someone thought at some past point in time.” H. Jefferson Powell, A COMMUNITY BUILT ON WORDS 65 (rev. ed. 2005). For examples demonstrating these claims, see id. at 48–50, 60–66, 85–100.
(8.) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (Marshall, C.J.) (famous decision affirming the power of judicial review); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) (anyone reading the footnotes will know this decision by now); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) (Marshall, C.J.) (famous decision discussing the commerce powers of Congress); Strauder v. West Virginia, 100 U.S. 303 (1880) (seminal decision holding unconstitutional a racially exclusionary statute); United States v. Darby Lumber Co., 312 U.S. 100 (1941) (unanimous decision upholding broad federal regulatory powers); West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”); Brown v. Bd. of Educ., 347 U.S. 483 (1954) (seminal decision invalidating de jure racial segregation in public schools); New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (First Amendment embodies “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open”); Reynolds v. Sims, 377 U.S. 533 (1964) (seminal one-person/one-vote decision). The list could be extended indefinitely.
(9.) Critics often point out the fissiparous tendencies of originalism.
Some of the varieties [of originalism] include the following: It all began with conventional “intention-of-the-Framers” originalism. Then it became “intention-of-the-ratifiers” originalism. Of course, we also have “original-expected-applications” originalism … Then came “original-meaning” originalism, which was refined as “original-public-meaning” originalism (officially, this is now the position of Justice Scalia . . .). Justice Scalia himself distinguished “strong-medicine” or “bitter-pill” originalism from “faint-hearted” originalism. Then came “broad” originalism … Now comes the “new originalism” … as distinguished from the “old originalism.” Finally, we add “abstract” originalism … Indeed, Mitchell Berman has distinguished seventy-two varieties of originalism in his tour de force Originalism Is Bunk.
James E. Fleming, The Balkinization of Originalism, 2012 U. ILL. L. REV. 669, 670–71 (2012) (citing Mitchell Berman, Originalism Is Bunk, 84 N.Y.U. L. REV. 1 (2009)).
(10.) Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 NW. U. L. REV. 857, 918 (2009). We need not pause over what Professor Paulsen means by “original-public-meaning textualism.”
(11.) Walter Benn Michaels, A Defense of Old Originalism, 31 W. NEW ENG. L. REV. 21, 21 (2009).
(12.) Compare Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 GEO. L.J. 1113 (2003), and especially id. at 1141 n.96 (“crude intentionalism”) and id. at 1145 n.114 (intentionalism as a “fallacy”) with Michaels, supra note 11, at 35 (original public meaning approach is “not a kind of textualism [and] it is not a kind of originalism either… . So we cannot really prefer [original public meaning] to non-originalism on the grounds that it is looking for what the Constitution originally meant; after all, the hypothetical plain meaner is just hypothetical.”).
(13.) The heightened prominence of original meaning arguments in constitutional decisions by the Supreme Court over the last few decades does not require any significant modification of this statement. Virtually by definition, such decisions involve issues that are extremely controversial under existing case law, or as to which there is not a great deal of precedent, and the Justices naturally and appropriately turn to historical arguments about the text’s original meaning to resolve disputes when other methods do not. Even so, high Court constitutional decisions resting primarily on precedent and analogy employed in the traditional common law fashion greatly outnumber those centrally dependent on any form of originalist argument. I owe these points to Sarah Powell.
(14.) Respectively, that the Constitution’s text ordains original public meaning interpretation, and that a resort to authorial intention is necessary even to establish the language and genre of a document. Space (and perhaps the reader’s patience) will not permit exploration of the various forms of originalism or their warring rationales.
(15.) On the valid critical impulse lying at the historical roots of originalism, and its ineradicable flaws as a constructive program, see H. Jefferson Powell, On Not Being “Not an Originalist,” 7 U. ST. THOMAS L.J. 259 (2010). I have borrowed from that lecture, and from an essay supplementing the lecture, in summarizing the case against originalism in this appendix. See also H. Jefferson Powell, Further Reflections on Not Being “Not an Originalist,” 7 U. ST. THOMAS L.J. 288 (2010).
(16.) Civil law systems, to be sure, have intellectual means for stabilizing legal decision making across the system that differ significantly from the common law’s tools of precedent and analogy, but it is implausible to expect that American lawyers would adopt a very different approach to legal thought in constitutional cases from the one they employ everywhere else.
(17.) See, e.g., Mark Tushnet, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); Larry D. Kramer, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); Barry Friedman, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009). The literature has grown immense, and I intend no disparagement of anyone else’s contribution, but this is not the place for a literature review. The participants in this discussion do not universally employ the same terminology, but for convenience I shall employ Mark Tushnet’s language of legal versus political constitutionalism. See Mark Tushnet, Emergency Powers and Terrorism-Related Regulation Circa 2012: Perspectives on Prerogative Power in the United States [hereinafter Emergency Powers], in EXTRA-LEGAL POWER AND LEGITIMACY: PERSPECTIVES ON PREROGATIVE 199 (Clement Fatovic & Benjamin A. Kleinerman eds., 2013) (describing his terms as “the established terminology” while expressing the view that “it might have been better had the concept [legal constitutionalism] been labeled judicial constitutionalism”).
(19.) On these questions, the work of Professor Keith E. Whittington has been widely influential. See, e.g., Keith E. Whittington, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (1999); Keith E. Whittington, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999).
(21.) I focus on Professor Griffin’s book not because it is particularly flawed but for the opposite reason: Griffin’s is the strongest and most elaborate argument of which I am aware for the political constitutionalism approach to constitutional issues involving foreign affairs and national security, although Griffin does not actually employ the term “political constitutionalism.” See Stephen M. Griffin, LONG WARS AND THE CONSTITUTION 4 (2013) (“One main theme of this book is that the Constitution can influence policy even when it is not enforced by the courts.”); id at 11 (war powers are not “part of the legalized Constitution, those aspects of the Constitution that are typically enforced by the judiciary.”). Griffin discusses targeted killing only very briefly. Id. at 253–54.
(22.) The executive branch’s lawyers, as we have seen, typically do not make such unguarded claims of unilateral power.
(23.) Id. at 7–10.
(24.) Id. at 9, 6.
(25.) Id. at 14.
(26.) Id. at 3.
(27.) Id. at 32 (referring to “what I call the ‘1950 thesis’ … that Truman’s 1950 Korea intervention marked a sharp break in our constitutional tradition”); Id. at 272 (“starting with Korea presidential power was built on legal claims”).
(28.) Id. at 268.
(29.) Griffin emphasizes his claim that the original constitutional order is “imprinted on the structure of government institutions,” Id. at 15, more than his arguments about the incapacity of the executive to make prudent decisions when acting on its own, but the latter theme is important too. See, e.g., id. at 256. There is a very powerful argument that his claims about executive incapacity are correct. See generally Richard M. Pious, WHY PRESIDENTS FAIL (2008).
(30.) And if the president and other policy makers do not ask, their subordinates will. See Jack Goldsmith, The Irrelevance of Prerogative Power, and the Evils of Secret Legal Interpretation, in EXTRA-LEGAL POWER AND LEGITIMACY: PERSPECTIVES ON PREROGATIVE 217–18 (Clement Fatovic & Benjamin A. Kleinerman eds., 2013) (discussing “the legal bureaucratization of national security and the attendant culture of sensitivity to legal authorization before action”); GRIFFIN, supra note 21, at 275 (“once CIA personnel began running sabotage operations against Cuba from Florida, they began to wonder whether such operations were truly, well, constitutional”).
(31.) Gabriella Blum & Philip B. Heymann, LAWS, OUTLAWS, AND TERRORISTS 50 (2010). See generally id. at 47–62. Executive practice and precedent are among the sources for traditional constitutional-law argument. See NLRB v. Noel Canning, 134 S. Ct. 2550, 2559 (2014) (“ ‘[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions’ regulating the relationship between Congress and the President”) (citation omitted); Id. at 2571 (emphasizing, in relying on the constitutional views of an early attorney general, that “[n]early every subsequent Attorney General to consider the question throughout the Nation’s history has thought the same”).
(35.) On the early congressional and executive-cabinet debates, see David P. Currie, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789–1801 (1997), and David P. Currie, THE CONSTITUTION IN CONGRESS: THE JEFFERSONIANS, 1801–1829 (2001). For Washington’s consultation, see H. Jefferson Powell, THE PRESIDENT’S AUTHORITY OVER FOREIGN AFFAIRS 41–47 (2002). Jefferson wrote a formal legal opinion in response to Washington’s inquiry that was thoroughly “legalistic” in style and substance without any apparent embarrassment over the lack of judicial precedent. Marshall’s discussions of Jefferson’s 1791 opinion on the unconstitutionality of the national bank, and of Madison’s 1800 legislative report on the unconstitutionality of the Alien and Sedition Acts, treated Jefferson’s and Madison’s reasoning as formidable legal arguments on major constitutional questions not at the time addressed by any cases. Marshall thought Jefferson, at any rate, wrong, but wrong because Jefferson’s arguments were not as legally persuasive as the answers that Marshall, and Hamilton before him, could give, not because Jefferson made a category error in making constitutional law arguments when there was no case.
(36.) This is not to deny that constitutional lawyers prefer to have judicial and more specifically U.S. Supreme Court decisions with which to work. Over twenty years ago Professor Peter J. Spiro wrote that in light of the “imprecision” of the constitutional text, the “longstanding refusal by the courts to act as referee,” and the absence of “effective or unquestioned statutory disposition,” the question of the president’s authority to initiate hostilities is troubling to lawyers. “This want of the usual instruments of interpretation tends to distress lawyers, who are most comfortable when using the powers of analogy to puzzle through a set hierarchy of self-contained statutes and judicial opinions.” Peter J. Spiro, War Powers and the Sirens of Formalism, 68 N.Y.U. L. REV. 1338, 1339 (1993). Spiro was sharply critical of what he termed “refined parchment solutions” to war powers issues, but on the ground that an excessively textual approach to the issues ignores the greater persuasiveness of legal arguments based on structure and political practice: Formalism, ironically, “promotes the perception that war powers is [sic] a matter of politics, not law [and that] in turn undermines the efficacy of norms established by history and important to our constitutional order.” Id. at 1355, 1341.
(38.) The principle I state in the text is, at least roughly, Professor Griffin’s own view. See id. at 97. The principle actually to be drawn from the original constitutional order is rather more complex, in my judgment, but I have used this to-me faulty principle for ease in making a point that is any case the same: Professor Griffin’s certainty that the modes of traditional constitutional thought cannot generate doctrine that answers specific present-day questions is mere dogma, and erroneous dogma at that.
(39.) Professor Griffin does not address directly traditional constitutional law’s incorporation of several other common law modalities of argument. The omission is rather ironic since Griffin makes extensive use of structural, prudential, and constitutional-ethos based arguments, particularly in supporting his persuasive claim that the Constitution presupposes and indeed requires interbranch deliberation and a cycle of executive accountability with respect to foreign affairs and national security decisions. On these forms of argument, see the classic discussions in Philip Bobbitt, CONSTITUTIONAL FATE (1982) and CONSTITUTIONAL INTERPRETATION (1991). As with his dismissal of mainstream original meaning arguments, this seems to reflect Griffin’s surprisingly narrow and erroneous view of the scope and range of traditional constitutional thought. There is no obvious reason why able legal constitutionalists should be any less capable than Griffin himself of drawing normative inferences from observations about governmental structure, the consequences of contrasting decisions, or the overall shape of the American constitutional enterprise.
(42.) The suspicion is very old. See, e.g., Thomas Jefferson, Letter to Thomas Ritchie (Dec. 25, 1820), http://www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomas-jefferson/jefl263.php (“An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his own mind, by the turn of his own reasoning.”).
(43.) The federal courts have turned aside as nonjusticiable attempts to secure substantive review of executive actions in the war on terror. See al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010) (granting on justiciability grounds a motion to dismiss an action brought by al-Awlaki’s father to enjoin the targeted killing of his son). See also El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) (holding that the political question doctrine barred review of the legality of a cruise missile attack on a Sudanese manufacturing plant), cert. denied, 131 S. Ct. 997 (2011). I do not mean to imply that these decisions were reached on any basis other than good faith legal reasoning. The popular-cynic might respond that justiciability doctrines supply convenient legal excuses for avoiding the adjudication of controversies in which federal judges would rather not be involved.
(44.) See Eric A. Posner & Adrian Vermeule, THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC (2010).
(49.) Professor Richard M. Pious began a review of The Executive Unbound with a paragraph summarizing, briefly but fairly, the book’s thesis and then observing, “I am not making this up.” Richard M. Pious, Book Review, 41 PRES. STUD. Q. 864, 864 (2011). The Executive Unbound has been subject to a drum beat of negative commentary. A common thread running through many of the critiques is the observation that Posner and Vermeule tend “to substitute rational speculation for closer examination into historical sources,” Mark A. Graber, Book Review, 11 PERSPECTIVES ON POLITICS 1157, 1159 (2013), with the ironic result that “a book that begins by taking liberal legalism to task for being disconnected from reality … base[s] so much of its discussion on abstractions.” Chris Edelson, Book Review, 127 POL. SCI. Q. 311, 311 (2012). It’s not even clear at times how seriously the authors mean us to take their broadest claims. Compare The Executive Unbound, at 75 (executive actors do not internalize political precedents as obligatory) with id. at 72 (political precedents “tend to ossify into institutional routines and individual habits, and may even become internalized by actors who develop a sense of legal obligation to follow the precedent”). There is an air of épater la bourgeoisie about much of the book.
(50.) Peter M. Shane, Madisonianism Misunderstood: A Reply to Posner and Vermeule (Apr. 8, 2011), http://www.acslaw.org/acsblog/madisonianism-misunderstood-a-reply-to-posner-and-vermeule. I am not concerned with the question of how plausible Posner and Vermeule’s use of rational choice theory is within its own terms. See Harvey Mansfield, Is the Imperial Presidency Inevitable? (Mar. 11, 2011), http://www.nytimes.com/2011/03/13/books/review/book-review-the-executive-unbound-by-eric-a-posner-and-adrian-vermeule.html?pagewanted=all&_r=0 (criticizing their “incongruous reliance on the rational actors of game theory”).
(52.) In addition to the essay just cited, see generally Jack Goldsmith, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION (2007).
(53.) Richard M. Pious, Public Law and the “Executive” Constitution, in EXECUTING THE CONSTITUTION: PUTTING THE PRESIDENT BACK INTO THE CONSTITUTION 11, 13, 27–28 (2006). See also Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 2 (1993) (describing a 1979 book by Pious as “a rare dissent as to the importance of constitutional law”). Professor Monaghan’s classic article is an exploration into the extent to which U.S. constitutional law legitimately accommodates the felt need for executive action extra legem in emergencies or other exigent circumstances. See Monaghan, Id. at 33 n.157 (“for me the question is whether in legal analysis the national government’s emergency power is extra-constitutional”).
(54.) Pious, supra note 53, at 13. Pious has analyzed the Obama administration as relying heavily on what Pious calls the assertion of “soft prerogative”—the administration usually advances legal arguments for its policies that ostensibly defer to congressional authority, for example by relying on statutes rather than Article II of the Constitution as the source of the president’s power, while construing the statutes to maximize presidential discretion, and noting without any fanfare the possibility of invoking Article II in appropriate circumstances. See Richard M. Pious, Prerogative Power in the Obama Administration: Continuity and Change in the War on Terrorism, 41 PRES. STUD. Q. 263, 284 (2011) (“most of the [Obama administration] claims to prerogative powers are buried deep inside the legal briefs and motions filed by administration lawyers”).
(55.) See Youngstown, 343 U.S. at 647. Immediately before the lines I quote in the text, Jackson referred to the “pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court.” For a reference to the careful private constitutional advice that Jackson believed the executive branch’s lawyers traditionally provide, see id. at 645 (“advice to the President in specific matters [concerning the scope of the commander in chief power] usually has carried overtones that powers, even under this head, are measured by [limiting considerations]. Even then, heed has been taken of any efforts of Congress to negative his authority.”).
(56.) Jackson, unpublished concurrence in Hirabayashi v. United States, 320 U.S. 81 (1943), printed in Dennis J. Hutchinson, The “Achilles Heel” of the Constitution: Justice Jackson and the Japanese Exclusion Cases, 2002 SUP. CT. REV. 455, 473.
(57.) Goldsmith, supra note 30, at 220. It is fair to observe that with respect to one, extremely important constitutional issue, the president’s constitutional authority to make use of military force in the absence of congressional authorization, presidents have become significantly bolder since World War II. See id. at 224 (noting that “there is still fundamental debate and disagreement over whether and when the president” may act unilaterally). Whether this reflects a fundamental change in the executive branch’s understanding of the president’s authority, see generally GRIFFIN, LONG WARS AND THE CONSTITUTION, or the executive’s continued adherence to constitutional norms dating back in principle to the early Republic, see generally POWELL, THE PRESIDENT’S AUTHORITY OVER FOREIGN AFFAIRS, it is clear that the rhetoric of presidential unilateralism has become more extreme in the past two-thirds of a century.
(58.) As Benjamin Kleinerman put it in reviewing Posner and Vermeule, “[w]hile realizing that the law does not enforce itself automatically … Madisonian realism also realizes that the law transforms politics.” Benjamin Kleinerman, The Madisonian Constitution: Rightly Understood, 90 TEX. L. REV. 943, 968 (2012).
(59.) See, e.g., David Cole, Are We Stuck with the Imperial Presidency? (June 7, 2012), http://www.nybooks.com/articles/archives/2012/jun/07/are-we-stuck-imperial-presidency/ (“In my experience, lawyers for the executive branch generally take legal limits seriously.”); Goldsmith, supra note 30, at 217 (“executive branch national security officials have become deeply acculturated and sensitive to legal authorities and restrictions. They will not act in defiance of law, even if the president orders them to or says it is acceptable to do so.”); GRIFFIN, supra note 21, at 275 (“Most citizens and certainly most government personnel know that the Constitution is a law that the government must respect”).
(60.) Mark A. Graber, A NEW INTRODUCTION TO AMERICAN CONSTITUTIONALISM 214–15, 242 (2013).
(64.) 4 John Marshall, LIFE OF GEORGE WASHINGTON 243 (reprint ed. 1983) (1805).
(65.) See Dan M. Kahan, Foreword, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 HARV. L. REV. 1 (2011).
(66.) See, e.g., The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124 (1996). Whether this tilt is the best reading of constitutional text, structure, and history is debatable, but we need not address that issue here.
(67.) I should note that the indirect power of rendering legal advice in the executive branch is itself dispersed, with the most prominent locations being the Justice Department’s Office of Legal Counsel (OLC, exercising the attorney general’s constitutional and statutory duties to give advice and thus representing a tradition dating back to the administration of George Washington), L (the Office of the State Department Legal Adviser, and laying claim to special expertise on treaties and other international law matters), and the White House Counsel’s Office (with the most strategic location and for that reason the least institutional capacity for detached analysis). OLC has the formal authority to adopt legal conclusions for the executive branch, unless it is overruled by its own Justice Department superiors or the president, but the existence of multiple sources of counsel makes it possible for presidents to shop around for advice—and critics of the president to assail him for doing so.
(68.) Gillian Metzger, Administrative Constitutionalism, 91 TEX. L. REV. 1897, 1924 (2013). Professor Metzger emphasizes the normative aspect of her observation while my focus is more descriptive, but her discussion seems to me correct both normatively and descriptively. See id. at 1925 (“in an administrative world, administrative agencies must become a locus of independent constitutional enforcement to do justice to the principle of constitutionally constrained government”).
(69.) Charles L. Black, Jr., Law as an Art, in BLACK, THE HUMANE IMAGINATION 26 (1986).