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Monday, August 24, 2009

Bush was, but is Obama a Constitutional Dictator?


Constitutional Dictators

Presidential Power Stories
by Christopher H. Schroeder and Curtis A. Bradley, eds. | West Publishers, 2009 | 499 pages | $33

“The Commander in Chief at the Lowest Ebb—A Constitutional History” (2 parts)
by David J. Barron and Martin S. Lederman, | Harvard Law Review, 2008 [121:941]

Constitutional Dictatorship:Crisis Government in the Modern Democracies
by Clinton Rossiter, with a new introduction by William J. Quirk | Transaction Books, 2002 |
330 pages | $29.95

The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals
by Jane Mayer | Doubleday, 2008 | 400 pages | $27.50

Angler: The Cheney Vice Presidency
by Barton Gellman | Penguin Press, 2008 | 384 pages | $27.95

The Terror Presidency: Law and Judgment Inside the Bush Administration
by Jack Goldsmith | W. W. Norton & Co., 2007 | 256 pages | $25.95

“AS THINGS stand today. . . power has replaced law, usurpation has replaced amendment, and executive fiat has replaced constitutionalism.” Strong words indeed! What may surprise some readers is that they were written by political scientist David Gray Adler at the conclusion of a dour article on “Clinton, the Constitution, and the War Power” that amply documented a number of unilateral actions, in a variety of foreign countries, taken by our forty second president that certainly raise profound constitutional questions. Writing before the conclusion of the 2000 election, Adler offered the “hope that a future election might produce a president” more inclined to stay within at least Adler’s understanding of constitutional norms. Little did he know! One is tempted to echo King Lear, “The worst is not, So long as we can say, ‘This is the worst.’” We can only hope, in a perverse sense, that Clinton’s successor, George W. Bush, really was the worst president we will have, for, after all, we have survived it, and there is a widespread sense, which I certainly share, that Barack Obama promises us a return to law and constitutionalism.

But Adler’s article is a necessary reminder that “we”--by which I very much mean the likely readers of this piece--may be kidding ourselves if we are too quick to view Bush as a relatively unique case. One may well believe, as I do, that he is a strong contender, with James Buchanan and Andrew Johnson, for the absolutely worst president. And there are, to be sure, things about the Bush administration, amply revealed in several of the books under review, that can easily be described as “pushing the envelope” and venturing to go where no president had so systematically ventured before. All of that being said, it is also necessary to pay close attention to the extent to which he and his champions can with some legitimacy cite as precedents some of the actions taken by presidents who are almost inevitably classified among our “greatest” leaders, including, most notably, Abraham Lincoln and Franklin D. Roosevelt.

THIS IS WHY anyone truly interested in the history and development of the modern American presidency is well advised to search out Presidential Power Stories, a book written by leading legal academics, primarily for law students, that tells the stories of many disputes involving presidential power. Because the authors are law professors, most of the stories concern Supreme Court cases, though the very first one, by Fordham law professor Martin Flaherty, is aptly titled, “The Story of the Neutrality Controversy: Struggling Over Presidential Power Outside the Courts,” about George Washington’s unilateral declaration that the United States, in arguable violation of its treaty obligations to France, would remain neutral in the war between that country and Great Britain. All of the chapters are well written and accessible to non-lawyers.

More ambitious readers might want to tackle what is certainly the most important work on presidential power published in many years, the two-part magnum opus published in the Harvard Law Review by Harvard law professor David Barron and Georgetown Law Center professor Martin Lederman. Or perhaps I should say “former” professors, as both were appointed by Obama to serve as deputies in the all-important Office of Legal Counsel, a hitherto little-known division of the Department of Justice that is probably more important than almost any federal court, including, in some respects, even the Supreme Court. The OLC basically serves as the articulator of constitutional norms for the entire executive branch. It is an occasion for national rejoicing that Barron and Lederman have their new roles, though one cost is that there is presumably an indefinite delay in turning the articles into a readily accessible book. Indeed, it is a distinct peculiarity of the legal academy--and of the importance of student-edited law reviews--that book-length articles would be published in such a venue. Still, there is no better source now of a comprehensive overview of presidential actions and arguments about those actions over the past 220 years, particularly with regard to those predicated on the designation by the Constitution of the president as “commander-in-chief.” The title of their work is taken from the famous opinion by Justice Robert Jackson in the Steel Seizure Case of 1952, when the Supreme Court invalidated Harry Truman’s seizure of the steel industry as an ostensible emergency measure necessary to forestall a threatened strike and thus maintain the provision of war materiel to American troops fighting (and dying) in Korea. Jackson noted that the president’s power is at “its lowest ebb” when acting in defiance of a law passed by Congress limiting presidential autonomy. It is not that Congress necessarily prevails; rather, the president must make a convincing case that the Constitution in fact protects presidential autonomy even in such situations. (The easiest example of such autonomy is the pardoning power, which almost all scholars agree is protected, for better and possibly for worse, against congressional limitation.)

A running theme of the Bush administration’s arguments, particularly in notorious “signing statements” involving congressional attempts to limit presidential power with regard, say, to torture, is that the president retained constitutional authority to ignore such limitations when necessary to preserve vital national security interests. Though more professorial in tone than Presidential Power Stories, the materials brought together by Barron and Lederman should still be accessible to the dedicated layperson who correctly suspects that controversial exercises of presidential power--and arguable overreaching--did not begin with the Bush administration. Interestingly enough, they see the most important “great leap forward” with regard to claims of executive authority to have occurred during Truman’s administration. The attempted seizure of the steel mills is one illustration. Far more important was Truman’s unilateral decision to go to war in Korea without congressional authorization (which led several of the justices in the Steel Seizure Case to be more skeptical of Truman’s claimed authority than might have been the case had it been a “declared war”).

AS TO this last point--the increasing claims of unilateral authority made by presidents from Truman through Bush, with Obama still to come--one might well consider the title of Clinton Rossiter’s brilliant and profoundly disturbing Constitutional Dictatorship, originally published in 1948 and most recently republished in the aftermath of September 11, 2001, after a long hiatus in which it was out of print. Indeed, Rossiter was only one of many distinguished political scientists examining the notion of “constitutional dictatorship” in the 1940s and 1950s, though, for whatever reason, that inquiry vanished sometime during the 1960s. Perhaps Americans were just too confident that “it”--that is, dictatorship--couldn’t happen here, so that quite literally nothing more need be said. That was not Rossiter’s view.

He examined the responses of five states--ancient Rome, Great Britain, France, Germany, and the United States--to perceived “emergencies,” some of them “national security,” others not, such as “economic crises,” and concluded that one constant was the decision to adopt some form of “dictatorship,” constitutional or otherwise. But the all-important point of his book was that one could distinguish between “constitutional” and “unconstitutional” dictatorships,” and that the former, especially if modeled on ancient Rome, were far better. Rossiter basically echoed Machiavelli, who had written that “among the institutions of Rome . . . the dictatorship deserves our special admiration” because it allowed the city to “pass unharmed through extraordinary dangers.” Indeed, “every republic ought to have some resource of this nature provided by its constitution,” for the alternative is grim. “When a republic is not provided with some safeguard such as this, either it must be ruined by following constitutional forms, or else, to save it, these must be broken through. But in a republic nothing should be left to be effected by irregular methods.” Given Machiavelli’s two alternatives, almost always political leaders will choose to “break through” constitutional forms in order to “save” the polity rather than proclaim their devotion to what might be called “hyperlegalism” and accept the polity’s ruination. “Let the law be followed though the heavens fall” (quite a different slogan from “Let justice be done though the heavens fall”) will rarely prove compelling.

If Machiavelli is thought to be too dangerous a source, then consider James Madison’s chilling reminder, in Federalist #41, that “[i]t is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions” (emphasis added). Madison was famous for expressing his skepticism that mere “parchment barriers” placed in the Constitution could prove effective against strong desires of the populace (or the political elites actually running the country) for decisive action when faced with perceived emergencies. One can equally quote John Marshall, in what is surely the most important opinion of his tenure as chief justice, McCulloch v. Maryland (1819). “We must never forget that it is a constitution we are expounding . . ., a constitution, intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” Crises, he suggested, are in fact inevitable in any system that in fact wishes “to endure for ages to come.” Therefore the need for “adaptation,” even as one may always be concerned about the point at which “adaptation” in fact becomes “transformation” in undesirable directions. Do we find ourselves in the position of the American major in Vietnam who spoke of the necessity of destroying Ben Tre “in order to save it”? The central questions, of course, are, first, who precisely gets to decide when a crisis is facing us and, second, what does constitute an adequate response?

WHAT IS MOST terrifying about the Bush administration, at least in terms of the model it presents to its successors, is the answer to the first of the two questions above, even if we are justifiably horrified by some of the specific answers given to the second as well. That is, the theme that unites the books written by Jane Mayer, Barton Gellman, and Jack Goldsmith, as well as a host of additional books that could be mentioned--the Bush administration did not lack for critics, especially in its last years [1]

See, e.g., David Cole, Justice at War: The Men and Ideas that Shaped America’s War on Terror; Louis Fisher, The Constitution and 9/11: Recurring Threats to America; Scott M. Matheson, Jr., Presidential Constitutionalism in Perilous Times; Eric Lichtblau, The Remaking of American Justice; Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.
--is presidential unilateralism. It is telling that probably the most important proponent of this view is Jack Goldsmith, now a professor at the Harvard Law School (and a friend and sometime colleague), a strong conservative who was, briefly, head of the Office of Legal Counsel in 2003-2004. He was selected for that position, no doubt, because he had written scholarly articles questioning the role that international law should play in interpreting American law, and he was generally thought to be a friend of a strong executive. But, he discovered, the Bush administration wanted a far stronger executive than he was willing to tolerate, especially as a lawyer who had, after all, taken his own constitutionally required oath to uphold the Constitution. The administration, he writes, “was too committed to expanding the President’s constitutional powers.” This meant, among other things, what can only be called a disdain for the view that the president should seek what might be termed “authorization” for what those around him viewed as already given him by the Constitution, with no further need for congressional approval. (Bill Clinton had repeatedly veered between calling for congressional “support” and seeking congressional “authorization” for some of his military ventures abroad, and George H. W. Bush had insisted that Congress could only “support,” but need not “authorize” his move into Iraq in 1991.)

As Mayer and Gellman, whose politics, one can be sure, are very different from Goldsmith’s, corroborate, the Bush administration was basically dominated by a small group of lawyers carefully selected by Dick Cheney and his chief aide, David Addington, to articulate almost endless expansion of presidential power. Gellman’s excellent book elaborates the extent to which Cheney, who was Gerald Ford’s chief of staff in the aftermath of Watergate and then George H. W. Bush’s secretary of defense, was almost obsessed with what he viewed as the indefensible diminishment of presidential authority following the Nixon fiasco. Now that the owl of Minerva has indeed flown, one can interpret Cheney’s career over the past thirty years, whether in Congress, the Pentagon, or the White House, as devoted to rectifying, using all of his formidable bureaucratic skills, what he thought was a disastrous development in American politics (and constitutional understandings).

It is, of course, tempting to argue that Cheney and Addington (and other members of the administration’s rogues’ gallery, including John Yoo, the principal author of the notorious “torture memo” that is a major subject of Jane Mayer’s deservedly prize-winning book on America’s descent into becoming the world’s most prominent torturer), were self-consciously betraying the Constitution. But that would be a profound mistake, one that we would not make with regard, say, to Abraham Lincoln, Franklin D. Roosevelt, or, I presume, Bill Clinton. Goldsmith notes that Colin Powell had apparently said of Addington that he “doesn’t care about the Constitution.” But, Goldsmith responds, that is incorrect. “Addington always carried a tattered copy of the Constitution in his coat pocket, and would often pull it out and quote from it with reverence. Both he and his boss, Cheney, seemed to care passionately about the Constitution as they understood it” (emphasis added). What they saw in the Constitution was the assignment, in Article II, of “the executive power” to the president, unlike the “powers herein granted” assigned in Article I to Congress. They argued that the absence of the all-important limitation of authority to that “herein granted” is an implicit acknowledgment of Locke’s defense of “prerogative” on the part of the ruler. “[The] Power to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it, is that which is called Prerogative. . . . This power whilst imployed for the benefit of the Community, and suitably to the trust and ends of the Government, is undoubted Prerogative, and never is questioned.”

Ironically enough, defenses of de facto prerogative were rife at the constitutional convention itself with regard to the specific issue of whether those gathered in Philadelphia actually had the authority to shelve the existing Articles of Confederation and substitute a brand new Constitution. Thus Virginia governor Edmund Randolph, who would become our first attorney general in the new presidency of George Washington, told his fellow delegates on June 16, 1787, that “ ‘[t]here are great seasons when persons with limited powers are justified in exceeding them, and a person would be contemptible not to risk it.’” Two days later Alexander Hamilton agreed: “To rely on & propose any plan not adequate to these exigencies, merely because it was not clearly within our powers, would be to sacrifice the means to the end.” Had he been speaking thirty-two years later, he could easily have quoted Marshall’s dictum in McCulloch about the necessity to adapt to the demands of “crisis.” Far more recently, Harvard political theorist Harvey Mansfield defended the Bush administration’s unilateralism in the Wall Street Journal and the Weekly Standard by arguing that “the rule of law is not enough to run a government. Any set of standing rules is liable to encounter an emergency requiring an exception from the rule or an improvised response when no rule exists. In Machiavelli’s terms, ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion. ‘Necessity knows no law’ is a maxim everyone admits, and takes advantage of, when in need.” Interestingly enough, Mansfield, an unusually careful writer, chooses to cite Machiavelli and not the presumably more palatable Locke. In any event, Mansfield is more than willing to see in Bush (and, I presume, Cheney) the kinds of “princes” needed by America in its trying hour.

An interesting feature of the Gellman, Mayer, and Goldsmith books is the relatively small role that George W. Bush plays in comparison with his vice president (and Addington). All three present a quite similar portrait of Cheney, even if Gellman’s is inevitably the most thorough. One cannot finish these books without recognizing the deep seriousness of Dick Cheney and his close associates. It is not difficult to regard him as a truly malign force in American politics, the architect of disastrous policies for which we will be paying for years and perhaps decades. One can only be grateful that George W. Bush survived his presidency and that we were not presented with the almost unfathomable disaster of a full-scale Cheney presidency. But justified fear of Cheney and his views is altogether different from being able to dismiss him as “corrupt” in any ordinary sense. He did become rich while serving as head of Halliburton, but anyone who believes that he adopted the policies he did in order to serve his corporate masters misunderstands him. For better and decidedly for worse, he, like most of the people limned in the three “Bush books” under review, are best described as patriots who went off the deep end because of their concern that the United States was threatened by evildoers who needed to be stopped “at all costs.” Karl Rove, who plays no more than a walk-on role in any of the books, may have been attempting to parlay the “war on terror” into a permanent Republican majority and endless tax cuts for the rich. But such cynicism is misplaced with Cheney and his compatriots.

Mayer concludes her book with a quotation from Philip Zelikow, the executive director of the bipartisan commission that investigated the attacks of September 11, 2001 and their aftermath: “Fear and anxiety were exploited by zealots and fools.” But the “fear and anxiety” were altogether real--and many sober people believed justified, especially after September 11--and zealotry can easily attach itself to the patriotic fervor of protecting one’s country against what it fears. Just as obviously, there is no reason to expect any correlation between even the purest of hearts and wisdom. To err is human, after all, and the Bush administration was all too human.

IT SEEMS CLEAR that Cheney and Addington were indifferent to public opinion, congressional disapproval, or the other ways by which most politicians are disciplined in a democratic political order. To be sure, Cheney presumably had some interest in his reelection prospects in 2004. But one of the less attractive features of our political system is that after reelection, neither Bush nor Cheney had any real incentive to care about electoral accountability because neither would ever again be running for public office. As Rossiter insists, we may have our own form of “constitutional dictatorship” that leaves presidents (and vice presidents) remarkably unaccountable at least in the absence of easily provable criminal acts.

Again ironies abound: it was, after all, militant defenders of Bill Clinton who insisted on setting the impeachment bar sufficiently high that it would become even less useful as a feature of the American political system than it was before. And by emphasizing the necessity that any criminal offense be a “high crime and misdemeanor” [emphasis added], whatever exactly that means, they made it at least rhetorically impossible to argue that we might want to fire a president who, even if not an out-and-out criminal, might have displayed such disastrous errors of judgment that he deserved to lose his lease on the Oval Office (together, in this instance, with his equally disastrous vice president).

It is precisely our being in thrall to the Impeachment Clause that leads us to an ongoing—and, to be sure, important—debate about the legality of Bush administration actions, including the notorious adoption of torture and other “enhanced interrogation” techniques that will serve for many as the metonym for the Bush administration. It is not that I disagree. I would like nothing more than to see a number of Bush administration appointees placed in the dock and made accountable for their actions, [2]
See, in addition to Mayer, Philippe Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values, a book that apparently has influenced Spanish prosecutors to suggest the possibility of pursuing charges against six former officials of the Bush administration based on their violations of international law.
whether through formal criminal prosecution or, possibly the better course, presidential amnesty from prosecution followed by a “truth commission” in which they would be compelled to lay out the whole story of their actions. (Amnesty would have the virtue of making impossible the invocation of the Fifth Amendment and, at the same time, raising the possibility of prosecution for perjury should they be shown to have lied when presenting their testimony to the commission.)

BUT IT would be a profound error to believe that accountability, however important, would suffice as a sufficient response to the depredations of that administration. Far more important is to reflect on potential lessons for the future, especially if we conclude that Bush may have revealed some basic problems with our political system. Consider the fact that, as we survey the wreckage of the American financial system, one wants not only the justified punishment of some of its major architects but also, and in fact more important, some genuine changes in our institutional and regulatory structures to try to prevent repetitions in the future. If that is the case with banks and financial institutions, then how much more important is it to ask whether we are well served by a set of institutional structures that, in some respects, have remained unchanged since 1787.

Neither Mayer nor Gellman speaks to such issues, nor is it fair to expect them to. Their aim, in which they succeed admirably, is to set out, as accurately as possible, the “bill of particulars” with regard to the conduct of their subjects, particularly, in Mayer’s case, with regard to the adoption of torture as policy. Goldsmith, as an academic, looks more to the future. One of his concerns is that we have overly “legalized” the presidency in recent years and that we should recognize the extent to which we must rely, especially in times of crisis, on prerogative-like decisions of our chief executives. To this extent, he fits with some of the perspectives identified with Cheney and Addington (and Harvey Mansfield). Where he breaks with his former allies, however, is in his rejection of the almost fetishistic secrecy linked with the Bush administration. To be sure, he doesn’t believe that everything can be made public; he is critical, for example, of the revelations by the New York Times of details of the U.S. surveillance of national and international communications. But he strongly believes that presidents should be as public as possible--even if on occasion this means only consulting with leading members of Congress--when making their decisions. Goldsmith is a great admirer of Lincoln and Roosevelt, who, in contrast to leading members of the Bush administration, were not “executive power ideologues.” Lincoln is described as “ever anxious about his unprecedented assertions of presidential power,” making “elaborate public efforts to explain them,” not to mention constant seeking of “congressional support.” Roosevelt, “less timid” about exertions of presidential power, nonetheless “consulted widely before exercising them, and he used the powers as a last resort to accomplish what he thought were vital ends, not as part of an aggressive program to expand presidential power for its own sake.”

What Goldsmith especially directs our attention to is the importance of character, what the eighteenth-century founders might well have labeled “civic virtue.” This involves both demonstrated capacities for good judgment and a resolute ability to separate one’s own interests from the public’s, with priority always given to the latter. The model for that generation, of course, was George Washington, who always presented himself as Cincinnatus, reluctant to take on the burdens of public leadership but willing to do so when his country beckoned. Indeed, one of Washington’s greatest gifts to the country was his voluntarily relinquishing office after two terms, dramatically rejecting the image of the “indispensable man” who should become a de-facto elected monarch. We ignore the importance of character, and overestimate the importance of “law,” at our peril, according to Goldsmith.

There is much to be said for this. Rossiter, I am confident, would agree. After all, the Roman consuls selected dictators not only on the basis of perceived “skills,” but also in terms of their character and presumed disinclination to abuse the powers of the dictator. But where Goldsmith’s analysis falters is precisely in asking whether we have an institutional structure designed to provide us leaders of adequate virtue and wisdom in moments of crisis, where legal constraints may well prove unavailing. One need not rehearse the decades-long debate among American historians about the transformation of the United States from a “republican” political order into a “liberal” one, but one theme of those who emphasize that transformation is precisely the triumph of a conception of politics that emphasizes partial interests over some notion of the “collective good.” And this transformation is accompanied, of course, by the rise of political parties, with the president emerging not as the disinterested and basically nonpartisan leader of the entire country, as envisioned at the time of the founding, but, rather as the highly interested leader of a political party with its own partisan interests.

Certainly many of us, I believe correctly, were cynical about many of the declarations issued by the Bush administration with regard to ostensible threats to the United States--captured especially in the absurd “color coding” for air travel--and viewed them as part of Karl Rove’s political strategy to entrench Republicans in Congress. For that matter, though, any analysis of the Cuban missile crisis must take into account the fact that Democratic Party leader John F. Kennedy was certainly concerned by the potential for catastrophic losses in the upcoming November 1962 elections for Congress should he be exposed, by Republicans eager to make just such arguments, as unwilling to “stand up” to Soviet adventurism. That Robert McNamara, among others, argued that the missiles presented little threat to vital American security interests, given the American ability to obliterate the Soviet Union in case of an attack from Cuba, was basically irrelevant to party leader Kennedy inasmuch as there was no possibility of successfully selling such an argument to the American public.

Goldsmith writes, probably correctly, that

for generations the Terror Presidency will be characterized by an unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so. The threats have such a firm foundation in possibility, and such a harrowing promise of enormous destruction, that any responsible executive leader aware of the threats . . . must assume the worst. Every foreseeable post—9/11 President, Republican or Democrat, will embrace this attitude, just as Lincoln, Roosevelt, and other presidents did in time of war or emergency.

It might be morning in America for many of us still enthralled by the Obama presidency, but it should be equally clear that Obama has done nothing to challenge Goldsmith’s observation. Indeed, he is conforming to the role of “constitutional dictator” inasmuch as he is almost ostentatiously making fundamental decisions about potential expansion of the war in Afghanistan without, for example, seeking renewed congressional “authorization” for a war initially supported, in 2001, as a necessary response to the threat posed by al Qaeda in that country.

This is why Rossiter’s book--and the debate about “constitutional dictatorship” that it was responding to--is so important. If it is necessary to grant single individuals the kinds of power held by modern American presidents, [3]
Or, for that matter, modern secretaries of the treasury or chairs of the Federal Reserve, directors of the Centers for Disease Control and Prevention, topics beyond the scope of this particular review, but obviously connected with the major theme.
does the 1787 Constitution in fact provide the best way to do so? The answer, alas, may be no. One reason for Rossiter’s admiration of Roman dictatorship is that those who declared the existence of a requisite state of emergency had to select someone else to serve as “dictator,” and that service was both limited in time (six months) and subject to what might be termed “post-dictatorship” accountability should the dictator have abused his power. We, on the other hand, have a system in which politically self-interested party leaders, who, at least in their first term are almost undoubtedly trying to secure their reelection, have an incentive to declare emergencies--and to take on quasi-dictatorial powers--without seeking the approval of any “outside” agency. (Imagine, for example, that “states of emergency” or “crisis” could be declared only by a “council of elders,” consisting of, say, all former presidents, speakers of the House, justices of the Supreme Court, and the like, in the absence of which presidents could claim no “special” powers.) Moreover, and just as bad, is the fact that we are stuck with inappropriate presidents far longer than the Romans were with similar dictators. One can only imagine what might have happened had, say, Congress been able to declare “no confidence” in George W. Bush (and, most important, Dick Cheney as well) by, say, a vote of two-thirds of the House and Senate meeting together, with consequent replacement by someone chosen by the party caucus of the president’s own party or, in the alternative, a national election. Given our present system, Republicans in Congress had little or no incentive, until the presidential campaign season of 2008, to break with the president. There was nothing, after all, they could do to get rid of him. If, on the other hand, replacement was a constitutional possibility, they would have had to explain to their constituents, every weekend, why they weren’t supporting such replacement with someone of better temperament and judgment.

I happily supported Barack Obama both for the nomination and the presidency. I have been reinforced in my support by observing the early days of his presidency. But is it unthinkable that he could turn out to be a profound disappointment? Or, more to the point, is it likely that none of his successors will present problems like those posed by George W. Bush, Dick Cheney, and David Addington? One thing we should have learned from both Hurricane Katrina and the financial crisis is that low-probability events can in fact occur. We should think, far more than we do, about the adequacy of our present political system to protect us from future Bush administrations.

Author Bio:
Sanford Levinson is a professor of law and government at the University of Texas at Austin. He is the author, most recently, of Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It).


  • [1] See, e.g., David Cole, Justice at War: The Men and Ideas that Shaped America’s War on Terror; Louis Fisher, The Constitution and 9/11: Recurring Threats to America; Scott M. Matheson, Jr., Presidential Constitutionalism in Perilous Times; Eric Lichtblau, The Remaking of American Justice; Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.
  • [2] See, in addition to Mayer, Philippe Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values, a book that apparently has influenced Spanish prosecutors to suggest the possibility of pursuing charges against six former officials of the Bush administration based on their violations of international law.
  • [3] Or, for that matter, modern secretaries of the treasury or chairs of the Federal Reserve, directors of the Centers for Disease Control and Prevention, topics beyond the scope of this particular review, but obviously connected with the major theme.

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