By ANTHONY TSONTAKIS
Review of Long Wars and the Constitution, by Stephen M. Griffin
Cambridge: Harvard University Press, 2013
Stephen Griffin describes his theme in the following terms: “[W]e can make greater analytical progress if we infer the scope of presidential claims concerning war powers from the general strategy the U.S. has followed in foreign policy” (p. 32). By relating the scope of presidential claims about war powers to the general foreign policy strategy the U.S. pursues, Griffin grasps, with unusual clarity, the shortcomings of conventional critiques of George W. Bush's foreign policy—and he uses that insight to suggest a broader reinterpretation of American foreign policy under the Constitution, a reinterpretation that is urgently needed.
The problem, Griffin argues, is the notion of the imperial presidency, a notion ubiquitous in debates about executive power under the Constitution. Progress in these debates cannot be made “without acknowledging the existence of a competing perspective to the imperial presidency, one associated with a distinctive set of ideas about foreign policy and emphasizing the need for swift decisionmaking and military strength in a dangerous world” (p. 192). Indeed, the problems of executive power cannot be attributed to the individuals who occupy the office of the president, or, rather, to their psychologies. The Bush administration’s policies were not constitutionally problematic because George W. Bush, and not someone else, was the president. The Obama administration, upon its ascension to power, “did not break decisively with all of the controversial policies of the Bush administration”—a fact that, importantly to Griffin, “suggested [that] a factor common to these administrations was at work” (p. 1). Accordingly, if the theme of the book is the relation of the scope of executive claims about war powers to a broader foreign policy strategy, the objective of the book is this: the introduction of a framework for analysis of foreign policy under the Constitution that will surpass that of the imperial presidency.
What is meant by the imperial presidency, understood as a framework for analyzing the exercise of a foreign affairs power under the Constitution? It is shorthand for the view that expansions of executive power in foreign affairs are the result of bids for power by ambitious presidents (p. 70). How has this view—latently if not patently presumed by practically all critics of expanded presidential foreign affairs powers—distorted our understanding of the Bush II administration in particular and, by extension, of U.S. foreign policy more broadly? Griffin diagnoses a widely shared mistake: “In general, they [‘both liberal and conservative scholars’] suggest that the problem of Bush’s presidency was a turn to unilateralism, combined with signal departures from the status quo that threatened civil liberties” (pp. 217-18). And there is more: “Without discussing how the presidency acquired power in foreign affairs during the Cold War, they lacked a context for understanding Bush’s exercise of power” (p. 218). “Another problem with the standard war powers debate,” Griffin adds, “is that [opponents of expanded presidential powers rest their views] on an account of presidential motivation drawn straight from the eighteenth century,” by which is meant an account of presidential motivation that holds that “presidents go to war out of ambition and a vainglorious sense of America’s place in the world” (p. 241).
On the subject of Bush II in particular, the “omissions from these lists [of criticisms of Bush’s foreign policy] were striking—there was no reckoning with the fact that the Bush administration believed for good reason that it was at war with al Qaeda and that the United States was in a period of permanent wartime similar to the Cold War” (p. 218). “Commentators also rarely discussed,” Griffin charges, “how assiduously Congress had supported Bush, thus lending him the full measure of constitutional power suggested by Justice Jackson in the Steel Seizure case,” a seminal Supreme Court opinion that offers a legal framework for analyzing presidential power under the Constitution. Thus, “critics of the ‘imperial presidency’ lack a plausible account of presidential motivation.” “Even if it was true that presidents are solely responsible for starting wars and have engaged in massive abuses of power, it is surely relevant to know why they have done so” (p. 241). The imperial presidency framework “creates an unnecessary mystery by ignoring the link between presidential decisions for war and the president’s responsibility for foreign policy” (p. 241).
Griffin’s view is clear. This is a damning indictment. But Griffin does more than simply indict—he explains, and he clarifies, and he theorizes, and he analyzes, and he does these things very well. And he has remedies to prescribe, to be sure, but this book is not the place for remedies. Before we can redeem, we must first diagnose: “In this book, what I have thought important is to understand where we are by looking back before having a discussion of how to move forward” (p. 238). “The primary danger after 9/11 was not so much from a general failure to comply with the rule of law, the multiple genuine threats to civil liberties or from the expansion of presidential power,” Griffin posits (possibly to the shock, and maybe even to the horror, of many of our choicest foreign policy experts), “but rather that the lack of interbranch deliberation would undermine the war effort and lead to a policy disaster and, possibly, a constitutional crisis” (p. 218).
Griffin's concern is still relevant today. Under President Obama, not only has the lack of interbranch deliberation persisted, but the seemingly endless legislative gridlock in Congress, which worsens interbranch relations, has been consistently cited to justify the administration's executive activism in foreign policy and beyond, including politically-sensitive domestic and immigration issues. It is accordingly worth considering whether executive power is expanding in every direction at the expense of the legislative as a function of a process not captured by the imperial presidency framework. An accurate diagnosis is important because historical precedent on this issue does not lend itself to optimism: Festering constitutional conflicts can turn bloody. In Locke's theory of government, which has not been without force in the United States, when the executive governs without the legislature, as Charles I did during the eleven years' tyranny from 1629 to 1640, the executive has effectively declared war on the people and must be stopped—including by civil war, if necessary. (Charles I's reign ended with his head chopped off in the midst of the English Civil War). Griffin's view thus has relevance far beyond any debate over Bush II's specific practices. An outmoded analytical framework, Griffin is essentially warning us, is distorting our views on the potential consequences of an institutional evolution exacerbated though by no means begun by the war on terror, an evolution that has persisted throughout Obama's tenure and that will continue beyond the expiration of his term, and which could, if not responsibly addressed, culminate in a constitutional crisis.
The book is divided into an introduction, seven chapters, and an appendix that contains executive branch war powers opinions since 1970, which legal and other scholars will find very useful. Indeed the book, published by Harvard University Press, is very scholarly, containing about 70 pages of endnotes, in small-type, that offer, for the most part, straight citations to the authorities relied upon, but that also include many helpful and substantive elucidations of certain points. Griffin is an academic legal scholar with some background in philosophy, but is not a professional historian. Thus, the history retold in Long Wars and the Constitution derives mainly from secondary sources, as distinct from archival sources. And many of these histories are popular histories—such as John Lewis Gaddis’s The Cold War: A New History (2005) and Frank Rich’s The Greatest Story Ever Sold (2006), to name a couple—but this is not in the least a criticism, for Griffin's book is not meant as a history, but rather as a legal argument, a legal argument with teeth. The legal citations, accordingly and in contrast, are both straight to the primary sources of law, as well as to all the relevant academic literature, which is vast, and Griffin—a constitutional law professor at Tulane University Law School, with well over 30 scholarly publications to his name, and who is also a regular contributor to the prominent Balkinization law blog—is very well positioned to navigate the constitutional field for us, and to offer us his learned legal interpretations.
The first step toward a diagnosis of how so many scholars can have gotten Bush II in particular and presidential war powers in general so wrong, is to “direct our attention . . . to setting the president’s decisions for war within the context of the post-1945 constitutional order,” for it is “that order which structures presidential actions in foreign affairs” (p. 218). “Second,” Griffin states, “we should be aware how the lack of interbranch deliberation inherent to that order can lead to the derangement of policy.” The first question, accordingly, is this: What is the “post-1945 constitutional order”?
In 1950, President Truman unilaterally amended the Constitution. This might sound astonishing to some, perhaps even preposterous, but that is the author's claim. Griffin calls it the “1950 Thesis,” an idea that is discussed at length in Chapter 1. The 1950 Thesis is meant to supplant the near-obsessive focus by scholars and commentators on Vietnam and the War Powers Resolution, which has “skewed a proper understanding of war powers both as a matter of legal interpretation and the larger context in which presidential war powers were used before and after that tragic conflict” (p. 13). The Constitution was amended, and it was amended unilaterally, and the unilateral amender of the Constitution was President Truman, and this happened in 1950. Please, just forget Vietnam for a minute, Griffin politely asks.
What is significant about this thesis is that the Constitution was not amended by any operation of law. Article V, which prescribes the procedures for amending the Constitution, was not invoked, nor did the Supreme Court issue a ruling recognizing a constitutional power that had never previously been recognized. None of that happened in 1950. Rather, completely on his own, “Truman seized the opportunity provided by the invasion of South Korea [in 1950] to create a new constitutional power—the president’s power to initiate a foreign war”—and, to be clear, “Truman’s decision was a departure from the Constitution and the American constitutional tradition” (p. 70).
Interestingly enough, on Griffin’s account, two historical facts made Truman’s action—an unspoken but nevertheless real constitutional amendment outside the usual legal channels—possible: (1) the new institutional capacities available to the executive as a consequence of victory in World War II, and (2) the absence of any constitutional ruling by the Supreme Court that expressly denied Truman the power to do what he did, that is, commit the United States to a war in Korea (p. 72). In other words, there are some historical circumstances, on Griffin’s view—this is by no means uncontroversial—that have “constitutional significance” (p. 13). In this case, Griffin expressly identifies two types of historical events that can “create new constitutional powers”—namely, “new policy priorities,” and “[new] state capacities” (p. 16). “I see this,” Griffin explains, “as the only way to explain what has happened to presidential war powers in the post-1945 period” (p. 16). Constitutional change “outside the legalized constitution can . . . be influenced by the tide of events, political imperatives, and the structure and capacity for action of state institutions” (p. 16). While Griffin acknowledges that constitutional change in this fashion is “inherently problematic,” he nevertheless insists that “theories of constitutional change must be historicist” (p. 17).
Griffin is guided by a philosophy of constitutional development, but he is not a philosopher of constitutional development. Griffin does not in this book perform the full-blooded analytical exegesis that his historicist theory of constitutional change would seem to require, a philosophical act that would highlight the fascinating and profound implications of his view. After all, what does the historicist theory of constitutional change consist in? The answer is by no means obvious, and Griffin leaves us, at most, with only a vague idea of what the prerequisites or conditions might be. What properties must a historical event possess to qualify as a constitutionally-significant event—as a constitution-altering event? That is, how might we distinguish a historical event that constitutes an actual constitutional change from, say, a historical event that merely constitutes or leads to an extra-legal abuse of government power? Can an ambitious future president who reads Griffin’s book, and agrees with its thesis, amend the Constitution with a simple—with a mere—declaration of new “policy priorities” for the United States, followed by an order to the federal government to “do things” (with new technologies, to be sure) in furtherance of that president's newly-announced policy priorities? Griffin never tests these or any of the other theoretical limits of his historicist theory of constitutional change, and that is something of a shame, because the theory raises a countless number of abstract and absorbing political, legal, and historical questions.
Posted on 24 February 2016
ANTHONY TSONTAKIS is an attorney with the Arizona Legislature. All views expressed are personal to the author.