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09/11/2011

Comment: The Constitution after 9/11
Michael Ramsey

Ten years after the terrorist attacks of September 11, 2001, we have much to honor and celebrate: the heroism of the people in harm’s way that day and of those who came into harm’s way afterward so that 9/11’s tragedy was not repeated; and the leadership of those who brought us through, at least this far, without repetition.

We may also honor and celebrate the Constitution, which also saw us through 9/11's challenge and remains essentially unscathed by the attacks and their aftermath.  In the low points of George W. Bush’s presidency there was talk of the Constitution being fatally undermined by the response to 9/11.  We can now clearly see that as overreaction.  In its essentials our constitutional government remains as it was before the attacks.  In 9/11’s aftermath, the President did not use the crisis to seize emergency powers, like Napoleon, Hitler, Palpatine, and countless lesser dictators.  Congress was not dissolved; the courts were not dissolved; executive decree did not become the law of the land.  The President asked Congress for authority to pursue the attackers, and repeatedly thereafter returned to Congress for funding to do so.  Barely three years after 9/11 the President faced the nation’s voters in a free election he could easily have lost (and almost did); a little over seven years after 9/11 the President completed his constitutional term and handed office to the leader of the opposing party.  We take these things for granted because the Constitution says they shall be so.  But throughout history constitutions have bent and broken in the face of events far less momentous than 9/11.

The Constitution’s success of course arises from many sources, not least from Americans’ constitutional faith.  At least one aspect of the Constitution itself seems crucial.  The Constitution, as originally written and as applied historically, empowers yet checks the executive.  This was the framers' fundamental vision of executive power, a middle way between the excessive power of the English monarch and the Articles of Confederation's feckless executive Congress.  By the framers' design, in times of crisis power flows to the President, as it did in our greatest crises such as the Civil War and World War II.  Enough power flows to allow the President to manage the crisis (largely) within the Constitution.  Not enough power flows to allow the President to turn the crisis against the Constitution.  As the crisis recedes, power returns to its more usual allocation.  There is neither pressure from events to abandon the Constitution nor temptation of the President to use events as an excuse to overthrow it.  The Constitution’s strong yet restrained executive preserves the system.

It will be objected that in 9/11’s aftermath the President did abandon the Constitution (as it was objected that Lincoln and Roosevelt abandoned the Constitution in the crises of their times).  To be sure, some post-9/11 presidential actions violated, or arguably violated, the Constitution (as some of Lincoln’s and Roosevelt’s actions did).  This is not a comprehensive brief for the Bush administration.  But we must consider whether administration actions violated the Constitution not incidentally but fundamentally.

I think not, but perhaps it is best to pose the question more specifically.  What post-9/11 Bush administration actions violated the Constitution’s clear textual meaning?  I do not count violations later found by courts on the basis of evolving rights not apparent until the time of decision; nor do I count closely contested policies such as the Guantanamo detention facility which seem far from uncontested textual violations.  But again, this is no apology for the administration.  I count at least three key violations, though I invite readers to come up with others.  Here are mine:

1.  The administration claimed the unreviewable right, in the case of Jose Padilla, to indefinitely detain a U.S. citizen seized on U.S. soil, on the ground that the administration believed that person to be a threat.  I cannot accept that the original meaning of the due process clause would allow such a result – indeed, I think the central purpose of the clause was to prevent executive detention of civilians on executive say-so.

 2.  The administration claimed the right to “suspend” (that is, violate) otherwise-binding U.S. treaties.  Although it did not in fact formally suspend any treaties, it adopted at least one set of policies manifestly in violation of the Geneva Conventions: it did not afford review to detained persons covered by the Conventions and alleged to be enemy combatants, where those persons’ status was in doubt.  (Other violations of the Conventions were claimed but this one seems especially difficult to deny).  The President’s duty under Article II, Section 3, to “take Care that the Laws be faithfully executed” appears clearly on its face to encompass treaties, made part of the “supreme Law of the Land” by Article VI.

 3.  The administration denied that Congress had authority to regulate the President’s direction of armed conflict, including coercive interrogation of prisoners, as a result of the President’s commander-in-chief power.  As a result, the administration maintained, such laws could be ignored as unconstitutional.  Yet Congress has Article I, Section 8, power to make “Rules for the Government and Regulation” of the armed forces, and no one in the administration explained why that clause wouldn’t allow “Rules” regarding the way hostilities are conducted. 

These are troubling claims with full potential to subvert the constitutional system, and I don’t mean to argue otherwise.  My point is, rather, that the constitutional system survived them without material distortion.  The Padilla episode was not widely repeated.  The administration altered its policy on detainee review after the Supreme Court’s decision in Hamdi v. Rumsfeld.  It is not clear that the administration actually refused to follow any congressional statutes solely or even principally on the ground that Congress lacks power to regulate military conduct.  None of these administration claims appears likely to have staying power, either at the specific or general level.  Like Lincoln’s unilateral suspension of habeas corpus at the outset of the Civil War, they now seem more incidental overreactions (and historical relics) than fundamental threats to the constitutional system.  The comprehensive checks of the constitutional system as a whole prevented these extravagant claims from having lasting force.

As a result, faith in the Constitution’s basic allocations of power should be reaffirmed not because the response to 9/11 was wholly consistent with the Constitution.  Rather, it should be reaffirmed because the response was not wholly consistent with the Constitution, and yet the Constitution in the longer term remains fundamentally undamaged.