« Charles C.W. Cooke on the Second Amendment
Michael Ramsey
| Main | The Original Meaning of "Natural Born"
Michael Ramsey »

01/09/2016

Keith Whittington on Harold Bruff on Executive Interpretations of the Constitution
Michael Ramsey

At Law & Liberty, Keith Whittington: Making the Bricks of the Modern Presidency from Constitutional Straw (reviewing [mostly favorably] Harold Bruff, Untrodden Ground: How Presidents Interpret the Constitution [Univ. of Chicago Press 2015]).  From the main part of the review:  

Untrodden Ground builds on that earlier book but takes a broader perspective on presidential engagement with constitutional interpretation. While Bruff’s previous book was ultimately concerned with building a case against Bush administration lawyers such as John Yoo, this book is less concerned with calling a particular administration to task or advancing a particular position within current political controversies. Bruff does not hide his own constitutional proclivities (he notes early on that he believes his analysis “should persuade the reader that three recently fashionable approaches to constitutional law are flawed,” namely key commitments of the conservative legal movement in originalism, the unitary executive, and expansive executive power in the realm of national security), but the bulk of the book is concerned with historical description rather than theoretical analysis. Where he previously focused on a handful of modern presidents, this book has a grand historical sweep, with extended treatments of twenty-five presidents stretching from George Washington to Barack Obama. Although he perhaps does not quite give the nineteenth-century presidents their due, he does give them significant attention. And in these pages, the emphasis is on the presidents, not their legal advisors.  Legal argumentation recedes into the background, and presidential action takes center stage.

And in conclusion:

Presidents have persistent reasons to want to engage in constitutional debate and assert their own gloss on the Constitution, and their views on disputed constitutional questions have often been influential both in setting the terms of the debate and in resolving controversies.  The justices of the U.S. Supreme Court once famously declared that they are “supreme in the exposition of the law of the Constitution,” but neither the constitutional text nor constitutional history gives ready support to that claim.  The Constitution has sometimes effectively meant whatever the Supreme Court says it does, but the president and Congress have also been important players in saying what the Constitution means.  And what they say often sticks.  For those whose understanding of the Constitution itself and of how our constitutional system works has been shaped primarily by the Court and by commentators on the Court, Bruff’s new book will be a valuable corrective.

And here is the book description from the University of Chicago Press: 

When Thomas Jefferson struck a deal for the Louisiana Purchase in 1803, he knew he was adding a new national power to those specified in the Constitution, but he also believed his actions were in the nation’s best interest. His successors would follow his example, setting their own constitutional precedents. Tracing the evolution and expansion of the president’s formal power, Untrodden Ground reveals the president to be the nation’s most important law interpreter and examines how our commanders-in-chief have shaped the law through their responses to important issues of their time.
           
Reviewing the processes taken by all forty-four presidents to form new legal precedents and the constitutional conventions that have developed as a result, Harold H. Bruff shows that the president is both more and less powerful than many suppose. He explores how presidents have been guided by both their predecessors’ and their own interpretations of constitutional text, as well as how they implement policies in ways that statutes do not clearly authorize or forbid. But while executive power has expanded far beyond its original conception, Bruff argues that the modern presidency is appropriately limited by the national political process—their actions are legitimized by the assent of Congress and the American people or rejected through debilitating public outcry, judicial invalidation, reactive legislation, or impeachment. Synthesizing over two hundred years of presidential activity and conflict, this timely book casts new light on executive behavior and the American constitutional system.

I reviewed the book at the manuscript stage and I agree with Professor Whittington's assessment: although Professor Bruff is not an originalist, the book is mostly descriptive and not overburdened with contentious argument; thus it's an excellent reference for originalists and nonoriginalists alike.

I can't help commenting on the book description's claim re Jefferson:  despite what Jefferson thought, the argument that the Constitution did not permit the Louisiana purchase is extremely week.  The Purchase was done by treaty, and the Constitution's text has no substantial limits on the scope of the treaty power apart from the requirements that it not infringe other provisions of the Constitution and that it involve matters of international concern.  Obviously the Purchase did not raise problems on either count.  As I discuss in this article, Jefferson had previously developed an extraordinarily narrow and implausible view of the treaty power in the debates over the Jay Treaty.  (Readers will recall that I've made the point before, but it's something of a pet peeve).