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CONSTITUTIONALISM IN THE AGE OF TERROR

Published online by Cambridge University Press:  30 November 2010

Michael Zuckert
Affiliation:
Political Science, University of Notre Dame
Felix Valenzuela
Affiliation:
Political Science, University of Notre Dame

Abstract

The threat of terrorism once again raises some of the classic questions about constitutionalism: is it possible for constitutions to do what they aim to do—channel and control political power in such a way as to make it safe and beneficent for those under its rule but also competent to govern? Does not terrorism reraise the Schmittian problem of “the exception”, i.e., the situation of emergency that necessarily escapes all constitutional limitations? Although they did not face the problem of terrorism as we know it, the American founders developed three different models of constitutionalism, embodying three different ways of responding to emergent circumstances and yet remaining bound to the constitutionalist aspiration. We develop the main outlines of the three models both conceptually and historically and show how they continue to be relevant to current discussions of constitutionalism in the age of terror. Finally, we make a tentative effort to judge which of the three models is most able to do what constitutions should do in difficult times.

Type
Research Article
Copyright
Copyright © Social Philosophy and Policy Foundation 2011

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References

1 See, e.g., Wood, Gordon, The Creation of the American Republic (Chapel Hill: University of North Carolina Press, 1969), 259344Google Scholar. As Wood and others make clear, the idea that courts may enforce constitutions against legislatures and executives arose well before Marbury v Madison, 1 Cranch 137 (1803)Google Scholar. On the basis for judicial review in the U.S. Constitution, see Zuckert, Michael P., “Judicial Review and the Incomplete Constitution,” in Kautz, Steven et al. , eds., The Supreme Court and the Idea of Constitutionalism (Philadelphia: University of Pennsylvania Press, 2009), 5377Google Scholar.

2 We speak of “aspiration” rather than of constitutionalism simply because the American political system, like all such systems, sometimes falls short of the operational reality affirmed or aimed at in the Constitution.

3 See Zuckert, Michael, “Hobbes, Locke, and the Problem of the Rule of Law,” in The Rule of Law, ed. Shapiro, Ian (New York: New York University Press, 1994)Google Scholar; and Jean Hampton, “Democracy and the Rule of Law,” in ibid.

4 Schmitt defines the question about the “exception” as “who decides in a situation of conflict what constitutes the public interest or interest of the state, public safety and order, le salut public, and so on. The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law.” Schmitt, Carl, Political Theology (1922), trans. George Schwab (Chicago: University of Chicago Press, 1985), 6Google Scholar.

5 Ibid., 11. Schmitt is of course well known for his Nazi connections, but these do not detract from the force of his argument.

6 Ibid., 6–7.

7 Ibid., 7.

9 Schmitt, Carl, The Concept of the Political (1932), trans. George Schwab (Chicago: University of Chicago Press, 1996)Google Scholar. The quotation is from Schmitt, Political Theology, 15.

10 Locke, John, Two Treatises of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 2005), II.145–48Google Scholar.

11 For a good account of ways in which Locke goes beyond the Whigs and republicans of the seventeenth century, see Fatovic, Clement, “Constitutionalism and Contingency: Locke's Theory of Prerogative.History of Political Thought 25, no. 2 (Summer 2004): 276–97Google Scholar.

12 Locke, Two Treatises, II.145.

13 Ibid., II.145–48.

14 Ibid., II.160.

16 For a careful and probing examination of this aspect of Locke's theory, see Kleinerman, Benjamin A., “Can the Prince Really Be Tamed? Executive Prerogative, Popular Apathy, and the Constitutional Frame in Locke's Second Treatise,American Political Science Review 101, no. 2 (May 2007): 209–22CrossRefGoogle Scholar.

17 The Kentucky Resolutions, drafted by Jefferson, were adopted by the Kentucky legislature in response to the Alien and Sedition Acts of 1798. The resolutions laid out a case for the unconstitutionality of the acts and proposed a method of responding to that unconstitutionality.

18 The “necessary and proper” clause is part of the U.S. Constitution's Article I, section 8, which specifies the powers granted to Congress. It specifies that “Congress shall have power … to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof.”

19 Jefferson, Thomas, “Draft of Kentucky Resolutions,” in Banning, Lance, ed., Liberty and Order: The First American Party Struggle (Indianapolis, IN: Liberty Fund, 2004), 235Google Scholar.

20 Thomas Jefferson, “Opinion on the Constitutionality of the Bill for Establishing a National Bank,” in ibid., 78.

21 Jefferson, , “Opinion on the Constitutionality of a National Bank,” February 1791, in Banning, , ed., Liberty and Order, 78Google Scholar.

22 Jefferson, “Draft of Kentucky Resolutions,” 236.

23 Jefferson, “Opinion on the Constitutionality of a National Bank,” 80.

24 Jefferson, “Draft of Kentucky Resolutions,” 235.

25 Thomas Jefferson to James Madison, December 20, 1787, in Jefferson, Thomas, The Papers of Thomas Jefferson, ed. Boyd, Julian P. (Princeton, NJ: Princeton University Press, 1955), 440Google Scholar.

26 Thomas Jefferson to James Madison, March 15, 1789, in Peterson, Merrill, ed., Jefferson: Writings (New York: Library of America, 1984), 943Google Scholar.

27 Thomas Jefferson to James Madison, December 20, 1787, in The Papers of Thomas Jefferson: The Retirement Series, ed. Looney, J. Jefferson (Princeton, NJ: Princeton University Press, 2006), 12:442Google Scholar.

28 Read, James H., Power Versus Liberty (Charlottesville: University Press of Virginia, 2000), 121Google Scholar.

29 Bailey, Jeremy D., Thomas Jefferson and Executive Power (Cambridge: Cambridge University Press, 2007), 171CrossRefGoogle Scholar.

30 Thomas Jefferson to Wilson C. Nicholas, September 7, 1803, in Jefferson, Thomas, The Writings of Thomas Jefferson, ed. Lipscomb, Andrew A. (Washington, DC: Thomas Jefferson Memorial Association, 1930), 10:418Google Scholar.

31 Thomas Jefferson to John B. Colvin, September 20, 1810, in Looney, , ed., The Papers of Thomas Jefferson: The Retirement Series, 3:99Google Scholar.

32 Hamilton, Federalist No. 23, in Hamilton, Alexander, Madison, James, and Jay, John, The Federalist, ed. Cooke, Jacob (Middletown, CT: Wesleyan University Press, 1961), 147CrossRefGoogle Scholar.

33 Jefferson, “Opinion on the Constitutionality of a National Bank,” 80.

34 McCulloch v. Maryland, 4 Wheat. 316, 407 (1819)Google Scholar (emphasis in the original).

35 Hamilton, “Opinion on the Bank,” in Banning, ed., Liberty and Order, 82, 83.

36 Ibid., 84.

37 See Barber, Sotirios, Welfare and the Constitution (Princeton, NJ: Princeton University Press, 2003), 9296Google Scholar.

38 Hamilton, Federalist No. 78, in Cooke, ed., The Federalist, 524.

39 See, e.g., Hamilton, “Opinion on the Bank,” 84.

40 Hamilton, Federalist No. 78, p. 524.

41 Hamilton, Alexander, “Pacificus Number I,” in The Pacificus-Helvidius Debates of 1793–1794, ed. Frisch, Morton J. (Indianapolis, IN: Liberty Fund, 2006)Google Scholar.

42 Hamilton, Federalist No. 70, in Cooke, ed., The Federalist, 472.

43 Quoted in Madison, Federalist No. 49, in Cooke, ed., The Federalist, 339 (emphasis omitted).

44 Madison, Federalist No. 49, p. 340.

45 James Madison, “Speech on the Bank Bill,” in Banning, ed., Liberty and Order, 75.

46 Ibid., 75.

47 Ibid., 76.

48 Ibid., 74.

49 Ibid., 75.

50 Ibid., 76.

51 Madison, Federalist No. 51, in Cooke, ed., The Federalist, 349.

52 Ibid., 347–48.

53 Madison, James, “Speech in House of Representatives, June 8, 1789,” in Banning, , ed., Liberty and Order, 28Google Scholar.

54 See James Madison, “Virginia Resolutions,” in Banning, ed., Liberty and Order, 237. See also Madison, “Virginia Report,” in Banning, ed., Liberty and Order, 259.

55 Blackstone, William, Commentaries on the Laws of England (Chicago: University of Chicago Press, 1979), I, chaps. 3–7Google Scholar.

56 Hamilton, “Pacificus Number I.”

57 Madison, “Speech on the Bank Bill,” 76–77.

58 See, most explicitly, Berger, Raoul, Executive Privilege: A Constitutional Myth (Cambridge, MA: Harvard University Press, 1974), 1CrossRefGoogle Scholar. See also Fisher, Louis, “Lost Constitutional Moorings: Recovering the War Power,” Indiana Law Journal 81 (2005): 1202Google Scholar, where he writes, “Scrutinize the U.S. Constitution as carefully as you like and you will not find a single one of Blackstone's prerogatives assigned to the President.”

59 Marshall, John, “A Friend of the Constitution V,” in John Marshall's Defense of McCulloch v. Maryland, ed. Gunther, Gerald (Stanford, CA: Stanford University Press, 1969), 190–91Google Scholar; quoted in Berger, Executive Privilege, 10.

60 Blackstone, Commentaries, 1:249. Blackstone explains: “[T]he king has also the sole prerogative of making war and peace.”

61 U.S. Constitution, Article II, section 2.

62 Letters of marque are specific authorizations that allow the holder to search, seize, and/or destroy possessions of another person outside of the issuing nation's borders. Letters of reprisal authorize the holder to retaliate against an individual who has broken the laws of war; they permit the holder also to ignore the laws of war during the retaliation.

63 Berger, Executive Privilege, 107–8.

64 Schlesinger, Arthur, The Imperial Presidency (Boston: Houghton Mifflin Company, 1989), 19Google Scholar. The Helvidius letters were a series of essays by Madison attacking Hamilton's theory of executive power at the time of President Washington's Neutrality Proclamation in 1793. See note 41 above.

65 Luban, David, “The War on Terrorism and the End of Human Rights,” in The Constitution in Wartime, ed. Tushnet, Mark (Durham, NC: Duke University Press, 2005), 219CrossRefGoogle Scholar.

66 Berger, Executive Privilege, 52.

67 See Fisher, “Lost Constitutional Moorings,” 1204; and Treanor, Michael, “Fame, the Founding, and the Power to Declare War,” Cornell Law Review 82 (1997): 605Google Scholar.

68 Berger, Executive Privilege, 55.

69 Rumsfeld v. Padilla, 542 U.S. 426 (2004)Google Scholar, Janet Reno Amicus Brief, 24. In this case, the Supreme Court was asked to decide whether the president could militarily detain American citizens without benefit of civilian procedural rights, so long as he determined that they were enemy combatants. The Court sidestepped the issue here by deciding that the complaint had been improperly filed, thus failing to resolve the question of the limits of the president's power.

70 Ibid., 29.

71 Berger, Executive Privilege, 57. The Pacificus letters were written by Hamilton in defense of President Washington's Neutrality Proclamation in 1793. See note 41 above.

72 Schlesinger, Arthur, The Imperial Presidency (Boston: Houghton Mifflin Company, 1973), 3Google Scholar.

73 Berger, Executive Privilege, 58.

74 Ibid., 138.

75 Henkin, Louis, Foreign Affairs and the Constitution (Mineola, NY: Transnational Pub., 1972), 33Google Scholar.

76 Berger, Executive Privilege, 50.

77 Ibid., 13.

78 See Posner, Richard, Not a Suicide Pact (Oxford: Oxford University Press, 2006)Google Scholar.

79 Mark Tushnet, “Emergencies and the Idea of Constitutionalism,” in Tushnet, ed., The Constitution in Wartime, 44.

80 It may be noted, however, that in looking to the people Tushnet is closer to the original Jeffersonian model than are many other contemporary devotees of Model II.

81 Mark Brandon, “War and the American Constitutional Order,” in Tushnet, ed., The Constitution in Wartime, 11.

82 Bessette, Joseph and Schmitt, Gary, “The Powers and Duties of the President: Recovering the Logic and Meaning of Article II,” in The Constitutional Presidency, ed. Bessette, Joseph and Tulis, Jeffrey (Baltimore, MD: Johns Hopkins University Press, 2009), 10Google Scholar.

84 Ibid., 2.

85 Yoo, John, The Powers of War and Peace (Chicago: University of Chicago Press, 2005)CrossRefGoogle Scholar.

86 Eric Posner and Adrian Vermeule, “Accommodating Exceptions,” in Tushnet, ed., The Constitution in Wartime, 80.

87 Goldsmith, Jack, The Terror Presidency (New York: W.W. Norton, 2007), 12Google Scholar.

88 Ackerman, Bruce, Before the Next Attack (New Haven, CT: Yale University Press, 2006), 82Google Scholar.

89 Hamdi v. Rumsfeld, 542 U.S. 507 (2004)Google Scholar. Here the Court ruled that although the executive has the constitutional power to detain enemy combatants, detained U.S. citizens must be provided the ability to challenge their detention in front of an impartial judge.

90 Hamdan v. Rumsfeld, 548 U.S. 557 (2006)Google Scholar. In Hamdan, the Court concluded that the Bush administration military commissions violated the Uniform Code of Military Justice and the Geneva Conventions of 1949.

91 Boumediene v. Bush, 553 U.S. 723 (2008)Google Scholar. Here the Court ruled that foreign nationals, held as military enemy combatants, have a constitutional right to a habeas corpus hearing.

92 Justices Stevens, Souter, Ginsburg, Breyer, and Kennedy formed the majority.

93 Moyer v. Peabody, 212 U.S. 78 (1909)Google Scholar.

94 Madison, James, “Helvidius Number IV,” in The Pacificus-Helvidius Debates of 1793–1794, ed. Frisch, Morton J. (Indianapolis, IN: Liberty Fund, 2006), 87Google Scholar.

95 See, for example, Hamdi, Hamdan, and Boumediene, cited in notes 89, 90, and 91.

96 Amendment V reads, in relevant part, “No person shall be … deprived of life, liberty, or property, without due process of law…” and Amendment VIII prohibits “cruel and unusual punishments.”

97 Fried, Charles, “History's Verdict,” New York Times, January 10, 2009, 11Google Scholar.