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Comment on Barron-Lederman

By Jack M. Balkin

I'm working my way for the second time through the magnificent article by David Barron and Marty Lederman on whether Congress has the power to limit the exercise of the commander in chief power by the President. The second part of the article, published in the Feb. 2008 issue of the Harvard Law Review, reviews what our constitutional tradition has to say about this crucial issue. But something bothers me in reviews of this kind, although I want to stress what follows is meant as an observation, not criticism.

Reviews of this kind often strike me as "flat" history, two dimensional in several senses. Again, this observation is not unique to Barron-Lederman. In reviews of tradition, typically every data point is treated as equal to every other data point, or roughly so. Events accounted as significant for the tradition are often presented without a background context. Things happen. One wants to ask why.

Barron-Lederman conclude that denying Congress any power to control the conduct of war would be a sharp departure from current practice. They say their story shows our tradition, taken as a whole, supports this. To reach this conclusion, they have to treat data points as equal, because once they reach 1950 the consistent "tradition" simply falls apart (as they acknowledge, although not so bluntly). Why are things different after 1950? They don't answer this question in any sustained way -- of course, that's not their burden. But what should we make of this sort of narrative? President Truman departs from prior tradition and claims sole authority, etc. Nixon and Ford weigh in (Eisenhower, Kennedy, Johnson do not appear, except in notes). Carter retreats on presidential power. Then comes Reagan. With Reagan and after, it becomes clear that no Republican president since 1980 has accepted the tradition Barron-Lederman defend. Why not? If we knew the answer, wouldn't we be in a better position to assess claims of an ongoing tradition?

To me, it seems clear that something important did happen in 1950, one that arguably established a new "tradition." Or, rather, tradition loses its usefulness as an organizing device for history at that point. We experienced a regime change, or "constitutional moment" if you like. And now things are different. More contention re presidential power. But if that's true, we can't "go back." We can't restore a past tradition and hence appeals to the past are not persuasive. Despite this somewhat melancholy reflection, I hope Barron-Lederman persuade, even if that shows I'm wrong about the way history works.

Full post as published by Balkinization on May 06, 2008 (boomark / email).