Academic

Griffin on Constitutional Change & the Bush Presidency

By Lawrence Solum

Stephen M. Griffin (Tulane University Law School) has posted The Bush Presidency and Theories of Constitutional Change on SSRN. Here is the abstract:

The presidency of George W. Bush was widely noted for its expansion of executive power. In the years following 9/11, lawyers and legal scholars had a vertiginous sense that their constitutional universe was changing in unfamiliar ways. A war of indefinite duration fought against a non-state opponent. The use of torture and other cruel interrogation techniques, military commissions, and detention without judicial review. The use of the Commander in Chief power as a substitute for domestic law enforcement. And all this marked by a lack of congressional oversight and the most aggressive advocacy of unilateral presidential power yet seen in U.S. history. The Bush presidency was the agent of unprecedented constitutional change.

Theories of constitutional change are in the business of explaining how this could happen. The Bush presidency is only the most recent demonstration of the important role played by informal change in our constitutional system. It is an opportunity to learn from such theories, but it is also a test of their adequacy. Can existing theories of constitutional change account for the Bush presidency? That is the question I address in this article.

I argue that a theory of constitutional change that focuses on how the Constitution is implemented through institutions over time amid the tensions between the "written" and the "unwritten," the "legal" and the "political," offers a better approach to understanding the Bush presidency than the major alternative theories offered by Karl Llewellyn, Bruce Ackerman, Jack Balkin and Sanford Levinson, and Keith Whittington. With the exception of Llewellyn, I do not undertake a comprehensive summary and critique of each theory and I do not claim these theories are wrong. Rather, I maintain they are not helpful in explaining the phenomenon of the Bush presidency and are thus incomplete.

And from the paper:

While the concept of a constitutional construction is helpful in structuring the inquiry into constitutional meaning beyond the courts, I have reservations about whether it is adequate to the task of understanding the use of executive power in the Bush presidency and, by extension, to understanding the problem of executive power within American constitutionalism. At a general level, Whittington?s theory lacks a recognition that there is an asymmetry between the realm of constitutional interpretation where, as he acknowledges, a judicial model holds sway,152 and the political sphere in which constructions take place. Through the common law system of precedent and the doctrine of judicial supremacy, the judiciary can successfully stabilize constitutional meaning within the sphere of what I have called the legalized Constitution.153 By contrast, political actors have no analogous mechanisms to stabilize the constructions they offer. In other words, Whittington lacks an account of how constitutional constructions can be operationalized so that they can be implemented in a permanent way. My theory proposes that this happens through the development of state institutions. So understood, ?constructions? or episodes of constitutional change are battles for the institutional high ground. This institutional move puts us on the road to a more capacious understanding of constitutional constructions in Whittington?s terms and constitutional change in my terms.

And from later in the paper:

[T]he theory of constitutional change that I have presented in greater detail in previous work . . . has two parts. The first explains why informal constitutional change outside Article V and judicial doctrine has played an important role in the development of American constitutionalism. The second proposes that we track informal change through the historical development of state institutions.160 Thus, I advocate a theory that is focused on institutions as constitutional implementers.

In brief, with respect to the role of informal change, the 1787 Constitution was implemented through multiple independent and distinctive institutions, all of which mediated constitutional meaning. At the same time it established a textual template for these institutions, the Constitution created an agenda for future change by leaving important questions of constitutional power and structure unanswered.161 Further, an internal logic of constitutional stability discouraged change through formal amendment that might have answered these questions.162 Officials found themselves in a constitutional order in which they could use the existing text and institutions to implement their preferred visions of constitutional power outside Article V.163 As the national state developed over time, this led to persistent use of informal means, including creative interpretation, institutional restructuring, and the constituent power of the people164 in democratic elections to initiate change and obtain constitutional settlements. This theory allows for the possibility that the text could play a paradoxical role in enabling informal constitutional change. While Llewellyn is correct that change does not happen solely through amendment, this does not make the text irrelevant. The text can provide authority essential to those seeking to change the constitutional order outside Article V. Political actors have used powers based in the text to leverage constitutional change by exploiting their institutional positional advantages. We should therefore not subsume the written Constitution to the unwritten. Powers granted by the text are central to understanding how informal constitutional change can happen. There is thus a creative (or possibly destructive, depending on the circumstances) tension between the ?written? and the ?unwritten? Constitution.

The persistent use of informal means led to the development of two spheres within American constitutionalism, the ?legalized Constitution? and, for lack of a better term, the ?political Constitution.?165 Within the sphere of the legalized Constitution, constitutional change is a formal legal process that occurs through Article V amendments and judicial decisions. What made the legalized Constitution operational was its limited domain. The Supreme Court has never tried to control everything of constitutional consequence that the political branches do.166 Indeed, it could not do so if it intended to operate as a common law court. This left a significant political space in which informal constitutional change could occur.

How should we understand the ?political? Constitution? Here we reach a crucial point of distinction between my theory and Llewellyn and Ackerman. Ernest Young has usefully highlighted that their theories are similar in that they identify ?extracanonical norms?167 that are asserted to have an entrenched status equivalent to the norms in the text.168 This is not my project. Only norms that are part of the legalized Constitution have an entrenched status, consistent with the conventional understanding of the legal community. So I do not contend, as does Ackerman, that the norms of the political Constitution are the functional equivalent169 of Article V amendments.

Informal constitutional change cannot be understood in the same way as change within the legalized Constitution.170 While we can study change in the legalized Constitution by examining amendments and judicial interpretations, there are no true analogues to these markers of change in the political Constitution. One of the lessons of the Bush presidency is that attention must be paid to the opportunities for change latent in the interactions between the text and institutions. Indeed, the Bush administration could not have taken the constitutional order as far as it did if the norms and practices of the political Constitution were entrenched. In addition, my chief purpose is to explain informal constitutional change, not justify or condemn it. I hope it is clear that I do not approve of the changes sponsored by the Bush presidency summarized in Part I. But a normative assessment is secondary to the question of how they occurred. If we condemn these changes, we cannot make progress on avoiding similar circumstances in the future unless we understand how they happened. In order to do this, we need better conceptual tools than are permitted in theories that approach constitutional change solely from a legalistic or normative perspective.

Typical of Griffin's learned, careful, and deeply insightful work, this paper provides a valuable introduction to theories of constitutional change and applies Griffin's theory to an important case.  Highly recommended! Download it while its hot!!

Full post as published by Legal Theory Blog on February 18, 2009 (boomark / email).