Presidential originalism?

Boston University Law Review

Volumn 88, Issue 2, 2008, Pages 353-373

  Ramsey, Michael D ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 44849102772     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (83)

1. Edward Epstein, Top Dems Rebuke Bush on War Plan, S.F. CHRON., Jan. 20, 2007, at A1 (quoting Senator Harry Reid).
2. Typical leading examples include RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION (2001);
3. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 37-47 (Amy Gutmann ed., 1997);
4. CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (1999).
5. For an important counterpoint, see MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999) (discussing the possibility of reducing judicial review and returning constitutional decision making to the people through the political process).
6. See John O. McGinnis, Constitutional Review by the Executive in Foreign Affairs and War Powers: A Consequence of Rational Choice in the Separation of Powers, 56 LAW & CONTEMP. PROBS. 293, 306-08 (1993) (noting that the "Court has the least interest of all in exercising rights of governance in the foreign affairs and war powers areas" and thus "has largely ceded the rights of governance in foreign affairs and war powers to the executive");
7. Jide Nzelibe, A Positive Theory of the War-Powers Constitution, 91 IOWA L. REV. 993, 1059-61 (2006) (observing that courts have resisted intervening in war powers disputes for political reasons and due to lack of institutional authoritativeness).
8. See Dames & Moore v. Regan, 453 U.S. 654, 661 (1981) ("[T]he decisions of the Court in this area [foreign affairs] have been rare, episodic, and afford little precedential value for subsequent cases.").
9. By assuming no relevant judicial rulings, this Essay does not address the extent to which the President is bound by prior Supreme Court rulings, an issue on which there is a wide array of scholarship and opinion. See, e.g., Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359 (1997);
10. John Harrison, The Role of the Legislative and Executive Branches in Interpreting the Constitution, 73 CORNELL L. REV. 371 (1988);
11. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994);
12. David A. Strauss, Presicintial Interpretation of the Constitution, 15 CARDOZO L. REV. 113 (1993).
13. See generally John Harrison, Judicial Interpretive Finality and the Constitutional Text, 23 CONST. COMMENT. 33 (2006). Among other things, this Essay does not consider (a) the President's ability to disregard court decisions the President believes are incorrect (whether addressed to the actual action the President contemplates or a parallel one); (b) the President's ability to disregard court decisions which, although decided on distinct facts, involve indistinguishable reasoning; or (c) the President's responsibility to the Constitution's original meaning where a court decision appears to give authority to go beyond it. Rather, our inquiry arises where the Constitution's original meaning appears to constrain the President's conduct, and the courts have not said anything directly on the subject.
14. Louis Fisher, Truman in Korea, in THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY 320 (David Gray Adler & Larry N. George eds., 1996). Truman did obtain some material, informal support from Congress. See Nzelibe, supra note 3, at 1050.
15. See Mike Allen & Juliet Eilperin, Bush Aides Say Iraq War Needs No Hill Vote; Some See Such Support as Politically Helpful, WASH. POST, Aug. 26, 2002, at A1.
16. See Dan Balz & Dana Milbank, Iraq Policy Shift Follows Pattern; Bush's Move to Consult Congress Seen as Damage Control, WASH. POST, Sept. 6, 2002, at A19.
17. See Epstein, supra note 1.
18. U.S. CONST. art 1, § 8, cl. 11.
19. See MICHAEL D. RAMSEY, THE CONSTITUTION'S TEXT IN FOREIGN AFFAIRS 218-59 (2007) (arguing that "declaring war" encompasses both formal declarations and attacks that initiate a state of war).
20. But see JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11, at 148-49 (2005) (contending that "the Framers thought of the power to begin hostilities as different from the power to declare war," and claiming that "[w]hen the Framers employed 'declare' in a constitutional context, they usually used it in a juridical manner, in the sense that courts 'declare' the state of the law or the legal status of a certain event or situation").
21. The Supreme Court in The Prizes Cases, 67 U.S. (2 Black) 635, 668 (1863), said in dicta that as a general matter the President lacked power to initiate war, but the case did not present the issue and it is not clear how even that general proposition would apply in the specific case of Korea, Iraq, or Iran.
22. See McGinnis, supra note 3, at 306-08 ("The Court, however, has largely given [control over foreign affairs and war powers] to the executive not so much through substantive decisions favoring the executive . . . , but through decisions invoking the political question doctrine or justiciability doctrine . . . ."); Nzelibe, supra note 3, at 1059-61 ("[C]ourts have resisted, and will likely continue to resist, intervening in war-powers disputes.").
23. See Jide Nzelibe & John Yoo, Rational War and Constitutional Design, 115 YALE L.J. 2512, 2523 (2006) ("From the standpoint of institutional design, it seems that the executive branch has critical advantages over a multi-member legislature in reaching foreign policy and national security decisions that are more accurate"; in particular, "the executive is structured for speed and decisiveness in its actions and is better able to maintain secrecy in its information gathering and deliberations");
24. see also ERIC A. POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS 15-16, 180 (2007) ("During an emergency, it is important that power be concentrated. Power should move up from the states to the federal government and, within the federal government, from the legislature and the judiciary to the executive.").
25. See TUSHNET, supra note 2, at 108-09, 113-20. Similarly, Posner's and Vermeule's argument for presidential power in emergencies on the basis of institutional competency proceeds with little reference to the Constitution and especially not to the Constitution's original meaning. See POSNER & VERMEULE, supra note 14, at 15-19.
26. See Epstein, supra note 1.
27. For leading academic arguments in this direction, see, for example, JOHN HART ELY, WAR AND R ESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH 3-4 (1993);
28. HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 158-61 (1990);
29. Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1200-01 (2006) [hereinafter Fisher, Lost Moorings];
30. Louis Fisher, Unchecked Presidential Wars, 148 U. PA. L. REV. 1637, 1644 (2000) [hereinafter Fisher, Unchecked].
31. One might be tempted to escape the dilemma by claiming that the Constitution's text, standing alone, resolves the matter in Congress's favor. "Declare war" on its face, however, seems to refer to a formal pronouncement of status which is largely antiquated today; perhaps it also might be confined to large-scale engagements ("wars") rather than lesser uses of military force. Although I have argued that these readings do not reflect the framers' understanding of the clause, it seems hard to reach any definite conclusions on the matter from the text alone. See Michael D. Ramsey, Toward a Rule of Law in Foreign Affairs, 106 COLUM. L. REV. 1450 (2006) (book review). Relatedly, the President's textual power as "Commander in Chief of the Army and Navy of the United States," U.S. CONST. art. II, § 2, seems on its face capable of encompassing independent authority to direct military attacks in peacetime. There is good evidence, however, that this was not the original understanding.
32. See David Luban, On the Commander-in-Chief Power, 81 S. CAL. L. REV. (forthcoming 2008). Another possible escape is to say that, whatever the Constitution's view, the War Powers Resolution precludes the President from taking military action against Iran. See War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973). This escape attempt fails for at least two reasons. First, it is not clear that the Resolution even purports to prohibit such presidential action, at least for an initial 60 days. See id. § 5(b), 87 Stat, at 556. Second, even if the Resolution does purport to prohibit such presidential action, the President may claim constitutional authority to ignore it if the Resolution itself is unconstitutional.
33. See David J. Barron & Martin S. Lederman, The Commander-in-Chief Power at the Lowest Ebb - Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689 (2008) (discussing claims that congressional legislation is unconstitutional as an infringement of the President's war powers). Thus, ultimately the issue becomes one of presidential war powers, whether directly or through the constitutionality of the Resolution.
34. See Peter J. Smith, The Marshall Court and the Originalist's Dilemma, 90 MINN. L. REV. 612, 619 (2006) ("Originalism is a theory of constitutional interpretation that assigns dispositive weight to the original understanding of the Constitution or the constitutional provision at issue.");
35. see also Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 OHIO ST. L.J. 1085 (1989). Here I gloss over substantial disagreements about how the "original meaning" should be determined and how it should be applied in modern interpretation. I use the term broadly to distinguish originalists (so defined) from those who, while perhaps according the original meaning some relevance in interpretation, would allow judges to depart from the Constitution's original meaning in a substantial number of cases. See SCALIA, supra note 2, at 38 ("[T]he Great Divide with regard to constitutional interpretation is not that between Framers' intent and objective meaning, but rather that between original meaning . . . and current meaning."). In using the term "original meaning," I do not mean to take a position on the intra-originalist debate between those who would find meaning through authorial intent and those who would seek meaning in the common meaning of the text's words and phrases at the time.
36. Compare Larry Alexander & Saikrishna Prakash, "Is that English You're Speaking?": Why Intention Free Interpretation Is an Impossibility, 41 SAN DIEGO L. REV. 967 (2004) (defending authorial intent),
37. with Gary Lawson & Guy Seidman, Orginalism as a Legal Enterprise, 23 CONST. COMMENT. 47 (2006) (defending text).
38. See, e.g., RAMSEY, supra note 11, at 218-59; Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 YALE L.J. 672, 699-702 (1972);
39. Jane E. Stromseth, Rethinking War Powers: Congress, the President, and the United Nations, 81 GEO. L.J. 597 (1993);
40. William Michael Treanor, Fame, the Founding, and the Power to Declare War, 82 CORNELL L. REV. 695 (1997).
41. This view is shared by scholars who otherwise adopt relatively broad views of presidential powers in foreign affairs. See, e.g., Michael Stokes Paulsen, Youngstown Goes to War, 19 CONST. COMMENT. 215, 237-41 (2002);
42. Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by "Declare War," 93 CORNELL L. REV. 45, 90 (2007). But see YOO, supra note 11, at 148-49;
43. Robert J. Delahunty & John Yoo, Making War, 93 CORNELL L. REV. 123, 123-25 (2007). In any event, I shall assume for purposes of discussion that the limited view of presidential war power is correct as a matter of the original meaning.
44. See, e.g., Anthony Lewis, The Imperial Presidency, N.Y. TIMES, Nov. 4, 2007, § 7, at 26.
45. See, e.g., KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 39 (1999) ("Originalists have been particularly concerned about the discretion available to judges and therefore have been careful to clarify and emphasize the limits placed on them by the adoption of their interpretive method."). Some strands even go so far as expressly saying that only judges need be originalist. See id. at 78 ("Originalism already implicitly assumes that the legislature operates with a different interpretive standard from the judiciary's, a result of its different role in the constitutional system.").
46. See, e.g., John Harrison, Forms of Originalism and the Study of History, 26 HARV. J.L. & PUB. POL'Y 83, 83-86 (2003) (stating that a rejection of judicial subjectivity, and in particular a rejection of subjectivity as practiced by the Warren and Burger Courts, was a driving force for many originalists);
47. Edwin Meese, III, The Supreme Court of the United States: Bulwark of a Limited Constitution, 27 S. TEX. L. REV. 455, 464 (1986).
48. At least as a practical matter, this conclusion may cast doubt upon the judges-only strand of originalism. Since, in this view, judges are bound by the Constitution's original meaning, the President would be ill-advised to depart from originalist interpretation in cases in which prompt judicial review is likely. However, the class of cases in which prompt judicial review is likely is, ex ante, necessarily uncertain. This strand of originalism would apparently require the President to assess the likelihood of judicial review before settling on a method of constitutional interpretation, a practice which seems both uncertain and theoretically problematic.
49. See SUNSTEIN, supra note 2, at 7-9.
50. See FALLON, supra note 2, at 3 ("[T]he originalist model departs radically from actual Supreme Court practice."); Harrison, supra note 23, at 83-86.
51. 5 U.S. (1 Cranch) 137 (1803).
52. See SUNSTEIN, supra note 2, at 7-9 ("Not only has the Court as a whole refused to choose [a theory of constitutional interpretation] . . . , but many of the current justices have refused to do so in their individual capacities.").
53. U.S. CONST. art. II, § 1, cl. 8.
54. For a leading example, see generally John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 NW. U. L. REV. 383 (2007) [hereinafter McGinnis & Rappaport, Pragmatic Defense];
55. John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 TEX. L. REV. 703 (2002) [hereinafter McGinnis & Rappaport, Supermajoritarian].
56. See McGinnis & Rappaport, Pragmatic Defense, supra note 30, at 386.
57. By "nonoriginalist" I simply mean any approach to constitutional interpretation that is not "originalist" as I have defined it. See supra note 19 and accompanying text; see also Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1126 n.42 (2003) ("Non-originalism seems best defined, derivatively, in contradistinction to originalism.").
58. I leave aside an intermediate claim that originalism, properly followed, directs us to look to modern meaning because that is the approach the founders intended. See, e.g., RONALD DWORKIN, JUSTICE IN ROBES 29-30 (2006) (adopting this view at least with respect to individual rights provisions of many of the Constitution's amendments).
59. For the view that it is incoherent to speak of a collective intent or understanding of the multiplicity of people who framed and ratified the document, see, for example, Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204 (1980).
60. For the view that, although finding a common meaning might once have been possible, history is too complex, multifaceted, and indeterminate to allow us to do so over an extended period of time or to apply it to modern circumstances, see, for example, Paul Finkelman, The Constitution and the Intentions of the Framers: The Limits of Historical Analysis, 50 U. PITT. L. REV. 349 (1989).
61. For some theoretical responses, see Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 648-54 (1999);
62. Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226 (1988);
63. Earl M. Maltz, The Failure of Attacks on Constitutional Originalism, 4 CONST. COMMENT. 43, 50-52 (1987). I have argued that in foreign affairs law nonoriginalists too quickly conclude that the Constitution's original meaning is indeterminate or incapable of being applied to modern circumstances. See RAMSEY, supra note 11, at 1-9.
64. Most variants of this position would likely concede that the plain meaning of the text does resolve some largely undisputed matters, but would deny it can give any further guidance. Perhaps some would argue that war-initiation power is one of those clear matters. But that position seems difficult to maintain, for reasons discussed above: the interaction of the Declare War Clause and the Commander in Chief Clause is capable of an array of interpretations. See supra note 18. Even if war-initiation power is clear, other claimed presidential powers likely are not; it seems implausible to suggest that the only place the Constitution provides comprehensive clarity is with respect to presidential power.
65. See, e.g., STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 129 (2005) ("[O]riginalist doctrines may themselves produce seriously harmful consequences - outweighing whatever risks of subjectivity or uncertainty are inherent in other approaches."); FALLON, supra note 2, at 3 ("Had the Court been rigidly originalist in the past, important steps toward social justice and fair political democracy likely would have been postponed, if not forgone.").
66. See BREYER, supra note 36, at 5-6 (emphasizing the importance of judges considering practical consequences when interpreting the Constitution); RICHARD A. POSNER, OVERCOMING LAW 29 (1995) (advocating for a "fusion" of liberalism, pragmatism, and economics); SUNSTEIN, supra note 2, at 5 (emphasizing an incremental approach);
67. see also STEVEN D. SMITH, LAW'S QUANDARY 74-96 (2004) (discussing and critiquing various approaches).
68. See DWORKIN, supra note 33, at 1-35; see also SMITH, supra note 37, at 82-85 (discussing this view).
69. See generally SUNSTEIN, supra note 2.
70. To be sure, there may be nonoriginalist adjudicative theories that do not contain significant elements of subjective assessment of outcomes: an example might be one that regarded the originalist result as binding unless substantial historical practice pointed to the contrary. Such theories, however, are not dominant either in the courts or in legal scholarship.
71. Perhaps - although the position would require further development - we could insist that the President's justifications must be even more persuasive than those required from judges due to concerns over the President's objectivity.
72. In a particular case, a nonoriginalist might say that the original meaning is the right one for policy reasons and thus that the President should follow it. But this argument derives all of its strength from the policy outcome, not from its alignment with the Constitution's original meaning.
73. For Justice Scalia's colorful caricature, see SCALIA, supra note 2, at 44-45.
74. See, e.g., SUNSTEIN, supra note 2, at 238 ("The debate over constitutional interpretation cannot sensibly be resolved by suggesting that anyone who disagrees [with originalism] is inviting judges to rule as they wish.").
75. See POSNER & VERMEULE, supra note 14, at 15-57; id. at 56 ("Our original constitutional structure, with a relatively weak presidency, reflects the concerns of the eighteenth century and is not well adapted to current conditions."). But cf. Gary Lawson, Ordinary Powers in Extraordinary Times: Common Sense in Times of Crisis, 87 B.U. L. REV. 289, 293 (2007) (arguing that Posner's and Vermeule's institutional framework is generally consistent with the Constitution's original meaning).
76. See, e.g., David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996).
77. See FISHER, supra note 13, at xi (stating that since World War II, "Presidents have routinely exercised war powers with little or no involvement by Congress"); Fisher, Lost Moorings, supra note 17, at 1200.
78. See FISHER, supra note 13, at xi. Fisher regards these developments negatively but, from a nonoriginalist perspective, it is not clear why that should be true. Cf. POSNER & VERMEULE, supra note 14, at 56 ("One interpretation of history is that emergencies allow presidents to obtain powers that are necessary to cope with new problems.").
79. See, e.g., BREYER, supra note 36, at 17-20; SUNSTEIN, supra note 2, at 237-41 (imagining "judges who care a great deal about history but who explore history to identify, not particular understandings of particular problems, but overall goals and purposes").
80. RAMSEY, supra note 6, at 115-31.
81. See Nzelibe, supra note 3, at 909 ("[C]ongressional authorization is undesirable because it clogs up the President's war-making prerogative and compromises the United States' ability to confront unpredictable foreign military threats."); Nzelibe & Yoo, supra note 14, at 2518 (finding "little or no empirical data to support" the conclusion that "congressional authorization produces deliberation, consensus, and good selection of wars"); see also POSNER & VERMEULE, supra note 14, at 3-181 (arguing that the modern President needs substantial freedom to act to meet modern threats).
82. See SUNSTEIN, supra note 2, at 239-41.
83. See TUSHNET, supra note 2, at 113-20.