Vol. 15 No.8 (August 2005), pp.778-783

 

THE CONSTITUTION IN WARTIME: BEYOND ALARMISM AND COMPLACENCY, by Mark Tushnet (ed).  Durham, NC: Duke University Press, 2005.  272pp. Paper. $22.95. ISBN: 0-8223-3468-2. Cloth. $79.95. ISBN 0-8223-3456-9.

 

Reviewed by Richard A. Glenn, Department of Government and Political Affairs, Millersville University, Pennsylvania.  Email: richard.glenn@millersville.edu .

 

The difficult tension between the responsibility of a liberal democracy to protect individual freedoms and its concurrent responsibility to provide security to its citizens is most assuredly made more complicated by modern realities.  But the fundamental question remains the same today as it was two centuries ago: Is there a reasonable (and constitutionally acceptable) way to balance the need for the United States to protect itself from threats to national security—not knowing when or where or how the next attack might occur—with the need to preserve individual freedoms?  Unfortunately, loose statements about the need to balance liberty and security come close to exhausting the public discussion of this important question.  THE CONSTITUTION IN WARTIME: BEYOND ALARMISM AND COMPLACENCY, edited by Mark Tushnet (Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center), remedies this deficiency by identifying and explaining the enormous complexities of constitutionalism during wartime.  And it does so remarkably well.

 

THE CONSTITUTION IN WARTIME is a collection of balanced essays written by legal scholars and political scientists and from a variety of perspectives in law and political science.  Targeted more toward the upper-level student or academic than the layperson, the essays seek to move the discussion of the Constitution and war beyond the two commonly voiced (and diametrically opposed) views—the alarmism of those who see in virtually every action taken by the administration of President George W. Bush a portent of gross restrictions of civil liberties, and the complacency of those who see virtually every action of the Bush administration as wise and reasonable accommodations of civil liberties to the new realities of national security.   

 

THE CONSTITUTION IN WARTIME “presents initial reflections in what might be called this second generation of more temperate responses to the Bush administration’s declaring a war on terrorism.”  This “second generation” of scholarship on the war and the Constitution differs from the initial set of responses to the positions advocated and policies adopted after the attacks of September 11, 2001, in a number of ways.  For example, the “first generation” of scholarship was long on quips, short on analysis, and contributed little to the public’s understanding of the real constitutional issues raised during a time of war.  (After all, our present dilemma cannot be resolved—and our debate is hardly advanced—by simply repeating Benjamin Franklin’s warning to his fellow colonists in 1759, “They that can give up essential liberty to [*779] obtain a little temporary safety deserve neither liberty nor safety.”)  In the “second generation” of scholarship, civil libertarians remain leery of the president’s initiatives, but take seriously the possibility that prior tradeoffs between liberty and security should be reconsidered; and supporters of more security-oriented policies acknowledge the possibility that such policies may indeed pose serious threats to fundamental liberties.  Additionally, the “second generation” of scholarship treats constitutional policy during wartime “as an example of constitutional policy generally, not as an exception to it.”  The aim of this approach “is to deal with questions about constitutionalism during wartime in just the way one deals with questions about constitutionalism in other circumstances.”  Finally, the “second generation” of scholarship is willing to consider the thesis, jarring though it may be, that war is an exception to constitutionalism. 

 

The eleven essays are divided into four parts (alas, without titles), each with two or three essays.  Part I introduces the general subject matter.  Part II addresses the constitutional questions about war and civil liberties.  Part III explores the allocation of power between the legislative and executive branches during wartime.  And Part IV “expands the focus,” by looking specifically at the actions of the Bush Administration in the war on terrorism and the U.S. Supreme Court’s response to those actions.  Most of the essays are broad in scope, examining history and drawing general conclusions about governance in wartime; only a few are specifically focused on the present conflict.  To be certain, though, THE CONSTITUTION IN WARTIME does not seek a direct confrontation with the current policies of the Bush administration.  This is one of the book’s strengths. It has no political axe to grind.  It is also among its few shortcomings; the reader would benefit by hearing at least some from this impressive cast of contributors what they really think about specific contemporary practices.  A complete list of essays and authors is provided at the conclusion of this review.

 

The three essays in Part I address critically the ancient Roman precept, inter arma silent legis—in a time of war the law is silent.  Mark E. Brandon’s essay sets the stage.  Because the United States was founded upon, and has often resorted to, military conflict (from the Revolution to the present, eighty-four separate significant engagements, listed chronologically in a useful chart), militarism has become a regular aspect of our nation’s life.  Brandon demonstrates how these continual military engagements pose special dangers to the American constitutional order.  While most of these dangers are familiar to those who study this topic—the “warrior state” is inconsistent with our self-image as peaceful people; rights give way to power during wartime; militarism leads to secrecy and alters institutional authority; and so on—the succinctness of the presentation enhances its understandability.  In a second essay, Tushnet seeks to answer the question, “How should war be incorporated into American constitutionalism?”  After mentioning the two standard responses to the question—(1) war is relevant to the application of constitutional standards (balancing approach); and (2) war triggers the application of a distinctive set of constitutional standards [*780] (categorical approach)—Tushnet makes a compelling case that American constitutionalists should consider a third option: War presents the possibility of justifying widespread suspension of legality.  It may well be preferable, he asserts, to have emergency powers exercised in an “extra-constitutional” way “so that everyone understands that the actions are extraordinary, than to have the actions rationalized as consistent with the Constitution and thereby normalized.”  The most difficult to comprehend of the essays—written by Eric Posner and Adrian Vermeule—analyzes the arguments of the alarmists and the complacents through the lens of public choice theory and behavioral law and economics, expressing some skepticism toward the claims of the alarmists.

 

The crux of the book comes in Parts II and III.  In Part II, Mark A. Graber presents the “counter-stories,” showing how wartime conditions have produced policies protective of rights and liberties approximately as frequently as wartime conditions have resulted in policies restrictive of them.  In other words, war does not exert a general, across-the-board pressure to restrict rights and liberties; instead, this essay shows how governmental policy during wartime is determined by a confluence of factors—mobilization needs, ideological justifications for the war, the identity of potential rights holders, and the predispositions of crucial rights actors.  Clearly, knowledge of these counter-stories will improve the current debate.  Also in Part II, Tushnet tackles the “elephant in the living room” in any discussion about the Constitution in wartime—the internment of Japanese-Americans during World War II and the U.S. Supreme Court’s approval of such a practice in KOREMATSU v. UNITED STATES (1944).  Critics of President Bush’s current policies invariably invoke the specter of KOREMATSU.  But Professor Tushnet reminds us that, while we have the luxury of reflection, policymakers must act before the event.  Accordingly, unless we are confident that the constraints we put on policymakers “really do respond only to tendencies to exaggerate uncertain threats or to develop ineffective policy responses to real threats,” we should be reluctant to restrain policymakers because of our hindsight wisdom.  From a policymaker’s perspective, it is a “damned if you don’t, damned if you do,” problem.  President Bush is blamed for not recognizing the immediacy of the threat that came to fruition on September 11, 2001; he is similarly criticized for waging war on Iraq when the threat was perhaps not imminent.  Tushnet’s essay is entitled “Defending KOREMATSU,” although I do not think it is a defense, at least not a strong one, of that decision.  It is, however, a reminder that decision makers act with imperfect information and that if KOREMATSU is to be condemned to the constitutional junkyard, it certainly deserves a more proper burial.

 

The three essays in Part III are more specific, discussing the wartime roles of the legislative, executive, and judicial branches, and that of international law.  William Michael Treanor explores the enduring struggle between the Congress and the president over the power to wage war.  To his credit, he does not attempt to resolve the differences of opinion on this point, but focuses on an equally critical question—how to determine as a matter of law when Congress has signed [*781] off on military action.  This essay also points out reasons why the president has historically been more militaristic than the Congress.  A second essay, by Richard Pildes and Samuel Issacharoff, suggests an institutional process approach for courts to follow in assessing rights and liberties during wartime.  By revisiting some of the more dramatic assertions of military prerogatives in American history, the authors demonstrate how judges have been reluctant to adopt both civil libertarianism and the executive unilateralism, instead shifting the responsibility for these difficult decisions to the joint action of the democratic branches of government.  When the president acts pursuant to express or implied authorization of Congress, his authority is at its maximum (and courts are likely to acquiesce to executive authority).  But when the president acts in the face of or without legislative authority, his power is at its lowest ebb (and courts are likely to invalidate executive action).  Pildes and Issacharoff offer evidence that this institutional and process-based method is “the predominant American approach during wartime.”  In a third essay, Peter J. Spiro tackles what is becoming an ever increasing influence on American constitutional law—international norms.  (This influence can be seen clearly in two relatively recent decisions of the U.S. Supreme Court—LAWRENCE v. TEXAS (2003) and ROPER v. SIMMONS (2005), dealing with homosexual sodomy and capital punishment for juveniles, respectively.)  Among other conclusions, Spiro illustrates how the international community appears to have restrained the United States government from a more serious assault on civil liberties.  The essay indicates that rendition (“he who has the bodies calls the shots”), conditional cooperation (the United States needs allies in the war on terror to assist in intelligence gathering), and reputation (the United States needs to avoid criticism from other countries and transnational NGOs) are mechanisms for “bringing the hegemon to heel.”

 

David Luban’s contribution in Part IV is the most political of the essays.  He asserts that the Bush Administration has selectively, dangerously, and in an unprincipled fashion combined elements of the war model and elements of the law model—the model of war being much freer than that of law—to maximize its ability to mobilize lethal force against terrorism while eliminating most of the traditional rights of a military adversary.  It is far too easy, Luban rues, for the president to divest an individual of rights and liberties simply by announcing that the individual is an enemy combatant.  (This essay was originally published in 2002, two years before the U.S. Supreme Court placed some restrictions on such executive prerogatives in RASUL v. BUSH and HAMDI v. RUMSFELD.)  Luban has a distinct advantage in this discussion, however.  The essay is critical of the response of the Bush Administration, but offers no recommendations as to a better way.  Given that this war on terrorism differs dramatically from every other war in recorded history, it is unfair to criticize without offering suggestions.  (Professor Luban may well have proposed a better way in other writings.)  While generals are often criticized for preparing to fight the last war instead of the next one, scholars should be cautious about using the principles of the last war to criticize the current one, given modern [*782] realities.  Perhaps for balance, an essay by Sotirios A. Barber and James E. Fleming follows Luban’s.  This essay reminds the reader that the people’s safety in time of war may rationalize unconstitutional acts.  Because “fidelity to the Constitution requires material conditions that the Constitution cannot guarantee,” sometimes one must violate the Constitution to restore the conditions for honoring constitutional forms and rights.  (President Abraham Lincoln intuitively understood this when he suspended writs of habeas corpus in 1861.)  After all, the Constitution is not a suicide pact.  Unnecessarily, however, the authors announce that the decision of the Rehnquist Court in BUSH v. GORE (2000) was NOT an example of ignoring the constitutional rules to spare the country greater harm (in the spirit of Lincoln’s suspension of habeas corpus), but rather an example of sacrificing its own principles to political and social order.  Finally, in an afterward, Tushnet provides a summary of the facts, issues, holdings, rationales, and separate opinions of three important Supreme Court decisions from 2004—RASUL v. BUSH, RUMSELD v. PADILLA, and HAMDI v. RUMSFELD.

 

I have often found collections of essays difficult to read (and awkward to review).  Far too often, they are lengthy, repetitive, and disconnected.  None of those claims can be made about THE CONSTITUTION IN WARTIME.  Tushnet has assembled a highly regarded group of academics to produce a well-reasoned, well-written, and well-balanced piece of scholarship.  The cogent and helpful introduction lays out clearly the purpose and direction of the book—a blessing to the reader (and to the reviewer).  What follows is what is promised—honest and detailed yet accessible analyses of legal and constitutional issues of pressing concern today.  This is a good read, a book from which the upper-level undergraduate, the teacher, and the informed citizen can benefit.  And, no doubt, if more people would read it, our public debate on this topic would improve appreciably.

 

ESSAYS INCLUDED:

Mark E. Brandon (Professor of Law, Vanderbilt University Law School): “War and the American Constitutional Order”

Mark Tushnet (Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center): “Emergencies and the Idea of Constitutionalism”

Eric Posner (Kirkland and Ellis Professor of Law, University of Chicago) and Adrian Vermeule (Professor of Law, University of Chicago): “Accommodating Emergencies”

Mark A. Graber (Professor of Government and Adjunct Professor of Law, University of Maryand): “Counter-Stories: Maintaining and Expanding Civil Liberties in Wartime”

Mark Tushnet: “Defending KOREMATSU”

William Michael Treanor (Dean and Professor of Law, Fordham University School of Law): “The War Power Outside the Courts”

Samuel Issacharoff (Harold R. Medina Professor in Procedural Jurisprudence, Columbia University Law School) and Richard H. Pildes (An-Bryce Professor of Law, New York University School of Law): [*783] “Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime”

Peter J. Spiro (Professor and Associate Dean for Faculty Development, Hofstra University Law School): “Realizing Constitutional and International Norms in the Wake of September 11, 2001”

David Luban (Frederick J. Haas Professor of Law and Philosophy, Georgetown University Law Center): “The War on Terrorism and the End of Human Rights”

Sotirios A. Barber (Professor of Government, Notre Dame University) and James E. Fleming (Professor of Law, Fordham University School of Law): “War, Crisis, and the Constitution”

Mark Tushnet: “Afterward: The Supreme Court’s 2004 Decisions”

 

CASE REFERENCES:

HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

 

KOREMATSU v. UNITED STATES, 3223 U.S. 214 (1944).

 

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

 

RASUL v. BUSH, 542 U.S. 455 (2004).

 

ROPER v. SIMMONS, 125 S.CT. 1183 (2005).

 

RUMSELD v. PADILLA, 542 U.S. 426 (2004).

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© Copyright 2005 by the author, Richard A. Glenn