History and Terrorism–Three Approaches

In a comment to an earlier post by Eric, Marty Lederman has very helpfully raised the issue of how history is relevant to our discussions. I think it is relevant in three different ways: as originalist evidence, as evidence of what is desirable institutional behavior, and as evidence of what is politically possible. After some brief thoughts on the first two, I want to focus on the third, and pose a question to Marty and the other commentators.

Some constitutional scholars take founding-era history as evidence of the original understanding of the constitutional allocation of national security powers. Eric and I are not originalists, and as Eric points out in his earlier post, it is particularly difficult to think that the original understanding is useful when the issue is how to allocate national security authority among the branches of government in 2007. Emergencies by their nature present unanticipated circumstances, and the framers’ conditions were so remote from our own that it is hard to see why we should try to settle these questions by poring over their writings. Moreover, as circumstances change over time, the relevant constitutional texts and framers’ discussions become more and more indeterminate, because the framers were not focused on the questions that are critical today.

To be sure, founding-era history might be a bit useful in the second way, as evidence of what is desirable institutional behavior during emergencies. Perhaps the weaknesses of the national government under the Articles of Confederation show that an alliance of states acting through a legislative council can’t handle a truly national security crisis. But no one alive today seriously proposes that anyway, so that information is of low value. However, as one moves through American history closer to the present, the value of history as information increases, and historical examples accumulate. Taking into account the Civil War, World Wars I and II, the early Cold War, and the post-9/11 period, there is some information about what the presidency, the Congress, and the courts ought to do during emergencies. As Marty said in a different comment, perhaps the accumulation of historical examples embodies a kind of “collective wisdom,” though this seems a bit ambitious and too Burkean for my taste. More soberly, it just gives some information about or evidence of relevant propositions, such as that there are cycles of deference to the executive during emergencies, that these cycles do not generally stick (civil liberties bounce back when the cycle has run its course), and that executive government during emergencies has brought us through several major crises, although with clear abuses along the way. This evidence is hardly conclusive, but it is something; and if we lack lots of other good evidence, it might be decisive.

But what I most want to emphasize is that history is also relevant in a third way, as showing what is politically possible (whether or not desirable) during emergencies. Ought implies can; those who want to say that Congress or the courts should be less deferential than they historically have been during emergencies need to show, first of all, that less deference is politically possible. I am not at all sure that this can be shown, or that it is true. The pressures that cause Congress and the courts to defer to the presidency during emergencies are powerful; there is a kind of inevitable logic to Justice Jackson’s observation in Korematsu that “courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.” This point generalizes beyond military orders and Korematsu. In an earlier post I brought up the recent action of the Democratic Congress in voting the administration further surveillance authority, despite the administration’s lack of credibility. If the executive is warning of terror attacks that might be prevented by changing a relevant legal rule, what else can legislators realistically do?

So my compound question to Marty and others is: could things have been different, in a realistic political sense rather than a logical sense? Can we identify an emergency in, say, the past century in which we can realistically imagine Congress or the courts being substantially less deferential than they actually were? Can we really imagine that the World War II Congress would not have ratified Roosevelt’s internment order, or that the Supreme Court could have decided Ex Parte Quirin differently than it did? Of course counterfactual claims are tricky, but implicit counterfactuals already underpin oft-heard claims that Congress or the courts should (and thus could) have acted differently in past emergencies. My suspicion is that the more deeply we understand the historical conditions in which institutions acted, the more we will think that great deference to the executive in America’s historical emergencies was politically inevitable. And if so, the many commentators (not necessarily those participating here) who suggest that Congress or the courts should have acted differently in the past may be whistling in the wind.