Let me say a few general words about one of Lou’s points, as endorsed and restated by Marty in his comment: “First, the Framers had seen up close what can happen when too much “emergency” power is concentrated in the executive (short answer: it wasn’t pretty), and therefore established substantial checks (mostly structural, but, esp. in the Bill of Rights and laws of war, also substantive) to prevent that from happening here.”
I’d like to explain why we don’t say much about the founders in our book, which was not inadvertent.
The writings of the founders are interesting for what they say about their times. These writings also identify some of the basic problems, tensions, and tradeoffs of constitutionalism, though these are all commonplaces today. It is understandable that people continue to honor the founders, read their biographies, and (in academia) occasionally read their writings. The founders belong to a very select group of practical politicians who both thought intelligently about long-term issues of governmental structure and could write clearly about their ideas, and, of course, they managed to found a relatively humane (putting aside slavery) and advanced (ditto) constitutional order that lasted more than seventy years, or maybe more than 200 years, depending on how you think about the post-Civil War settlement. About few other politicians can one say something remotely similar. But the claim that their writings can provide useful guidance about presidential power today defies common sense. The founders wanted a stronger executive than had existed under the Articles of Confederation, but not an executive that was too strong, and they all had different ideas about what too strong or too weak meant. As guidance for today, where circumstances are unimaginably different to boot, this is worse than useless.
(Gary Lawson has written a paper called “Ordinary Powers in Extraordinary Times: Common Sense in Times of Crisis,” 87 Boston University Law Review (2007) (forthcoming), which argues that our theory is consistent with the original understanding. I don’t know whether he is right or not, but the more important point for present purposes is that it illustrates the chronic indeterminacy of arguments based on founding-era materials.)
This type of preoccupation with the founders and what they would do today, reminds me of a science fiction book that I read as a child, I think it was The Foundation Trilogy by Isaac Asimov. If I remember correctly (and I might not), the premise of this book was that a great statistician had founded a new republic, and, using his statistical skills, had predicted all of the problems it would face for many years into the future, and how these problems could be solved. So whenever the republic’s leaders faced a problem, they needed only to play the video that the founder had stashed away somewhere. (For a reason that escapes me, they couldn’t play the video or portions of it until a crisis was upon them.) I like to think that Asimov was teasing constitutional lawyers, biblical literalists, and others of this ilk (and it is the same ilk, in terms of habits of mind, I think) who believe that they can solve today’s problems by examining an ancient text written by an all-seeing author.
I realize that when one makes constitutional arguments to courts one needs to dress up one’s arguments with citations to the framers (though I find it extremely unlikely that any of these arguments have had any influence on courts in at least the last one hundred years). But I don’t understand why people would think this would be useful for academic debate. If academics on both sides of the issue could agree to debate the presidency, emergency powers, and the constitution without mentioning the framers, this alone would count as progress.