Last Friday the WM ACS, in conjunction with the Institute for Bill of Rights Law (Student Division), hosted Prof. Mark Tushnet of Harvard Law School.  The lecture, which was titled, “The Political Constitution of Emergency Powers,” centered upon structural divisions of constitutional power in an emergency situation.  I was very pleased to see the turnout, given that it was a Friday afternoon and about 25 degrees in Williamsburg.  Fortunately, Prof. Tushnet did not disappoint.  Here’s a recap:

To begin, Prof. Tushnet defined his terms.  He indicated that the hypothetical “emergency situation,” for purposes of his talk, was a terrorist attack-type occurence.  In such an emergency, a tension would inevitably develop between the interests of national security and those with respect to civil liberties (see the last six years).  Of course, finding the correct balance is the $100 million question.  So why not let the courts figure out what this proper balance should be?  Well, Prof. Tushnet stated that the “legal constitution of emergency powers” doesn’t work very well, thus making political solutions more desirable.  Namely, judges either act like “weak reeds,” rolling over in the face of executive assertions of power (think Korematsu), or make decisions without adequate access to information (think NSA wiretapping).

So what did the Framers envision would function as a political solution to the emergency Framerspowers situation?  Tushnet pointed to the Madisonian vision, expressed in Federalist No. 51, which explains that “[a]mbition must be made to check ambition” in times of emergency.  Essentially, Madison knew that in times of crisis, the Executive would move to maximize power.  Similarly, the Congress would also attempt to maximize its power.  In the Madisonian vision, then, these simultaneous efforts to enlarge power would counteract.  In order to accomplish any legislation, Congress and the Executive would be forced to compromise and strike an appropriate balance.

The flaw in the Madisonian vision, however, occurs when competing ambitions do not exist.  Specifically, Prof. Tushnet was describing a situation of unified government.  Instead of Congress and the Executive checking each other, a unified government cooperates to jointly maximize its power.  Consequently, the unified government scenario is that least likely to strike a proper balance between security and civil liberties.  But hasn’t such a danger existed since the beginning of the Republic?  Why worry now?

As Prof. Tushnet explained, the recent transformation of political parties into ideological parties has greatly increased the danger of imbalance.  For most of US history, the two dominant parties were regional coalitions rather than parties based on ideology.  To illustrate, consider the Democratic Party from the 1930s-1960s.  Though they were unified in name, the coalition was composed of conservative Southern Democrats and Northern liberals.  Coalition parties, more so than their ideological counterparts, always offered the possibility of defectors — party members who would cross party lines on an issue.  Because defection was not simply a possibility, but a recurring reality, even in a situation of unified government the minority party in Congress would often seek to check the power maximization of the Executive by recruiting majority party defectors.  As the parties have become more ideologically purified, however, party-line votes have become more commonplace and party unity has become an end in itself.  Therefore, it is much less likely for an ideological minority party to effectively check an Executive’s power maximization attempts.

The result of this change has been to make the political constitution of emergency powers much more volatile.  While unified government is most dangerous to social balance, divided government has become most protective.  Therefore, after the November midterms, the government structurally transformed from the type most conducive to civil rights abuses to that most likely to balance civil rights and security concerns (i.e. by changing from unified to divided government).  The drawback to such a situation is that we are placed in an extreme either/or position. 

As an example to tie this theory of government together, Prof. Tushnet pointed to the recent Hamdan ruling.  Handed down in spring of 2006, commentators hailed Hamdan as a victory for the rule of law.  However, when the Congress moved to “fix” the Court’s ruling in the summer, its solution was to do away with habeas corpus.  In civil rights terms, this result was arguably much worse than that which had existed prior to the Court’s invalidation of Hamdan.  Prof. Tushnet argued that had Hamdan been handed down after the midterms, there was no chance that the current divided government would have written habeas corpus out of the Military Commissions Act (MCA).  The conundrum is that because of historical changes to the two dominant political parties, the Constitution sets in place a structure that will result in either a most unbalanced degree of emergency powers or the most balanced degree of powers possible. 

While I’d like to think the newly divided government will effectively check the Executive’s ambition, there are also political realities that will hinder a truly effective check.  After all, both parties find nothing more important than showing the electorate that they are strong on the War on Terror.  That being said, Prof. Tushnet seems right about Hamdan.  I hope a divided government would never have allowed habeas corpus to be written away so easily.  But we’ll be bringing you that discussion in April in our annual ACS/Federalist Society debate.  So stay tuned.


3 Comments so far

  1. Mark Pike on February 20, 2007 11:57 pm

    Great timing! We just read Hamdan in Con Law tonight.

  2. Stereotypical Libertarian on February 21, 2007 10:29 am

    It’s good to see the ACS concerned with the Constitution. Hurrah!

    Theoretically, right now would be the best time to amend or overturn some of this legislation. We are furthest from an election, so Congress has at least a year to figure out how to spin preserving the 700 year old tradition of habeas corpus into not being weak on terror (I’m sure they could figure out a way) before the attack ads start. I wonder, if nothing happens, does this mean that the parties are just too afraid of the attack ads, or do they legitimately believe in the current balance? See, for example, Eric Cantor, R-VA, referring to a lack of Congressional power to declare war on Iran: “This congress is not going to do that because it‘s the commander in chief‘s…It is the commander in chief that will make that decision. Every president whether republican or Republican or Democrat since the War Powers Act was in place has interpreted it as being the commander in chief‘s role to do that.”

  3. Taimyoboi on February 21, 2007 2:04 pm

    “…so Congress has at least a year to figure out how to spin preserving the 700 year old tradition of habeas corpus into not being weak on terror…”

    I think Mr. Libertarian protests too much. The legislation only bars people from filing a writ of habeas corpus once detained by the gov’t if they (1) are not a U.S. citizen or legal resident, and (2) have been determined to be an “unlawful combatant.” Note also that the courts reserved the right to review that determination. Mr. Libertarian appeals to tradition, oddly, which recognized the right for citizens, not foreigners.

    What’s more, habeas corpus can hardly be classified as an unassailable tradition. Speaking of the U.S. constitution, it, in no uncertain terms recognizes the right of the federal gov’t to suspend it during invasion or rebellion. Given that it was suspended following the Klu Klux Klan Act in the 1870s to aid in reconstruction, he might have an uphill battle in showing Congress’s present determination is less of an invasion or rebellion then there.

    Even the English, where habeas corpus originated, have from time to time suspended habeas corpus, as during the World Wars and during conflicts in Ireland.

    If an argument is to be made that the act should be done away with, Mr. Libertarian wades into tradition at his peril.

Name (required)

Email (required)


Speak your mind