The Yale Law Journal


The National Security Constitution and the Bush Administration

25 Mar 2011

There is a widespread intuition that the Constitution provides much less than a full blueprint of the structure and powers of the contemporary federal government. Even if we regard judicial doctrine as part of the “Large ‘C’” Constitution, the intuition still seems valid. In particular, it is hard to account for the extraordinary increase in presidential power that Arthur Schlesinger has described as the “imperial presidency,” and which is critiqued in Bruce Ackerman’s most recent work, simply in terms of formal amendments and judicial precedents. A reasonable starting point for inquiry is that some part of the path of constitutional change lies outside the ordinary legal process. This creates the theoretical challenge of how to understand the nature of what William Eskridge and John Ferejohn call the “small ‘c’” constitution in their monumental new work, A Republic of Statutes.

We can draw a rough distinction between standard and unconventional approaches to the study of constitutional change outside the formal amendment process enshrined in Article V. A standard approach is one that emphasizes the inescapable reality of the “living Constitution” and the common law role of the judiciary in adapting the Constitution to changing circumstances over time. Such a theory might also nod to “the Constitution outside the courts”—meaning how the executive and legislative branches have contributed to the development of constitutional meaning.

Unconventional approaches to constitutional change are based on the premise that a focus on Article V and judicial doctrine misses other significant sources of change and is thus unable to understand the contemporary constitutional order. There is a sizable, vibrant sphere of change that owes little to formal amendments in strict compliance with Article V or judicial doctrine. This is the realm of Ackerman’s transformative amendments, Eskridge and Ferejohn’s “small ‘c’” administrative constitutionalism, driven by “superstatutes” and “superprecedents,” and my own theory that distinguishes between legalized and nonlegalized constitutional orders.

The great virtue of A Republic of Statutes is that it provides a description of the structure of what Eskridge and Ferejohn call “small ‘c’” administrative constitutionalism that is far more persuasive and fine-grained than previous accounts. Like Ackerman, they locate the origins of the “small ‘c’” constitution in social movements and the impact they have on the three branches of government. They provide a brilliant and provocative account of how the “small ‘c’” constitution affects the “Large ‘C’” document through changing constitutional baselines and entrenching new structures of governance.

A Republic of Statutes breaks new ground in the study of constitutional change by addressing a remarkable number of different areas of policy in astonishing depth. My focus in this Essay will be far more narrow. While I make some general methodological points, I am primarily concerned with the single subject of presidential power in the area of national security. I argue that Eskridge and Ferejohn’s approach does not adequately account for the constitutional change experienced as a result of the national security measures adopted in President George W. Bush’s Administration. I further argue that my theory, which relies on a distinction between the legalized and nonlegalized parts of the Constitution and explores how the nonlegalized Constitution was implemented in a series of constitutional orders, better explains the record of the Bush Administration.

In Part I, I briefly describe the debate over presidential power in foreign affairs and contrast Eskridge and Ferejohn’s approach to constitutional change to my own theory. In Part II, I advance some criticisms of their treatment of the Bush II Administration’s record in national security and show how my approach to constitutional change provides more insight into how the Bush Administration was able to take the country rapidly into a much different constitutional reality.

I. Presidential Power and Constitutional Change

Many commentators have made the case that presidentshave wielded new constitutional powers on a grand scale in foreign affairs, particularly since the beginning of the Cold War. Two examples are especially salient: initiating war or significant military conflicts without congressional approval and the deployment of claims of authority that are preclusive of congressional efforts to interfere. Thus, President Truman committed U.S. forces to defend Korea in 1950 without congressional authorization and, as described by David Barron and Martin Lederman in their comprehensive article, claimed that his actions were founded on his Article II powers and thus could not be countermanded by Congress.

Scholars have divided over how to analyze these unprecedented claims. Some have argued that such presidential actions are unconstitutional and illustrate the growing threat posed by the “imperial presidency.” Others are more sanguine, regarding these assertions of power as connected to the constitutional tradition of presidential leadership in foreign affairs and, in any case, as justified by the dramatically different global position of the United States in the decades after World War II.

I believe that we can better analyze developments with respect to presidential power in foreign affairs by accepting the reality that at some basic level constitutional change has occurred. Without losing sight of the genuine normative and interpretive concerns raised by controversial presidential claims of power, we should bracket such considerations in order to obtain a better fix on explaining what has happened. Presidents have initiated constitutional change but outside the formal amendment process and outside judicial doctrine.

Eskridge and Ferejohn approach the issues raised by the expansion of presidential power to defend national security through a dualistic model of constitutional change. In the “Large ‘C’” arena, change is controlled by formal amendments and Supreme Court decisions. Eskridge and Ferejohn appear to believe that these two processes exhaust the alternatives, and they argue that these methods of change have proven inadequate in light of the governmental alterations required by a changing economy, politics, and society. These developments have created a large space for “small ‘c’” constitutional innovation through administrative constitutionalism. According to Eskridge and Ferejohn, “administrative constitutionalism is the process by which legislative and executive officials, America’s primary norm entrepreneurs, advance new fundamental principles and policies.” This recognition is crucial to their treatment of national security policy, because Eskridge and Ferejohn understand the controversial measures taken by the Bush II Administration in this light. In the face of the threat of terrorism after the 9/11 attacks, the Administration departed from prior norms in various ways but within the space of the “small ‘c’” constitution.

In previous work, I have advanced the concept of the “legalized Constitution,” which is essentially identical to Eskridge and Ferejohn’s definition of the “Large ‘C’” Constitution. In the legalized Constitution, constitutional change occurs through formal amendments and judicial decisions. It is well known, however, that some parts of the Constitution, especially those having to do with foreign affairs and war powers, are enforced either irregularly by the judiciary or not at all. This creates a space for a “nonlegalized” but “Large ‘C’” Constitution. Although it is not clear, Eskridge and Ferejohn imply that the judiciary enforces (or underenforces) all parts of the Constitution. By contrast, I regard constitutional norms with respect to the initiation of war (the Declare War Clause of Article I, Section 8) as determinate but not enforced by the judiciary. Thus, I am not proceeding under the assumption that clauses with respect to war and foreign affairs are “underenforced.” Rather, in crucial respects they are not enforced at all, thus leaving a clear field for de facto constitutional change through executive action. The theoretical task is to describe and explain how this occurs.

The parts of the nonlegalized Constitution relevant to presidential power, such as the Commander-in-Chief Clause of Article II, are nonetheless supreme law even if they are not enforced by the judiciary. Presidents can wield, and have wielded, such clauses with enormous impact in contests for power both inside and outside the Executive Branch. The crucial point of distinction between Eskridge and Ferejohn’s theory and my own is that these existing nonlegalized “Large ‘C’” constitutional powers can and have been used by presidents to leverage significant constitutional change.

The distinction between the parts of the “Large ‘C’” Constitution that have been legalized by the judiciary and those that have not cuts across the theories offered by Eskridge and Ferejohn and those offered by Ackerman. These theories are similar in that they posit a process, alternative to that specified in Article V, to account for important changes that have kept the constitutional order up to date. But suppose a President uses “Large ‘C’” but nonlegalized powers to transform the constitutional order? Eskridge and Ferejohn’s model, in which non-Article V, nonjudicial changes are made through statutory and administrative channels, does not appear to allow for this possibility. By contrast, in the postwar era presidential power in foreign affairs expanded primarily through “Large ‘C’” constitutional means. President Truman’s decision to use his Article II Commander-in-Chief power unilaterally to involve U.S. armed forces in the Korean War is a classic example.

My theory begins from the fundamental reality that “Large ‘C’” constitutional change outside the legalized Constitution has played a substantial role in the evolution of American constitutionalism. The Constitution has never been enforced solely by the Supreme Court. It has been implemented through multiple independent and distinctive institutions, all of which have mediated constitutional meaning. At the same time that it established a textual template for these institutions, the Constitution created an agenda for future change by leaving important questions of constitutional power and structure unanswered. Further, an internal logic of constitutional stability discouraged change through formal amendment that might have answered these questions. Officials found themselves in circumstances in which they could use the existing text and institutions to implement their preferred visions of constitutional power outside Article V. As the national security state developed over time, this evolution led to persistent use of informal means, including creative interpretation, institutional restructuring, and the constituent power of the people in democratic elections to initiate constitutional change.

The process of implementing the Constitution has led to the formation of constitutional orders. These are relatively stable patterns of institutional interaction with respect to basic aspects of the Constitution such as powers and rights. As patterns of interaction, constitutional orders must be constructed from the actions and norms of multiple institutions. The working elements of a constitutional order are several and independent. The first is the text of the Constitution—the supreme law and an ineluctable source of authoritative rules of law that nonetheless is sometimes not given sufficient weight in accounts that stress the importance of the “living Constitution.” A second element is the political and policy interests of the public, elites, and state officials. A third is the structure and resources for action of state institutions, whether constituted by statutes, regulations, judicial decisions, or other means.

There is a reciprocal relationship between the authoritative text of the Constitution and the other two elements of a constitutional order. This allows for the possibility that the text could play a paradoxical role in enabling constitutional orders to change. While constitutional change does not happen solely through amendment, this recognition does not make the text irrelevant. The text can provide authority essential to those seeking to change the constitutional order outside Article V. This approach therefore avoids subsuming the written Constitution to the unwritten or “living” Constitution. Powers granted by the text are central to understanding how informal constitutional change can happen; there is thus a tension between the written and the unwritten Constitution.

The more controversial implication is that the second and third elements of a constitutional order could alter the meaning of the Constitution outside both the formal amendment process and the judicial process. Put bluntly, officials and state institutions can change the Constitution without asking for permission. This is exactly what is suggested by the critiques of the use of presidential power to defend national security. How can this happen? We should first remember that war powers and foreign affairs are in general outside the legalized Constitution. The powers of the President with respect to war and foreign affairs are not implemented or enforced by the judiciary. Especially in the Cold War period and after, presidents have had the benefit of increased institutional or state capacity to carry out their policy objectives.

Constitutional change outside the legalized Constitution is thus not analogous to change inside. It must be understood within the context of the constituent elements of a constitutional order. While we can study change inside the legalized Constitution by examining amendments and judicial interpretations, these markers of change are missing outside the legalized sphere. Without legal markers, we examine the succession of constitutional orders or, put another way, the relationship of constitutional powers and rights to the historical development of state institutions. Studying constitutional orders involves a historicist and deeply contextual investigation into how the Constitution has interacted with politics and state institutions. These institutions may imitate the judiciary and use the forms of legal argument to justify constitutional change, but they are not obliged to do so. The legislative and executive branches swim in a sea of policy and politics. To be sure, they make law, but not entrenched constitutional law. This power is reserved to the judiciary and the amendment process specified in Article V.

A further consequence of a constitutional order framework is that the norms of the nonlegalized Constitution do not, as a practical matter, have the same status as those in the legalized Constitution. Given that they are not (or are not typically) enforced by the judiciary, they lack the certainty, predictability, and authority of legal norms. This uncertain status can create, and indeed has created, ambiguity and tension within constitutional orders. Indeed, experience has shown that the process of nonlegalized constitutional change is inherently problematic. The nonlegalized norms in the Constitution have the formal appearance of legal rules. That they are not enforceable can be a source of frustration for those who take them to be binding in the manner of ordinary law. There is often a belief, certainly on display in the war powers debate, that they should be legally binding. But experience with the use of presidential war powers suggests we should be cautious in assuming that the norms of the nonlegalized Constitution work in the same way as those enforced by the judiciary.

II. National Security and Constitutional Change in the Bush Administration

The origins of the contemporary constitutional order in national security, sometimes called the “national security state,” lie in the Cold War. For reasons that I do not understand fully, we have not been overwhelmed with comparisons to the Cold War since 9/11. The pattern among legal scholars has been to search for analogies to the “War on Terror” in Lincoln’s leadership in the Civil War or Roosevelt’s decisions during World War II. While it is important to understand the constitutional order in which Roosevelt operated, especially prior to Pearl Harbor, that order underwent a major transformation after 1945. The constitutional order with respect to national security established by President Truman in the early Cold War and the all-encompassing struggle against the perceived threat of communism formed an important baseline for understanding our post-9/11 governmental and constitutional reality.

The constitutional order prior to World War II did not have to cope with global military commitments, U.S. troops permanently stationed in foreign countries, intelligence agencies engaged in covert action, or nuclear weapons. It was based on elements, such as isolationism, enforced by statutes, such as the Neutrality Acts, that we do not endorse today, but also on a sharp distinction between wartime and peacetime and declarations of war as integral elements of diplomacy. The Cold War constitutional order involved apprehension of an existential threat, a perceived danger from an appealing global ideology that mandated increased internal security, assertions that we had to stand ready to violate long held values and beliefs, and enforced acceptance that we were in totally unique circumstances, never before seen in American history, involving an indefinite “long war” against an implacable foreign enemy. If these elements seem familiar, as of course they should since 9/11, I hope that readers will join me in wondering why scholars have not been probing the early Cold War more assiduously for clues about the genesis of national security policy in the Bush II Administration.

The beginning of Eskridge and Ferejohn’s analysis of the Bush-Cheney Administration is, to some extent, uncharacteristic of the rest of the book. For example, in contrast to the amazingly rich preceding chapter on gay rights, they do not develop a deeply contextualized history to set forth the baseline for the Constitution and national security policy prior to 9/11. It is somewhat surprising that Eskridge and Ferejohn do not notice the strong connections between the Cold War constitutional order and the Bush-Cheney approach to the presidency. It is possible that the relative absence of historical context hinders them from seeing national security as an arena of larger scale constitutional change. Notably, Eskridge and Ferejohn accept the controversial proposition that from the beginning, the Constitution did not speak in specifics with respect to foreign affairs. They thus appear to base their analysis of national security policy on the “presidentialist” perspective in the decades-long debate over executive power in foreign affairs without acknowledging the deep Cold War roots of this position.

Whatever the historical context of Eskridge and Ferejohn’s analysis, I am concerned by two specific aspects of their argument. They accurately describe a “presidential”approach represented by the Bush-Cheney “Large ‘C’” constitutional claims of power “to respond in any way necessary” to terrorist attacks, unconstrained by statutory law. As they see it, however, the Administration defended itself against critics on statutory grounds, invoking the September 2001 Authorization for Use of Military Force (AUMF). To Eskridge and Ferejohn, this response “illustrate[s] that fundamental issues of America’s national security constitution have gradually migrated away from Large ‘C’ Constitutional claims to practices of statutory interpretation.” Relatedly, they argue that “small ‘c’” constitutional norms embodied in “longstanding rules and practices,” as well as in Supreme Court rulings, were successful in constraining the Administration’s controversial national security agenda.

There is substantial agreement as to what was troublesome in the constitutional record of the Bush presidency. The three most salient departures from the status quo were: (1) indefinite detention without due process inside the United States and its possessions; (2) authorization of torture and other harsh interrogation techniques; and (3) authorization of National Security Agency (NSA) surveillance outside of the framework set by the Foreign Intelligence Surveillance Act (FISA). In turn, these initiatives shared a common characteristic: they could not have happened unless it was assumed that the President had the unilateral power under the Constitution to authorize the violation of federal law and judicial doctrine, even in the absence of a prior finding that the law in question was unconstitutional.

Such a sweeping “prerogative” power was officially claimed by the Bush Administration. Barron and Lederman have called this the theory of “preclusive Commander in Chief powers.” It asserted “the President’s constitutional authority as Commander in Chief to override existing legislative constraints on his conduct of military operations.” This theory was expressed in the infamous August 1, 2002 “torture memo” signed by Jay Bybee, Assistant Attorney General for the Office of Legal Counsel (OLC), and drafted by John Yoo. Among other points, the memo claimed that “Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war.” Further, “[a]ny effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” These were the claims that Jack Goldsmith has described as having “no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law.”

While Eskridge and Ferejohn clearly disapprove of various aspects of the record of the Bush-Cheney Administration, their analytical points of departure leave us short of an adequate account of how the Administration took the country rapidly into a world of torture, surveillance contrary to law, and legal black holes such as the detainee facility at Guantánamo Bay. In contrast to Eskridge and Ferejohn, I see the innovations of the Bush presidency as “Large ‘C’” constitutional all the way down. President Bush and Vice President Cheney invoked Article II constitutional powers and, consistent with executive practice in the Cold War, deliberately avoided claiming authority to wage war based on statutes such as the AUMF. Whatever one thinks of the Bush Administration’s departures from the status quo, the missing element in Eskridge and Ferejohn’s analysis is how President Bush altered the constitutional order in such a way as to make these policies possible in the first place. I suggest we require a theory that is attuned to the Cold War constitutional order, shows how “Large ‘C’” powers can be used to leverage additional state capacities, and is able to explain the problematic character of the constitutional order that has resulted—one prone to violating its own precepts in constitutional crises. To make sense of the Bush Administration, in other words, we must pay attention to the idea of a constitutional order.

It is common to analyze the constitutional questions raised by the Bush II Administration’s national security policies by focusing on the arguments made by its lawyers. Thus, Eskridge and Ferejohn describe a set of policies that were eventually evaluated by the judiciary and generally found wanting. However, focusing solely on the Administration’s interpretive forays is insufficient because it ignores how they were made possible and structured by President Bush’s deliberate efforts to revive and extend the Cold War constitutional order. It also misses that, on the whole, the Bush Administration was successful in creating a new constitutional order in national security. The Supreme Court’s decisions have made little difference to the situation of the detainees and did not address issues of interrogation or surveillance. When Democrats took control of Congress in 2006, they were unable to alter significantly the new constitutional order in national security. The Bush order had such staying power that the Obama Administration has not been able to break with it fully.

An approach that focuses primarily on the constitutional interpretations put forward by the Bush Administration’s lawyers rests ultimately on the assumption that change in the nonlegalized constitutional order can be understood and evaluated in the same way as change in the legalized Constitution. This is precisely what needs to be put into question. To carry out such a project, we would have to ignore that the judiciary has never developed interpretive standards for the exercise of presidential power in time of war. The exercise of such power is unregulated, so to speak, at least by the standards of the legalized Constitution. But it can be understood through a theory of the nonlegalized constitution.

Even prior to 9/11, the Bush II Administration was committed to transforming the constitutional order through a major expansion in presidential power. This was a long-held point of view among certain Republicans and conservatives, and Vice President Cheney in particular. While it is beyond the scope of this Essay to set the Bush presidency in historical context, it is possible to see it as part of a pattern in which the aggressive constitutional exercise of power, especially in foreign affairs, suggests both the flexibility and deeply problematic character of nonlegalized constitutional change. After the 9/11 attacks, President Bush used his Commander-in-Chief power to aggressively define the reality in which all branches of government would henceforth operate—a state of war equivalent to the Second World War. National security initiatives were often secret in that the public (and indeed other Administration officials) did not know they were taking place. They were implemented by executive cliques or “shadow governments,” not through public deliberation.

A “Large ‘C’” model of constitutional change highlights the latent power contained within roles created by the text. History suggested that after a Pearl Harbor-like attack, vast power to shape the nation’s response would flow to President Bush. Arguably the single most important constitutional action in the aftermath of the shocking and disorienting events of 9/11 was President Bush’s assertion that the United States was at war. The President had the option of encouraging public deliberation on the nature of the response. Instead, President Bush immediately categorized the attacks as a military operation, akin to an invasion by a foreign state. The President told his advisers “[w]e’re at war” just hours after the attacks occurred and made a global war on terror the official policy of the executive branch. Two days after 9/11 the President told the press, “[N]ow that war has been declared on us, we will lead the world to victory.”

By describing 9/11 as a war, President Bush short-circuited any meaningful debate over the nature of the attacks and the appropriate response. But his constitutional claims were just as significant. While he participated in the process that led to the September 2001 AUMF, the President made his position clear that he did not need it to prosecute the war. In two subsequent letters to Congress, the President ignored the AUMF and apparently invoked his customary power to respond to sudden attacks by stating that he had ordered military action “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.” This meant that the President did not intend to be bound even by the broad terms of the AUMF.

At the same time he bypassed Congress, the President was treating the war as a precedent-shattering world struggle against evil. Taken cumulatively, these statements described a presidency at the zenith of its constitutional power—a Commander-in-Chief responding to a surprise attack with the backing of Congress. This framing put the “War on Terror” on a legal and normative plane with the Second World War and suggested President Bush could exercise the same authority possessed by President Roosevelt. Executive branch attorneys lost no time suggesting that because Roosevelt had used military commissions to try Nazi saboteurs as “unlawful combatants,” Bush could do the same thing with respect to captured terrorists.

President Bush’s definition of reality after the 9/11 attacks was thus a remarkable example of the creative tension between “Large ‘C’” constitutional powers and nonlegalized constitutional change. His ability to define reality in the aftermath of the attacks so thoroughly pervaded the public sphere that the press and the public were still having trouble escaping the 9/11 frame as the Iraq War began in early 2003. President Bush used his power as Commander-in-Chief to leverage a transformation in the constitutional order. Energized by these presidential claims of authority, the executive branch set into motion all of the questionable policies that would later come to light: indefinite detentions, military commissions, NSA surveillance, and torture.

Secrecy, not public deliberation, was essential to the creation of this new constitutional order. The “War on Terror” featured secret decisions, secret executive orders, and secret programs, not unusual in wartime. However, these initiatives also had secret constitutionalrationales, something that was critical to getting them off the ground by shielding them from the normal processes of interagency review. Goldsmith provides an example in his account of the secret NSA program. He states that Vice President Cheney and his counsel David Addington

  had abhorred FISA’s intrusion on presidential power ever since its enactment in 1978. After 9/11 they and other top officials in the administration dealt with FISA the way they dealt with other laws they didn’t like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.  

Among the Bush Administration’s most important institutional innovations were the changes Cheney made to the Office of the Vice President (OVP). In addition, lawyers in the White House, OVP, and the Department of Justice (DOJ) used their positional advantages to immunize executive officials from legal liability by adopting the theory of “preclusive” Commander-in-Chief powers. Vice President Cheney believed that the presidency had sunk into a trough of weakness in the wake of mid-1970s congressional reform efforts and had never recovered. He has been described as “[t]he most powerful vice president in American history,” and the positions he and Addington advocated were often decisive in the Administration’s councils.

Cheney’s institutional role,unique among Vice Presidents, flowed in part from his unusual political status. He had no ambitions for the presidency and could function, especially during Bush’s first term, as a sort of policy overlord, his influence flowing both from his position as constitutional officer and uber-staffer. The practical consequence of Cheney’s lack of a political future was that he was politically accountable only to Bush. Cheney seemed to loathe the standard forms of political accountability: after the 2006 elections in which Republicans lost control of Congress, Cheney compared the election results to a lone poll of public opinion.

Cheney’s role enabled the OVP to go operational in the manner of a cabinet department with statutory authority. What happened in the Bush Administration bears a strong institutional resemblance to Watergate in the Nixon Administration and the Iran-contra scandal in the Reagan Administration: these episodes all involved the White House acting independently of executive branch agencies. Nixon used the “Special Investigative Unit” to investigate intelligence leaks outside the FBI and CIA; and the Iran-contra scandal resulted when the National Security Council under Admiral John Poindexter and Lieutenant Colonel Oliver North assumed operational responsibilities for saving American hostages held in Lebanon. While conducting operations from the White House allows for greater secrecy and flexibility, it can obviously lead to grave constitutional difficulties.

The consequences of OVP going operational played out in a variety of barely believable ways. OVP began running the legal side of the war against terror. Cheney bypassed a preexisting interagency review in obtaining an executive order to establish military commissions as the Administration’s way of handling detainees. OVP was intimately involved with running the NSA’s illegal domestic surveillance program. An internal Administration controversy over its legality nearly caused a constitutional crisis when Bush and Cheney decided, temporarily as it turned out, to go forward with the program in the face of the uniform opposition from the DOJ.

An especially dangerous consequence of OVP’s operational authority was the subordination of the OLC to the White House. As commentators have pointed out, OLC functions as a type of Supreme Court for the executive branch. OLC opinions can be used to immunize executive branch officials for violations of federal law. In addition, because OLC has the last word in disputes over constitutional interpretation, whoever controls it has a decisive positional advantage in any legal debate within the executive branch. Lawyers in OVP and the Office of the White House Counsel sought to reduce the historically independent role of OLC in their effort to control interrogation policy.

Lawyers in OLC responded with a series of opinions that took the executive branch out of the system of checks and balances during wartime. The 2001-02 OLC opinions were critical to the creation of a lax interrogation policy in which abuses were all but inevitable. Here we can see the practical import of positional advantage within the executive branch. With OLC opinions shielding them, those pushing for a forceful approach to interrogations within the Department of Defense occupied the high ground. Constitutional change in the Bush II Administration thus resulted as much from the relationships of institutions inside the executive branch as from overly aggressive lawyering. Indeed, the quality of the reasoning in the OLC opinions was less important than the very fact that the opinions were issued.


This Essay must of necessity be brief, so I will close with some observations about what 9/11 and the Bush Administration’s expansion of executive power showed about the limits of theories of constitutional change, such as those offered by Eskridge and Ferejohn as well as by Ackerman, built around public deliberation and social movements. The first problem is the lack of a movement with respect to national security. It would be difficult to show that a social movement existed prior to 9/11 in favor of increased presidential power to confront the terrorist threat rather than, at most, a belief along those lines held by certain elites. Even at the level of elites, the link to terrorism was missing, given that terrorism was not a focus of the Bush presidency before 9/11.

Another problem is that these theories depend upon extensive public deliberation to ensure that the constitutional changes that they describe are accepted as authoritative. But this is precisely what was missing from post-9/11 America. President Bush thoroughly short-circuited the public sphere by immediately describing the conflict as a “war,” and, indeed, a new world war; a meaningful public debate over the nature of 9/11 and whether it should be handled as a war or as a colossal crime against the United States thus never occurred. Groups of bewildered citizens wondering why it was not treated as a crime were left well behind as the Administration moved ahead. Even if these difficulties were overcome, theories built on deliberation and movements would face the problem of secrecy. Many of the most important initiatives of the Bush Administration did not come to light until early 2004. Even after those controversies, what the Bush Administration did remained so blacked out of the historical record that its opponents were calling for a full accounting as Bush left office.

It is surely no accident that Eskridge and Ferejohn’s theory works best for the civil rights movement, perhaps the most successful social movement in American history. All of their most persuasive examples of “small ‘c’” entrenchment come from either the civil rights movement or the “disentrenchment” sponsored by the gay rights movement. National security policy has followed a different logic, one rooted ultimately in the Cold War. I have used this Essay to suggest that a theory founded on a distinction between the legalized and nonlegalized Constitution—and attuned to understanding how the nonlegalized Constitution has been implemented in a succession of constitutional orders—is better able to account for the Bush presidency.

Stephen M. Griffin is Rutledge C. Clement, Jr. Professor in Constitutional Law, Tulane Law School. The author thanks the other participants in the symposium for their helpful comments and Bill Eskridge and John Ferejohn in particular for their generous responses.

Preferred citation: Stephen M. Griffin, The National Security Constitution and the Bush Administration, 120 Yale L.J. Online 367 (2011),