Saturday, January 3, 2009



In law school, I loved Constitutional Law because it addressed issues larger than mere property ownership. It provided insights into American history and American values. It also revealed our government’s intricate structure, as well as the theories intended to preserve that structure. When the Framers drafted the Constitution in 1787, they had only one thing in mind: To ensure that Americans did not live in an absolute monarchy.

As a law student, I did not have time to consider the historical context to my studies. I simply tried to memorize the catchphrases and verbal formulas needed to correctly analyze questions on an examination. Thankfully, however, I had enough intellectual curiosity to recognize that something much larger was afoot in constitutional doctrine. These cases, I thought, discuss monumental questions about government, power and civilization that have persisted for centuries—and in many different countries than the United States. After law school, I readjusted my mind away from pure legal doctrine. I freshened my legal knowledge with my background in history, language and literature. With time, I began to truly understand Constitutional Law.

In 1787, Americans did not want absolute monarchy because they saw that unchecked executive power can subjugate a society. During the colonial period, royal agents roamed at will in North America, levying taxes, conducting searches, suppressing political dissent and throwing people into prison without charges. By constitutional text, the Framers clearly delineated between legislative, executive and judicial authority. Any power delegated to one branch could not be exercised by another branch. Article I specifically listed Congressional powers, and they far outnumbered executive powers. Benjamin Franklin so loathed executive power that he proposed a two-branch government. He thought that a Congress and a Supreme Court would be sufficient. In the end, the Framers agreed on a three-branch system, confident that the executive would remain in check.

But has the executive remained in check? And why were the Framers so wary about the executive? Even during law school, I saw the reason. Executive power is ominous because it is uncertain. The Constitution simply says: “The executive Power shall be vested in a President of the United States of America.” Article II, § 1. There is no further definition. Later in the text, the Article II tells us that the President shall be the “Commander in Chief of the Army and Navy of the United States,” Article II, § 2, and that he “shall take Care that the Laws be faithfully executed.” Article II, § 3. What can we infer from these cryptic words? We see first that the President has “the” executive power. Second, we see that the President controls the military. We can infer that the military, then, is under executive control. We begin to see the nature of executive power: It is armed force. The executive is the guy with the guns. This accords with historical understanding. Absolute monarchs in Europe wielded absolute power because they controlled the armed forces. If someone did something they did not like, they simply crushed them with military power.

He who controls the army generally controls everything. This has been true since Greco-Roman times. Roman emperors could never count on lasting power without the army behind them. In medieval times, lords dominated their lands because they had armed knights to intimidate their rivals. And in the era of early European nation-states, Kings kept power by marshaling large national armies that could crush dissent. The Framers knew this history well. They knew that in England, absolute monarchs with absolute executive power could do much more than crush dissent. They could alter a nation’s religious beliefs, summarily punish “undesirables” and keep people imprisoned without charge. They could penalize speech simply because they disagreed with its content. Apparently, the Framers thought they could create a “tempered” executive that would maintain military control without using it to tyrannize the population. They trusted the Constitution’s divided structure—as well as human reason—to prevent individual Presidents from running amok. They also put their trust in something that seems archaic to us today: An oath. Incoming Presidents must publicly declare: “I solemnly swear [to] faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Article II, § 1, Clause 7. Lesser executive officers must make a similar oath “to support the Constitution.” Article VI, § 3.

Are oaths and hypertechnical textual niceties enough to keep executive power in line? I have often marveled at this Nation’s ability to keep the constitutional order. After all, a ruthless President could easily use his military power to fatally undermine the supposedly “coequal” Congress and Supreme Court. After all, in practical terms, what could stop the President from ordering the army to take over the Supreme Court if it rendered a decision he did not like? True, another court would say he needs to show cause for “seizing” the justices under the Fourth Amendment, but if the President controls the executive, who will execute the law against him? Courts would merely breathe hot air in his direction. Without force, legal pronouncements mean nothing. Cf. Immanuel Kant, The Metaphysics of Morals, Introduction to Legal Doctrine, § D (“The law is bound up with the authority to compel.”). Perhaps military officers would refuse to carry out such an order. But military officers are executive officers loyal to the President. If a President were truly ruthless, he would simply put guns in the faces of anyone who stood in his way. Only his “oath” prevents him from doing exactly that.

We do not yet live under an executive dictatorship. But that is not to say that the executive has not amassed enormous power in our everyday lives. Because executive power is so fluid, it can easily spawn new subsidiary organizations to do its work. In 1787, the Framers mentioned only the “Army and Navy” as executive weapons. In the intervening generations, however, the executive has added new weapons to its arsenal.

In both the federal government and in every State, executive institutions have organized police forces. I wrote several months ago that modern-day uniformed police forces were nonexistent in the 18th Century. Monarchs used “constables” and “magistrates” to carry out individual arrests and investigations. There was no generalized “social surveillance” or “patrolling” as there is now. Monarchs also used their constables and magistrates to summarily detain people without charge. The Framers were keenly aware of this and recoiled from unjust detention practices. Reformers in both America and France associated imprisonment with the “excesses of sovereign power” and “arbitrary royal decision.” Michel Foucault, Discipline and Punish (1975), p. 119. But in the 19th Century, executive power introduced “centralized police” to carry out a whole new program of “[searching for] criminals, urban surveillance and political supervision.” Id. at p. 213. This was a new development, because unlike the old royal magistrates, these police forces concerned themselves with “minuteness of detail,” creating a “permanent, exhaustive omnipresent surveillance” through “thousands of eyes posted everywhere, mobile attentions ever on the alert.” Id. at pp. 213-214. Executive intrusion into everyday life, then, ceased to be arbitrary or sporadic. Through modern police practice, such intrusion became systematic.

Modern police power does not just supervise; it also collects information about everyone and everything. Foucault noted that 19th Century police forces assembled “immense texts, reports and registers” that compiled a “permanent account of individuals’ behavior.” Discipline and Punish, at p. 214. In this light, we see that the executive controls far more than brute military force. It also controls an insidious surveillance apparatus that obtains knowledge about almost every citizen. The Framers could not have foreseen this development. Yet it has undeniably increased executive power, for increased knowledge inevitably leads to greater political authority. The Constitution’s text can do little against modern police practices, because the text dates from an era when such practices did not exist. The industrial revolution introduced monumental social and philosophical changes, including the social tendency to more scrupulously “discipline” individual citizens as “parts” in an efficient new industrial economy. But these changes postdated the Constitution. Without core constitutional text to constrain them, executive practices grew freely to accommodate the new society.

I mention all this to underscore how powerful the police can be. This troubles me, because I know—as a matter of constitutional law—that no governmental branch should wield excessive power in relation to the other two. Modern police power translates into increased executive power. Modern police power was largely unknown to the Framers, and the Constitution serves as a poor check upon it. The Framers did not live in a world where uniformed executive deputies roamed the landscape exercising executive power over every citizen within their view. True, one may argue that constant executive power vindicates the legislative will because it leads to more rigorous enforcement. But enforcement carries a price. After all, the People created the Constitution on the understanding that their individual rights would be protected. Overly zealous police authority creates untold opportunities for government to violate those rights. It also creates an aura of suspicion between government and the individual, because police authority constantly watches individuals with a view to “catching wrongdoers.” No one likes to be watched, especially when he knows that the observer is scrutinizing every action for signs of “illegality.” Worse, the modern police officer has enormous discretionary power. It is his call whether or not to arrest someone for something he sees. That is genuine executive power: One man decides—without consulting a court—whether another man goes to jail. If he is in a good mood, he may look the other way. If he is not—or if he simply does not like the man he watches—he may decide to lock the “suspect” up. Just as in Henry VIII’s time, one man’s bodily liberty and comfort depends upon the whim of another man.

In America, we do not live in a true “police state.” But we do live with an executive that enjoys far more power than was originally intended. To illustrate just how dangerous modern police forces can be, consider the German example. Recently, I learned that in early Nazi Germany a massive power struggle took place between Heinrich Himmler and Hermann Goering for control over Germany’s local police forces. Although we tend to think that Hitler had absolute control over Germany’s executive power from the moment he seized power in 1933, in fact it took several years for him to consolidate his enforcement apparatus. Without controlling all local police forces, the Nazis could not implement their horrific surveillance and detention practices. To literally spy on, arrest and detain people, the Nazis needed armed men with “the appearance of legal authority.” Himmler understood that, and he knew he could increase his own political power by consolidating control over the police. By 1935, he absorbed all local police forces under SS control, which in turn allowed him to investigate, arrest, detain and “legally kill” people at will. Put simply, without a comprehensive police force, the Nazis could not have perpetrated their atrocities. The police knew where to find people and where to arrest them. They had all the information they needed.

Although such excesses could not happen in America today under current law, this example shows how dangerous the police can be in a modern state. If applied to the wrong ends, police forces can make any citizen “disappear.” They have the information. They have the brute force. And they have the “legal authority” to carry out a tyrant’s wishes. In other words, they have the capacity to allow executive domination over society. They are a miniature “civil army” that stands ready to make war on any private citizen. In America, we can only trust that principled judges and elected officials will faithfully interpret the Constitution to protect us from unbridled executive power. Even then, judges stand at a disadvantage, because—as Hamilton said—they have only “reason,” not the “purse or the sword.” Federalist No. 78. The executive has the sword; and in unscrupulous hands, the sword beats reason.

During President George W. Bush’s presidency, America flirted with executive excess. Although the Framers could not have foreseen the power of modern police forces, they did know that executive tyranny depends on arbitrary detention. That is why they specifically safeguarded the “writ of habeas corpus” in the Constitutional text. Article I, § 9, Clause 2. Basically, any detained person may demand to know the legal reason why he is being detained. He may submit a “writ” to the person detaining him, which requires the jailer to tell a judge the exact legal authority authorizing detention. If there is no legal authority authorizing detention, the prisoner must be released. Habeas corpus puts a premium on individual liberty, and it forces the executive to follow written law when it detains people. After all, the worst tyrants detain people for no reason other than personal whim. Under habeas corpus, that is not allowed. Nonetheless, during the “War on Terror,” President Bush repeatedly detained suspects without charge, hearing, or access to counsel, sometimes for years on end. Even a generally conservative Supreme Court recognized that this represented a dangerous increase in executive power because it directly violated constitutional text. Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. __ (2008). Still, the Court could not categorically agree that Bush acted wrongly. They never reached anything approaching consensus on detainees’ rights. Dissenting justices even went so far as to say that the President could summarily jail anyone on his own authority as long as he tendered a “national security” reason or afforded some “modified” hearing process.

Bush’s actions set a bad precedent for executive power. As we have seen, executive power is hard to define and even harder to contain. Once an executive institution implements a practice without criticism, it is impossible to take it back. It “becomes” executive power. By manipulating public fears about national security, Bush managed to circumvent a core constitutional protection for all Americans. The Supreme Court’s reaction to this usurpment left much to be desired. The executive is strong enough to sustain itself even if the Court does not intervene against it. But when the Court is partially complicit in executive excess, it irretrievably damages individual liberties.

In short, Bush added another weapon to the executive’s considerable arsenal. We should fear the executive because the executive has guns, wiretaps, roaming investigators and the power to detain. In coming years, we can only hope that the American people act to curtail some of this accumulated executive authority. Still, the executive does not lightly relinquish its powers. Why should it? Can an “oath” really stand up to armed men? Will the People deny executive authority if the executive trumps up “national security” fears? In the final analysis, we live under a limited government of separated powers. But when one branch has overwhelming practical and institutional advantages over the others, can we really trust it to protect us? Perhaps I exaggerate slightly to make my point, yet my point remains: There is nothing but tenuous principle to defend us against executive tyranny. We have already acquiesced in many abuses. A truly unscrupulous executive has the weapons to sweep away any opposition, judicial or legislative. All he needs is an “emergency” to rally frantic public support.

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