636-p.qxd 4/19/2004 2:00 PM Page 173 The Constitution in Crisis: From Bush v. Gore to the War on Terrorism LAURENCE H. TRIBE The Tanner Lectures on Human Values Delivered at Brasenose College, Oxford University May 20 and 21, 2002 636-p.qxd 4/19/2004 2:00 PM Page 174 LAURENCEH. TRIBEis Ralph S. Tyler Jr. Professor of Constitutional Law at Harvard University. He was educated at Harvard and received a J.D. from the Harvard Law School. He clerked for Justice Tobriner (Califor- nia Supreme Court) and Justice Stewart (United States Supreme Court). He was named by Time Magazine as one of the nation’s ten most out- standing law professors, and in a survey of alumni of the Harvard Law School he was voted the most admired member, past or present, of the Harvard law faculty. He is the recipient of many honorary degrees and is a fellow of the American Academy of Arts and Sciences. He helped draft the constitutions for South Africa, Russia, the Czech Republic, and the Marshall Islands, and has written over 100 books and articles. His pub- lications include Abortion: The Clash of Absolutes (1990); On Reading the Constitution (1991, with Michael C. Dorf); and American Constitutional Law (3rd edition, 2000), which received the Coif Award as the most outstanding legal writing in the nation and is the legal text most fre- quently cited in the second half of the twentieth century. 636-p.qxd 4/19/2004 2:00 PM Page 175 Introduction As this manuscript goes to press, the United States is once again at war with Iraq. This war, unlike the “war on drugs” or the now (already seem- ingly perpetual) “war on terrorism,” is war in the most traditional sense—it involves an air campaign, a ground invasion by U.S. troops, and the media blitz to which Americans have become accustomed since the birth of modern warfare. In this “war of choice,”1 Americans have come to expect military casualties, a heavy toll in civilian life and limb, restrictions of uncertain scope on the freedom of the press, and a daily barrage of dazzling images ranging from the pyrotechnic to the grue- some that, in any other context, would be palatable only if packaged in Hollywood glitz. The war has also brought with it the conventional pleas for national unity at times of great national peril. That should come as no surprise. Even while incanting the obligatory concession that dissenters of course have the legal right to voice their misgivings, the critics’ critics are quick to suggest that the time to close ranks has arrived. When American troops are under Šre in remote and dangerous lands, there are few who wish to be seen as rocking the boat. In the resulting dissent-vacuum, it becomes increasingly difŠcult to maintain a sense of perspective about issues that,when stacked up against the progress of a search for evil lead- ers and their supposed weapons of mass destruction, seem tomany to be too theoretical and beside the point to warrant urgent attention. This essay is an edited version of the Tanner Lectures delivered at Brasenose College, Oxford, in May 2002. I have attempted to preserve in this text much of the style and sub- stance of those lectures as originally given. Certain geopolitical and domestic developments of the past year have required that I update and rethink parts of what I originally said, al- though I have changed none of my fundamental conclusions and, not having delivered the lectures from a manuscript created in advance, I can truthfully report that I have changed not a word of my prepared script (there having been none). To avoid the obvious problem of a perpetually receding horizon, I have somewhat arbitrarily treated April 2003 as the cutoff date after which I would disregard the šow of events in the substance of what follows. I am grateful to the Tanner Committee and to Oxford University for inviting me to deliver these lectures and for giving them a hearing at once both appreciative and challenging and to Michael J. Gottlieb for his Šne work as my research assistance in their preparation. Errors and infelicities are my own responsibility. 1I owe this phrase to Thomas J. Friedman’s numerous New York Timescolumns over the past six months that have described the Iraq campaign as such. [175] 636-p.qxd 4/19/2004 2:00 PM Page 176 176 The Tanner Lectures on Human Values Our history of constitutional negligence during war demands other- wise. Although some have exaggerated the toll war has taken on civil liberties, it is undoubtedly the case that war and warlike crises have been unkind to written constitutions—and to the spirit of constitution- alism—throughout the course of the relatively brief time during which such documents have governed any of the world’s most powerful na- tions. The United States has certainly played host to its share of wartime restrictions on basic constitutional rights. This history is widely known and, especially recently, has been exhaustively cited as a lesson for the future. And so, in the aftermath of September 11, 2001, we did not send SWAT teams into mosques. We did not make it a crime either to speak the cause of radical Islam—a tactic that might have been suggested by one that our government employed in World War I and our Supreme Court upheld in Gitlow v. New York2—or to join groups perceived as sympathetic to radical causes, the crime for which the petitioners in the famous case of Dennis v. United States had been convicted.3 Nor did we establish detention camps to imprison individuals solely on the basis of their racial or ethnic identity, as we did during World War II when the Supreme Court in Korematsu v. United States upheld the forcible exclu- sion of American citizens of Japanese ancestry from their homes and their communities.4 That we have avoided repeating the worst of our constitutional er- rors does not mean, by any stretch of the imagination, that we have clean hands. The eloquent voices of Justice Oliver Wendell Holmes, dissenting in Gitlow;5of Justice Louis Brandeis, concurring in Whitney v. California;6of Justice Robert Jackson, dissenting in Korematsu;7and of Justice Hugo Black, dissenting in Dennis,8remain too fresh in memory to forget entirely. Yet it now seems plain that many of the old constitu- 2 268 U.S. 652 (1925). 3 341 U.S. 494 (1951). 4 323 U.S. 214 (1944). One nearly forgotten aspect of that dark episode is that Kore- matsu’s companion case, Ex parte Endo,323 U.S. 283 (1944), decided on the same day but long missing from the constitutional law canon, closed down the internment camps that Ko- rematsuhad made possible by holding unlawful the continued operation of those detention facilities. The legal community owes a debt of gratitude to Professor Patrick Gudridge for resurrecting Endofrom its constitutional dustbin. See Patrick O. Gudridge, “Remember Endo?” 116 Harvard Law Review116 (2003): 1933. 5 268 U.S. at 672. 6 274 U.S. 357 (1927). 7 323 U.S. at 242. 8 341 U.S. at 579. 636-p.qxd 4/19/2004 2:00 PM Page 177 [Tribe] The Constitution in Crisis 177 tional battles waged during times of war have reemerged—old wine in new bottles. The Executive Branch has reached for seemingly legislative powers in the name of wartime exigency, just as it had during the Ko- rean War in the seminal Steel Seizure Case.9Congress, just as it has in al- most every other wartime period, has acquiesced rešexively in executive requests for ever more power not only to wage war abroad and defend our borders at home but also to mix domestic and foreign intelligence capabilities, enlarge domestic surveillance powers, and deny fundamen- tal legal protections to aliens and U.S. citizens alike—all in the name of smoking out terrorist plots by groups we are unable or unwilling to identify. As David Cole has argued, we may have avoided retreading the speciŠc missteps of yesteryear, but in so doing we have simply “adapted the mistakes of the past, substituting new forms of political repression for old ones.”10 History appears to be repeating itself in other ways as well. The Ju- diciary’s habit of deferring to the Executive Branch, and especially to the military, during times of “crisis” has been well documented.11In the period since September 11, courts have generally been unwilling to ex- amine too closely, much less override, the operations of an Executive Branch apparatus seemingly determined to pursue terrorists, including individuals suspected of having close ties to terrorist organizations or of supporting those who might be plotting terrorist attacks—whatever the cost to personal liberty and the rule of law. As we shall later see, some courts have managed to steer a middle course between a deference so complete as to amount to virtually total abdication and an inappro- priate degree of judicial second-guessing and downright meddling,12 while other courts have merely fallen into line with the Judiciary’s tra- dition of passive compliance.13 9Youngstown Sheet & Tube Co. v. Sawyer,343 U.S. 579 (1952). 10David Cole, “The New McCarthyism: Repeating History in the War on Terrorism,” Harvard Civil Rights–Civil Liberties Law Review38 (2003): 1. 11See, e.g., William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime(New York: Vintage Books, 1998), pp. 218–22. Chief Justice Rehnquist notes “the reluctance of courts to decide a case against the government on an issue of national security during a war” and concludes that such reluctance probably makes good sense: “The laws will…not be silent in a time of war, but they will speak with a somewhat different voice.” Ibid. at 221, 225. 12See, e.g., Detroit Free Press v. Ashcroft,303 F.3d 681 (6th Cir. 2002); Padilla ex rel. New- man v. Bush,233 F. Supp. 2d 564 (S.D.N.Y. 2002). 13See, e.g., North Jersey Media Group v. Ashcroft,308 F.3d 198 (3d Cir. 2002); Hamdi v. Rumsfeld,316 F.3d 450 (4th Cir. 2003). 636-p.qxd 4/19/2004 2:00 PM Page 178 178 The Tanner Lectures on Human Values The irony of this recent reversion is that, before September 11, the specter of a supinely passive Judiciary would probably have been the furthest thing from anyone’s mind. Quite to the contrary, on the eve of September 11 the legal academy was awash in theories of troublesome judicial hegemony. The Supreme Court’s increasing willingness, even eagerness, to hold acts of Congress unconstitutional had reached beyond traditional areas of judicial concern—the First Amendment, the Due Process and Equal Protection Clauses, and the like—into previously pristine regions; over the course of little more than a decade, the Rehn- quist Court had cut back dramatically on Congress’s power to enact leg- islation under the Commerce Clause, the Necessary and Proper Clause, and Section Five of the Fourteenth Amendment.14 And the Court had become increasingly assertive in protecting its institutional turf—it had struck down every attempt by Congress to play any role whatsoever in interpreting constitutional provisions or to enforce any substantive vision of constitutional rights that did not track, word-for-word, the precise view of those rights articulated by the Supreme Court. Hence the Court’s refusal in City of Boerne v. Flores15and United States v. Morri- son16to permit Congress to articulate and enforce a broader conception of religious liberty or of equal protection than that accepted by the Court. Hence, too, the Court’s utter disdain, in the judicial tour de force of Dickerson v. United States,17for the attempt by Congress to revisit the prophylactic regime of Miranda v. Arizona,18 a regime whose constitu- tional correctness the Rehnquist Court saw no need even to addressonce it was satisŠed that the MirandaCourt had understooditself to be speak- ing in a constitutional voice and that Congress was accordingly tres- passing on sacrosanct judicial terrain when it so much as dared to dissent from the Court’s pronouncement. This line of cases culminated in Bush v. Gore19—a decision that, per- haps better than any other from the Rehnquist Era, illustrates the Court’s dismissive attitude toward the participation of other actors in the multi-institutional dialogue that should seem second-nature in a 14 See John T. Noonan, Jr., Narrowing the Nation’s Power: The Supreme Court Sides with the States(Berkeley: University of California Press, 2002). 15 521 U.S. 507 (1997). 16 529 U.S. 598 (2000). 17 530 U.S. 428 (2000). 18 384 U.S. 436 (1966). 19 531 U.S. 98 (2000). 636-p.qxd 4/19/2004 2:00 PM Page 179 [Tribe] The Constitution in Crisis 179 constitutional democracy. The things the Court said in Bush v. Gore,and the things it didn’t say, are revealing indeed of the pattern of judicial ar- rogance that had begun to take shape in Planned Parenthood of Southeast- ern Pennsylvania v. Casey,20 with the plurality’s pronouncement in that case that “[i]f the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitu- tional ideals. The Court’s concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.” My purpose in these lectures is not to provide an exhaustive analysis of Bush v. Gore or of the legal underpinnings of the Bush administra- tion’s “war on terrorism,” each of which represents a distinct response— one by the U.S. Federal Judiciary, headed by the Supreme Court; the other by the U.S. Federal Executive, headed by the president—to obvi- ously very different but equally unforeseen events: one of them, a cliffhanger of an election, essentially a national farce; the other, an act of terrorist aggression, surely an international tragedy. Rather, my purpose is to explore what those two responses had in common and what both might teach about the interpretation and operation of the U.S. Consti- tution, in times of crises and in times of calm, by all three branches of the United States government. My plan is to explore two related lessons that seem to emerge from Bush v. Goreand the current war on terrorism—Šrst, the importance of a considerable degree of constitutional self-doubt and institutional hu- mility to the proper functioning of a democratic government compris- ing shared and separated powers; and second, the need for candor and realism in identifying genuine crises and in discerning what measures are both truly necessary and likely to be effective in coping with those crises, so that our Constitution is not contorted and reshaped by the ex- treme, limiting cases that arise in a succession of real and imagined emergencies. These lessons represent two sides of the same coin of the constitutional realm: neither the Executive nor the Judiciary should too readily regard the problems besetting the nation as crises that justify ex- traordinary interventions; nor should either branch, when it does inter- vene on the basis that a crisis is at hand, equate the belief that its intervention satisŠes a crude “law” of necessity with a conclusion that the intervention complies with the law of the Constitution. In exploring these two lessons, I will highlight three trends that 20505 U.S. 833, 868 (1992). 636-p.qxd 4/19/2004 2:00 PM Page 180 180 The Tanner Lectures on Human Values extend beyond the speciŠc circumstances of the 2000 election and re- cent counterterrorism efforts: • First is our Supreme Court’s discomfort with, and even hostility toward, the unruly give-and-take of participatory democracy, il- lustrated most starkly by our Court’s distrust of Congress in con- stitutional matters; • Second is Congress’s passive acquiescence in our Supreme Court’s assertion of a unilateral prerogative, even where the Constitution appears to assign to Congress special responsibilities for carrying out constitutional functions. In particular, I’m interested in Con- gress’s willingness to tolerate our Supreme Court’s usurpation whenever the result spares members of the House and Senate the burdens of having to make painful choices that are bound to alien- ate some of their constituents, enabling these legislators quite happily to pass the buck to the other two branches of government. • Third is the Executive’s self-conŠdent assertions of unilateral pres- idential power, often claiming some emergency or crisis as a justiŠcation for acting without the congressional consultation and authorization that appears to be required by the Constitution— and with an obstructionist posture toward judicial review. Typi- cally, the assertion is that things will return to “normal” when the crisis passes. Even those who protest continuing encroachments do so in the hope that calmer heads will soon prevail.21This is, how- ever, an often empty promise, because the baseline of what counts as “normal” shifts in times of perceived crisis toward ever-greater government power even when the crisis is episodic, as in economic depression or in a traditional war with a clearly delineated begin- ning and end. The expansion of governmental power is particu- larly troublesome when the crisis seems to have no clear end in sight, as in the current “war” on global terrorism. And it is more troublesome still when met by a Congress and a Judiciary all too eager to defer to the Executive in the name of national unity. 21This sentiment was the essence of Justice Black’s dissent in Dennis v. United States,341 U.S. 494, 579 (1951) (Black, J., dissenting). Black wrote: “Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, how- ever, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.” Ibid. at 581. 636-p.qxd 4/19/2004 2:00 PM Page 181 [Tribe] The Constitution in Crisis 181 Along the way, we will examine Bush v. Gore and what it reveals about the Rehnquist Court’s jurisprudence on the eve of September 11. We’ll then turn to the Bush administration’s war on terrorism and the response from Congress and the Judiciary to that war. As we progress, I will take note of the various uses of the “crisis” concept—including le- gal, political, and military-security “crisis” claims—that have emerged as the Court and legal commentators have attempted to navigate these ordinary and extraordinary times. Finally, I will examine a few of the theories that seek to grapple with the challenge of Štting “crisis re- sponse” into the discourse of a constitutional democracy. I. THE MONOPOLIZATION OF LEGAL POWER— JUDICIALARROGANCE AND CONGRESSIONAL ACQUIESCENCE IN THE FACE OF POLITICAL CRISES It must seem to most people by now that not much remains to be said about the case that appears destined to remain the signature of the Supreme Court under the stewardship of Chief Justice William Rehn- quist: Bush v. Gore. The American media, public, and legal academy went on a Bush v. Gorebinge in the weeks and months immediately fol- lowing the decision. The next year witnessed raging debates on law school campuses across the nation, along with countless others in jour- nals, newspapers, and books.22Yet, in spite of all the ink spilled on un- locking its mysteries, the case remains badly misunderstood. And it continues to reward study with seemingly new insights into the Rehn- quist Court’s approach to the Constitution and its travails. As long as there are thoughtful observers who react to the Supreme Court’s deci- sion and to its articulated rationale either with quiet ambivalence or with animated approval, and as long as dissecting the process of 22Although there are far too many contributions to list, several noteworthy examples include Bruce Ackerman, ed., Bush v. Gore: The Question of Legitimacy(New Haven: Yale University Press, 2002); Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000(Oxford: Oxford University Press, 2001); Ronald M. Dworkin, ed., A Badly Flawed Election: DebatingBush v. Gore, the Supreme Court, and American Democracy(New York: New Press, 2002); and Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Con- stitution, and the Courts(Princeton: Princeton University Press, 2001). Much of my own ini- tial thinking on the subject can be found in Laurence H. Tribe, “eroG .v hsuB and Its Disguises: Freeing Bush v. Gorefrom Its Hall of Mirrors,” Harvard Law Review115 (2001): 170. 636-p.qxd 4/19/2004 2:00 PM Page 182 182 The Tanner Lectures on Human Values rationalization in which the decision’s defenders engage continues to re- veal still further twists and turns, discussing Bush v. Gorewill remain a worthwhile exercise. I hope this renewed encounter with the saga of Bush v. Gorewill dis- pel the altogether forgivable assumption that my choice of that decision as the central case study for this pair of lectures rešects a “can’t-let-go” obsession with the case. There is no escaping the fact that I played a large role—although it was David Boies, not I, who argued the second, climactic Bush v. Gore case itself23—in defending against the federal lawsuits Šled against Vice President Al Gore’s quest for a more com- plete ballot count in Election 2000. Yet after two years of unpressured thought about the case, of continued research into its central legal puz- zles, of ongoing writing about the issues it posed, and of teaching its nu- ances to hundreds of law students, I think I have come to a set of conclusions that have grown both deeper and more detached with time. I certainly do not approach Bush v. Gorefrom either of the impassioned perspectives that have become associated with a number of my academic colleagues. I’m plainly not going to join those who shout three cheers for Bush v. Gore(or two-and-a-half cheers or even two).24But neither can I join those who denounce the decision as an altogether lawless and ulti- mately corrupt attempt to steal the Oval OfŠce that forever cast a cloud of illegitimacy over George W. Bush’s presidency.25Even those who saw such a cloud looming in the months following the 2000 election should have some appreciation for the cleansing power of the megaphone George W. Bush wielded as he stood at Ground Zero in lower Manhat- tan shortly after 9/11, breaking through the shadows that had haunted the Šrst 233 days of his presidency as he called out, “I can hear you,” to a weary but determined group of New York relief workers, within earshot of a profoundly shaken nation. 23 I argued both the initial federal district court case that succeeded in rebufŠng the attempt by then Governor Bush to halt the counting of ballots in Florida before mid- November, Touchston v. McDermott,120 F. Supp. 2d 1055, 1055–56 (M.D. Fla. 2000), and the Šrst of the two Bush challenges in the U.S. Supreme Court to the Florida Supreme Court’s pair of attempts to count all the lawfully cast ballots, Bush v. Palm Beach County,531 U.S. 70 (2000), and was the counsel of record for then Vice President Gore in all three cases. 24 For an example of the “three-cheers” approach, see Nelson Lund, “The Unbearable Rightness of Bush v. Gore,” Cardozo Law Review23 (2002): 1219, to which I replied in “The Unbearable Wrongness of Bush v. Gore,” Constitutional Commentary19 (2003): 571. For a dif- ferent take, see Michael W. McConnell, “Two-and-a-Half Cheers for Bush v. Gore,” University of Chicago Law Review68 (2001): 657. 25 For a recent example, see Jack M. Balkin, “A Great Gamble by a Man Many Don’t Trust,” Hartford Courant,March 18, 2003, p. A15.