The story goes that in 1787, when asked if the Constitutional Convention had produced “a republic or a monarchy,” Ben Franklin replied, “A republic – if you can keep it.” This anecdote is usually cited by conservatives to support the argument that the U.S. system of government is not a “democracy.” But in light of recent history and the growth of the U.S. empire, the tale might as readily recall Franklin’s warning that hanging on to representative government is no sure thing – and that increasingly, U.S. presidents have taken on the trappings, the claims, and the powers of elected monarchs.
That’s one way of considering this week’s University of Texas symposium, Executive Power, co-sponsored by the LBJ Library and the UT School of Law, and organized by law professor Sanford Levinson. It begins tonight (Thursday) with a keynote address by Harvard professor and attorney Jack Goldsmith, who will speak at the LBJ Auditorium at 6pm on The Second Terror Presidency. Friday and Saturday panels will feature various political theorists debating the limits, legal and political, on the powers of the presidency, closing with a panel on Levinson’s paper (with Jack Balkin of Yale) on Designing a Constitutional Dictatorship. The Levinson/Balkin argument asks whether – as presidents have increasingly assumed “emergency powers” over the last 60 years, acting virtually as dictators in regard to foreign policy and war-making – there is a way to constitutionally circumscribe those powers so that they do not overwhelm any attempt at legal limitation.
Levinson told me he had noticed several recent books on the expansion of executive power and thought it would be useful to get the authors talking together about the history and the potential consequences. Each panel will offer a brief presentation and critique of a work, and then a broader discussion.
“I think it will be an opportunity for anybody in the audience to hear a series of state-of-the-art conversations about a variety of problems presented by the combination of the modern presidency as an institution and the particular kinds of dilemmas we find ourselves in,” Levinson said, “whether you call it the war on terror or economic sorts of emergencies or natural disasters. What is it we look to presidents to do; are we confident that they can do it; what are the implications of their claiming they have the power to do it; are they restrained by Congress; are they restrained by any laws telling them they can’t do certain things, even if a particular president feels it would be a very good idea to do something?”
Looming over the entire discussion is the question: How have we come to this pass?
The Terrorism Presidencies
Goldsmith is best known for having resigned in 2004 from the Bush administration (Office of Legal Counsel in the Department of Justice) when he declined to endorse “anti-terrorism” policies unilaterally installed by the administration – most notably, “enhanced interrogation” techniques that had long been considered torture. Goldsmith was essentially forced out by Vice President Dick Cheney and his OLC deputy David Addington, but in recent months, he’s become a conservative defender of the Obama administration against Cheney’s headline-grabbing “soft on terrorism” campaign. In an article last year in The New Republic (“The Cheney Fallacy,” May 18) and elsewhere, Goldsmith has argued not only that President Obama is largely continuing the major anti-terrorism policies – rendition, secret prisons, military commissions, state secrets, selective assassinations, and so on – of President Bush, he’s doing a better job of all this than Bush did. The title of Goldsmith’s keynote speech, which echoes his book on the Bush administration, suggests he will be making a similar argument here.
That’s unlikely to be comforting to civil libertarians in the audience – “it will infuriate some people and reassure others,” said Levinson – and the other speakers will represent a range from those who believe a president’s actions should always be restrained by legal limits to those who suggest (as did Addington, and for that matter Bush and Richard Nixon) that a president essentially makes his own law. Although Levinson has the reputation of a fire-breathing liberal and has called Bush the worst president ever, he says he and Goldsmith are fairly close on the necessary nature of presidential powers.
“There are several of us who believe,” he told me, “that there are certainly times when laws are made to be broken [by presidential action], but it’s very, very important to be able to trust the judgment of presidents who are doing that, and there are reasons to believe that we might not be electing presidents, sufficiently often, in whose judgments we really have that much trust.”
Firing the Dictator
How that situation might be improved has been the subject of Levinson’s recent scholarship – his 2006 book, Our Undemocratic Constitution, argues that we need to consider dramatic revisions – and he thinks we’re particularly ill-served by fixed-termed presidencies with incumbents who can’t be dismissed except for “high crimes and misdemeanors.”
“My own view is that there are worse things than having a crooked president or a perjurious president,” he said. “A president with disastrous judgment is really worse. I’m not sure that Bush committed an impeachable offense, but I am absolutely certain that he had the worst judgment of any president in American history. So I wish that we had a procedure by which he could have been voted out of office.”
Does Levinson think substantive constitutional changes are achievable in the current political atmosphere – especially since many Americans eagerly denounce health care reform or property taxes as unconstitutional but hardly raise their eyebrows at preventive war, illegal detention and surveillance, even the summary execution of “suspected terrorists,” including U.S. citizens? Levinson acknowledges that he sometimes feels like he’s “not just swimming upstream but up a waterfall.”
“If I knew how to start a social movement, I would be doing it,” he said. “The best I can hope is that people show up and they think, ‘Maybe we ought to be thinking and talking about these issues,’ and maybe at some point, something would take fire.”
Jack Goldsmith’s talk is at 6pm Thursday, April 8, at the LBJ Auditorium. The April 9-10 symposium on executive power is at the Jeffers Courtroom, UT Law School, open to the public. For more info,
see www.lbjlibrary.org.
This article appears in April 9 • 2010.
