1
CONTEMPORARY BIASES
From their study of history, the Framers understood that the decision to initiate military actions against foreign nations should not be left to single executives. They knew that war is the nurse of executive aggrandizement and a threat to individual liberty. John Jayâs expertise in foreign affairs might have made him sympathetic to unilateral executive actions, but he bluntly warned in Federalist No. 4: âIt is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting any thing by it.â Absolute monarchs, he said, âwill often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.â Those and other motives, âwhich affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.â1
Was Jay speaking purely of attitudes and understandings of the eighteenth century, with no relevance to contemporary conditions of the twenty-first century? No. He was talking about fundamental human nature. Has it changed? Are we better able today to support unilateral decisions by single executives to take the country to war and play a dominant role in foreign affairs? An informed judgment comes not from theoretical models but by studying how Presidents actually function in office, particularly after World War II.
Consider the record from 1950 to the present: Harry Truman as the first President to go to war (against North Korea) without coming to Congress for either authorization or declaration; Dwight D. Eisenhower agreeing to use covert action to topple a democratically elected prime minister in Iran, Mohammad Mossadegh, contributing to Muslim fundamentalism and anti-Americanism; John Kennedyâs miscalculations with the Bay of Pigs; Lyndon Johnson using lies and deception to escalate the war in Southeast Asia; Richard Nixonâs secret bombing of Cambodia and the Watergate scandal leading to his resignation; Ronald Reaganâs Iran-Contra scandal, requiring an independent counsel to investigate and prosecute; Bill Clintonâs impeachment for perjury and obstruction of justice (he admitted to perjury as he left office); George W. Bush going to war against Iraq on the basis of six empty claims; Barack Obama unilaterally using military force against Libya, producing a failed state and a breeding ground for terrorism. Details on those precedents are explored in subsequent chapters.
The cost to the nation from presidential errors, misjudgments, and deceptions has been heavy, both in material terms and the constitutional values of self-government and checks and balances. The examples above are not isolated illustrations. They form a pattern that carries forth from one President to the next. Peter Shane has pointed out that âtime and time again, it has become evident that Presidents, left relatively unchecked by dialogue with and accountability to the other two branches, behave disastrously. The new unilateral presidency is thus not appealing either as constitutional interpretation or as good institutional design. To put the point another way, the Framers got this right.â2 On the basis of this record, on what rational ground would we (and the Supreme Court) express confidence in vesting largely unchecked power in the President, whether in external affairs or domestic policy? As noted in a study by Harold Bruff on how Presidents interpret their constitutional powers: âEven in ordinary times, our system has recently become similar enough to a permanent constitutional dictatorship to give deep pause.â3
Supreme Court Misconceptions
Initially, the Court interpreted constitutional disputes between the elected branches without favoring presidential power over Congress. In Little v. Barreme (1804), it recognized that when a presidential proclamation in time of war conflicts with congressional policy expressed in a statute, the legislative position establishes national policy.4 Opinions from that time to the Curtiss-Wright decision in 1936 were generally careful in analyzing the relative powers of the President and Congress. For more than eight decades, however, the Supreme Court has used its decisionsâincluding erroneous and misleading dictaâto promote presidential authority.
The distinction between a judicial holdingâguided by briefs and oral argumentâand extraneous dicta simply tossed in goes back to the beginning. After authoring Marbury v. Madison in 1803, Chief Justice John Marshall expressed concern in Cohens v. Virginia (1821) about the degree to which litigants were reading Marbury carelessly, failing to separate its core holding from âsome dicta of the Court.â5 When it became evident that attorneys were rummaging around Marbury to find nuggets favorable to their cause, he insisted that the âsingle questionâ before the Court was whether Congress could give the Court original jurisdiction in a case in which the Constitution had not granted it.6 That was the core holding. Everything else amounted to dicta. It was a mystery to Justice Benjamin Cardozo how judges, âof all persons in the world, should put their faith in dicta.â7 There was a constant need to separate âthe accidental and the non-essential from the essential and inherent.â8 That understanding is regularly ignored by the judiciary, both lower courts and the Supreme Court.
The custom is to cite whatever appears in a decision. Supreme Court support for independent presidential power is drawn from both judicial rulings and dicta carelessly added to holdings. Dicta can be demonstrably false, as with the sole-organ doctrine that found its way into the Curtiss-Wright decision, analyzed in Chapter 4. Scholars immediately saw the error and wrote about it decade after decade, correctly pointing out that it was being exploited by the executive branch and courts to promote inherent, independent, and unchecked presidential power. Nevertheless, the error remained firmly in place. As explained in Chapter 14, not until 2015 did the Supreme Court acknowledge this error. In doing so, it left in place other erroneous dicta from Curtiss-Wright that favor presidential power. I am unaware of Supreme Court decisions that, through error and misconception, advanced congressional power beyond constitutional limits.
The risk of judicial misconceptions about historical precedents should be well known. An article by Justice Robert Jackson in 1945 observed: âJudges often are not thorough or objective historians.â9 In his study of judicial dependence on history, Charles Miller warned that the Supreme Court âas a whole cannot indulge in historical fabrication without thereby appearing to approve the deterioration of truth as a criterion for communication in public affairs.â10 Writing in 1965, Alfred Kelly described the Courtâs role as constitutional historian as âif not a naked king, no better than a very ragged one. From a professional point of view, most, if not all, of its recent historical essays are very poor indeed.â11 Too often Justices âreach conclusions that are plainly erroneous.â12
Matters have not improved with time. In an article on originalism in 1989, Justice Antonin Scalia remarked that the judicial system âdoes not present the ideal environment for entirely accurate historical inquiry.â13 Justice John Paul Stevens, in a book published in 2011, wrote that âjudges are merely amateur historiansâ whose interpretations of past events, âlike their interpretations of legislative history, are often debatable and sometimes simply wrong.â14 Judge J. Harvie Wilkinson underscores judicial limitations in understanding matters of history. He explains that historians spend years studying a period of time âand investigating its nuances,â while judges have only months to decide each case âand even that time has to be divided among all the cases on the docket.â15 History professors, he points out, have t...