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Sleeping Giant

The Supreme Court needs to do a better job of protecting the Constitution. Here's how we could force them to.

We're living in a slow-motion constitutional crisis. The key questions of whether the president can torture people, declare a U.S. citizen an enemy combatant and remove him from the ordinary court system, or reinterpret law at the time of signing legislation (to name just three) were barely on the radar before six years ago. Voters fond of the Constitution’s limits on executive power and guarantees of civil liberties, then, need to take care in choosing the next president. They should probably pull the lever for a Democrat--not because we should trust Hillary Clinton (for example) when she assures Michael Tomasky that she will “review” the rampant expansion of state power that has occurred. Rather, only the presence of a Democrat in the White House can resurrect the Supreme Court’s dormant originalism and get it to affirm limits on presidential power. The showdown between a Democratic White House and a conservative Supreme Court could get the baser instincts of the political process to work in our favor.

Twice in American history the Supreme Court has sought to limit the emergency powers of an American president. In both cases, the Justices defied what was probably majority public opinion, and in both cases, partisan rancor helped drive the Court to stand up to the president.

During the Civil War, Chief Justice Roger Taney wrote a furious opinion in Ex Parte Merryman (1861) assailing Abraham Lincoln’s suspension of habeas corpus. Taney pointed out that the power to suspend habeas appears in Article I of the Constitution, the article defining the powers of Congress, not Article II, the article defining the power of the presidency. He concluded that if the president could substitute military for civilian authority at will, “the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found.” Lincoln rather blithely ignored Taney, asking if the judge wished “all the laws, but one, to go unexecuted, and the government itself go to pieces.”

In Ex Parte Milligan (1866), the Court echoed Taney, writing that if the president could “substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules…. republican government is a failure, and there is an end of liberty regulated by law.” With this opinion, the Court began to erode the legal basis for military occupation of the defeated South, and helped ensure the failure of Reconstruction.

The second major example of the Court’s striking down a White House that defined its emergency powers too broadly came during the New Deal, when a variety of major Depression-fighting efforts were declared unconstitutional. These included the National Industrial Recovery Act, in which Congress granted the president full power to regulate industrial conditions. In a majority opinion for Schechter v. U.S. (1935), Chief Justice Charles Evans Hughes announced that he did not care how great the Depression had grown: “Extraordinary conditions do not create or enlarge constitutional power.”

With some hindsight, we tend to view both these Courts poorly. Lincoln and Roosevelt won, and the judges lost. Yet these loser Courts had influence. They gave Reconstruction Republicans an excuse to back down from rebuilding the South, and they gave Depression Democrats reason to rewrite the New Deal as a less vague and centralized enterprise. When the Court upheld later New Deal measures like the National Labor Relations Act or the Social Security Act, it was ratifying laws less statist than the ones it had struck down.

Let’s think as cynically as possible about both these episodes and suppose that partisan motives, as much as legal interpretation, encouraged the Court to block the president. Could we not then suppose that the current Republican Court, many of whose members wore their partisanship on their sleeves in Bush v. Gore, would urgently feel the need to rediscover Blackstone and the Magna Carta, the Bill of Rights and original intent, were there a Democrat in the White House? We could go further and suggest that with a Court newly persuaded of the need to check the executive, the Democrats might, like their New Deal predecessors, respond creatively and construct a less authoritarian and more effective basis for national security.

Perhaps it seems perverse to vote for a presidential candidate in the hopes the Supreme Court will thwart them. And in fairness to the Democratic candidates, pledges like Clinton's to “review everything [the Bush administration has] done” to expand the power of the presidency aren’t meaningless. They go well beyond the administration’s bland assurances that it acts perfectly within the bounds of the law at all times. Maybe more important, such pledges indicate Democrats' awareness that they're responsible to a constituency, however small, dedicated to vocally expressing discontent with the ways in which the current administration has abused its emergency powers. And so long as that dissenting constituency continues to express itself clearly, Democrats will have to nod their heads in shared concern.

But judicial antipathy to the president would do us more good than presidential sympathy for our concerns. As James Madison assured us, our Constitution works because “ambition must be made to counteract ambition.” If you value your liberties, you’re better off voting for the Democratic candidate for President--not because a Democratic president will give you what you want, but because the Supreme Court will stop a Democratic president from doing whatever he or she wants.

Eric Rauchway is a professor of history at the University of California, Davis, and the author, most recently, of Blessed Among Nations: How the World Made America and Murdering McKinley: The Making of Theodore Roosevelt's America.