by Christopher H. Pyle and Richard M. Pious. Durham: Carolina Academic Press, 2010. 400pp. Paperback. $47.00. ISBN 9781594608773.
Reviewed by Louis Fisher, Scholar in Residence, The Constitution Project. Lfisher11[at]verizon.net
Christopher Pyle and Richard Pious previously wrote the well-received The President, Congress, and the Constitution: Power and Legitimacy in American Politics, published by the Free Press in 1984. Both scholars had provided important leadership in the field of public law, placing legal issues in their political, philosophical, economic, and social contexts. They put special weight on the word legitimacy. What counted was not merely power and personality but principle. They urged the three branches (and the interested public) to search conscientiously for political accommodations that satisfy not merely immediate needs but fundamental and long-term principles.
The Constitution Under Siege builds on this early volume and continues the same theme. As reflected in the subtitle, the tension is between presidential power and the rule of law. In the Preface, Pyle and Pious make clear their rejection of contemporary public law studies that focus on a single court opinion “as if to represent all that is worth knowing about a constitutional theory of power.” In the crucial issues that arise in constitutional law, “judges and lawyers can have no monopoly.” Their book contains not only court cases “but the ideas of philosophers, historians, political scientists, and law professors” (p.ix). The materials reach back to the Magna Carta and come forward to the Bush and Obama administrations.
The Introduction identifies the particular issues included in the book: “the authority of presidents, the armed forces, and intelligence agencies to wage clandestine wars, detain people without trial, operate secret prisons, suspend habeas corpus, torture prisoners, and assassinate citizens as well as foreigners, in secret and without accountability. At stake is nothing less than who we are, or wish to be, as a nation” (p.xv). Contrary to many studies that are satisfied to focus on the acquisition and exercise of political power, Pyle and Pious zero in on “the legitimacy of claims to power that would fundamentally alter the constitutional distribution of policy-making authority” (p.xv). What interests them is not whether a President successfully exercised national security policy and prevailed over a passive Congress or an acquiescent judiciary, but whether the President operated on legal and constitutional authority. Similarly, they are not satisfied simply because a court decision has blessed a political decision. What measure of legitimacy was present in the decision?
The book begins by identifying fundamental principles: limited government, guaranteed liberties, separation of powers, checks and balances, popular sovereignty, [*609] representative government, and the rule of law. Those are the appropriate yardsticks for judging constitutionality, not a particular statute, presidential initiative, or judicial ruling. The approach by Pyle and Pious necessarily rejects the traditional behavioral analysis characteristic of many political and legal studies: “Who gets (and doesn’t get) what, when, and how?” With the rise of behavioral political science, “the study of political theory has been reduced to the study of a few great thinkers, rather than the analysis of the long-term implications of particular changes in the allocation of power in existing political systems” (p.xvi).
A good example of the approach used by Pyle and Pious is the section on “The President as 'Sole Organ’?” It begins with a reading from United States v. Curtiss-Wright (1936), where Justice Sutherland relies on this statement by John Marshall in 1800 when he served in the U.S. House of Representatives: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations” (p.151). Sutherland wanted this statement to stand for the proposition that the President has certain independent powers in foreign affairs that are not subject to checks by Congress or the judiciary. Pyle and Pious correctly ask: “Holding or dicta? What, precisely, did the Court hold? Is this a case of exclusive presidential prerogatives, or is it a case of the Congress and the president exercising the sovereign powers of the United States?” (p.152). Sutherland’s language and citations were clearly dicta and not necessary for the central holding, which supported the delegation of legislative discretion to the President to impose an arms embargo in South America (unlike the delegation of legislative power struck down by the Court the previous year involving domestic policy). Pyle and Pious provide citations to several excellent articles that faulted Sutherland for his understanding of history and Marshall’s speech.
It would have been helpful for the authors (and instructive for readers) to include a short portion of Marshall’s 1800 speech, which clearly dispelled any belief that he advocated some type of independent, plenary, exclusive, or inherent power of the President in foreign affairs. When Marshall spoke of the President as “sole organ,” he did so with the understanding that what President John Adams did in turning over to England a British citizen suspected of murder was to carry out an extradition provision in the Jay Treaty. That is, neither Marshall nor Adams claimed an independent, uncheckable power of the President. Instead, the authority came from a treaty and it was the constitutional duty of Adams to see that the treaty (under Article VI of the Constitution “the supreme Law of the Land”) be faithfully executed.
The remainder of the book consists of a rich collection of judicial and nonjudicial documents to explore timeless and contemporary constitutional issues. Among the topics closely studied: the treaty power, executive agreements, imperfect and perfect wars, protection of lives and property, Truman going to war in Korea without seeking a declaration of authorization from Congress (the first President to do so), litigation on the Vietnam War, the War Powers Resolution, “peacekeeping” and “mission creep” (Somalia and Kosovo), [*610] and paramilitary/covert operations. Special attention is devoted to torture as U.S. policy, Abu Ghraib, indefinite detention, habeas corpus rights of detainees, and military tribunals. In each case the authors require readers to look at specific constitutional issues in terms of sources of authority, legitimacy, and fundamental principles.
United States v. Curtiss-Wright, 299 U.S. 304 (1936).
© Copyright 2011 by the author, Louis Fisher.