The Inverted Constitution: Presidential Hegemony and the Eclipse of Privacy

Laurence H. Tribe*

Click here to watch Professor Tribe deliver his 2006 Harvard Law School ACS keynote address, The Inverted Bush Constitution: From Executive Lawmaking and Presidential Signing Statements to Torturing Detainees and Spying on Ordinary Citizens.

When I spoke of our imperiled Constitution at the American Academy in Berlin this March 15 – the Ides of March in the time of Julius Caesar – 1,041 days and 9 hours remained in the presidency of a most unlikely American Caesar, George W. Bush. The popularity of the internet website that counts down the days, hours, minutes, and seconds left in this presidency ( doubtless reflects the eagerness of millions of Americans to put behind them the grievous wounds this retrograde administration has inflicted upon the United States and what it represents – to close a grim chapter in our national history by returning to our founding ideals and commitments as a constitutional democracy where the power of those who govern is subordinated to the rule of law in the service of individual autonomy, personal dignity, and equality of opportunity.

Looking at the sagging poll numbers of the incumbent president amid the swirling scandals of inattention and ineptitude laced with contempt for law, one might imagine the worst is over – that it remains only to bide our time until a breath of fresh air once again invigorates the nation’s capital. But any sense of anticipatory relief would be premature. So much may be accomplished, so much destroyed, in a thousand days. The entire presidency of John F. Kennedy lasted barely a month longer but had an almost mythic impact on the nation’s culture and consciousness. Sadly, the damage this misguided president may yet inflict on what remains of basic American institutions – not to mention the spread of hatred for our country, the visitation of death and mutilation upon countless innocents, the demise of species, the desecration of wilderness – is incalculable.

The work of recall and reconstruction – of reimagining and reestablishing our national character after the Bush administration twisted it beyond recognition at Abu Ghraib and in Katrina, repeatedly incanting the phony case for making war on Iraq and obscenely exploiting the tragedy of September 11 to excuse governing by fear in the name of a potentially endless war on global terrorism – would be challenging enough even if the judicial branch were in the hands of jurists so wise as not always to be certain they are right, so perceptive as to discern the principles a living Constitution does not always etch in stone, and so courageous that they would not hesitate to defend principle when the political branches bend too shamelessly to expediency.

Would that the US Supreme Court as currently composed could be counted on to play that role: to resist, even and perhaps especially during what the president insists is a time of war, the tyrannical concentration of power in any institution representing at best the wishes and values of a temporary majority and at worst the self-serving will of a ruling clique. In earlier times of real or imagined national crisis, when the American president donned the mantle of commander in chief, protecting the nation’s security from enemies foreign or domestic, the Supreme Court has tended to be slow in restraining him. It waited until war had passed before condemning as unconstitutional Abraham Lincoln’s Civil-War use of military tribunals where the civilian courts were open; and it shamefully ratified the criminal prosecutions of antiwar speech during World War I and the oppressive and racist exclusion of all Americans of Japanese descent from their homes on the West Coast in the wake of Pearl Harbor. But the Court intervened at the height of the Korean War to end President Truman’s congressionally unauthorized seizure of the steel mills to preserve the flow of military supplies to troops on the battlefield. The Court’s dramatic holding that no child may be compelled to salute the American flag came at the height of World War II. And the Court’s recent rejection of the Bush administration’s assertion of unbounded authority to detain without trial anyone captured on the field of battle in pursuit of those responsible for the attacks of September 11 – at a time when the government was defining every part of the globe, from the mountains of Afghanistan to the streets of Baghdad to the airport lobbies of America, as the “battlefield” – came while the war on terrorism was in full throttle. It was heartening to hear even so conservative a Court insist that “a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens” and that “it is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”

So it is a bit of revisionist history to claim that the Judicial Branch invariably folds its cards and reflexively approves whatever extravagant exercises of power the political branches engineer or, failing that, holds its fire until the guns of war are stilled and the fog of war has lifted. But the Supreme Court’s recent reminder that presidential power is limited even in wartime is by no means guaranteed to prove more than a temporary cosmetic. The justice who penned the reassuring words about no “blank check for the president,” Sandra Day O’Connor, has retired, replaced by Samuel Alito, a justice well to her right. It would be foolhardy to gamble much on the prospect that the Court now taking shape will significantly check claims of extraordinary presidential power or that it will resist the authoritarian turn in American politics epitomized by the Bush administration. Given the way our process of selecting Supreme Court justices is structured to mirror political realignments in the presidency and the Senate, and given the results of recent presidential and senatorial elections, no one should be too surprised to find in the wake of those elections a Court tilting further right with each new appointment.

We should expect that rightward tendency to manifest itself not solely on questions of presidential power and its immunity from restraint by Congress and the courts when the president unilaterally determines that some sacrifice of individual liberty is needed to protect the nation’s security. A turn to the right seems at least as likely on the separation of church and state when an administration determined to privatize social services and to outsource care for the vulnerable to faith-based organizations insists not simply that the religiously-devout be eligible to participate on equal terms with others but that religious groups be immune from the nondiscrimination and other rules applicable to everyone else. And a rightward tilt seems imminent on matters of informational privacy and bodily integrity, sexual intimacy and sexual orientation, and self-determination with respect to personal choices that defy tradition and mirror no textually-explicit constitutional right.

A year ago President Bush and Congress interrupted a mid-winter recess to descend on the nation’s capital en masse to enact special legislation directing the federal courts to prevent the withdrawal of a feeding tube from a permanently comatose young woman named Terri Schiavo. This came after her guardian had persuaded the state courts of Florida that she would not have wanted to be kept alive in that hopelessly vegetative condition. The government moved with an urgency notably lacking in its response to Hurricane Katrina: the act of Congress directing that Terri Schiavo be kept on artificial life support was signed into law in a midnight White House ceremony just two days after it was first introduced in Congress. In that dramatic stroke, those wielding power in Washington revealed a self-righteousness that exposed the stark hypocrisy of their incantation of family values, federalism, and states’ rights while exposing a stunning disregard for personal privacy, judicial independence, and the separation of powers. The values and priorities on display in that singular episode unfortunately previewed the kind of government that the Bush Constitution not only permits but also celebrates – a government that talks the talk of democracy and a “culture of life” while it walks the walk of despotism to impose its vision upon those who would pursue a different path.

Sadly, the Supreme Court, whose composition these same officials are in the process of remaking, rather than providing an antidote to this grotesque distortion of our constitutional tradition, could well magnify it, complicating the task of eventually reversing the trajectory so that the better angels of our constitutional nature might again be given voice.

Each facet of the rightward turn in the reigning constitutional paradigm – bloated presidential power, legislative passivity in the face of executive dominance, judicial willingness to extrapolate broad presidential authority from snippets of constitutional and statutory text, judicial resistance to the occasional instances of bold congressional action to remedy government oppression and discrimination, judicial reluctance to connect the constitutional dots to discern underlying guarantees of human rights – involves a particular interface between centers of decision-making power and reflects a distinctive orientation (either positive or negative) with respect to a method of interpreting the Constitution that I would describe as “structural” rather than “literal.”

It was a hallmark of the supposedly conservative and restrained judicial methodology of the Rehnquist Court to employ a structural method to identify principles governing the interface of state and federal power, locating those principles not in the Constitution’s literal text but in what Chief Justice Rehnquist called the “constitutional plan.” Thus he wrote of an “implicit ordering of relationships” and the set of “tacit postulates yielded by that ordering,” unwritten axioms that “are as much engrained in the fabric of the document as its express provisions, because without them the Constitution is denied force and often meaning.”

Precedent for deriving basic principles of this sort from the overall constitutional structure is as venerable as the landmark ruling of Chief Justice John Marshall in the 1819 case of McCulloch v. Maryland. Marshall held that, although the Constitution’s text is silent on the power of a state to tax a federal instrumentality without congressional permission, “the power to tax is the power to destroy, and . . . to concede the States such a power would place at their mercy the Constitution’s affirmative grants of authority to the Federal Government – a result the Framers could not have intended.” The mode of reasoning employed both by Marshall in 1819 and by the Rehnquist Court in the later decades of the twentieth century entailed asking whether a challenged exercise of governmental authority could be justified only by forms of argument that admit of no limiting principle. A “yes” answer would mean that the contested government action is unconstitutional.

Many conservative as well as liberal students of the Constitution, while accepting the soundness of this structural mode of interpretation, have argued that the Rehnquist Court carried it to unjustified extremes, striking down more congressional enactments in a decade than all its predecessors had struck down in two centuries and doing so in ways that entailed judicially second-guessing empirical findings Congress had based on intensive hearings or in ways that interposed highly formalistic legal tests spun from thin air. Among the major federal laws held unconstitutional by the Rehnquist Court in the 1990s – nearly always by votes of five-to-four, with the justices dividing the same way every time – were statutes making states accountable for unlawful age and disability discrimination; laws subjecting states to federal suit for patent, copyright, or trademark infringement; provisions empowering women victimized by sexual violence to sue their attackers for money damages in federal court; measures outlawing the possession of handguns near schools; and enactments compelling local authorities to do background checks on would-be gun purchasers.

There is every reason to suppose that, on these matters, Chief Justice John Roberts will follow in the footsteps of his predecessor, William H. Rehnquist, and that the newest justice, Samuel Alito, will vote with the most conservative members of the Court, Justices Antonin Scalia and Clarence Thomas, putting in jeopardy the few recent instances in which the Court managed by a bare majority to uphold congressional legislation protecting the rights of state and local employees to take medical or family leave without financial penalty and ensuring access to court for prisoners and the disabled.

Even if one thinks the structural method of interpretation was pushed too far in the direction of limiting federal power and shielding states from liability for mistreating their citizens, there should be no quarrel with the fundamental insight that no satisfactory approach to interpreting the Constitution may blind itself, to quote from a 1979 opinion of then-Justice Rehnquist, to “important concepts . . . that do not find expression in the literal terms of [its] provisions, but which are of constitutional dimension because their derogation would undermine the logic of the constitutional scheme.”

Yet it is that very insight into constitutional structure that the supposedly conservative jurisprudence of a growing number of justices refuses even to acknowledge, let alone embrace, when the focus of inquiry turns from the federal-state balance of power to the limits of presidential power vis-à-vis the other branches of government and, perhaps even more basic, to the limits vis-à-vis individuals and families of governmental power generally, from the local and state to the national levels.

The same logic that derives a national government of broad but still circumscribed authority from the Constitution’s structure counsels judicial invalidation of those federal measures that can be rationalized only through modes of argument that would yield unbounded national power. In precisely the same manner, the constitutional logic that would affirm Congress’s authority to legislate as it thinks necessary to effectuate the powers that the Constitution vests in any part of the national government points to judicial invalidation of those assertions of presidential power whose defense presupposes a Congress powerless to circumscribe presidential conduct and implies presidential immunity from the rule of law. And so too the logic that extracts from the Constitution the structural lesson that government not be all-powerful vis-à-vis the individual suggests judicial invalidation of measures by which those wielding government power commandeer the lives of those whom they govern on a basis that yields to no limiting principle.

But central to the jurisprudence of the Right is an insistence that extrapolations from the Constitution’s structure along these two axes – the horizontal axis of presidential power as against the power of the coordinate federal branches, and the vertical axis of governmental power as against the power of self-governing individuals – be rejected as illegitimate departures from the “original meaning” of the document. Witness how readily the Right labels such extrapolations “legislating from the bench” when judges reason structurally from the Constitution’s basic design to limit presidential excess within a system of checks and balances, to keep religious bodies from wielding public power and public officials from wielding religious authority, or to prevent government from dictating private choices in intimate matters over which only a totalitarian government can claim genuine authority.

The Bush administration’s rejection of structural method in interpreting and enforcing the Constitution along these two axes is manifestly inconsistent with its acceptance of that same method along the third axis: that of federalism. No intellectual deficit can account for the Right’s blissfully unacknowledged insistence on having it both ways. Only the Right’s substantive values and policy preferences can explain the apparent hypocrisy: a structural logic that denies the president the role of supreme lawmaker even in a time of war leads much too quickly for their comfort to a repudiation of the Bush administration’s major post-September-11 claims of presidential power. These include the president’s assertions that he cannot be bound even by treaties ratified by the Senate, or by laws passed by Congress within its sphere of delegated powers, whenever such laws restrict the president’s preferred methods of pursuing terrorists and preventing terrorist attacks. Among the measures the administration dismisses as constitutional nullities are treaties and laws banning the use of torture in interrogating detainees whom the president deems “enemy combatants,” as well as laws requiring judicial warrants when electronically eavesdropping within the US on whichever American citizens the president’s men suspect of having communicated with anyone overseas whom they regard as having terrorist connections.

Playing on fears of another terrorist episode, exaggerating the likely utility of its spying efforts and the need to pursue them without judicial supervision, and relying on the American public’s surprising apathy about informational privacy, the administration has offered transparently weak and internally inconsistent defenses of its spying program. It claims simultaneously that Congress unknowingly licensed such spying when it authorized the use of military force to go after al-Qaeda in the immediate wake of September 11; that the administration chose not to ask explicitly for congressional authority to spy because of concern that Congress would have said “no” unless the administration revealed more information than it thought wise; and that no congressional authorization was needed anyway because construing federal statutes such as the Foreign Intelligence Surveillance Act to constrain such spying would usurp the president’s power under Article 2 as the commander in chief.

If one were to read the Constitution and the statutes enacted under its authority from the structural perspective that drove the Rehnquist Court’s federalism doctrines, the legal signposts would point the other way, of course. But so be it; the world is not only a dangerous place, it is a place full of contradictions.

Apart from the underlying inconsistency of method, this is a breathtaking and unprecedented view of the distribution of power in our constitutional system. And it is matched, if not exceeded, by another astonishing view: that, because the Constitution does not speak expressly to these matters, it leaves unprotected from government control the rights of individuals to determine the shape of the lives they will lead or the sexual intimacies in which they will engage. As the Bush administration and its ideological allies read it, the Constitution’s textually explicit guarantee of “equal protection of the laws” does not cast into doubt laws preventing same-sex couples from marrying. And because the Constitution, although speaking of “liberty,” makes no explicit reference to reproduction or abortion, not even the combined effect of its manifest concerns with privacy, bodily integrity, and equal protection suffices to limit government’s power to decide the circumstances in which a woman must risk unwanted pregnancy as the price of being sexually active; the situations in which she must gestate a fetus until birth rather than choose a safe abortion however desperately she wants or needs not to become a mother; and even the circumstances in which a woman who opts for motherhood may be compelled to terminate her pregnancy rather than give birth to a disabled child. For the mode of constitutional interpretation that has led the Supreme Court over the past four decades to identify zones of personal privacy putting matters like these largely beyond the reach of government – essentially the same method that underlay the Rehnquist Court’s protections for state sovereignty – is derided as a blueprint for judicial usurpation by the jurisprudence of the Right, now in the ascendancy in the United States.

In a famous 1928 dissent in Olmstead v. United States, Justice Louis D. Brandeis anticipated the many technologies through which government, without physically invading the home, would one day be “enabled to expose . . . the most intimate occurrences” there and might even be able to “explore unexpressed beliefs, thoughts and emotions.” The protection guaranteed by the combination of the Fourth and Fifth Amendments, he argued, had to be of a breadth commensurate with the possible threat, attributing to the “makers of our Constitution” an attempt “to protect Americans in their beliefs, their thoughts, their emotions and their sensations” and to confer “as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.” Brandeis’s conclusion was that, to “protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”

Although reluctant to go quite that far, the Supreme Court – beginning with its holding in 1965 that a law banning the use of contraceptives deprived married couples of their privacy in violation of the Constitution and continuing with a series of decisions invalidating laws restricting abortion – laid down a set of principles that the jurisprudence of the Right renders conspicuously vulnerable. An open question is how the practitioners of that jurisprudence will balance their ostensible commitment to respect precedent and to honor the reliance that people have placed on settled law with their underlying distaste for the methods used by prior courts to arrive at privacy-protecting conclusions and their deep belief that the force driving those courts was a licentious disregard for the sanctity of human life. To judge from the confirmation hearings of Justice Samuel Alito, his approach to these matters seems unlikely to give decisive weight to those precedents. And, even more troubling to me, he seems likely not just to view the Court’s abortion holdings as having accorded too little respect to the state interest in unborn life – a matter about which reasonable people can certainly differ – but also to view those decisions as having erred fatally from the outset by treating a woman’s control over her reproductive life as entitled to special constitutional protection.

The 1965 precedent recognizing a constitutional right to use contraceptives is now so well established that Supreme Court nominees routinely say they accept it as fully settled law, but the decision is in fact anathema to the legal philosophy embraced by the Bush administration and its supporters. While the administration’s fellow travelers sometimes include libertarians who believe the Constitution requires dismantling everything beyond the “night watchman” state, not even they accept the idea that the Constitution distinguishes between liberty with respect to intimate sexual choices and liberty with respect to purely economic matters like the price of oil.

Needless to say, a great deal turns on how the Supreme Court justices appointed in the coming years – all of whom, if nominated by George W. Bush or others cast in his mold and if subjected to confirmation hearings as shallow and pointless as those starring Justice Alito – would go about reasoning that the Supreme Court erred in treating abortion as constitutionally protected. Much depends on whether they reach that conclusion on the relatively modest ground that the Court insufficiently appreciated the rights of the unborn (or perhaps insufficiently respected the state’s interest in protecting fetal life even if the unborn have no “rights” as such). Alarm bells should go off if, as seems likely, the new justices rest their conclusion on the more radical ground that the Court has no business protecting any facet of human liberty more than any other because the Constitution’s text protects “liberty” only from procedurally unfair deprivation and in any event draws no distinction among substantive liberties, according no special constitutional protection to intimate personal decisions. Those decisions relate not only to pregnancy and the beginning of life, but also to such matters as stem cell research, therapeutic and reproductive cloning, organ transplants, artificially prolonging one’s life or the life of a comatose loved one, or ending a terminal illness by dying with dignity rather than lingering in an alternation of agony and semi-consciousness.

And it is there that the circle closes. That the Constitution is silent on some close encounters between presidential authority and personal liberty becomes, in the Bush legal philosophy, not a reason to resolve doubt against whatever the president’s latest grab for power might entail, but a reason to treat the president as presumptively empowered to take whatever steps he deems necessary even in the face of seemingly clear and explicit congressional prohibition – and to construe the absence of specific constitutional text guaranteeing the liberty being extinguished as proof that no such liberty is entitled to constitutional protection.

I suspect that much of what the administration has said in defending its most audacious assertions of authority is calculated less to save particular programs than to set precedents for ever more sweeping claims of unconstrained and unconstrainable presidential power to deal with terrorism in a “war” that has already lasted longer than the two years of America’s involvement in World War I or the three years and nine months of our involvement in World War II or the Civil War’s four years. This war, waged against a tactic too vague to locate even on a conceptual map and too vast ever to vanquish, is in fact less a well-defined pursuit than an excuse for violating basic rights and ignoring basic needs.

Although opposition to this increasingly transparent administration strategy, and to its seemingly reckless embrace of arguments verging on the authoritarian, is growing even within Republican ranks, that opposition has not risen even to the level of meaningful congressional investigation into the president’s abject failures to “preserve, protect, and defend” either the Constitution or the people of the United States. Legislative responses to the administration’s clearly illegal and even criminal program of electronic surveillance have amounted to little more than proposals to exempt the program retroactively from otherwise applicable laws, or to give it a face lift with some minimal form of oversight. And it seems likely that the opposition will dissipate entirely – even in the unlikely but not impossible event that control of at least one house of Congress were to shift to the Democratic party this November – should any of the administration’s foreign adventures, whether today in Iraq or, one fears, tomorrow in Iran, miraculously begin actually to succeed.

If that were to happen, I would expect the president’s poll numbers to turn up, the vice president’s mishaps to be forgotten, the evidence of staggering ineptitude to recede from memory, and the calls for impeachment – now just beginning to gather momentum – to turn silent. It is a sad irony that perhaps the best hope for a decisive national repudiation of this gang – a gang that can’t shoot straight and that seemingly knows neither humility nor shame as it proceeds to squander the nation’s constitutional legacy in the pursuit of a world it apparently thinks divinely ordained – is the overwhelming likelihood that its dreams will turn to dust in a dazzling display of imploding shock and awe. Now if only there were a moderately coherent opposition strategy that could fill the resulting vacuum, America’s climb back out of this black hole might not be so steep.

*Laurence H. Tribe is the Carl M. Loeb University Professor at Harvard Law School. He is the author of 115 books and articles, including his treatise American Constitutional Law, and has argued 34 cases before the U.S. Supreme Court.

This essay was originally published in the Berlin Journal, a magazine issued twice yearly by the American Academy in Berlin ( Professor Tribe was a Distinguished Visitor at the American Academy during the spring of 2005.

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