The Founders, Executive Power, and Military Intervention (original) (raw)
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Federalism: Executive Power in Wartime
Georgetown Journal of Law and Public Policy, 2007
EXECUTIVE POWER IN WARTIME Please join me in giving a warm welcome to our first speaker, Professor Epstein. PROFESSOR EPSTEIN: Ten minutes is what our time is, right? JUDGE PRYOR: Yes. PROFESSOR EPSTEIN: It is a very great honor to be here to speak about a topic that necessarily creates deep divisions even within the ranks of the Federalist Society. This topic is not one of the standard issues that I usually raise and discuss in these meetings. It has nothing to do with the distribution of powers between the national government and the states, where my own view is that Congress's power is sharply circumscribed. In the context of war powers and foreign affairs, the constitutional text and its complex history reveals very serious tensions. Our question is how best to resolve them. As a general matter, let me state this conclusion: looking to the constitutional text, it seems clear to me that the President's claim of extensive powers under Article II of the Constitution is woefully overstated and generally insupportable. If you next look at the history, it shows that the President has had in practice greater power and freedom of action than is given to him under the Constitution. 5 So we have here one of these classic difficulties of trying to reconcile a text, which seems to be strongly weighted in favor of Congress with a series of practices in which the Executive has asserted a bit more power than the Constitution, in strict terms, authorizes. Resolving that tension between text and practices raises, I think, an extremely difficult problem. In this short talk, I shall spend most of my time worrying about the structuralist and originalist arguments, and worrying less about the history of presidential activity after the signing of the Constitution. One of the constant themes of the Federalist Society has always been, perhaps a little bit too slavishly, a belief in originalism, original intent, basic constitutional design, and structure. I have no particular objection against this approach as a methodology, so long as we recognize that nothing you can say by way of abstraction will excuse you from the task of figuring out very closely what a particular document says and how its various parts move together. And in looking at this problem, the general principle of separation of powers and checks and balances, which animates the entire Constitution, is of enormous importance. The Founders of the Constitution, I think, all started with the same position, that if you have a safe that contains valuables, like the liberty of the people and their security, you don't want to give all the keys to the safe to a single person. What you want to do instead is to figure out how to divide the power in ways that are consistent and coherent and, then, to create checks in each branch of government over what can be done in another branch. A general endorsement of 5. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944) (upholding President Roosevelt's Executive Order creating internment camps for American citizens of Japanese ancestry during World War I).
Journal of Supreme Court History, 2009
It is a truism that a nation must protect itself from internal enemies as well as foreign threats of aggression and invasion. But that is not the entire matter. Our American democracy has striven, with mixed success, to be careful that the justified ends of the American experiment-freedom, justice, and the rule of law-are not sacrificed on the altar of the means to protect these ends. On the eve of the Civil War, Supreme Court Justice Samuel Nelson wrote in Durand v. Hollins that the "great object and duty of Government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving." 1 Thomas Jefferson wrote in 1810, after leaving the Presidency, that "[t]o lose our country by a scrupulous adherence to written law, would be to lose the law itself. .. thus absurdly sacrificing the end to the means." 2 Abraham Lincoln, in total agreement, rhetorically asked in 1861, "[A]re all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that