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Making the Bricks of the Modern Presidency from Constitutional Straw

By now it is hard to deny that the president – or more broadly, the executive branch – plays a crucial role in interpreting the Constitution. The constitutional assertions of the second Bush administration became infamous. The American Bar Association convened committees to ponder whether it was appropriate for the president to offer constitutional interpretations when signing bills into law. Investigative reporters revealed the advice that Justice Department lawyers offered members of the executive branch on how force could be deployed overseas, prisoners could be interrogated, and international electronic communication could be monitored. The Office of Legal Counsel – the office within the U.S. Department of Justice that provides legal advice to the executive branch – has never been so well known. The OLC become so visible that Republican senators decided to invest the political capital to block President Obama’s first choice to lead it.

The Obama administration provoked its own controversies, with Attorney General Holder concluding that no plausible constitutional argument could be made on behalf of the Defense of Marriage Act and the OLC defending the constitutionality of American air strikes in Libya without prior congressional authorization. The modern constitutional law of war has mostly been drafted by the president and his lawyers, not by the justices of the U.S. Supreme Court.

Few are better positioned to help us make sense of this world of presidentially constructed constitutional law than Harold Bruff. A former dean of the University of Colorado Law School, Bruff served in the Office of Legal Counsel during the Carter administration and is co-author of the leading constitutional casebook focused on the separation of powers. In a previous book, Bruff examined the obligations and the track record of recent legal advisors to the president and offered a scorching critique of the performance of executive-branch lawyers in the months and years after the terrorist attacks of 2001.

Untrodden Ground builds on that earlier book but takes a broader perspective on presidential engagement with constitutional interpretation. While Bruff’s previous book was ultimately concerned with building a case against Bush administration lawyers such as John Yoo, this book is less concerned with calling a particular administration to task or advancing a particular position within current political controversies. Bruff does not hide his own constitutional proclivities (he notes early on that he believes his analysis “should persuade the reader that three recently fashionable approaches to constitutional law are flawed,” namely key commitments of the conservative legal movement in originalism, the unitary executive, and expansive executive power in the realm of national security), but the bulk of the book is concerned with historical description rather than theoretical analysis. Where he previously focused on a handful of modern presidents, this book has a grand historical sweep, with extended treatments of twenty-five presidents stretching from George Washington to Barack Obama. Although he perhaps does not quite give the nineteenth-century presidents their due, he does give them significant attention. And in these pages, the emphasis is on the presidents, not their legal advisors.  Legal argumentation recedes into the background, and presidential action takes center stage.

The book offers a distinctive perspective on the history of the presidency. Although framed as a study of executive interpretation of the Constitution, the book reaches beyond that particular focus. It effectively combines three related topics within a single cover.

First, it examines its primary subject, presidential engagement with the Constitution.  The late David Currie completed several volumes of a comprehensive study of The Constitution in Congress, in which he exhaustively inventoried every debate on the floor of the Congress over the meaning of constitutional provisions from the Washington administration through secession. Although others have studied particular episodes of extrajudicial constitutional interpretation, few have been as cyclopedic as Currie. Bruff is not as systematic as Currie either, but he similarly provides a chronological recounting of presidential efforts to construe the Constitution. Sometimes these episodes speak to presidential power and institutional conflicts between the executive and other branches and government officials, but they also address other substantive aspects of constitutional meaning and controversies over the use of national power, such as the Jacksonian debate over the Second Bank of the United States and the Depression-era debate over the New Deal. As a result, the book provides a nice primer on significant episodes of constitutional debate in the political arena.

Second, it examines a closely related subject, the intellectual history of the presidency and the growth of presidential power. The history of the presidency as an institution is in part a history of the growth and development of the constitutional powers of the president.  As modern presidential scholars have emphasized, presidential power does not hinge entirely on the text and structure of the Constitution. Nonetheless, the constitutional prerogatives of the presidency, from the veto power to the power to control executive officers, have not simply been taken as a given but have been a recurrent matter of political contestation and assiduous presidential cultivation.  Arguments about the nature of the presidency have never been far removed from arguments about constitutional meaning, and a great deal of presidential efforts at constitutional interpretation has focused on the proper understanding of the president’s own powers.  There have been some excellent studies of the development of presidential power from a constitutional perspective, but few have integrated debates over presidential power with presidential debates over constitutional meaning generally.

Finally, the book canvasses a variety of significant episodes of presidential politics. The ordinary politics of election campaigns and policy-making might be provided simply as background and informative context in a book of this sort, but Bruff treats the history of such events in much the same terms as his discussion of the history of specifically constitutional disputes. As a consequence, the book provides a readable history of significant episodes of presidential politics broadly.

Although Bruff offers some analytical claims in the introduction and conclusion of the book, the body of the work is primarily descriptive and broader thematic issues are largely kept in the background or are simply implicit in the structuring of the narrative.  Those looking for a systematic critique of originalism or the unitary executive will not likely be satisfied with what Bruff offers here.  But those who would like a readable introduction to the history of American constitutional politics from the perspective of the White House will find plenty of value in Untrodden Ground.  The book highlights the importance of the president not only as a political actor and a policy-maker, but as a constitutional interpreter.

Presidents have persistent reasons to want to engage in constitutional debate and assert their own gloss on the Constitution, and their views on disputed constitutional questions have often been influential both in setting the terms of the debate and in resolving controversies.  The justices of the U.S. Supreme Court once famously declared that they are “supreme in the exposition of the law of the Constitution,” but neither the constitutional text nor constitutional history gives ready support to that claim.  The Constitution has sometimes effectively meant whatever the Supreme Court says it does, but the president and Congress have also been important players in saying what the Constitution means.  And what they say often sticks.  For those whose understanding of the Constitution itself and of how our constitutional system works has been shaped primarily by the Court and by commentators on the Court, Bruff’s new book will be a valuable corrective.

Reader Discussion

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on January 04, 2016 at 13:24:41 pm

"and the OLC defending the constitutionality of American air strikes in Libya" -- OLC told the White House that the War Powers Act applied, which was not what the administration wanted to hear, so they went to the State Department's Legal Advisor for the opinion they wanted. So that one is not on OLC.

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David Farnham
on January 06, 2016 at 12:08:43 pm

Quite right, and thanks. Wrote that sentence more quickly than I should have.

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Keith Whittington

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.