The Constitution in Danger

Bomb Power: The Modern Presidency and the National Security State By Garry Wills, Penguin Press, 278 pages, $27.95

The Decline and Fall of the American Republic By Bruce Ackerman, Belknap Press, 270 pages, $25.95

In Bomb Power, the eminent intellectual Garry Wills gives us an entertaining and informative book whose self-proclaimed "basic thesis" is clearly mistaken. The thesis is that the development of nuclear weapons "redefined the presidency as, in all respects, America's 'Commander in Chief'" and "altered our subsequent history down to its deepest constitutional roots."

Instead, as the book's own brief history of the Manhattan Project makes plain, nuclear weapons ("the Bomb" as Wills puts it) are a product of the growth of a permanent national-security state and not its cause. Nor is there any mystery about why this national-security state was created. Objective facts of global power politics mandated the creation of a mighty force to defeat Germany and Japan and to face down the Soviet Union.

Indeed, though the Bomb naturally starts at the foreground of Wills' narrative, it swiftly recedes to the background, and it is nearly invisible by the close of the book, where Wills laments that the "vast and intricate structure" built up during the "permanent emergency" from World War II to the "war on terror" may be impossible to dismantle. At various points he makes sporadic, albeit unconvincing, efforts to persuade us of the Bomb's centrality. He argues, for example, that Woodrow Wilson was unable to send troops to defend an ally without explicit congressional authorization -- as Truman later did -- because Wilson "did not have the Bomb Power that made Truman able to act in defiance of both the United States Constitution and the United Nations Charter."

The image of Wilson as strictly constrained by the constitutional order will amuse those of us who recall the Palmer Raids and the imprisonment of Eugene Debs. And regarding Truman, the relevant Bomb Power was Stalin's. At the time Wilson proposed the League of Nations, people simply didn't believe the United States could face pressing national-security threats from the other side of the ocean. Hitler began to change minds on this score, and the growth of Soviet military power sealed the deal.

These flaws aside, the main thrust of Wills' book is a lively and enlightening narrative of the sundry blunders and mishaps into which presidents have been induced through the false promise of secrecy and unilateral action. Without denying the existence of some legitimate need for confidentiality, Wills argues persuasively that the main practical impact of the growth of a vast shadow government has been to undermine accountability and create an open invitation to lawlessness. Very little in the whole sorry record of foreign coups, secret assassinations, covert bombing, shady arms deals, and ad-hoc intelligence gathering from Guatemala to Congo, Cambodia, Iran, Iraq, and beyond inspires confidence that extra-constitutional government has benefited the American people.

The development of the institutions that undertake this panoply of enterprises is often represented as an increase in "presidential" or "executive" power, but this terminology may obscure more than it reveals. Compared to the prime ministers of Europe, Australia, Canada, and Japan, the president of the United States is a weak figure. The leader of a parliamentary majority doesn't have to negotiate tax policy with the opposition. If European prime ministers are, in practical terms, less awesomely powerful than Barack Obama, that's because Obama commands a dramatically mightier national-security apparatus, not because the Constitution either de jure or de facto affords him a particularly large say in the overall conduct of government.

Rather, as Bruce Ackerman helpfully suggests in The Decline and Fall of the American Republic, the permanent military establishment has emerged as something like a fourth branch of government. Accounting for roughly half of the world's military spending, the American military is a force of unmatched power that's only semi-subordinated to the nation's elected officials.

To Ackerman, this is one of several developments that portends the near certain collapse of the U.S. political system. The persuasiveness of his individual points varies, but the overall view is rather compelling. On the less compelling side, his argument that the Internet undermines the ability of party elites to check the emergence of "extremist" presidential nominees seems ungrounded in evidence. Ackerman sees Obama as an example of how this might work in the future, but despite Obama's self-presentation as an outsider, his campaign against Hillary Clinton enjoyed the backing of a wide range of party leaders, including Nancy Pelosi, Harry Reid, and former Senate Leader Tom Daschle, as well as the personnel networks associated with the Kennedy family. Clear-eyed examination of the Obama campaign, if anything, should reinforce one's sense of the centrality of party elites in the presidential nominating process.

Ackerman is, however, a law professor rather than a campaign reporter, and on other points, his argument is persuasive. He observes, for example, that the construction of a kind of alternative legal system inside the executive branch (including the White House Counsel's Office and Office of Legal Counsel) creates an essentially impossible situation for recipients of possibly illegal commands from the president. Any doubts they have will be allayed by the president's lawyers, and the fact that they were acting in good faith on advice from duly vetted government attorneys will badly wound any effort at post-hoc accountability for lawbreaking.

On a less subtle note, Ackerman observes that American elites are oddly complacent about the ticking time bomb of constitutional procedures for resolving disputed presidential elections. The role of the lame-duck Congress is a disaster waiting to happen. In 2000, the election didn't end with a showdown in Congress "only because the Supreme Court had intervened earlier to resolve the issue, and Gore had accepted the legitimacy of its decision." It's far from clear that participants in a future standoff would follow Gore's path. In the future, a more serious contestation of the results might plausibly involve military intervention.

The most far-reaching element of Ackerman's critique, however, essentially recapitulates (as Ackerman acknowledges) the critique of the "perils of presidentialism" that the political scientist Juan Linz made 20 years ago.

It's now commonplace for progressives to regret that Obama didn't move more swiftly between January and March 2009 to implement his agenda while his poll numbers were still high. The assumption here is that an aggressive political strategy would have forced Republicans to back down. But what if Republican senators, knowing full well that Obama's numbers would decline, refused to respond to a more aggressive strategy?

Ackerman argues that we might find ourselves in a scenario where "the president is entirely unwilling to wait" since he knows that "if he is to take advantage of his momentary ascendancy, he must make his move now." Consequently, backed by public-opinion polls, the president "institutes his program by decree -- insisting that it is the only way to preempt a looming national emergency." If his co-partisans in Congress are willing to back him, impeachment will be impossible and "in the meantime, his White House staff and political appointees in the bureaucracy move expeditiously to transform the president's edicts into reality -- while the military watches and waits for a moment to intervene."

The upshot would be, of course, the collapse of American democracy.

Having walked up to the ledge of calling for radical institutional change, Ackerman shies away. Instead, along with various legal reforms he puts forward ideas like a national "deliberation day" and a national endowment for journalism as ways to curb political extremism. These ideas may have some merit, but they fail to grapple with the full force of the Linz critique. Linz's old observation that "the vast majority of the stable democracies in the world today are parliamentary regimes" while "the only presidential democracy with a long history of constitutional continuity is the United States" remains true. The basic problem is not that presidents, whether through government secrecy or legal manipulation, have too much power nearly so much as it is that they have too little. A recently elected and broadly popular new prime minister will be able to set about enacting his legislative agenda with little problem. By contrast, a recently elected and broadly popular new president can find himself in a standoff with a legislature that simply refuses to yield. Under those circumstances, it's plausible that large swaths of both the elite and the mass public will view circumvention of the Constitution and the legislative process as fundamentally legitimate.

Linz suggested that the reason the United States could manage a presidential system was the diffuse, nonideological character of the nation's political parties. But if that helped us in the past, we're in big trouble. For better or for worse, we've now got ideologically disciplined parties.

Like Ackerman, I see nothing to be gained by fruitless calls for drastic revision of the Constitution and a shift to parliamentary democracy. But taking Linz seriously underscores the urgency of reforming the filibuster. Ackerman proposes a gradual phaseout only in the context of a "grand bargain" that would require Senate confirmation of top White House aides. I have no objection to that deal, but changing Congress is by far the more important of the tasks.

The fundamental problem of the current constitutional setup is that Congress -- especially the Senate -- has a level of legal responsibility that's all out of proportion to the level of public legitimacy it enjoys. Public-approval ratings for Congress are almost laughably low and appear to be stuck in the cellar semi-permanently. Individual senators, meanwhile, appear to delight in the dysfunction of the system, issuing a constant stream of self-congratulatory statements about "the world's greatest deliberative body" while abuse of procedural rules grows with every passing year.

A country in which the uniformed military is persistently more popular than the civilian politicians of the executive branch, who, in turn, are persistently more popular than the members of Congress, is in an inherently precarious position. Under the circumstances, tinkering with the executive-branch legal process or complaining about executive power grabs is, in some ways, beside the point. Disproportionate political influence for the uniformed military is part of the price we pay for maintaining an enormous standing national-security apparatus. During the Nazi and Soviet periods, it was clearly a price worth paying. Today, the calculation seems more questionable, but it's one that needs to be decided on much broader grounds than simply noting how poorly it coheres with the vision of the nation's founders.

Meanwhile, those alarmed by the prospect of an out-of-control executive should spend some time watching C-SPAN. Debate, as practiced in the contemporary Congress, is a joke. Congressional oversight of executive agencies is, if anything, even worse: typically nonexistent, until the president's party loses control of Congress and the scandal-seeking grandstanding begins. Three-day workweeks are the norm, and policy knowledge is so scarce that members are fundamentally ill-equipped to do the job.

Montesquieu posited that liberty "will perish when the legislative power shall be more corrupt than the executive." Today, we've essentially arrived at that pass. Congress, blessed or cursed with the ability to check an independently elected president, needs to be made more worthy of that power if the American system is to endure.

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