Saturday, February 14, 2009

Griffin on The Bush Presidency and Theories of Constitutional Change

Stephen M. Griffin, Tulane University Law School, has posted an interesting paper, The Bush Presidency and Theories of Constitutional Change. He blogs about it here. Here's the abstract:

The presidency of George W. Bush was widely noted for its expansion of executive power. In the years following 9/11, lawyers and legal scholars had a vertiginous sense that their constitutional universe was changing in unfamiliar ways. A war of indefinite duration fought against a non-state opponent. The use of torture and other cruel interrogation techniques, military commissions, and detention without judicial review. The use of the Commander in Chief power as a substitute for domestic law enforcement. And all this marked by a lack of congressional oversight and the most aggressive advocacy of unilateral presidential power yet seen in U.S. history. The Bush presidency was the agent of unprecedented constitutional change.

Theories of constitutional change are in the business of explaining how this could happen. The Bush presidency is only the most recent demonstration of the important role played by informal change in our constitutional system. It is an opportunity to learn from such theories, but it is also a test of their adequacy. Can existing theories of constitutional change account for the Bush presidency? That is the question I address in this article.

I argue that a theory of constitutional change that focuses on how the Constitution is implemented through institutions over time amid the tensions between the "written" and the "unwritten," the "legal" and the "political," offers a better approach to understanding the Bush presidency than the major alternative theories offered by Karl Llewellyn, Bruce Ackerman, Jack Balkin and Sanford Levinson, and Keith Whittington. With the exception of Llewellyn, I do not undertake a comprehensive summary and critique of each theory and I do not claim these theories are wrong. Rather, I maintain they are not helpful in explaining the phenomenon of the Bush presidency and are thus incomplete.

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