And there is a lot of potential political capital to extract from Hamdan. The great media machines of American (and global) political factions are already spinning their reconstructions of the “meaning” of this opinion, its “importance,” and its “effect” on American jurisprudence, American politics, the war in Iraq, the place of international law in American law, and similar matters. The great cultural warriors have already begun to use the opinion to justify political action to compel Congressional legislation, to restrain the judiciary, or to intensify efforts to seat judges who pass one or another ideological litmus test (in the form of some sort of judicial or jurisprudential "credo").
Hamdan is already being treated as something substantially greater than its holding or the sum of its parts. It has become one of the great political decisions of this century (and the century is still young). One can get a sense of the importance of the opinions in Hamdan only when they are framed in a somewhat larger context of the ongoing debate about the character of the American Republic. For this purpose, I offer some very preliminary impressions. It will be interesting to see if they stand the test of time. Hamdam, in its own way, is a very conservative decision. It is meant to preserve the formal divisions and structures of the federal government more or less intact, it suggests a strong role for the courts as protectors of both individuals and the integrity of the structure of the state, and provides more weight to the idea that the Constitution itself limits the authority of office holders to reallocate state power between the branches. Ironically, given the authors of the various opinions, it is the ghost of another case—Bush v. Gore—whose presence is strongly felt in Hamdam, though the case is not cited. More ironically still, the Supreme Court ultimately gave the prisoners, whose appeal from the imposition of military tribunals this was, virtually nothing. Technically, a willing Congress could enact the Presidential order establishing the military tribunals pursuant to duly enacted statute, and Mr. Hamdam would be where he started. But this is no small difference. The military tribunals will no longer reflect the will of one man, but the act of state, approved by the representatives of its people. That form of military commission may well be very different from the original conceived in the offices of the White House. And that is what at least some of the Founders might have preferred.
Hamdan represents the continuing struggle for dominance between three great schools so political thought in the United States: constitutional structuralism, political constitutionalism and ideological supremacism. Constitutional structuralism is based on the view that the Constitution itself provides a set of limits to actions by government actors, and that the Supreme Court must enforce these limits. This is the view adopted by the Hamdan majority. Political constitutionalists believe that the Constitution provided a flexible set for formulas for governance that ought to be molded by political necessity, and agreement by political actors rather than by judicial interference, except perhaps in the most extreme circumstances. This is the view adopted at least in the dissent of Justice Alito. Ideological supremacists believe that the Constitution was written to serve higher moral, ethical or ideological purposes, though there is little agreement among groups of ideological supremacists over which set of ideologies the Constitution serves. For them, the Constitution must be bend in the service of these higher causes by the Courts or by any other institution necessary for that purpose. This is the view that most clearly comes out in Justice Thomas’ dissent, and much more subtly in the dissent of Justice Scalia.
Each of these schools is ancient and each has found expression in Supreme Court opinions from time to time since the Founding. Each views the Constitution very differently, and so each approaches the question of the power of the president to create these military commissions from a very different perspective.
Especially since the 1930s, both political conservatives and political liberals have tried to get the Supreme Court to read structural limitations into the Constitution against incursions into what they consider important public policy choices. Effectively, great forces have been deployed to convince jurists (and the American public) that the American Republic is essentially not self-policing (that is, that the people elected to office do not have the political will or character to do right, institutionally speaking) and that the Constitution must be read as imposing limitations on the power of governmental officials to act. Those limitations must be declared and enforced by the judiciary.
How is is expressed in legal terms? The Constitution was written as a document to establish a government for the member states of the American union. As such, it was to a large extent a political document, that is, it set up the institutions of government and the rules within which all political players, and the institutions they controlled, could participate in governance. As part of that establishment, the Founders eventually also included a short list of explicit limitations on the power of the federal government in its dealing with states or individuals. The government thus established was supposed to be participatory—that is, any particular use of state power was to be left to the will of the people as expressed by their representatives in government. Should these representatives displease the electorate, they might be voted out of office. Should these representatives engage in wrongful conduct—should they abuse the trust given them through election (or later appointment) to office—they could be removed. But the way in which government power was to be asserted was to be left to the discretion of those holding office—monitored by those who elected them. In its simplest terms, the Constitution does not limit the power of the government to choose to mint $2.00 coins rather than $1.00 bills, but it does permit the electorate to vote out of office those who acted to create the $2.00 dollar coins.
The Constitution does, then, to a great extent, expect that most decisions affecting government will be left to the political sphere, within broad limits. What are these limits? The federal government is one of enumerated powers, but it speaks for the nation in foreign affairs. The states have a right to a republican form of government and may exercise all power not otherwise assigned to the federal government or to the people. The entire sovereign power vested in the federal government is divided by category into a legislative, executive and judicial power (so-called “separation of powers”). In its simplest terms, for example, the executive may enforce law but may not legislate.
But no power granted any branch is purely autonomous—each branch of government requires one or more of the others to effectuate the exercise of its own power. This occurs on two levels. First, no single branch can independently implement its own power. The judiciary may render judgment but the power of the executive is needed to execute that judgment, Congress may vote to spend money on a program but the president may substantially control the way that spending is carried out, the President may control the military but he may not act if there are no funds to pay the troops because Congress has refused to appropriate public funds. Second, no branch can fully exercise the power assigned to it without action by the others. Thus, the President may execute the laws but the Congress may oversee his choice of staff, the Congress may legislate but the President may veto legislation, the Court may judge but the Congress may limit the jurisdiction of courts to hear certain cases.
All of this seems simple enough. It also seems arcane to the point of irrelevance. But most of the great political debates of American governance have been shaped by great debates over the meaning of these arcane governance formulas. Debate is possible because many of the terms in the Constitution itself are not defined with any precision. This is especially the case when it comes to the division of power between the federal government and the states. It is equally the case in the division of power between the three branches of the federal government established by the Constitution. Imprecision would not be important except that since the Republic’s founding there have been a fundamental disagreement about the meaning of these terms, the principles of governance that give them meaning, and the way in which they ought to be applied.
This is the great debate that was played out in Hamdam—again. In Hamdam, the Constitutional Structuralists won the day, with little damage done to the anti-terrorism effort. The military tribunals can be reconstituted and proceed, if that is the collective will of the political branches of government. Or Congress can formally legislate a determination to withdraw form the Geneva Conventions, if they believe that reflects the will of the American people. Only, the President may not act alone. Political constitutionalism, once the domain of “liberal” justices, found support only among justices commonly thought of as politically conservative. Ideological supremacists remain a potent force, but one still in the minority. The approach of Chief Justice Rehnquist and Justice Scalia, so eloquently put in Bush v. Gore (see my article Race, “The Race,” and the Republic: Reconceiving Judicial Authority After Bush v. Gore, 51 CATH. U.L. REV. 1057 (2002)) is vindicated. That vindication produced a bit of perversion—Justice Scalia, dissenting in Hamdam, played the role of his own Judas to his prior position in Bush v. Gore. I describe three great camps at war in Hamdam and suggest that the case is neither revolutionary nor aberrational.
1. Constitutional Structuralists. Constitutional structuralists tend toward formalism, a technique for interpreting the Constitution that places prime importance on the formal requirements of governance set out in the Constitution. This tends to be a very conservative position, if only because it provides neither the courts nor the other branches of government, with much discretion to vary the form of governance to suit the perceived needs of the hour. If structure impedes appropriate action, then the formalists would suggest changing the formal requirements of the Constitution rather than ignoring or suspending them to suit the momentary convenience of political actors. What makes constitutional structuralism so important after the 1970s was the way in which judicial conservatives, starting with the late Chief Justice Rehnquist, sought to use it as a means of providing judicial protection to governmental institutions (National League of Cities v. Usery, 426 U.S. 833 (1976)). In Justice Rehnquist’s case, constitutional structuralism was meant to protect states against federal encroachment. But the idea that the Constitution protects governmental institutions from encroachment (or powers poaching) by other governments (or other branches of government) has taken strong root. Justice Rehnquist’s efforts were important for two reasons: first, for providing legitimacy for the Supreme Court’s role in disputes about the allocation of power among government institutions, and second for providing legitimacy for the Court’s use of a very broad jurisprudence of principles to determine the rules for this power allocation. The Supreme Court could look to great principles inherent in the Constitution (but not explicitly written in the document) as a basis for determining when a branch of government tried to exercise power not explicitly allocated to it under the Constitution. The great consequence of constitutional structuralism is that the Supreme Court has carved out for itself a central role as the ultimate umpire of governance in the American political system. The Supreme Court has become the “go-to” institution for every dispute about power allocation in the American system. It may choose to defer, but the choice it its, and its alone. This idea was crystallized in Bush v. Gore, about which I have written elsewhere, see Larry Catá Backer, Using Law Against Itself: Bush v. Gore Applied in the Courts, 55 RUTGERS L. REV. 1109 (2003); Larry Catá Backer, Race, “The Race,” and the Republic: Reconceiving Judicial Authority After Bush v. Gore, 51 CATH. U.L. REV. 1057 (2002). That power was much in evidence in the majority opinion in Hamdam. Like the court n Bush v. Gore, the Hamdam majority refused to concede that it did not have a role in the dispute over power.
2. Political Constitutionalists. Political constitutionalists tend toward functionalism. Political constitutionalists tend to worry less about the niceties of compliance with the formal requirements of governance set out in the Constitution. Instead political constitutionalism focuses on the political process to guarantee the integrity of the system (Garcia v. San Antonio Metropolitan Transit System, 469 U.S. 528(1985)). More importantly, it reads a great deal of flexibility in the allocation of power among the branches of government, permitting great reshuffling of power, to suit the convenience of current political leaders, as long as the reshuffling does not impede the governmental actor from performing his constitutional duty (Morrison v. Olson, 487 U.S. 645 (1988). Ironically, Justice Rehnquist was one of the great forces responsible for the adoption of this approach by the Supreme Court. His position is not necessarily inconsistent—from a judicial perspective (though less easy to accept from a political perspective). Justice Rehnquist tended to view allocations of power between the states and the federal government differently than the allocation of power among the branches of the federal government itself. He valued the former more than the latter and was willing to craft constitutional doctrine to take into account this values difference. For those who saw no difference between federalism and separation of powers/checks and balances issues, Justice Rehnquist’s division made no sense and one or the other approach was applied to both questions. Political constitutionalism can also be conservative, understood as judicial rather than political conservatism. The idea that the Courts should stay out of “politics” is old, though not easy to square with the role the Courts have taken for themselves since the founding of the Republic. But in Hamdam, it was the judicial activists in Bush v. Gore that pleaded judicial restraint. Again, the best explanation is the bright line drawn by these justices between the court’s role in umpiring disputes between state and the federal government, and the role of the court in umpiring disputes within the federal government. However, Bush v. Gore made that distinction mucky at best. On the other hand, Congress does have the power to deal with Presidential encroachments of the kind possibly represented by the military tribunals. Congress could have cut funding for the programs, Congress could have adopted legislation mandating different treatment for the people subject to the military tribunals or adopted a military tribunal law of its own, or Congress could have impeached the President. Congress has taken each of such actions in the recent past. That it has not might have moved the people to remove its representatives from office or resulted in agitation for the removal of the President, but none of these options necessitated the intervention of the Court. Good arguments, perhaps, but ones that fell on death ears in Bush v. Gore. The rejection of this position in Hamdam is consistent with earlier jurisprudence constructed by the current so-called politically conservative members of the Supreme Court. Justice Scalia’s repeated references to the common law, in this context, having so thoroughly rejected it in Bush v. Gore, is particularly striking.
3. Ideological Supremacists. These people believe that certain ideologies remain superior to the mere mechanics of formal constitutional structure, and that the Constitution must be bent to the goals of achieving the pure ideological state these people advocate. Ideological supremacists have always been with us, and formed a significant minority at the time of the Founding. But they come in an infinite variety of flavors: The only thing they have in common--liberal or conservative, theocrat or free market capitalist—is the belief that the Constitution is meant to serve higher ends rather than that the Constitution itself is the highest end of state formation. They are more than willing to bend the document in the service of the cause for which they think the Constitution itself was meant to serve—or perhaps (in some cases) destroy the Republic in order to rebuild it on sounder principles. Though almost never commanding a majority on the Supreme Court, ideological supremacists have played a critical role in the evolution of American politics, and to some extent, jurisprudence. Ideological supremacists have sparked everything from the American Civil War (remember John Brown’s raid on Harper’s Ferry), to the civil rights revolution of the mid 20th century (remember Martin Luther King and the federal civil rights legislation revolution that resulted in the 1960s-1990s). But ideological supremacists also include among their members the killers of abortion doctors, and Timothy McVeigh. In this case, the ideological overtones of Hamdam, clothed in the language of military necessity and deference to the civilian commander in chief and his staff, suggests that Constitutional formalism must give way to the higher calling of self preservation at the instance of a man who claims the right see to the fulfillment of those necessities (thus Justice Thomas’ declaration that the decision would “sorely hamper the President’s ability to confront and defeat a new and deadly enemy”). But what ideologies are served in Hamdan? That becomes less clear. No grand norm is involved here—the abolition of slavery, or subordination on the basis of race or gender. Perhaps there is one—on preserving the fundamental distinction between citizen and enemy, between member of the American community and alien. There was been much debate, on ideological grounds, between those who would see the United States as heavily integrated in a world system of law in which the United States has a diminished capacity for independent action, and those who see the United States as entirely supreme and independent within its own territory, and with respect to which foreigners and outsider norms must play a subordinate role. If the character of national sovereignty provides the ideological basis, then the niceties of the Constitution must give way when an important governmental actor asserts his authority in furtherance of that ideology. If this is so, then it is not just the Constitution, but also the very preservation of the state that is at stake in this litigation. For this sort of ideological supremacist, the Constitution must give way to preserve the state. Or, indirectly for Justice Scalia especially, the Constitution must be glossed against this ideology. Much in the dissents of Justices Scalia and Thomas provide a foundation for this view.
In a sense, Hamdan reminds us that we have not come very far from the time of the Korean War and the Steel Seizure Case, 343 U.S. 579 (1952). The great issues of institutional power, the necessities of war, the rules governing our behavior in a death struggle against an implacable enemy (Communism in the 1950s, ideological religion in the 21st century), remain the same. The judicial settlement reached remains equally unstable. As a last irony of this preliminary assessment: just as the concurring opinion in the Steel Seizure case eventually took center stage, it is possible that Justice Kennedy’s invocation of that analysis in Hamdam will have great long term effect. If so, the Supreme Court remains committed to a sort of middle course in matters of umpiring—substantially formalist with a bit of flexibility under some circumstances. But it will be the Court that will remain at the center of these disputes.
And now a last perversity: as a consequence, ideological supremacists will now focus on the Supreme Court. I expect that in the coming years greater efforts will be made to discredit the court (and its individual members), to destroy the legitimacy of the institution, and to attempt “reforms” of the Court that will create formal barriers to its participation in similar future disputes. This possibility is potentially the most interesting ramification of the decision. We will see.