What’s the legal basis for executive privilege?
I’m not even geographically qualified to say whether you did a good job, but I suspect so and it certainly was an interesting and informative read. It looks like you have some unwritten parts of your constitution too.
Great job Gfactor! Once again you’ve written a brilliant article on a subject I didn’t think I had any interest in until I read your report. Thanks for fighting my ignorance!
Thanks. This one was tough to write.
Quite good, as always. Let’s hope the next President is not quite as secretive and royalist in his or her claims to executive powers.
Not to stir up an ant pile, but how does assertion of executive privilege jive with conservative theories of Constitutional interpretation?
Depends on which conservative theorist you ask. If I get a chance, I’ll try to be less cryptic tonight.
That would be great, if you have the time and inclination.
Originalists like Bork and Ed Meese could easily resort to discussions among the framers, to the extent they exist, so the text itself isn’t an obstacle for them. I discussed some problems with the intentionalist theory in a part of another staff report that got cut, which I’ve edited, revised and expanded:
Meese and Bork were both intentionalists–they believed that the Constitution should be interpreted according to the “original intention” of the framers. While this form of originalism made some political hay, it proved unworkable, and well, embarrassing. In Bork’s famous article, he suggested that the free speech provisions of the first amendment only protected political speech, and that the Ninth Amendment clearly had some meaning, but its meaning is “indeterminate. . . as irretrievable as it would be had the words been covered by an inkblot.” Following Bork’s approach, the establishment clause seems to deserve similar treatment. But less extreme originalists ran into similar problems.
Early intentionalists relied mostly on the drafting history of Constitutional language. Critics pointed out that the intention of the drafters was far less important than the intention of those who gave it life–the ratifiers. They also pointed out that the historical record is incomplete and often inconsistent. James Hutson reviewed the available historical source materials and found they weren’t “full, reliable records of the debates at the Constitutional and ratifying conventions.” He notes that the record for the Bill of Rights is worse. The Senate didn’t record anything. The House’s record was prepared by Thomas Llloyd. Hutson says Lloyd’s “technical skills had become dulled by excessive drinking.” And his notes don’t match the printed version published in the Congressional Register. As these criticisms surfaced, originalists changed their focus from the original intent of some group of individuals to the original meaning that it was assigned.
In response to the original meaning school of originalism, Gordon Wood and other historians pointed out that our Constitution-making is as complex as any other human activities. Motivations can be mixed; different factions can assign contrasting meanings to the same words; people make disingenuous claims and take positions of convenience. In short, those who thought careful study of history would disclose the original meaning of the Constitution would instead discover that there were several meanings.
Another set of critics noted that it’s less than clear that the framers and ratifiers intended or understood the Constitution require originalist interpretation. Several commentators even argued about what was understood about the very idea of original meaning at the time the Constitution was adopted. In fact, Justice Scalia in a 1989 article on originalism did not suggest that originalism had been intended by the framers or adopters of the Constitution. He said he chose it as the “lesser of two evils.” In the same article, Justice Scalia noted another criticism of originalism, which as we’ve seen is dead on. Originalism requires hardcore historical analysis: “Do you have any doubt that this system does not present the ideal environment for entirely accurate historical inquiry? Nor, speaking for myself at least, does it employ the ideal personnel.”
Because of these criticisms, few originalists subscribe to the intentionalist school these days; a few more still subscribe to the original meaning school. Those who seek to apply the constitution according to something original about it use the only sure thing–the text itself. It’s called the textualist school. Justice Scalia is a textualist, for example.
And textualist interpretive theory will have to go through some contortions to approve some sort of understood or implied privilege.
According to Scalia’s book, A Matter of Interpretation, “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.” He explicitly rejects appeals to the intention of the drafters:
Textualists reject legislative history not only because it isn’t directly relevant, but also out of a deeper skepticism. As Scalia notes, “legislative history is extensive, and there is something for everybody. . . . the trick is to look over the heads of the crowds and pick out your friends.”
Scalia says an interpreter should begin by sticking to the language of the provision, but he admits that’s seldom helpful in Constitutional cases–the Constitution isn’t specific enough. So he says we should look at the original understanding of the provision. As we’ve discussed, some historians note that there’s probably more than one such understanding. As Scalia notes, he’s no professional historian. And many of the pros seem to be saying he won’t find his singular understanding.
So a textualist first has to look to the text, which doesn’t mention any sort of privilege for the executive branch even though it goes into detail about the privileges of legislators. http://www.usconstitution.net/const.html#A1Sec6
And then has to decide that the absence of a privilege some how makes Article II ambiguous on the topic of presidential privileges while steering clear of the shoals of substantive due process. Or try to impregnate the notion of the exective or the word president with the concept of privilege. But that’s just bad history.
As Jack Rakove points out in his book *Original Meanings * http://www.earlyamerica.com/review/1998/rakove.html our president was a point of enormous contention and a new creation. It’s unlikely that there was any *one * understanging of what privileges he might or might not have. This is also precisely the sort of thing that one would expect to have been made explicit if it was intended.
And then you’d have to explain how these understandings then extended to the Vice President http://www.time.com/time/nation/article/0,8599,198829,00.html and his meetings with private citizens, even though he claims that he’s not even part of the executive branch. http://www.usatoday.com/printedition/news/20070625/a_cheney25.art.htm
Anyway, here are the sources:
Amar, Akhil, America’s Constitution: A Biography (2005)
Bloom, Saul, “Questions & Answers Pertaining to the Constitution,” (1937), National Archives and Records Administration: http://www.archives.gov/national-archives-experience/charters/constitution_q_and_a.html.
Brennan, William, “The Constitution of the United States: Contemporary Ratification” (speech given at Georgetown University School of Law, 12 October 1985): http://www.politics.pomona.edu/dml/LabBrennan.htm
Cornell, Saul, The Other Founders: Anti-Federalism & the Dissenting Tradition in America, 1788-1828 (1999)
Eskridge, William, et al., Legislation and Statutory Interpretation (2d ed. 2006)
Farber, Daniel, et al., Constitutional Law: Themes for the Constitution’s Third Century (3d ed. 2003)
Freejohn, John, Constitutional Culture and Democratic Rule (2001)
Hutson, James, “The Creation of the Constitution: The Integrity of the Documentary Record,” 65 Texas Law Review, 1 (1986)
Kesavan, Vasan, and Paulsen, Michael, “The Interpretive Force of the Constitution’s Secret Drafting History,” 91 Georgetown L. Rev. (2003)
Linder, Doug, “Theories of Constitutional Interpretation,” Exploring Constitutional Law, www.law.umkc.edu (2006): http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/interp.html
Lithwick, Dahlia, Reasons To Go On Living: Does anyone believe in a “living Constitution” anymore? Slate.com, Aug. 23, 2005: What's a "living Constitution"?
Rakove, Jack, Interpreting The Constitution: The Debate Over Original Intent (1990)
Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1997)
Scalia, Antonin, “Originalism: The Lesser Evil,” 57 U. Cin. L. Rev. 849 (1989): http://www.joink.com/homes/users/ninoville/lesserevil.asp
Scalia, Antonin & Gutman, Amy (ed.), A Matter of Interpretation: Federal Courts and the Law (1998)
Wood, Gordon, “Ideology and the Origins of Liberal America,” 44 William and Mary Quarterly 628 (1987)
The elephant in the room in contemporary conservative interpretation of the Constitution, and the far-reaching claims of the Bush Administration to executive power, is the fact that the Framers’ views of the Presidency were colored by their perception that (1) King George III had badly overreached in his governance of the colonies before 1776, and (2) George Washington was very likely to be the first President. George III was widely viewed as a tyrant, while Washington - president of the Constitutional Convention - was someone respected and admired for his refusal to seize power at the close of the Revolution. The Framers knew he could be trusted not to abuse power, but what of his successors?
On the whole, the Framers liked the principle of a single executive who would be responsible to the nation and would be able to see that the Federal government’s business was attended to and the laws “faithfully executed.” However, they were understandably wary of an all-powerful executive and defended the Presidency against the Anti-Federalists’ charge that it was “the foetus of monarchy.”
I believe the Framers would be stunned by the Bush Administration’s claims to executive power. I recognize that other Presidents (Lincoln, FDR, all the post-WW2 chief execs to one degree or another) have, given the demands and exigencies of the day, their own personal inclinations and the rise of the modern administrative state, had something to do with the Presidency having grown as powerful as it is today. But IMHO the balance has tipped too far towards the Executive at the expense of the Legislative and Judicial branches.
Executive privilege is a concept that will probably continue to be in dispute for a long time to come. Whether the Bush claims will be seen in the long run as overreaching or part of a continued pattern of executive accretion of power will have a lot to do with who occupies the White House in the next few decades.
Wow; that was like a whole other staff report. So it looks a bit like GWB and co. like to wield the textualist cudgel on everyone but themselves. What a shocker–a hypocritical politician.
Gfactor, your Staff Report and lengthy post in this thread were both just plain great.
Thanks for the illumination!
[Billy Joel Lyric]And they sit at the bar and put bread in my jar
And say, “Man, what are you doin’ here.” [/BJL]
Yeah! You need to take your act on the Road, G. You could probably even make a buck doing it.
I’m honored. Thanks folks.