Constitution Never Truly Followed, says Scheppele

Editor’s note: This article was initially published in The Daily Gazette, Swarthmore’s online, daily newspaper founded in Fall 1996. As of Fall 2018, the DG has merged with The Phoenix. See the about page to read more about the DG.

In the American imagination, our Constitution has attained sovereign status as a great, undefiable stabilizer lasting throughout our history. Kim Lane Scheppele, the Director of the Program in Law and Public Affairs and Laurence S. Rockefeller Professor of Public Affairs at Princeton University, challenged this assumption at Swarthmore’s annual Constitution Day lecture.

Dr. Scheppele’s talk, entitled “Small Emergencies: How a Constant Sense of Emergency Shapes the Possibilities of American Constitutionalism and Helps us Understand Executive Branch Power in the Aftermath of 9/11,” began with a question motivated by her interest in comparative politics: why has the American constitution lasted so long, while other nations, have had more constitutions that last for shorter periods of time?

The answer Dr. Scheppele offers is not a patriotic tribute to American superiority or its history of relative peace and prosperity. Rather, she argues that the Constitution has seemed resilient because for long periods of time large parts of the Constitution were either ignored or suspended, with the American public afterwords acting as if this were not so. The key to understanding this phenomenon is to examine the “small emergency,” or the crisis that is serious enough to suspend part of the Constitution, but not big enough to require drafting a new one.

A recent incidence of a such an occurence is the Federal States of Emergency declared on the Gulf Coast after Hurricane Katrina. In addition to the states directly hit by the hurricane, 41 other states declared Federal States of Emergency so refugees could receive federal funding without a lengthy appropriations process in Congress. A law called the Stafford Act, passed in 1974, allows this suspension of federalism which permits federal agencies to bypass governors and state governments. Since it exists to serve a benign purpose, and requires a clear declaration by the president of what parts of the law are being suspended for what purpose, in which manner, and for how long, the Stafford Act has never been challenged in court.

Dr. Scheppele is concerned about this as a general trend of executive overreach and legislative compliance throughout American history. Until the Supreme Court forced him to stop, Jefferson was happy to allow a general to suspend habeas corpus in order to track down Aaron Burr. Lincoln is “a textbook example of how not to follow the constitution,” as he accumulated massive war powers in the four months between his inauguration and the date he set Congress to open session, and then persuaded congress it to approve of all of his measures retroactively. The Supreme Court condemned some, but not all, of these actions.

In the twentieth century, this tendency has taken on a flavor common across many Western democracies, in which a legislature senses a war on the horizon and so offers war powers to the executive. Wilson pocket vetoed Congress’s attempt to repeal said powers, while during one of his fireside chats Franklin Roosevelt threatened to seize powers from Congress if it did not comply. In both cases, Congress never fully regained all its powers from the president; Truman used Roosevelt’s leftover powers and more during the Korean War.

This trend came to a head during the Nixon administration, when he declared inherent Article Two powers to stop a postal strike in 1970 and to enact wage and price controls in 1971. As part of the fallout of Watergate, Congress began trying to regain its powers. The Stafford Act mentioned above is one of a few acts designed to clearly delineate which powers could be delegated to the president in certain times of emergencies and the manner in which they might be delegated.

While these acts are well-intentioned, Dr. Scheppele believes they still reinforce the idea that the president can do anything as long as Congress allows it, thereby weakening the balance of power. Some Constitution watchers focus primarily on civil liberties and ignore structural issues, but Scheppele rightly points out that before the Bill of Rights, those structural guarantees in the original body of the constitution were supposed to serve that purpose. We have become so accustomed to declaring emergencies that Dr. Scheppele doubts we have ever followed the entire body of the Constitution for any substantial period of time.

The terrorist attacks of September 11, 2001 exacerbate this issue. Apart from the Patriot Act, which Dr. Scheppele sees as a duly passed law that clearly lays out the powers it allows, the Bush administration has followed a policy of declaring inherent Article Two powers. This would be in keeping with tradition, Dr. Scheppele explains, except that Lincoln, Roosevelt, and others always publicly announced that the executive was claiming powers, whereas President Bush has done so primarily with secret internal memos, and will offer as justification when pressed that the executive does not have to obey Congress.

Dr. Scheppele closed her talk by noting that Constitution Day is part of a tradition of “honoring a myth that we wish we could live up to, but the practice has been much different.” So it seems that in American Constitutional Law, as in all things, a disparity persists between theory and practice.

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