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CONSTITUTIONS, RULE FOLLOWING, AND THE CRISIS OF CONSTRAINT

Published online by Cambridge University Press:  20 April 2018

Thomas P. Crocker  and
Michael P. Hodges
Thomas P. Crocker
Affiliation:
Professor of Law, University of South Carolina School of Lawcrocketp@law.sc.edu
Michael P. Hodges
Affiliation:
Professor of Philosophy, Vanderbilt University
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Abstract

We diagnose a paradox said to exist for liberal constitutionalism. Constitutional rules seemed to fail to constrain in times of expediency or under conditions of necessity, occasions when constraints might be most needed. From this failure, a form of rule skepticism seems to undermine liberal constitutionalism's claims to govern and constrain official behavior, especially during times of emergency. On closer inspection, we identify three different forms this purported rule skepticism might take: contestation over rule applications, skepticism about rule determinations, or rule cynicism. We resolve the apparent paradox by demonstrating how rule skepticism is either unwarranted or cynically deployed, but in neither case raises a legitimate challenge to liberal constitutionalism.

Type
Research Article
Information
Legal Theory , Volume 24 , Issue 1 , March 2018 , pp. 3 - 39
Copyright
Copyright © Cambridge University Press 2018 

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References

1. See Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2010).

2. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819).

3. Barack Obama, President, United States of America, Remarks on United States Signals Intelligence and Electronic Surveillance Programs (Jan. 17, 2014), https://www.gpo.gov/fdsys/pkg/DCPD-201400030/pdf/DCPD-201400030.pdf.

4. The FBI engaged in a Counter Intelligence Program (COINTELPRO) beginning in the 1950s in which it conducted covert surveillance of antiwar and civil rights groups, among others, leading to an eventual Senate investigation lead by Senator Church. See S. Rep. 94-755, at 1–2 (1976).

5. Id.

6. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”).

7. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. No. 107-56, §204, 115 Stat. 272, codified at 50 U.S.C. §1804(a)(7)(B) (2000).

8. See Smith v. Maryland, 442 U.S. 735 (1979).

9. See, e.g., Donohue, Laura K., Bulk Metadata Collection: Statutory and Constitutional Considerations, 37 Harv. J. L. & Pub. Pol'y 757, 871–874 (2014).Google Scholar

10. After disclosure, the Obama administration faced both public pressure and judicial review. On the latter, see Klayman v. Obama, 957 F. Supp. 2d 1, 33 (D.D.C. 2013) (“The almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.”). Regarding public pressure, Congress eventually constructed a joint public-private program that keeps the bulk metadata in private hands with specific procedures for government inquiry of the data by passing the USA Freedom Act. See Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection, and Online Monitoring Act of 2015, Pub. L. No. 114-23, 129 Stat. 268, codified at 50 U.S.C. §1861 (2015).

11. See discussions of Schmitt's critique of liberal constitutionalism in Andreas Kalyvas, Democracy and the Politics of the Extraordinary (2008) and John P. McCormick, Schmitt's Critique of Liberalism: Against Politics as Technology (1999).

12. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab trans., 1985) (1922), at 6.

13. Vermeule, Adrian, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095, 1103 (2009).Google Scholar

14. See, e.g., Levinson, Daryl J., Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011).Google Scholar

15. Paul W. Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty (2011), at 45.

16. Ferejohn and Pasquino put the dilemma this way: “The rights and protections it provides and preserves can prevent the government from responding efficiently and energetically to enemies that would destroy those rights and, perhaps, even the constitutional order itself.” Ferejohn, John & Pasquino, Pasquale, The Law of the Exception: A Typology of Emergency Powers, 2 Int'l J. Const. L. 210, 210 (2004).Google Scholar

17. See, e.g., Rasul v. Bush, 542 U.S. 466, 485 (2004) (asserting federal court habeas jurisdiction); Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004) (requiring minimal due process procedures subject to judicial review).

18. For example, President Trump issued an executive order, long-promised on the campaign trail, creating a moratorium on all travel from seven designated countries, all of which have overwhelming Muslim majority populations, and created a preference for refugee claims made by those claiming religious persecution as a religious minority in the applicant's country. 82 Fed. Reg. 8977–8978 (2017). In litigation, President Trump argued that he had unreviewable authority to enact the ban, citing both inherent powers and statutory authorization. Washington v. Trump, 847 F.3d 1151, 1161 (9th Cir. 2017). In rejecting this position, the Ninth Circuit argued that “this claimed unreviewability . . . runs contrary to the fundamental structure of our constitutional democracy.” Id.

19. See, e.g., Hamdi, 542 U.S. at 527 (considering Government argument that “respect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict, ought to eliminate entirely” the basis for judicial review).

20. See, e.g., El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007); Mohemed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc).

21. See, e.g., Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010).

22. Eric A. Posner & Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts (2007).

23. For now, we ignore the possibility of congressional checks, which in post–September 11 counterterrorism have been more cooperative than confrontational. See, e.g., FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436. See also the temporary amendments enacted in the aftermath of the public revelation of the warrantless Terrorist Surveillance Program. Protect America Act of 2007, Pub. L. No. 110-55, 121 Stat. 552.

24. Cass R. Sunstein, Minimalism at War, 2004 Sup. Ct. Rev. 47.

25. Donald Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 3:44 PM), https://twitter.com/realdonaldtrump/status/827981079042805761.

26. Donald Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 8:12 AM), https://twitter.com/realdonaldtrump/status/827867311054974976. Other remarks include threats as well as wholesale rejection of the legitimacy of a coordinate branch: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!” Donald Trump (@realDonaldTrump), Twitter (Feb. 5, 2017, 3:39 PM), https://twitter.com/realdonaldtrump/status/828342202174668800.

27. See Harvey C. Mansfield, Taming the Prince: The Ambivalence of Modern Executive Power (1989).

28. See Arthur M. Schlesinger, Jr., The Imperial Presidency (1973).

29. Id. at 5.

30. Giorgio Agamben, State of Exception (Kevin Attell trans., 2005), at 29.

31. See Vermeule, supra note 13, at 1101–1106.

32. Kahn, supra note 15, at 41. “There can be no juridical norm by which to measure the exception,” because nothing would count as an error, no right or wrong way to decide on what is a valid exception to the rule. Id. at 45.

33. “Like every other order, the legal order rests on a decision and not on a norm.” Schmitt, supra note 12, at 10.

34. Kahn articulates the point further: “The exception, accordingly, can only be recognized in the decision. More precisely, it is constituted in the decision itself. The truth of the matter is not something apart from the decision.” Kahn, supra note 15, at 45.

35. Memorandum from John C. Yoo, Deputy Assistant Attorney Gen., to Alberto R. Gonzales, Counsel to the President, Authority for Use of Military Force to Combat Terrorist Activities Within the United States (Oct. 23, 2001), at 4. This “responsibility entails power” argument appears in a number of U.S. Department of Justice memos purporting to justify expanded executive power to conduct counterterrorism operations. A similar view can be found in Supreme Court Justice Clarence Thomas's dissenting opinion in Hamdi v. Rumsfeld. He argued that the president has “primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation's foreign relations.” 542 U.S. 507, 580 (2004) (Thomas, J., dissenting).

36. See Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (1948).

37. Posner & Vermuele, supra note 1, at 201.

38. Id. at 176.

39. See, Richard A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (2006). For a critique of this view, see Crocker, Thomas P., Torture, with Apologies, 86 Tex. L. Rev. 569 (2008)Google Scholar.

40. Here's how the position is articulated: “The Constitution itself embraces an overriding principle of constitutional and national self-preservation that operates as a meta-rule of construction for the document's specific provisions and that may even, in cases of extraordinary necessity, trump specific constitutional requirements.” Stokes Paulsen, Michael, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1257 (2004)Google Scholar.

41. Id. at 1257.

42. David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (2006), at 3.

43. The absence of legal constraint takes the form of deferential standards of review when executive officials make decisions on questions of law. Not absolutely anything will count as falling within the scope of executive discretion, so there are limitations on discretionary authority. See Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); United States v. Mead, Corp., 533 U.S. 218 (2001). See also Sunstein, Cass R., Beyond Marbury: The Executive's Power to Say What the Law Is, 115 Yale L.J. 2580 (2006).CrossRefGoogle Scholar

44. Vermeule, Adrian, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095, 1101–1103 (2009)Google Scholar. Courts will impose a review of executive officials’ discretion, looking for “arbitrary and capricious” action, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), but what counts as “arbitrary and capricious” is subject to greater deference during emergencies. Id. at 1118–1121.

45. See, for example, Sunstein's view that legal decisions during war should be undertheorized, shallow, and narrow. Sunstein, supra note 24.

46. See, e.g., Levinson, Daryl J., Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657, 662 (2011)Google Scholar.

47. Oliphant, Herman, A Return to Stare Decisis, 14 Am. Bar Assoc. J. 75 (1928)Google Scholar.

48. Llewellyn, Karl, Some Realism About Realism—Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1237 (1931)CrossRefGoogle Scholar.

49. As Jerome Frank observed, “The peculiar traits, disposition, biases and habits of the particular judge will, then, often determine what he decides to be the law.” Jerome Frank, Law and the Modern Mind (Routledge 2009) (1930), at 119. This received view of legal realism, though widespread and the one used here to exemplify a particular version of skepticism, is not the only one available. See, e.g., Leiter, Brian, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 Tex. L. Rev. 267 (1997).Google Scholar

50. Posner & Vermeule, supra note 1, at 176–205.

51. See Crocker, Thomas P., Dystopian Constitutionalism, 18 U. Pa. J. Const. L. 593 (2015)Google Scholar.

52. See Fallon, Richard H. Jr., Constitutional Constraints, 97 Cal. L. Rev. 975 (2009).Google Scholar

53. See, e.g., Goodrich, Peter, On the Futures of the Fingerpost, 39 Critical Inquiry 498 (2013).CrossRefGoogle Scholar

54. See H.L.A. Hart, The Concept of Law (2d ed. 1994), at 56–58, 88–90.

55. Acceptance of a rule from the internal point of view for Hart, “consists in the standing disposition of individuals to take such patterns of conduct both as guides to their own future conduct and as standards of criticism which may legitimate demands and various forms of pressure.” Id. at 255.

56. Id. at 89. For discussion of the “internal point of view,” see Shapiro, Scott, What Is the Internal Point of View?, 75 Fordham L. Rev. 1157 (2006)Google Scholar; Patterson, Dennis, Explicating the Internal Point of View, 52 SMU L. Rev. 67 (1999)Google Scholar.

57. Vagueness itself does not create conflict with rule of law norms unless legal actors act arbitrarily (and thereafter in public presentations, cynically). See Endicott, Timothy A.O., The Impossibility of the Rule of Law, 19 Ox. J. Legal Stud. 1 (1999).CrossRefGoogle Scholar

58. As we will see, sometimes rule contestation is about a conception of principle that the rule exemplifies, and that purported exceptions seek to modify. See, e.g., Schauer, Frederick, Exceptions, 58 U. Chi. L. Rev. 871, 893–898 (1991).CrossRefGoogle Scholar

59. See Transcript of Frost-Nixon Interview, N.Y. Times, May 20, 1977, at A16. “Well, when the President does it, that means that it is not illegal. . . . If the President, for example, approves something, approves an action because of the national security . . . then the President's decision in that instance is one that enables those who carry it out to carry it out without violating a law.”

60. Id.

61. This reasoning can be found in the infamous “torture memo” attributed to John Yoo, but signed by the now federal judge Jay Bybee. Memorandum from Jay S. Bybee, Head of Justice Department's Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340–2340A (Aug. 1, 2002), at 31. Indeed, exemplifying the claim that any action the president takes would be constitutional, the memo reasoned that actions taken by coordinate institutions to limit the president's discretion would themselves by unconstitutional. “Any effort to apply . . . [statutory prohibitions against torture] in a manner that interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants . . . would be unconstitutional.” On the appropriate role of government lawyers, see Bradley Wendel, W., The Torture Memos and the Demands of Legality, 12 Legal Ethics 107 (2009).CrossRefGoogle Scholar

62. Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007), at 144.

63. “But what does it mean to be a bad man? Mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money.” Wendell Holmes, Oliver, The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897)Google Scholar. Anthony Lewis makes the cynicism of the Bush administration's legal reasoning apparent, describing the “torture memo's” reasoning in “bad man” terms: “The memo reads like the advice of a mob lawyer to a mafia don on how to ski the law and stay out of prison. Avoiding prosecution is literally a theme of the memoranda.” Anthony Lewis, Making Torture Legal, N.Y. Rev. Books, July 15, 2004, at 4.

64. See Posner & Vermeule, supra note 1, at 201.

65. On the importance of constituent power to constitutional practice, see Loughlin, Martin, The Concept of Constituent Power, 13 Eur. J. Pol. Theory 218 (2014)CrossRefGoogle Scholar; Kalyvas, Andreas, Popular Sovereignty, Democracy, and the Constituent Power, 12 Constellations 223 (2005)CrossRefGoogle Scholar. See also essays in Martin Loughlin & Neil Walker, The Paradox of Constitutionalism: Constituent Power and Constitutional Form (2008) and Crocker, Thomas P., Constitutive Visions: Sovereignty, Necessity, and Saramago's Blindness, 24 Constellations 63 (2017CrossRefGoogle Scholar).

66. See The Federalist No. 1 (Alexander Hamilton).

67. Ackerman, Bruce, The Living Constitution, 120 Harv. L. Rev. 1737, 1805 (2007)Google Scholar.

68. Rubenfeld develops the importance of commitments to processes of democratic self-governance that autonomous agents practice. See Jed Rubenfeld, Revolution by Judiciary: The Structure of American Constitutional Law (2005), at 88–98.

69. Rorty, Richard, The Priority of Philosophy to Democracy, in Objectivity, Relativism, and Truth: Philosophical Papers (1991)Google Scholar.

70. Id. at 179.

71. Id. at 178.

72. See John Rawls, A Theory of Justice (1971); Rawls, John, Justice as Fairness: Political Not Metaphysical, 14 Phil. & Pub. Aff. 225 (1985)Google Scholar.

73. Rorty, supra note 69, at 193.

74. See Hodges, Michael P., The Status of Ethical Judgments in the Philosophical Investigations, 18 Phil. Investigations 99, 99–112 (1995)CrossRefGoogle Scholar.

75. See, e.g., Jeremy Waldron, Law and Disagreement (1999). More recently, the issue of deep disagreement has received more philosophical consideration. See, e.g., Kelly, Thomas, Disagreement, Dogmatism, and Belief Polarization, 105 J. Phil. 611 (2008)CrossRefGoogle Scholar.

76. Rawls, A Theory of Justice, supra note 72, at 18–19.

77. See Bruce Ackerman, 2 We the People: Transformations (2000).

78. For another interesting argument against Rorty, see Talisse, Robert B., Pragmatist Political Philosophy, 9 Phil. Compass 123, 124–126 (2014)CrossRefGoogle Scholar.

79. On the importance of offering justifications, see Rainer Forst, The Right to Justification: Elements of a Constructivist Theory of Justice (2012).

80. Rorty, supra note 69, at 186.

81. Id. at 188.

82. John Rawls describes a “practice conception” of rules that applies here. “On this view rules are pictured as defining a practice.” Rawls, John, Two Concepts of Rules, 64 Phil. Rev. 3, 24 (1955)CrossRefGoogle Scholar. Moreover, “[i]t is the mark of a practice that being taught how to engage in it involves being instructed in the rules which define it, and that appeal is made to those rules to correct the behavior of those engaged in it. Those engaged in a practice recognize the rules as defining it. The rules cannot be taken as simply describing how those engaged in the practice in fact behave: it is not simply that they act as if they were obeying the rules.” Id.

83. In this situation, an official refuses to acknowledge the status of law as constituting powers, obligations, and constraints—that is, to take an internal perspective as motivating action and legitimizing legal practices. See Hart, supra note 54, at 88–90.

84. 163 U.S. 537 (1896).

85. 347 U.S. 483 (1954).

86. See Bruce Ackerman, 3 We the People: The Civil Rights Revolution (2014).

87. See Crocker, supra note 51.

88. Ronald Dworkin, Law's Empire (1986), at 78.

89. Id.

90. Id. at 77.

91. Id. at 78–79.

92. Waldron, Jeremy, Justifying Targeted Killing with a Neutral Principle?, in Targeted Killings: Law and Morality in an Asymmetrical World (Finkelstein, Claire, David Ohlin, Jens & Altman, Andrew eds., 2012)Google Scholar, at 131.

93. See Waldron, Jeremy, Torture and Positive Law: Jurisprudence for the White House, 105 Colum. L. Rev. 1681 (2005)Google Scholar.

94. “Ensuring Lawful Interrogations.” Executive Order 13491 (Jan. 22, 2009), The content of this order—restricting all United States officials to interrogation techniques authorized by the Army Field Manual—was codified in the National Defense Authorization Act of 2016.

95. Charlie Savage, Trump Poised to Lift Ban on CIA “Black Site,” Prisons, N.Y. Times, Jan. 25, 2017.

96. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952).

97. Id.

98. Waldron, supra note 92, at 131.

99. A large body of scholarly attention has focused on Wittgenstein's rule-following arguments, in both philosophy and legal contexts. We do not attempt to engage this literature directly. See, e.g., McDowell, John, Meaning and Intentionality in Wittgenstein's Later Philosophy, in Mind, Value, and Reality (1998)Google Scholar, at 263–278; Brian Bix, Law, Language, and Legal Determinacy (1995), at 36–62; Patterson, Dennis, Law's Pragmatism: Law as Practice & Narrative, 76 Va. L. Rev. 937, 973 (1990)CrossRefGoogle Scholar.

100. Ludwig Wittgenstein, Philosophical Investigations (G.E.M. Anscombe trans., 2d ed. 1958), at §206.

101. Id. at §19.

102. Id. at §199.

103. See, e.g., Saul A. Kripke, Wittgenstein on Rules and Private Language (1982).

104. Wittgenstein, supra note 100, at §201.

105. Wittgenstein, supra note 100, at §198.

106. Id. at §198.

107. Id. at §198.

108. Id. at §198.

109. Id. at §201.

110. See Jon Elster, Ulysses Unbound (2000).

111. See Rubenfeld, supra note 68.

112. Harel, Alon & Sharon, Assaf, “Necessity Knows No Law”: On Extreme Cases and Uncodifiable Necessities, 61 U. Toronto L.J. 845 (2011)Google Scholar.

113. Id. at 861.

114. See, e.g., Stokes Paulsen, Michael, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1267 (2004)Google Scholar.

115. Korematsu v. United States, 323 U.S. 214 (1944). For scathing contemporaneous criticism, see Rostow, Eugene V., The Japanese American Cases—A Disaster, 54 Yale L.J. 489 (1945)CrossRefGoogle Scholar.

116. Korematsu, 323 U.S. at 244.

117. Posner & Vermeule, supra note 22, at 12.

118. President Barak Obama, Remarks by the President on Review of Signals Intelligence (Jan. 17, 2014).

119. Id.

120. Id.

121. McCulloch v. Maryland, 17 U.S. 316 (1819).

122. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952).

123. See The Federalist No. 51 (James Madison).

124. See Levinson, Daryl J. & Pildes, Richard H., Separation of Parties, Not Powers, 119 Harv. L. Rev. 2312 (2006)Google Scholar. See also Elizabeth Magill, M., Beyond Powers and Branches in Separation of Powers Law, 150 U. Pa. L. Rev. 603 (2001).CrossRefGoogle Scholar

125. Such an appeal to public discourse and constitutional argumentation parallels the claim that the First Amendment free speech clause's primary purpose is to protect “uninhibited, robust, and wide-open,” New York Times v. Sullivan, 376 U.S. 254, 270 (1964), public discourse in the hope that truth (or better results) will win out in the marketplace of ideas. See, e.g., Robert C. Post, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State (2012). See also Owen M. Fiss, The Irony of Free Speech (1996).

126. Posner & Vermeule, supra note 22, at 31.

127. See Crocker, Thomas P., Who Decides on Liberty?, 44 Conn. L. Rev. 1511 (2012)Google Scholar. See also Rumsfeld, Hamdi v., 542 U.S. 507, 536 (2004)Google Scholar (arguing that the Constitution “most assuredly envisions a role for all three branches when individual liberties are at stake”).

128. Balkin, Jack & Levinson, Sanford, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 Fordham L. Rev. 489 (2006)Google Scholar

129. Perhaps a “pure Madisonian” system of attachment to institutional prerogatives when staffed by cynics would produce a kind of institutional check and balance recognizable as liberal constitutionalism. See Vermeule & Posner. But cynics, uncommitted to the constitutional norms and ideals—for example, of promoting liberty, or protecting against equality, or recognizing inherent federalism limitations—would struggle to provide any common discursive grounds for their institutional contest.

130. See Mark E. Brandon, Free in the World: American Slavery and Constitutional Failure (1992).

131. See Charles Taylor, Modern Social Imaginaries (2004).

132. The Federalist No. 10 (James Madison) (emphasis added).

133. Why “enlightened statesmen” are by definition those committed to the constitutional order from the inside, and those who are not would be “unenlightened.”

134. President Trump has proposed revoking President Obama's executive order regarding use of CIA “black sites” and forbidding use of any interrogation technique not authorized by the Army Field Manual. See Charlie Savage, Trump Poised to Lift Ban on CIA “Black Site,” Prisons, N.Y. Times, Jan. 25, 2017. President Trump has also claimed that “torture works,” and, as a candidate, vowed to renew its use. See Jenna Johnson, Trump Says ‘Torture Works,’ Backs Waterboarding and ‘Much Worse’, Wash. Post., Feb. 17, 2016.

135. Posner, Eric A. & Vermeule, Adrian, Inside or Outside the System?, 80 U. Chi. L. Rev. 1743, 1745 (2013)Google Scholar.

136. Id.

137. See Sanford Levinson, Constitutional Faith (1988).

138. See 2 Bruce A. Ackerman, We the People: Transformations (1998).

139. Korematsu, 323 U.S. at 246.

140. See The Federalist No. 48 (James Madison).

141. See, e.g, Marc J. Hetherington & Jonathan D. Weiler, Authoritarianism and Polarization in American Politics (2009); Karen Stenner, The Authoritarian Dynamic (2005). See also MacWilliams, Matthew C., Who Decides When the Party Doesn't? Authoritarian Voters and the Rise of Donald Trump, 49 Pol. Sci. & Pol. 716 (2016)CrossRefGoogle Scholar.

142. See Heidi Kitrosser, Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution (2015).

143. Bruce Ackerman, 1 We the People: Foundations (1991).