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Published online by Cambridge University Press: 21 November 2022
We know that the abuse of power may cause an erosion of authority, but I would suggest that the current “crisis” over Iran and the Contras confirms a notably different lesson: It is the erosion of authority, or the denial to the president of his rightful, constitutional powers, which has produced a stream of factitious crises. The “scandals” are generated by the prospect of an uncontained president, who is seeking to evade the restraints of the law, in order to deploy the instruments of violence in foreign policy. But the president appears to be bent on a course of lawlessness, he seems persistently to be threatening a “constitutional crisis,” only if one accepts the premise that these statutory restraints on the president are eminently reasonable and constitutional. If they are not, then there is no pattern of lawlessness on the part of the president, no scandal, no crisis.
One commentator has recently remarked that the War Powers Act and the Boland amendment have been parts of a design to “criminalize” differences in policy between Congress and the president. A president who took seriously his responsibilities under the Constitution, or a president who sought to exercise the powers that his predecessors have routinely exercised, would be compelled to steer around these restrictions. When he does, he will be charged with putting himself “above the law.” The opposition party, and its allies in the media, will express their outrage and declare the presence of another “scandal.” There will be calls for a special prosecutor, for a select congressional committee to hold extended hearings—in short, the whole script and the stage directions for Watergate, called into play once again. We now have a part of the political class, in government and the media, who have made “deploring” into a vocation: Their main competence has been cultivated in the art of investigating and holding long, debilitating hearings, with the object of bringing down the Administration or rendering the government of the day ineffectual.
1 See Helprin, Mark, “The Imperial Congress,” The Wall Street Journal, April 9, 1987, p. 32 Google Scholar (editorial page).
2 The Prize Cases, 67 U.S. 635 (1862); for Dana's brief, see 650–65, and especially 659–60.
3 U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
4 Ibid., at 317.
5 Ibid., at 320.
6 See Taney, in Luther v. Borden, 48 U.S. 1 (1849), at 44.Google Scholar
7 See Kissinger, , The White House Years (Boston: Little, Brown, 1979), p. 1415.Google Scholar
8 Congressional Record, October 28, 1983, S 14869.
9 The Works of Abraham Lincoln, ed. Basler, Roy P. (New Brunswick, N.J.: Rutgers University Press, 1953), Vol. III, p. 255.Google Scholar
10 The record of these cases can be found in The Works of Charles Sumner (Boston: Lee & Shepard, 1880), Vol. 5, pp. 497–98; Vol. 6, p. 144.
11 For a fuller treatment of this question, see Arkes, , First Things (Princeton: Princeton University Press, 1986), pp. 418–22.CrossRefGoogle Scholar Lincoln attended closely to the writings of John Marshall, and he had no reason to expect that the position he staked out here was inconsistent in any way with the understanding articulated by the Chief Justice in Marbury v. Madison. The misunderstanding has now become diffused, among lawyers and politicians, that the same case which established the authority of the Court to interpret the Constitution also established the Court as the sole, authoritative interpreter of the Constitution. But no claim of that kind is put forth in Marbury v. Madison; in fact, Marshall claimed nothing for the judges that could not have been claimed for any other officer of the government. Again, see Arkes, above, for a more extended discussion.
12 77 L. Ed. 2d 317 (1983).