The Price of Experience: The Constitution After September 11, 2001

25 Pages Posted: 22 Feb 2002 Last revised: 2 Nov 2009

Date Written: 2002

Abstract

The terrorist attacks of September 11, 2001, will change how we read the Constitution, and they will diminish the value of the elegant abstraction of a famous court decision like Youngstown Sheet & Tube Co. v. Sawyer. That new perspective will change far more than national security and separation of powers. Our understanding of the religion clauses, of the role of governors, of ethnic discrimination, and of what constitutes a compelling governmental interest are likely to change or may have already changed.

The opinions of the Supreme Court are not the only sources of wisdom about reading the Constitution. Empiricism rests upon experience. In contrast, innocence is a priori reasoning untested by empiricism. Measured by the standard of wisdom bought with experience, the abstract erudition of Supreme Court decisions, including Youngstown, is unimpressive. For the thousands murdered at the World Trade Center and the Pentagon, the orations in Youngstown about the separation of powers rang hollow: These victims lost not only liberty, but life. The carnage of September 11th will transform a new generation of Americans as much as Pearl Harbor transformed an earlier one.

September 11th was an intense, common experience that informed us about the balance between individual liberty and collective security. To believe in the existence of evil is no longer to be regarded as superstitious, antiquarian, or fanatical. September 11th reminds us that the text of the Constitution is replete with references to war, because the same Framers who devised the separation of powers and later wrote the Bill of Rights also saw the need to be vigilant in a dangerous world. It is an exaggeration to say that everything is different now. The words of the Constitution have not changed since September 11th. It has always been the case that the first duty that Article II, section 2 imposes on the President is to be Commander-in-Chief. What has changed, through experience, is our collective understanding of why the government's highest obligation under the Constitution is to defend its citizens.

With the collective experience of September 11th, we can now see, after years of self-indulgence masquerading as virtue, that liberty and security are more than abstractions to be manipulated in elegantly written Supreme Court opinions. A world of danger cannot be dismissed with pretty words. Youngstown is a poorly reasoned decision on both takings and separation-of-powers grounds. Was President Truman's seizure of the steel mills a legislative act, or was it a military act taken pursuant to his powers as Commander-in-Chief, in the defense of the free world in America's first open conflict of World War III? Justice Black's opinion for the Court so thoroughly denigrates the latter possibility that it runs the risk of overstating the case about the boundaries of presidential power in matters that genuinely do threaten national security, let alone matters that jeopardize the security of the entire free world. Read in this way, Youngstown is a power grab by the Court and Congress.

Youngstown has an unstated premise that the threat to liberty from foreign aggression is less than the threat to liberty when the President claims expansive powers to defend the nation from such aggression. September 11th was an awakening, an epiphany, to the empirical fact - not the abstract notion - that America had underestimated the danger of deadly aggression on its soil. The collective experience of witnessing thousands of American civilians slaughtered on American soil by foreign terrorists on September 11, 2001, is far more important to reading the Constitution today than is a case that has been portrayed as the backlash to the legally clumsy attempt, by a famously unpopular President, to invoke national security as the justification for seizing steel mills during a labor dispute in 1952, an election year in which control of the White House subsequently shifted from one party to the other.

So what guidance could we expect to glean from Youngstown after September 11, 2001, if President Bush were temporarily to conscript private property in the name of winning the war on terrorism? Not much, most likely. A modern replay of Youngstown during the war on terrorism would likely have a different result. September 11th is the page of history to Youngstown's volume of logic.

JEL Classification: K0, K00, K10, H11, K19, K30, K39 K40, P10

Suggested Citation

Sidak, J. Gregory, The Price of Experience: The Constitution After September 11, 2001 (2002). Constitutional Commentary, Vol. 19, No. 101, pp. 37-61, 2002. Available at SSRN: https://ssrn.com/abstract=301583 or http://dx.doi.org/10.2139/ssrn.301583

J. Gregory Sidak (Contact Author)

Criterion Economics, L.L.C. ( email )

1717 K Street, N.W.
Washington, DC 20006
United States
(202) 518-5121 (Phone)

HOME PAGE: http://www.criterioneconomics.com

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