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Did September 11 Cause a Constitutional Paradigm Shift?
Why Conservatives Argue that It Did, and Why Their Views Are Likely to Have Some Lasting Effect


Thursday, Feb. 03, 2005

Recently, a former member of Alberto Gonzales's White House staff described to the press the incredible "sense of mission" he and others felt post-9/11. They believed they were serving their country, to the best of their abilities, as they strained to find legalistic justifications for using extreme interrogation techniques against Guantanamo detainees.

Now, the Administration is backing away from the so-called "torture memos." A new memo has been publicly revealed, which expressly supersedes the old. And in his confirmation hearings, incoming Attorney General Alberto Gonzales bobbed and weaved before the Senate Judiciary Committee to avoid taking responsibility for the memos. But it was not always so.

At the time the memos were written, talented young, conservative lawyers felt they were merely responding to the necessities of a post-9/11 world by trying to liberate the Executive branch from the legal constraints of anti-torture laws and international human rights conventions.

Their zeal feels completely foreign to me - enthusiasm for enabling torture is a hard emotion to imagine. But in some sense, in their view, that was the point: It was supposed to feel foreign: The world had changed - their memos made that very explicit - and the law needed to change with it. They would now be the agents of that necessary change, using their talents to protect the nation by stripping away the legal constraints on what it could do to, and with, enemies of the state.

In their eyes, the terrorist attacks had created a "paradigm shift" - one that rendered obsolete a host of accepted wisdom regarding the scope of Executive Power, and the balance between liberty and national security. Certain legal constraints on governmental conduct, they thought, had been rendered, at best, quaint and, at worst, counterproductive given the new exigencies facing the government.

Whatever the merits view, there can be no doubt that it is sincerely felt by many people inside and outside the government. Nor can there be doubt that the "9/11 effect," as it might be called, will exercise a grip on the law - in particular, on constitutional law -- for some time to come.

With 9/11 and its aftermath, a new generational perspective may well be taking hold. And it would be foolhardy for any of us - even those who wish it were not so -- to ignore this development.

How Generations Reshape Constitutional Law: The "Greatest Generation"

Every generation of judges, scholars, and lawyers tries to bequeath to the next generation in line its own understanding of legal traditions and necessities. But, inevitably, they are only partially successful. The next generation inevitably revises the traditions it receives, and constructs new ones, in light of the experiences that have formed the new generation's world view. And so it goes.

Consider the generation of lawyers that counted among its leaders Alexander Bickel, who championed a modest and pragmatic approach to judging. As Yale Law professor Robert Burt has explained in a tribute to Bickel, Bickel's views of the legal world were constantly informed by two experiences -- both arising from the history that shaped the generation to which he belonged.

In 1939, a fourteen-year-old Bickel emigrated to the United States from Romania. Within five years, the Nazis had killed 60% of the Romanian Jews. The whole world Bickel, who was Jewish, had grown up in, had been destroyed by the repellent ideology of Mein Kampf.

The 1930s had also seen the epochal clash between FDR and the Supreme Court over New Deal Legislation. The Court's old guard had tried to squelch President Roosevelt's economic reforms in the name of freedom of contract; for a time, they were successful, but eventually, Roosevelt prevailed. But in the eyes of Bickel, and many others, "freedom of contract" ideology had delayed recovery from the Great Depression, causing terrible human suffering along the way.

As Burt describes it, Bickel, like many judges, scholars, and lawyers of his generation, derived a single overarching lesson from the disparate phenomena of World War II and the New Deal Court: They came to despise sweeping abstractions and ideologies as the engines of policy-making, whether legal or political.

To them, high principles were potential tools of oppression, the stuff that drove courts to rule by fiat or, even more important, gave a moral force to totalitarianism. For the Bickelian generation, the proper purpose of law and of courts was not to definitively adjudicate right from wrong, or to otherwise impose their will. It was much more modest - and more specific - than that.

Instead, Bickel urged courts to simply do their jobs of mediating between contesting litigants to solve particular disputes. Through legal diplomacy and pragmatic thinking, Bickel believed, courts could promote the ability of society to find political accommodations to solve large legal problems - but in many cases, to do this, court had to step aside to let legislatures and executives do their work.

Based on these ideas, Bickel would craft one of the most important constitutional law books ever written, The Least Dangerous Branch. There, he explained the virtues of a "passive" judiciary. Such a judiciary, as he described it, would decide even great issues - such as the issue of race discrimination encountered in Brown v. Board of Education -- in small steps.

Another Generation Reshapes the Law: The Civil Rights Era

No wonder, then, that the 1960s generation - which sought the very kind of sweeping, ideological change that frightened Bickel - dissented strongly from Bickel's approach.

For them, Brown v. Board of Education changed everything. Bickel's generation may have crafted the decision as an incremental blow against the ideology of racism - one that did not force the executive to act in any special hurry. But the next generation of lawyers received Brown as a triumphant statement of legal morality - focusing on its broad right, and not its problematic remedies.

If the courts were the least dangerous branch, this generation thought, then they ought to get a lot more dangerous, fast. How else could they counter pernicious foes like racism?

These lawyers optimistically placed their faith in the power of courts and of law to right old wrongs and impose a new moral order on the nation. And in a host of Warren Court era decisions, they were not disappointed.

Ultimately, though, their optimism was challenged - even eclipsed - by Vietnam and Watergate. In a way, the skepticism that these scandals spawned has been with many of us who grew up during that time - and with lawyers, especially - ever since.

The Next Generation: Shaped by a Blizzard of Political Scandals

Just this week, I happened to catch "All the President's Men" on cable. Lots of things about the movie felt dated: the clothes, the cars, the ridiculous sideburns and, oh yes, the idea of two obscure metro reporters breaking a government scandal of unprecedented proportion without computers or cellphones.

But to someone of my vintage, lots about the movie still feels deeply important and relevant. I came of political age in an era marked by dirty tricks and campaign slush funds, a secret war in Cambodia and Laos, COINTELPRO and other illegal domestic spying, enemies lists, shredded documents, widespread obstructions of justice, and a slew of Executive branch denials -- all of which turned out to be false.

In my house, as in millions of others, the world was divided into the heroes (Sam Ervin, Sam Dash, Liz Holtzman, Judge Sirica, the Supreme Court) and the villains (Richard Nixon, H.R. Haldeman, John Mitchell, Chuck Colson, G. Gordon Liddy). Bred into my bones was the idea that governments, even democratic ones, are capable of enormous wrongs and enormous lies -- and that subverting democratic governance requires neither an army nor particular genius, but simply the concentration of power into the hands of too many true believers of one stripe or another.

My memories of the Watergate era and the impressions indelibly etched then inevitably shaped my view of politics and of the law. They have bequeathed to me a presumptive skepticism towards claims of executive power and privilege; they have made me wary of government's increasing power to surveil its own citizens; and they have led me to a belief in the possibility (and necessity) of an activist, principled, non-partisan judiciary - to reign in executive excesses, among other things.

Naturally, other historical events - the fall of the Berlin Wall, Bush v. Gore, September 11 - have influenced my world view, sometimes considerably. But these events stick to a template of perspective-shaping experience where Watergate and the end of the Vietnam War reside at the first and deepest level.

The New Generation's World View: How Much Will It Reshape Constitutional Law?

For the current generation of young lawyers, Vietnam and Watergate are intellectual abstractions, not lived experience - just as Brown was for me, and just as the New Deal fights were for the generation that grew up in Brown's glow.

This generation saw scandal, but it was sexual, not political, scandal (though it had high political stakes). Remember, those attorneys who are in their early thirties today probably have no personal memories relating to Vietnam or Watergate to look back on. But they were in high school or college when Justice Clarence Thomas's confirmation hearings, with Anita Hill's accusations, occurred. And they were in their twenties when the Paula Jones/Lewinsky scandal broke, leading to President Clinton's impeachment and ultimate acquittal.

This generation didn't learn from lived experience to fear excessive, and abusive presidential power. Instead, it learned, perhaps, to worry a bit about sexual harassment claims, and to distrust special prosecutors. But special prosecutors are now a thing of the past, and we are increasingly more comfortable with, and less alarmist about, the law of sexual harassment.

So what did this generation distrust and fear? The answer may be: Nothing, until September 11. They grew up in peace and prosperity. September 11 shattered it. How could they view it as anything but profoundly transformative? How could they not be tempted to use the law to protect themselves, and their country, by any means necessary? Their experience testified to the damage terrorists can do to America - but not to the damage America, and its Presidents, can do to people in and outside our country.

It is too soon to know whether the events of September 11 will have the power deeply and broadly to shape the next generation's view of the law. But as the torture memo incident brought starkly home, there is a new world view in the making.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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