An Essay I Wish I Had Written...
Washington Post Death Spiral Watch (Alec Klein and Zachary A. Goldfarb Edition)

Jack Balkin Is Wrong

Jack Balkin says that the Bush legal revolution has failed. He is wrong: it has just not yet succeeded. A McCain victory in November and another statist Supreme Court appointee, and that's it for the rights of any whom the president classifies as an outlaw.

Balkin acknowledges this at the end. Better he had done so at the beginning:

Balkinization: This is what a failed revolution looks like: It is still available to the President and Congress to try to suspend the writ [of habeas corpus], and the Court could then decide whether the suspension was successful. However, there is almost no chance that the current Congress would agree to suspend the writ. It is also likely that the Congress that passed the MCA would not have voted to suspend the writ if the choice were clearly posed on those terms.... And that is precisely the point... the constitutional revolution proposed by the Bush Administration after September 11, 2001 has failed.

Following the 9/11 attacks, George W. Bush and his supporters proposed a significant change in constitutional norms... preemptive war... new surveillance techniques, including domestic surveillance... preventive detention, including detention of american citizens without access to courts... legal black holes... torture and torture-lite... enhanced secrecy and classification... unitary executive theory that claimed that Congress could not constitutionally limit the President when he claimed to act under his powers as Commander-in-Chief... [the power to] disregard certain features of laws passed by Congress without telling the public any details about... non-enforcement....

[W]e can say that this attempt at a constitutional revolution has failed.... Hamdi, Rasul, Hamdan, and now Boumediene... the Supreme Court... does not get behind a proposed constitutional revolution unless it is quite clear that the country is also behind it and demonstrates this support over a sustained period of time....

Bush's proposed revolution lost steam for three reasons... there was no successful terrorist attack on U.S. soil after 9/11... the public grew increasingly concerned about reports of torture and mistreatment... [that] greatly damaged America's image as a symbol of liberty around the world and distrubed Americans image of themselves as the good guys... Bush's adventure in Iraq, which he repeatedly claimed was intrinsically connected to the global war on terror, did not succeed.... Bush is now one of the most unpopular presidents in modern American history....

And then Balkin takes it back:

Even failed constitutional revolutions, however, may have lasting effects. The next president will be stuck... Iraq... Gitmo... preventive detention... surveillance... the Bush Administration's attempt at a constitutional revolution... may revive.... John McCain... may appoint additional movement conservatives to the Supreme Court, who may be more than happy to carry out a constitutional transformation... The country may face a new terror attack... the future is... likely to surprise us.

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