...principal general counsel, Department of Defense, and six high-ranking legal officers from all branches of the military services. In the course of these hearings--which presumably were not scheduled with the symbolism of the day in mind--Graham and Dell'Orto engaged in a remarkable exchange. It began with the senator asking, "Do you believe that if congressional action were taken where the president could agree about enemy combatant status and military tribunal make up, that it would enhance the status of Gitmo [Guantanamo] because you have congressional buy in?" In reply, Dell'Orto briefly referred to the president's "powers under the Constitution"--presumably the Commander-in-Chief Clause, particularly as triggered by the congressional Authorization for the Use of Military Force of September 18, 2001, and "Supreme Court precedent that gives him an awful lot of authority to run this war"--as sources of presidential authority. An impatient Graham then broke in to restate his question in a new form: "Do you believe we have authority as Congress to regulate captures on land and sea?" Graham was, of course, citing the Article I, section 8 enumeration of the legislative powers of Congress. His question might be regarded as the congressional equivalent of a high school civics test, which is what makes the answer it received all the more astounding: "I'd have to take a look at that particular constitutional provision," Dell'Orto replied. "I haven't examined that one of late. But if that's what it says, I suspect you have that authority to attempt to legislate" (U.S. Congress 2005).

At this point, the concerned constitutionalist does not know whether to laugh or weep. On the face of it, it defies belief, not to say political common sense, to send a senior lawyer to a serious congressional hearing, to confess that the only part of the Constitution with which he is familiar is Article II. Yet Dell'Orto's admission was of a piece with the position the Bush administration had taken on its inherent authority to conduct the war on terror with minimal oversight, supervision, checking, or restraint from the two other branches of government. By the summer of 2005, appeals to the Commander-in-Chief Clause in particular had become something of an administration mantra, the equivalent of former presidential candidate Al Gore's reference to the Social Security "lock-box," albeit without the humor. The plain text of the rest of the Constitution, notably including the numerous specific clauses relating to national security contained in Article I, section 8, had grown sorely conspicuous by its very absence. If these clauses existed at all (and Dell'Orto did not deny their existence, though his conditional "if that's what it says" betrayed a vestigial Cartesian skepticism), they seemed to lack either interpretative bite or constitutional weight.

A year after this accidental homage to Bastille Day, the lay of the constitutional landscape noticeably shifted. At the end of its 2005-2006 term, the Supreme Court issued its potentially landmark decision in Hamdan v. Rumsfeld, which we might colloquially label the Gitmo detainee case. Although the Hamdan majority did not directly address the administration's broad constitutional claims, its opinion effectively repudiated the idea that the president's discretionary authority as commander in chief was an elastic source of executive power. In the aftermath of Hamdan, the administration had to concede, however grudgingly, that the military tribunals it had established for the trial of enemy combatants required congressional authorization. At this point, Congress could no longer avoid exercising its constitutional authority--or duty--under the relevant clause with which Senator Graham had tried to jog counselor Dell'Otto's constitutional memory. With the 2006 midterm elections drawing nigh, Congress adopted a Military Commission Act (M.C.A.) granting the administration virtually all of the authority it sought. Its legislative victory was so complete, in fact, that the administration felt no need to issue one of the famous signing statements whose interpretive throw-weight had recently become so controversial. The substance of the M.C.A. dismayed civil libertarians, who wondered whether the show of congressional initiative taken by Senators Graham, John McCain, and John Warner on the specific question of torture was just that--a show.

These concerns and reservations do not diminish the constitutional significance of Hamdan and the M.C.A. When the constitutional history of the War on Terror is written--at some indefinite point in the future, given the indefinite nature of the war itself--it is likely that these two developments will mark the close of its first long chapter. What form the next chapter will take remains among what James Madison called the "arcana of futurity" (Rakove 1999, 62). The M.C.A. itself will inevitably engender additional litigation, especially over those habeas-denying and jurisdiction-stripping provisions that alarm civil libertarians. It is also uncertain whether any future administration will cling to the high-watermark claims of executive authority that the Bush administration, reflecting the long-held views of its eminence grise, Vice President Dick Cheney, has propounded. Perhaps 2001-2006 will be seen as an aberration, a period when the dogmatism of an ideologically driven administration swamped the doctrinal nuance of Justice Robert H. Jackson's celebrated concurrence in the Steel Seizure case, only to have its own positions fatally undermined by the scandal of Abu Ghraib, controversies over "extraordinary rendition" and unauthorized surveillance of electronic communications and its incompetence in conducting the war in Iraq. Then again, another attack on the scale of September 11, or worse, a catastrophe going far beyond it, could just as easily produce the opposite result, vindicating the Bush administration's position and leaving little room for the congressional oversight and authorization and the judicial review of constitutionally dubious actions that again became plausible in 2006. Only a naif would deny the likelihood that the War on Terror, like every other major issue in American history, will produce ongoing constitutional wrangling. As the distinguished scholar E. S. Corwin long ago remarked, in the realm of foreign affairs (or national security more generally), the Constitution is an invitation to struggle. For all its terrible gravity, there is no reason to think that the War on Terror will be immune to that aspect of our politics.

Under these conditions, it seems equally improbable that Americans will ever attain closure or consensus on what the Constitution ought to mean, or even the narrower historical question of what it did originally mean to its adopters. Some level of ambiguity and uncertainty will always remain. For one thing, because the adopters of the Constitution had concerns of their own, not identical with ours, they were not thoughtful enough to answer all the questions we would like to put to them (or rather, to the records of their debates). Strange and uncaring as it seems to us, in the realm of national security, it was more important in 1787-1788 to establish the superiority of national decisions over the interfering claims of the states than to work out the nuances of checks and balances within the national government alone (Reveley 1974, 82). Federalism considerations, in other words, trumped separation of powers. Then there is the awkward fact that our leading original interpreters of the Constitution, the coauthors of The Federalist, soon came to disagree so profoundly over its allocation of authority in matters of war and peace. The locus classicus of our modern debate remains the Pacificus-Helvidius exchanges of 1793 between presidentialist Alexander Hamilton and legislative supremacist James Madison. As I will shortly argue, there...

NOTE: All illustrations and photos have been removed from this article.



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