During a much-discussed speech at The National Defense University earlier this year, President Obama cataloged the dreadful conditions at Guantánamo Bay, and then asked: “Is that who we are? Is that something that our Founders foresaw?”
The question was obviously rhetorical, though as Logan Beirne outlines in his new book, Blood of Tyrants: George Washington & the Forging of the Presidency, the first commander in chief was not above treating prisoners harshly.
“Washington’s arguments justifying [prisoner] abuse sharpened further as the war went on and the Americans’ desperation increased,” writes Beirne, an attorney who is also currently an Olin Scholar at Yale Law School. Beirne’s point is not that torture is good or bad, but instead that Washington’s approach to this vexing issue was “pragmatic” and “case by case.”
Washington, Beirne argues, was such a singularly influential figure that his handling of torture and other matters during the Revolutionary War profoundly shaped what Americans came to expect from all subsequent presidents. More broadly, Beirne argues that “America’s current challenges in the ongoing War on Terror mirror those General Washington faced.”
Blood of Tyrants is, to say the least, a positive rendering of Washington’s leadership skills, though Beirne also humanizes the famed leader, stressing, for example, that Washington’s poor handling of the Jumonville Affair in 1754 “sparked” the Seven Years (French and Indian) War. Some of Beirne’s extensive analysis of Washington and key Revolutionary events will seem familiar to readers of recent books by Richard Brookheiser or Joseph Ellis, for example.
Beirne’s main message, however, is that we must look back before we look ahead, since Washington was able to “formulate principled approaches to dilemmas that are eerily similar to those we face today.
“Does the president have a constitutional power to torture foreign enemy combatants? Overrule Congress on war tactics? Deny formal trials to enemies? Trample on the rights of American citizens? At least consider our first commander in chief’s principles when searching for an answer.”
As Beirne himself acknowledges, however, Washington’s answer to these questions was occasionally a not-so-resounding “sometimes.” Beirne lauds Washington (as wartime commander in chief, though obviously not yet president) for wresting control of wartime tactics from a distant, meddling Congress. In recent decades, however, many scholars have come to feel that the pendulum of wartime power has (unconstitutionally?) swung too far in the direction of the executive branch. Beirne, for example, stresses the importance of the Constitution’s “original intent.” It does, however, seem fair to wonder if at least some framers—given Congress’s power to “declare war” (Article I, Section Eight) not to mention their inherent mistrust of excessive executive power—would have serious questions about the way presidents have kept Congress at such a distance while managing military operations in Korea and Vietnam, or even Kosovo and Libya.
Furthermore, while Beirne convincingly argues that Washington was indeed “forging” the presidency on the battlefield, it might have been useful if Blood of Tyrants had also explored why it took a full decade for the Articles of Confederation to be proven so grossly inadequate. What, if any, “forging” was done during those crucial, intervening years?
Beirne sensibly argues that Washington’s practical decision-making allowed, for example, that torture had its place sometimes, though not always. Then and now, however, it is also necessary to ask what role morality—religious, cultural, ethical—should also play in these debates. As president, for example, Washington himself supported aid to the French when Haitian slaves revolted, in part because this placated America’s slaveholding class. Pragmatic, sure. Also, in retrospect, highly regrettable.
Ultimately, Beirne believes “that historical understanding should at least be a starting point for interpreting the Constitution,” and he opposes “allowing judges to discover new meanings in old laws, thus aggrandizing their own role at the expense of the political process.” Though he strives for nonpartisanship, it is hard not to see Beirne here channeling his inner Scalia.
Certainly it remains astonishing that nearly 250 years ago several dozen (affluent, white, male) Americans created a document as durable and far-sighted as the Constitution. Nevertheless, just as its creators were not infallible, neither is the Constitution above criticism—even its much-beloved “original intent.” There is no need to focus solely on farcical tragedies like the infamous “three-fifths compromise.” Tongue only slightly in cheek, the comedian Colin Quinn, author of the recent Broadway show “Unconstitutional,” has suggested we conduct constitutional conventions every 10 or 20 years, a proposal surely horrifying to purists, who loath altering this venerable document. But are regular constitutional conventions really any crazier than believing Madison and his pals could possibly have conceived of AK-47s, gay marriage and the Internet when they crafted the Constitution and the Bill of Rights?
Blood of Tyrants is at its best locating provocative parallels between the Revolutionary War and the War on Terror. Arguing that these parallels somehow make a decisive case for originalism, however, will not convince the likes of, say, Professor Louis Michael Seidman of Georgetown Law, whose new book On Constitutional Disobedience argues that the Constitution is so outdated we should do away with it entirely. Professor Garrett Epps of the University of Baltimore, meanwhile, recently argued that originalism itself is a product not of 1787 but the Reagan Era, when Attorney General Edwin Meese “elevated originalism to a legal and political movement.” Perhaps we can take comfort in one thing: The war over the Constitution may well outlast even the interminable War on Terror.