The price of experience: the Constitution after September 11, 2001.

• Author: Sidak, J. Gregory
• Position: President Truman's 1952 seizure of US steel mills

What is the price of experience? Do men buy it for a song? Or wisdom for a dance in the street? No, it is bought with the price Of all a man hath, his house, his wife, his children. Wisdom is sold in the desolate market where none come to buy, And in the wither'd field where the farmer plows for bread in vain. From William Blake's The Price of Experience (1797) I. INTRODUCTION

For a half-century, Youngstown Sheet & Tube Co. v. Sawyer has been the starting point for judicial reasoning and academic conjuring about the separation of powers between Congress and the President and, more specifically, presidential prerogative asserted in the name of national security. (1) The collective experience acquired on September 11, 2001, has supplanted Youngstown. The memorable phrases in Youngstown still inspire, but they no longer reliably say what the law is, if one uses Oliver Wendell Holmes's formulation that "[t]he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." (2) The Constitution did not change on September 11th. (3) The innocence of the current generation of Americans changed. They read the same words now with a different experience. As a consequence, Youngstown will recede as a reliable predictor of the boundaries of presidential prerogative in matters of national security and, to a lesser extent, as the touchstone of separation-of-powers analysis.

2. INNOCENCE AND EXPERIENCE

   Innocence is a priori reasoning untested by empiricism, which is to say experience. (4) I approach innocence and experience from the evolutionary perspective of Karl Popper, who described as "the principle of empiricism" the following proposition: "Only `experience' can help us to make up our minds about the truth or falsity of factual statements." (5) Put another way, knowledge of the truth or falsity of an a priori proposition is held captive by the limits of one's empirical experience.

   September 11th was, to use the language of statistics, an out-of-sample event for Americans not old enough to remember Pearl Harbor. Americans were incredulous because, for most of them, nothing in their own experience would cause them to believe that such attacks were possible. The same lack of experience presumably caused the passengers on the two airlines that struck the World Trade Center towers never to consider that their hijackers intended not to exact ransom but to use the airplanes as bombs. Even the current military appeared to have suffered from a lack of experience, despite its unquestioned institutional knowledge from prior wars. Only fourteen fighters were patrolling the entire United States at the time of the attacks. (6) The Air Force Reserve jets that scrambled to Washington flew from Hampton, Virginia, and Falmouth, Massachusetts--not nearby Andrews Air Force Base. (7) When they arrived and were ordered by the Secret Service to "protect the White House at all costs," it was too late. (8) The Pentagon was already in flames. It was not fighter planes that succeeded in defending the White House from the fourth team of terrorists, but rather a subset of We the People on United Airlines Flight 93. Like modern day Minutemen, they scuttled their hijacked airliner in Pennsylvania after learning by cell phone that more lives than their own would be lost if they failed to resist.

   There is no reason to think that jurists and legal scholars are different from other Americans in the way that innocence and experience affect how they analyze a problem. Justice Holmes famously wrote: "[a] page of history is worth a volume of logic." (9) And it is said that the hardness of some of Holmes's judicial opinions may have reflected his experience of having fought in the Civil War, during which time he was wounded on three occasions. (10) For two generations or more, American legal scholars had little cause, even during the height of the Cold War, to consider constitutional matters that concerned the immediate defense and survival of the United States. There was some small chance that cities and strategic targets in America would be incinerated in a nuclear puff, as was feared during the Cuban missile crisis, but there was no serious fear of a conventional attack causing massive civilian casualties.

   By all accounts, the attacks of September 11th produced for millions of citizens an intensely personal process of revelation and reflection. I relate some of my own revelations and reflections, not because they are special in any way, but because they are mine, and thus they permit me to speak without speculation. Their familiarity helps me to express how constitutional interpretation at any moment in American history may reflect the tension between abstract reasoning and the shared experiences of events that have changed the lives of the nation's citizens.

   From my office in downtown Washington, I watched the huge plume of smoke rising from the Pentagon on the morning of September 11th. The experience gave me a new insight on facts that I already knew. My uncle, Bud, was a farm boy from Nebraska who became an aircraft mechanic in the Army Air Corps and was stationed at Hickam Field on Oahu. He was gravely wounded by shrapnel from a Japanese bomb on the morning of December 7, 1941, and for the remainder of his life suffered in body and mind, a ward of the Veterans Administration. My father, unable to go to war because of polio, worked instead at a defense factory in San Diego that turned out aircraft parts. His older sister Annie stayed to help run the family farm while two younger sisters, Julia and Wilma, left Nebraska to work at the same factory in San Diego. Julia married a Marine paratrooper who later fought on Iwo Jima and Okinawa. Wilma became a war widow, her hometown sweetheart killed during a bombing mission over Italy just before D Day. The youngest boy in the family, Don, also left the farm for San Diego and the same aircraft plant. On his eighteenth birthday, he enlisted to become a naval aviator. At twenty, he flew torpedo bombers from aircraft carriers. During the Cold War, Major Sidak of the Strategic Air Command piloted a B-47 armed with thermonuclear bombs, his designated target the Kremlin. He and his brothers never returned to work the farm.

   As a child, I knew these family stories. And though my childhood was spent in San Diego, a city still dominated in the 1960s by the Navy and the defense industry, as a whole my understanding of the consequences of war and the price of peace had the vicarious translucence of a John Wayne movie. What I thought I understood, I knew not from experience, but from the innocent abstraction of someone who had been spared the consequences of war through the sacrifices of others. Even when I had the tangible experience as a nine-year-old of climbing into the cockpit of Uncle Don's B-47, I did not comprehend that, if the order ever came for him to use the bomber for its intended purpose, the chances of our seeing one another again on this earth would be nonexistent. Several decades passed before I began to comprehend how much I had not understood.

   In 1996, after my father was gone and I had sons of my own, I found among his possessions the front-page of the Cedar County News from December 1941. Its banner headline reported Bud among the casualties at Pearl Harbor. My grandfather was quoted saying that he would gladly fight the Japanese himself if the Army would take him. To hold the yellowed newspaper in my hands was to hear the words of anger and grief passing from my grandfather's lips 55 years earlier, to comprehend, as if transported in a time machine, what Pearl Harbor meant for one father's love for his son, and what it would mean for the family into which I had not yet been born. Like an epiphany in a James Joyce novel, the whatness of Pearl Harbor at that moment leapt to me "from the vestment of its appearance." (11) I understood how my own father and his siblings had dedicated themselves to obliterating the evil that had spilled their brother's blood one Sunday morning in 1941. Whether they took up arms or helped to make them, farmers became warriors, their fidelity measured by how these brothers and sisters led their lives and, in time, by how they strove to impart to their children a wisdom "bought with the price of all a man hath."

3. THE EBB OF YOUNGSTOWN

   Measured by the standard of wisdom bought with experience, the abstract erudition of Supreme Court decisions impresses me less than it once did. Its purveyors are too susceptible to getting carried away with their wares, producing euphonic sophistry that is devoid of empirical perspective. A former law review president clerking on the Supreme Court probably could craft a respectable opinion that reasoned that American soldiers scaled the cliffs of Normandy to protect the separation of powers, "the better to secure liberty." (12) But a clever turn of phrase does not make an abstract proposition true.

   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 my Uncle Bud and his family back home. 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 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...