The Price of Experience: The Constitution after September 11, 2001
Sidak, J. Gregory, Constitutional Commentary
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)
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.
II. 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. …