Power and Constraint — a book review

Jack Goldsmith is a professor at Harvard Law School. During part of President George W. Bush’s first term, Goldsmith served as Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice. His is one of the best legal minds I know of.

Goldsmith is the author of Power and Constraint: The Accountable Presidency After 9/11, published earlier this year. I have written a review of the book for the Federalist Society’s magazine, Engage.

I’ll be posting excerpts from my review during the next few days. Here is the introductory passage, in which I offer my general assessment of Power and Constraint:

In Power and Constraint: The Accountable Presidency After 9/11, Jack Goldsmith painstakingly describes the constraints on the President’s power to combat terrorism that emerged in response to Bush Administration policy. Goldsmith, a key legal adviser during portions of President Bush’s first term, thereby performs a great service.

Goldsmith also presents two theses. The first is that pushback against Bush’s anti-terrorism policies produced a consensus about what tools the President can use in fighting terrorism, which explains why President Obama retained so many of Bush’s policies as they stood in 2009. The second is that we should be relatively sanguine about the process that produced the current consensus, and about that consensus itself.

In my view, Goldsmith’s first thesis is debatable and his second is incorrect. But Power and Constraint is compelling reading by virtue of the story it tells, whatever one thinks about its conclusions.