Publications by Author: Feldman%2C%20Noah

2017
The Three Lives of James Madison: Genius, Partisan, President

Over the course of his life, James Madison changed the United States three times: First, he designed the Constitution, led the struggle for its adoption and ratification, then drafted the Bill of Rights. As an older, cannier politician he co-founded the original Republican party, setting the course of American political partisanship. Finally, having pioneered a foreign policy based on economic sanctions, he took the United States into a high-risk conflict, becoming the first wartime president and, despite the odds, winning.

Now Noah Feldman offers an intriguing portrait of this elusive genius and the constitutional republic he created—and how both evolved to meet unforeseen challenges. Madison hoped to eradicate partisanship yet found himself giving voice to, and institutionalizing, the political divide. Madison’s lifelong loyalty to Thomas Jefferson led to an irrevocable break with George Washington, hero of the American Revolution. Madison closely collaborated with Alexander Hamilton on the Federalist papers—yet their different visions for the United States left them enemies.

Alliances defined Madison, too. The vivacious Dolley Madison used her social and political talents to win her husband new supporters in Washington—and define the diplomatic customs of the capital’s society. Madison’s relationship with James Monroe, a mixture of friendship and rivalry, shaped his presidency and the outcome of the War of 1812.

We may be more familiar with other Founding Fathers, but the United States today is in many ways Madisonian in nature. Madison predicted that foreign threats would justify the curtailment of civil liberties. He feared economic inequality and the power of financial markets over politics, believing that government by the people demanded resistance to wealth. Madison was the first Founding Father to recognize the importance of public opinion, and the first to understand that the media could function as a safeguard to liberty.

The Three Lives of James Madison is an illuminating biography of the man whose creativity and tenacity gave us America’s distinctive form of government. His collaborations, struggles, and contradictions define the United States to this day.

2014
Feldman, Noah. 2014. “Ferguson's Grand Jury Problem.” Bloomberg. Publisher's Version
2013
Feldman, Noah. 2013. “The Supreme Court Decides to See No Evil Abroad.” Bloomberg. Website
Feldman, Noah. 2013. “Are They Watching You? That’s a Secret.” Bloomberg. Publisher's Version
Cool War: The Future of Global Competition

The Cold War seemingly ended in a decisive victory for the West. But now, Noah Feldman argues, we are entering an era of renewed global struggle: the era of Cool War. Just as the Cold War matched the planet’s reigning superpowers in a contest for geopolitical supremacy, so this new age will pit the United States against a rising China in a contest for dominance, alliances, and resources. Already visible in Asia, the conflict will extend to the Middle East (US-backed Israel versus Chinese-backed Iran), Africa, and beyond.

Yet this Cool War differs fundamentally from the zero-sum showdowns of the past: The world’s major power and its leading challenger are economically interdependent to an unprecedented degree. Exports to the US account for nearly a quarter of Chinese trade, while the Chinese government holds 8 percent of America’s outstanding debt. This positive-sum interdependence has profound implications for nations, corporations, and international institutions. It makes what looked to be a classic contest between two great powers into something much more complex, contradictory, and badly in need of the shrewd and carefully reasoned analysis that Feldman provides.

To understand the looming competition with China, we must understand the incentives that drive Chinese policy. Feldman offers an arresting take on that country’s secretive hierarchy, proposing that the hereditary “princelings” who reap the benefits of the complicated Chinese political system are actually in partnership with the meritocrats who keep the system full of fresh talent and the reformers who are trying to root out corruption and foster government accountability. He provides a clear-eyed analysis of the years ahead, showing how China’s rise presents opportunities as well as risks. Robust competition could make the US leaner, smarter, and more pragmatic, and could drive China to greater respect for human rights. Alternatively, disputes over trade, territory, or human rights could jeopardize the global economic equilibrium—or provoke a catastrophic “hot war” that neither country wants.

The US and China may be divided by political culture and belief, but they are also bound together by mutual self-interest. Cool War makes the case for competitive cooperation as the only way forward that can preserve the peace and make winners out of both sides.

2011

Killing terrorists with drones is great politics. To the question, “Is it legal?” a natural answer might well be, “Who cares?”

But the legal justifications in the war on terrorism do matter - and not just to people who care about civil liberties. They end up structuring policy. As it turns out, targeted killing, now the hallmark of the Barack Obama administration’s war on terrorism, has its roots in rejection of the legal justifications once offered for waterboarding prisoners.

The leaking of the basic content (but not the text) of an Obama administration memo authorizing the drone strike that killed US citizen Anwar Al-Awlaki therefore calls for serious reflection about where the war on terrorists has been - and where it is headed next.

The George W. Bush administration’s signature anti-terror policy after the September 11 attacks (apart from invading countries) was to capture suspected terrorists, detain them, and question them aggressively in the hopes of gaining actionable intelligence to prevent more attacks.

In the Bush years, after the CIA and other agencies balked at the interrogation techniques being urged by Vice President Dick Cheney, the White House asked the Department of Justice to explain why the most aggressive questioning tactics were legal. Lawyers at the Office of Legal Counsel—especially John Yoo, now a professor at the University of California at Berkeley—produced secret memos arguing that waterboarding wasn’t torture.

The Torture Memos
What was more, the memos maintained, it didn’t matter if it was torture or not, because the president had the inherent constitutional authority to do whatever was needed to protect the country.

Some of the documents were leaked and quickly dubbed “the torture memos.” A firestorm of legal criticism followed. One of the most astute and outraged critics was Marty Lederman, who had served in the Office of Legal Counsel under President Bill Clinton. With David Barron, a colleague of mine at Harvard, Lederman went on to write two academic articles attacking the Bush administration’s theories of expansive presidential power. Eventually, Jack Goldsmith, who led the Office of Legal Council in 2003–2004 (and is now also at Harvard), retracted the most extreme of Yoo’s arguments about the president’s inherent power.

In the years leading to the 2008 election, all this technical criticism of the Bush team’s legal strategy merged with domestic and global condemnation of the administration’s detention policies. The Supreme Court weighed in, finding that detainees were entitled to hearings and better tribunals than were being offered. As a candidate, Obama joined the bandwagon, promising to close the prison at Guantanamo Bay, Cuba, within a year of taking office.

Guantanamo is still open, in part because Congress put obstacles in the way. Instead of detaining new terror suspects there, however, Obama vastly expanded the tactic of targeting them, with eight times more drone strikes in his first year than in all of Bush’s time in office. Barron and Lederman, the erstwhile Bush critics, were appointed to senior positions in the Office of Legal Counsel—where they wrote the recent memo authorizing the Al-Awlaki killing.

What explains these startling developments? If it’s illegal and wrong to capture suspected terrorists and detain them indefinitely without a hearing, how exactly did the Obama administration decide it was desirable and lawful to target and kill them?

The politics were straightforward. Obama’s team observed that holding terror suspects exposed the Bush administration to harsh criticism (including their own). They wanted to avoid adding detainees at Guantanamo or elsewhere.

A Father’s Appeal
Dead terrorists tell no tales—and they also have no lawyers shouting about their human rights. Before Al-Awlaki was killed, his father sued the government for putting the son on its target list. The Obama Justice Department asked the court to dismiss the claim as being too closely related to government secrets. The court agreed—a result never reached in all the Guantanamo litigation. Anwar Al-Awlaki now has no posthumous recourse.

In the bigger picture, Obama also wanted to show measurable success in the war on terrorism while withdrawing troops from Iraq and Afghanistan. But even here the means were influenced by legal concerns.

Osama bin Laden is the best example. One suspects that the US forces who led the fatal raid in Abbottabad almost certainly could have taken him alive. But detaining and trying him would probably have been a political disaster. So they shot him on sight, as the international law of war allows for enemies unless they surrender.

The authority for targeted killing—as expressed in the Lederman-Barron memo—offers the legal counterpart to the political advantages of the Obama targeting policy. According to the leaks, the memo holds that the U.S. can kill suspected terrorists from the air not because the president has inherent power, but because Congress declared war on Al-Qaeda the week after the September 11 attacks.

The logic is that once Congress declares war, the president can determine whom we are fighting. The president found that Yemen-based Al-Qaeda in the Arabian Peninsula, which didn’t exist on September 11, had joined the war in progress. He determined that Al-Awlaki was an active member of the Yemeni groups with some role in planning attacks. And, the memo says, it’s not unlawful assassination or murder if the targets are wartime enemies.

From a formal legal standpoint, Lederman and Barron can claim consistency with their attacks on the Bush administration. They relied on Congress and international law; Yoo’s “torture memos” didn’t. But this argument misses the more basic point: Most critics rejected Bush’s policies not on technical grounds based on the Constitution, but because they thought there was something wrong with the president acting as judge and jury in the war on terrorism.

No Defense Allowed
Anwar al-Awlaki was killed because the president decided he was an enemy. Like the Bush-era Guantanamo detainees, he had no chance to deny this—even when his father tried to go to court while he was still alive. Naturally, a uniformed soldier in a regular war also wouldn’t get a hearing. But like the Guantanamo detainees, Al-Awlaki wore no uniform. Nor was he on a battlefield, except according to the view that anywhere in the world can be the battlefield in the war on terrorism.

Al-Awlaki might have maintained that he was merely a jihadi propagandist exercising his free speech rights as a U.S. citizen. Which might well have been a lie. Yet we have only the president’s word that he was an active terrorist—and that is all we will ever have. The future direction of the policy is therefore clear: Killing is safer, easier and legally superior to catching and detaining.

Sitting beside Al-Awlaki when he was killed was another US citizen, Samir Khan, who was apparently a full-time propagandist, not an operational terrorist. Khan was, we are told, not the target, but collateral damage—a good kill under the laws of war.

Legal memos are weapons of combat—no matter who is writing them.

What is it about those robes? They are only flimsy bits of wools, enlivened in a few cases by some very European lace at the collar. Yet the moment our Supreme Court justices put them on, a segment of the concerned public imagines that they have become priests consecrated to the sacred order of the Constitution.

Recently, Justice Antonin Scalia has been criticized for meeting with a group of (gulp) conservative members of Congress and accused of participating in an event organized by the conservative billionaire Charles Koch. Justice Clarence Thomas has been excoriated because his wife, Virginia, last year took a leading role in organizing Liberty Central, a Tea Party offshoot that received anonymous, First Amendment-protected donations (she has since stepped down). He also belatedly amended 13 years’ worth of disclosure reports to include details of his wife’s employment.

Justices are required to disclose their income sources and those of their spouses. But the core of the criticisms against Justices Thomas and Scalia has nothing to do with judicial ethics. The attack is driven by the imagined ideal of the cloistered monk-justice, innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience.

It was not ever thus. John Marshall, undoubtedly the greatest chief justice ever, spent his first month on the court as the secretary of state of the United States. That’s right, the chief justice and the secretary of state were the same person — an arrangement permitted by the Constitution, which only prohibits members of Congress from holding other offices. Marshall’s most famous decision — Marbury v. Madison, which established the principle of judicial review — arose from Marshall’s own failure as secretary of state to deliver the obscure William Marbury his commission as justice of the peace in the waning hours of the Adams administration. No one cared.

The political activities of the justices increased over time. Charles Evans Hughes, who would later become another great chief justice, resigned from his first stint as associate justice on June 10, 1916, to run for the presidency on the Republican ticket. Although this represented a separation from his judicial role, the Republican convention had begun at the Chicago Coliseum on June 7; Hughes did not resign until the nomination was in the bag.

In 1948, Americans for Democratic Action tried to draft Justice William O. Douglas as a Democratic presidential candidate. In their political literature, they used excerpts from his Supreme Court opinions, which (his colleagues noted privately) sounded suspiciously like stump speeches. (In the end, he decided against a run.)

Equally important, in the pre-monastic age, justices often took on politically charged government responsibilities when the world needed them. Their experiences in public service not only helped the country, but informed their subsequent jurisprudence.

Justice Robert Jackson, a valued player in Franklin Delano Roosevelt’s regular poker game (and a hero to many court observers today), took a year away from the court to serve as the chief prosecutor at Nuremberg, a presidential appointment. Later, when the Supreme Court had to decide whether German detainees convicted by United States war crimes tribunals were entitled to habeas corpus rights, Jackson did not recuse himself. Instead, he wrote the opinion in Johnson v. Eisentrager, the case that formed the precedent for the extension of habeas rights to the detainees at Guantánamo Bay.

Justice Owen Roberts was chosen by Roosevelt to head the commission investigating the attack on Pearl Harbor. What he learned made him one of only three justices to defy Roosevelt and dissent from the court’s shameful decision to uphold the wartime internment of more than 100,000 Japanese-Americans who had been convicted of no crime at all.

The 1970s saw the beginning of a retreat by the justices from public engagement with national affairs. Some of this was defensive. In 1969, Justice Abe Fortas, one of Lyndon Johnson’s closest advisers on Vietnam even while on the court, had to resign after revelations that he had been on retainer to a financier under investigation for securities violations. The next year, Gerald Ford, then the House minority leader, sought unsuccessfully to impeach Douglas for taking money from a nonprofit foundation.

Yet, probably the greater reason for the justices’ growing circumspection by the early 1970s was that the Supreme Court was taking its most active role ever in running the nation’s affairs: when the court ruled against Richard Nixon in the Watergate tapes case, it effectively forced a president from office. Empowered to break a president (making one had to wait until Bush v. Gore in 2000), the justices sought to deflect attention from the obvious fact that they were political.

The disengagement from public life that followed has had real costs. Isolated justices make isolated decisions. It is difficult to imagine justices who drank regularly with presidents deciding that a lawsuit against a sitting executive could go forward while he was in office, or imagining that the suit would not take up much of the president’s time. Yet that is precisely what the court did by a 9-to-0 vote in the 1997 case of Clinton v. Jones. The court’s mistaken practical judgment opened the door to President Bill Clinton’s testimony about Monica Lewinsky and the resulting impeachment that preoccupied the government for more than two years as Osama bin Laden laid his plans.

Today, even the justices’ minimal extrajudicial activities come in for public condemnation — some of it suspiciously partisan. Does anyone seriously think Justice Thomas would become more constitutionally conservative (if that were somehow logically possible) as a result of his wife’s political activism? It is true that Justice Thomas voted to protect the anonymity of some corporate contributions in the Citizens United case. But this vote reflected his long-established principles in favor of corporate speech. The personal connection was nowhere near close enough to demand recusal, any more than a justice who values her privacy should be expected to recuse herself from a Fourth Amendment decision.

After all, Martin Ginsburg, a model of ethical rectitude until his death last year, was for many years a partner in an important corporate law firm. But surely no one believes that his career made his wife, Justice Ruth Bader Ginsburg, more positively inclined toward corporate interests on the court than she would already be as a member in good standing of America’s class of legal elites.

Justice Antonin Scalia, for his part, naturally spends time with like-minded conservatives including Representative Michele Bachmann and Charles Koch. But when the brilliant, garrulous Justice Scalia hobnobs with fellow archconservatives, he is not being influenced any more than is the brilliant, garrulous Justice Stephen Breyer when he consorts with his numerous friends and former colleagues in the liberal bastion of Cambridge, Mass.

A FEW years ago, many insisted that Justice Scalia should not sit in judgment of Vice President Dick Cheney’s claims to enjoy executive privilege, noting that the two had been on the same duck-hunting trip. Justice Scalia memorably explained that the two men had never shared the same blind. He could as easily have pointed out that before President Harry Truman nationalized the steel mills, he asked Chief Justice Fred Vinson, a poker buddy and close friend, if the court would find the action constitutional. (Vinson incorrectly said yes.)

The upshot is that the justices’ few and meager contacts with the real world do little harm and perhaps occasionally some good. Justice Anthony Kennedy makes an annual trip to Salzburg, Austria, to discuss ideas with European and other global judges and intellectuals. This contact is often invoked to explain why Justice Kennedy occasionally cites foreign law (a taboo for Justice Scalia) and why his jurisprudence has been relatively liberal on such matters as gay rights and Guantánamo.

It is absurd for conservatives to criticize the cosmopolitan forums where judges from around the world compare notes. And it is absurd for liberals to criticize the conservative justices for associating with people who share or reinforce their views. The justices are human — and the more we let them be human, the better job they will do. Let the unthinkable be said! If the medieval vestments are making people think the justices should be monks, then maybe, just maybe, we should to do away with those robes.

 

2010
Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices
Unprecedented in its global impact, the Great Depression sounded the death knell of unfettered capitalism. Four men - all from wildly different backgrounds, all with decidedly disparate temperaments, and all equally devoted to FDR - were the primary authors of what would essentially be America’s new Constitution. Scorpions is the story of their personalities, their relationships, and above all their ideas in the crucial years of depression and war - years in which these men created the national game plan that would save the country by rebuilding the economy and defeating the Nazis and the Soviets in turn. It is also the story of how these men - Felix Frankfurter, Hugo Black, Robert Jackson , and William O. Douglas (a Jew, a Klansman, a Yankee, and a Westerner) - advised, cajoled, used, and were used by the man who brought them together and whom they all revered: President Franklin Delano Roosevelt.
2008
Feldman, Noah. 2008. The Fall and Rise of the Islamic State. Princeton University Press. Website Abstract

Perhaps no other Western writer has more deeply probed the bitter struggle in the Muslim world between the forces of religion and law and those of violence and lawlessness as Noah Feldman. His scholarship has defined the stakes in the Middle East today. Now, in this incisive book, Feldman tells the story behind the increasingly popular call for the establishment of the shari'a--the law of the traditional Islamic state - in the modern Muslim world.

Western powers call it a threat to democracy. Islamist movements are winning elections on it. Terrorists use it to justify their crimes. What, then, is the shari'a? Given the severity of some of its provisions, why is it popular among Muslims? Can the Islamic state succeed - should it? Feldman reveals how the classical Islamic constitution governed through and was legitimated by law. He shows how executive power was balanced by the scholars who interpreted and administered the shari'a, and how this balance of power was finally destroyed by the tragically incomplete reforms of the modern era. The result has been the unchecked executive dominance that now distorts politics in so many Muslim states. Feldman argues that a modern Islamic state could provide political and legal justice to today's Muslims, but only if new institutions emerge that restore this constitutional balance of power.

The Fall and Rise of the Islamic State gives us the sweeping history of the traditional Islamic constitution - its noble beginnings, its downfall, and the renewed promise it could hold for Muslims and Westerners alike.

2005

Even before George W. Bush gained reelection by wooing religiously devout "values voters," it was clear that church-state matters in the United States had reached a crisis. With Divided by God, Noah Feldman shows that the crisis is as old as this country - and looks to our nation's past to show how it might be resolved.

Today more than ever, ours is a religiously diverse society: Muslim, Hindu, and Buddhist as well as Catholic, Protestant, and Jewish. And yet more than ever, committed Christians are making themselves felt in politics and culture.

What are the implications of this paradox? To answer this question, Feldman makes clear that again and again in our nation's history diversity has forced us to redraw the lines in the church-state divide. In vivid, dramatic chapters, he describes how we as a people have resolved conflicts over the Bible, the Pledge of Allegiance, and the teaching of evolution through appeals to shared values of liberty, equality, and freedom of conscience. And he proposes a brilliant solution to our current crisis, one that honors our religious diversity while respecting the long-held conviction that religion and state should not mix.

Divided by God speaks to the headlines, even as it tells the story of a long-running conflict that has made the American people who we are.

2004
Feldman, Noah. 2004. What We Owe Iraq: War and the Ethics of Nation Building. Princeton University Press. Website Abstract

What do we owe Iraq?

America is up to its neck in nation building - but the public debate, focused on getting the troops home, devotes little attention to why we are building a new Iraqi nation, what success would look like, or what principles should guide us. What We Owe Iraq sets out to shift the terms of the debate, acknowledging that we are nation building to protect ourselves while demanding that we put the interests of the people being governed - whether in Iraq, Afghanistan, Kosovo, or elsewhere - ahead of our own when we exercise power over them.

Noah Feldman argues that to prevent nation building from turning into a paternalistic, colonialist charade, we urgently need a new, humbler approach. Nation builders should focus on providing security, without arrogantly claiming any special expertise in how successful nation-states should be made. Drawing on his personal experiences in Iraq as a constitutional adviser, Feldman offers enduring insights into the power dynamics between the American occupiers and the Iraqis, and tackles issues such as Iraqi elections, the prospect of successful democratization, and the way home.

Elections do not end the occupier's responsibility. Unless asked to leave, we must resist the temptation of a military pullout before a legitimately elected government can maintain order and govern effectively. But elections that create a legitimate democracy are also the only way a nation builder can put itself out of business and - eventually - send its troops home.

Feldman's new afterword brings the Iraq story up-to-date since the book's original publication in 2004, and asks whether the United States has acted ethically in pushing the political process in Iraq while failing to control the security situation; it also revisits the question of when, and how, to withdraw.

2003
Feldman, Noah. 2003. After Jihad: America and the Struggle for Islamic Democracy. Farrar, Straus and Giroux. Website Abstract

Published just as the United States went to war in Iraq, After Jihad put Noah Feldman "into the center of an unruly brawl now raging in policy circles over what to do with the Arab world" (The New York Times Book Review).

A year later, the questions Feldman raises - and answers - are at the center of every serious discussion about America's role in the world. How can Islam and democracy be reconciled? How can the United States sponsor emerging Islamic democrats without appeasing radicals and terrorists? Can we responsibly remain allies with stable but repressive Arab regimes, chaotic emerging democracies, and Israel as well?

After Jihad made Feldman, in a stroke, the leading Western authority on emerging Islamic democracy - and the most prominent adviser to the Iraqis drafting a constitution for their newly freed nation. This paperback edition - which includes a new preface taking account of recent events - is the best single book on the nature of Islam today and on the forms Islam is likely to take in the coming years.