In 1958, he made the jump to the Senate, and during the course of forty-seven years he had held just about every office available — including six years as majority leader and six years as minority leader. All the while he maintained the populist impulse that led him to focus on delivering tangible benefits to the men and women back home: black lung benefits and union protections for miners; roads and buildings and electrification projects for desperately poor communities. In ten years of night courses while serving in Congress he had earned his law degree, and his grasp of Senate rules was legendary. Eventually, he had written a four-volume history of the Senate that reflected not just scholarship and discipline but also an unsurpassed love of the institution that had shaped his life’s work. Indeed, it was said that Senator Byrd’s passion for the Senate was exceeded only by the tenderness he felt toward his ailing wife of sixty-eight years (who has since passed away) — and perhaps by his reverence for the Constitution, a pocket-sized copy of which he carried with him wherever he went and often pulled out to wave in the midst of debate.
I had already left a message with Senator Byrd’s office requesting a meeting when I first had an opportunity to see him in person. It was the day of our swearing in, and we had been in the Old Senate Chamber, a dark, ornate place dominated by a large, gargoyle-like eagle that stretched out over the presiding officer’s chair from an awning of dark, bloodred velvet. The somber setting matched the occasion, as the Democratic Caucus was meeting to organize itself after the difficult election and the loss of its leader. After the new leadership team was installed, Minority Leader Harry Reid asked Senator Byrd if he would say a few words. Slowly, the senior senator rose from his seat, a slender man with a still-thick snowy mane, watery blue eyes, and a sharp, prominent nose. For a moment he stood in silence, steadying himself with his cane, his head turned upward, eyes fixed on the ceiling. Then he began to speak, in somber, measured tones, a hint of the Appalachians like a knotty grain of wood beneath polished veneer.
I don’t recall the specifics of his speech, but I remember the broad themes, cascading out from the well of the Old Senate Chamber in a rising, Shakespearean rhythm — the clockwork design of the Constitution and the Senate as the essence of that charter’s promise; the dangerous encroachment, year after year, of the Executive Branch on the Senate’s precious independence; the need for every senator to reread our founding documents, so that we might remain steadfast and faithful and true to the meaning of the Republic. As he spoke, his voice grew more forceful; his forefinger stabbed the air; the dark room seemed to close in on him, until he seemed almost a specter, the spirit of Senates past, his almost fifty years in these chambers reaching back to touch the previous fifty years, and the fifty years before that, and the fifty years before that; back to the time when Jefferson, Adams, and Madison roamed through the halls of the Capitol, and the city itself was still wilderness and farmland and swamp.
Back to a time when neither I nor those who looked like me could have sat within these walls.
Listening to Senator Byrd speak, I felt with full force all the essential contradictions of me in this new place, with its marble busts, its arcane traditions, its memories and its ghosts. I pondered the fact that, according to his own autobiography, Senator Byrd had received his first taste of leadership in his early twenties, as a member of the Raleigh County Ku Klux Klan, an association that he had long disavowed, an error he attributed — no doubt correctly — to the time and place in which he’d been raised, but which continued to surface as an issue throughout his career. I thought about how he had joined other giants of the Senate, like J. William Fulbright of Arkansas and Richard Russell of Georgia, in Southern resistance to civil rights legislation. I wondered if this would matter to the liberals who now lionized Senator Byrd for his principled opposition to the Iraq War resolution — the MoveOn.org crowd, the heirs of the political counterculture the senator had spent much of his career disdaining.
I wondered if it should matter. Senator Byrd’s life — like most of ours — has been the struggle of warring impulses, a twining of darkness and light. And in that sense I realized that he really was a proper emblem for the Senate, whose rules and design reflect the grand compromise of America’s founding: the bargain between Northern states and Southern states, the Senate’s role as a guardian against the passions of the moment, a defender of minority rights and state sovereignty, but also a tool to protect the wealthy from the rabble, and assure slaveholders of noninterference with their peculiar institution. Stamped into the very fiber of the Senate, within its genetic code, was the same contest between power and principle that characterized America as a whole, a lasting expression of that great debate among a few brilliant, flawed men that had concluded with the creation of a form of government unique in its genius — yet blind to the whip and the chain.
The speech ended; fellow senators clapped and congratulated Senator Byrd for his magnificent oratory. I went over to introduce myself and he grasped my hand warmly, saying how much he looked forward to sitting down for a visit. Walking back to my office, I decided I would unpack my old constitutional law books that night and reread the document itself. For Senator Byrd was right: To understand what was happening in Washington in 2005, to understand my new job and to understand Senator Byrd, I needed to circle back to the start, to America’s earliest debates and founding documents, to trace how they had played out over time, and make judgments in light of subsequent history.
IF YOU ASK my eight-year-old what I do for a living, she might say I make laws. And yet one of the surprising things about Washington is the amount of time spent arguing not about what the law should be, but rather what the law is. The simplest statute — a requirement, say, that companies provide bathroom breaks to their hourly workers — can become the subject of wildly different interpretations, depending on whom you are talking to: the congressman who sponsored the provision, the staffer who drafted it, the department head whose job it is to enforce it, the lawyer whose client finds it inconvenient, or the judge who may be called upon to apply it.
Some of this is by design, a result of the complex machinery of checks and balances. The diffusion of power between the branches, as well as between federal and state governments, means that no law is ever final, no battle truly finished; there is always the opportunity to strengthen or weaken what appears to be done, to water down a regulation or block its implementation, to contract an agency’s power with a cut in its budget, or to seize control of an issue where a vacuum has been left.
Partly it’s the nature of the law itself. Much of the time, the law is settled and plain. But life turns up new problems, and lawyers, officials, and citizens debate the meaning of terms that seemed clear years or even months before. For in the end laws are just words on a page — words that are sometimes malleable, opaque, as dependent on context and trust as they are in a story or poem or promise to someone, words whose meanings are subject to erosion, sometimes collapsing in the blink of an eye.
The legal controversies that were stirring Washington in 2005 went beyond the standard problems of legal interpretation, however. Instead, they involved the question of whether those in power were bound by any rules of law at all.
When it came to questions of national security in the post–9/11 era, for example, the White House stood fast against any suggestion that it was answerable to Congress or the courts. During the hearings to confirm Condoleezza Rice as secretary of state, arguments flared over everything from the scope of Congress’s resolution authorizing the war in Iraq to the willingness of executive branch members to testify under oath. During the debate surrounding the confirmation of Alberto Gonzalez, I reviewed memos drafted in the attorney general’s office suggesting that techniques like sleep deprivation or repeated suffocation did not constitute torture so long as they did not cause “severe pain” of the sort “accompanying organ failure, impairment of bodily function, or even death”; transcripts that suggested the Geneva Conventions did not apply to “enemy combatants” captured in a war in Afghanistan; opinions that the Fourth Amendment did not apply to U.S. citizens labeled “enemy combatants” and captured on U.S. soil.