|
Comment on this article |
Email this Article
|
|
Is This "Strict Constructionism" in Action? |
Current rating: 0 |
by Andrew Bard Schmookler
(No verified email address) |
25 Jan 2006
|
When George W. Bush has spoken about appointing strict constructionists to the federal courts, he has seemed to be announcing himself to be a principled conservative, favoring a strict adherence to what the Constitution actually says, with due deference to what is known about the intentions of the people who framed it.
But we can now see clearly that when it comes to the exercise of his own powers, this president is the very opposite of a strict constructionist. |
As the president now tours the country to defend his warrantless spying on Americans, we get a meaningful glimpse into how much of a role principle plays in the Bush administration.
The answer is, not much.
Strict Construction
This president has spoken on numerous occasions about how a good judge should approach the Constitution and the law. "There is no more fundamental issue,” George W. Bush has declared, “than to- making sure we have a judiciary of people that do not interpret the law from the bench, people who do not try to write law from the bench, people who interpret the law and not try to write it.” “I'm going to put strict constructionists on the bench,” he has repeatedly said. Judges should just apply the law as it is, and not “legislate from the bench.”
Ever since the Warren Court of the 1950s and 1960s intensified the debate over how to draw the line between appropriate inference from the letter and the spirit of the Constitution, on the one hand, and judicial over-reaching on the other, conservatives have tended to argue that the duty of judges is to construe the text closely.
So when George W. Bush has spoken about appointing strict constructionists to the federal courts, he has seemed to be announcing himself to be a principled conservative, favoring a strict adherence to what the Constitution actually says, with due deference to what is known about the intentions of the people who framed it.
But we can now see clearly that when it comes to the exercise of his own powers, this president is the very opposite of a strict constructionist. This contradiction has been visible, in recent years, in several arenas. But never has it become so crystal clear as in the past month, as the Bush administration –with its domestic spying program exposed to the world– publicly propounding its supposed legal justifications.
Results-Oriented
True strict constructionists decry what they call “results-oriented” readings of the law, that is, readings in which the desired outcome comes first and then an argument is formulated to reach that conclusion, rather than just following the law where it leads.
But it seems that when it comes to reading the law, the Bush administration is itself consistent only in its pursuit of one result: namely, the removal of all restraints from the president, at the expense of the other branches of the government, of treaty obligations, and of the rule of law itself.
The president and his people, for example, declare that the Congressional Authorization of Force passed in the wake of 9/11 gives the president the legal power to conduct warrantless wiretaps on American citizens. But the law says no such thing. Not only are they not strictly construing the text, they are making an interpolation –from the authorization to wage war overseas against external enemies to the authority to conduct surveillance at home against American citizens—that would make the most results-oriented Justices from the Warren Court era blush.
Similarly with the Bush administration’s use of torture against detained prisoners, in violation of the Geneva Conventions to which the United States is signatory. Here, one of the Bush administration’s legal tactics is simply to redefine torture, away from its established meanings, to allow them to do as they please. Forget what the treaty says.
But the Constitution describes treaties –properly signed and ratified—as “the law of the land.”
Is this strict constructionism in action?
Penumbras and Emanations
In both these instances, the president and his legal minions present an additional argument. In his constitutionally designated role as Commander-in-Chief, they say, the president has the “inherent power” to overrule and disregard any legal restraints upon him.
But here is the totality of what the Constitution says about the president’s role as Commander-in-Chief: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”
The Bushite extraction from that sparse language of such great powers is hardly a strict constructionist approach to the text.
In recent decades, strict constructionists have scorned, as representative of the worst activist tendency of some judges, the language used by Justice Douglas (in Griswold v. Connecticut, which established the “right of privacy”) about how “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
But Douglas’s “penumbras” are quite cautious extrapolations in comparison with the Bush administration’s assertion that the Constitution confers on the president, as Commander-in-Chief, such powers as to permit him to disregard the law of the land.
It is hard to see how even penumbras and emanations from such a description can take one even close to the virtually unchecked “inherent power” that Bush is now claiming.
Is this strict constructionism in action?
The word “privacy” may not appear in the Constitution. But the 4th amendment does protect citizens against “unreasonable search and seizure,” and requires that the executive obtain a warrant from a judge to conduct a search. But the Bush administration has conducted warrantless searches, disregarding not only that constitutional provision but also the Foreign Intelligence Surveillance Act (FISA) of 1978, which established warrants issued by a special FISA court the “exclusive” legal means for the NSA to conduct domestic surveillance.
This running roughshod over these legal barriers is now being justified on the basis of an alleged presidential power that is not to be found anywhere in the text.
And while the inference of a “right of privacy” does not contravene anything else in the Constitution, the Bushite assertion of this “inherent power” virtually nullifies the basic core of the Constitution itself: the system of checks and balances to protect against the rise of tyrannical power.
Strict construction indeed.
Living Document
Strict constructionists contest the notion that the Constitution changes with the times and circumstances, thus permitting judges leeway in construing what the text, written in the past, should mean in the present. It’s OK, even most strict constructionists would agree, to expand the notion of the “press” to take into account the rise of new media (broadcast, internet) that use no presses. But, in general, the strict constructionist disapproves of the idea that changes in our situation can or should alter the meaning of the Constitution.
But the Bush administration argues that 9/11 changes everything, including the constitutional powers of the president. We are at war, they argue, and with the country in a state of war the president can do pretty much whatever he thinks necessary. They are now propounding a post-9/11 Constitution-- one that increases their powers and decreases citizens’ rights in order to take into account the nature of our new enemies and of the technologies they use.
Is this strict constructionism in action?
The strict constructionists say that if we want to change the Constitution, we should go through the constitutionally prescribed ways to amend it. But the Bushite simply declare themselves to possess the powers they want –to ignore laws, to disregard treaty obligations, to violate provisions in the Constitution.
Is this strict constructionism in action?
Original Intent
When it comes to waging war, the president can act without congressional permission– so argues the Office of Legal Counsel in the Bush Department of Justice. And in matters of war-making, they declare, the president cannot even be checked by explicit congressional prohibitions.
The chief architect of this expansive theory of the president’s unchecked power in his role as commander-in-chief is John Yoo, recently of the Bush Department of Justice and now a law professor at the University of California at Berkeley. In a just-published book, The Powers of War and Peace, Yoo argues that war-making is the president’s sole province. Other than the power of the purse, Yoo says, Congress has no role aside from merely ratifying presidential war-making through its constitutionally given right to “declare” war.
Is this how the Framers intended for the Constitution to be understood? That is a question that would certainly be asked by real strict constructionists. One of the chief requirements of that approach is to pay scrupulous attention not only to the text of the document, but also to the historical record that illuminates the “original intent” of the Framers who drafted and ratified that text.
In a review of Yoo’s book, appearing in the pages of The New Republic, Cass R. Sunstein provides a compendium of statements from the Founders of the American republic on the very question of legislative versus executive authority over the making of war. Sunstein’s compendium of such statements –made by such central figures as George Washington, Thomas Jefferson, Alexander Hamilton, and John Marshall—reveals these Founders intent in putting together the American system of government to be just the opposite of what Yoo and the Bush administration are asserting about exclusive executive power.
To a man, they declare that in the newly-created United States –unlike in Great Britain, whose model Yoo asserts that the Founders adopted, and against whose tyranny these Americans had recently rebelled—the power of war-making resides with Congress.
The Framer-in-Chief (the “Father of the Constitution”), James Madison, wrote that the Constitution has “with studied care, vested the question of war in the Legislature.” “The whole powers of war,” declared John Marshall, the great Chief Justice, are constitutionally “vested in Congress.”
But the Bush government has arrogated to itself the “inherent power” to do whatever it pleases in the pursuit of its war-making, regardless of Congress.
Is this strict constructionism in action?
A Constitutional Crisis
In our system, the legislature is supposed to write the law, the judiciary is supposed to interpret the law, and the executive is supposed to enforce the law.
If it is an abuse of power for a judge to “legislate from the bench,” how much more dangerous an abuse is it for a president to legislate from the Oval Office?
On the Supreme Court, there are nine separate sources of opinion and thus of power. But in the executive branch, all power derives from a single man. This is one reason that close adherence to the law is even more important in a president than in a judge.
But there is a much more profound reason.
A judge has only the power of words. In a famous episode, President Andrew Jackson, not liking a decision made by the Supreme Court, is reported to have said, “John Marshall has made his decision, now let him enforce it.”
But a president has power beyond that of words. He also commands the coercive forces of the nation’s military.
So when a president takes it upon himself to decide what is the law of the land, and how that law is to be interpreted, he can enforce his will—and there is no other recourse for the rest of the nation. This is the very definition of tyranny.
The question that now faces America is this: Will this country rally to preserve its Constitution against this assault by an executive power that talks about strict construction but distorts the law to dismantle our system of checks and balances?
It was encouraging that the Supreme Court recently rejected the Bush administration’s arrogation of all power to itself, at the expense of the other branches, in the case of Hamdi v Rumsfeld. This was a case, brought by an American citizen, protesting his being held –in the name of the “war on terror”-- without charges, without counsel, without judicial oversight, potentially without end.
Writing for the majority, Justice Sandra Day O’Connor wrote: “[W]e necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position …cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”
The Bush administration’s argument, Justice O’Connor said, “would turn our system of checks and balances on its head…”
That was the present Court. That Court is now about to change, for Justice O’Connor is retiring from the bench, and to succeed her President Bush has now nominated Judge Samuel Alito.
Alito has been advertised to the country as one of those “strict constructionists” that George W. Bush is supposed to regard, on principle, as the kind of responsible, self-restraining judges America needs.
But it seems that what he really is, from the point of view of the Bush administration, is one of those judges who will support the expansion of presidential power that the Bushites seek. That, too, should be how the Senate, and the American people, see him –whatever other judicial qualities he may have—in the context of the present gathering constitutional crisis.
To our Founders, nothing would so worry our Founders as for a president to be given that “blank check” that, speaking for the majority of the present Supreme Court, Justice O’Connor so eloquently repudiated.
The pattern of these contradictions –the ways the walk is so diametrically at odds to the “strict constructionist” talk—clearly suggests that for the Bush administration there is no principle involved. Only power– and, indeed, precisely the kind of power that, throughout history, has been the arch-enemy of all principle.
Andrew Bard Schmookler has recently launched his website devoted to understanding the roots of America’s present moral crisis and the means by which the urgent challenge of this dangerous moment can be met. Dr. Schmookler is also the author of such books as The Parable of the Tribes: The Problem of Power in Social Evolution (SUNY Press) and Debating the Good Society: A Quest to Bridge America’s Moral Divide (M.I.T. Press). He also conducts regular talk-radio conversations in both red and blue states. |
See also:
http://www.nonesoblind.org/
|
Copyright by the author. All rights reserved. |
|
