Category Archives: Constitution

Can We Rescue Civic Literacy?

My research focuses on something I call “Constitutional Culture.”  The investigation of “constitutional culture” is considerably broader than legal analysis; it focuses upon the reciprocal relationship between our laws and legal norms and the broader culture within which those norms must be understood.

In other words, I study how constitutional values operate within a very diverse culture, how those values make people from very different backgrounds and beliefs into a single polity.  My research has  convinced me that widespread civic literacy—an acquaintance with the history and philosophy of our country—is critical to our continued ability to function as Americans.

I am also increasingly convinced that such civic literacy in short supply.Let me share with you the results of a study released just a few days ago by the Oklahoma Council of Public Affairs in observance of Constitution Day. The survey asked high school students questions about the United States. Here are some of those questions, and the percentage of students who answered them correctly:

What is the supreme law of the land? 28

What do we call the first ten amendments to the Constitution? 26

What are the two parts of the U.S. Congress? 27

How many justices are there on the Supreme Court? 10

Who wrote the Declaration of Independence? 14

What ocean is on the east coast of the United States? 61

What are the two major political parities in the United States? 43

We elect a U.S. senator for how many years? 11

Who was the first President of the United States? 23

Who is in charge of the executive branch? 29

This is appalling. If you think about it, the choices originally made by the men who designed our constitutional architecture have shaped our contemporary definitions of public and private, our notions of governmental and personal responsibility, and our conceptions of human rights. They dictate the way we see issues of civic responsibility, and how we allocate collective social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices are what has created our distinctively American culture. Failure to understand and appreciate those initial commitments is failure to understand the world we live in; it is failure to understand the context of our contemporary political and policy issues. Civic ignorance explains a great deal of the craziness and conflict we see around us.

All constitutions are expressions of political theory, efforts to address the most basic question of society—how should people live together? I have explored these themes in most of my publications, and they have been central to my last two books: God and Country: America in Red and Blue; and Distrust, American Style. Those books especially grew out of my efforts to understand why Americans so often seem to occupy different universes.

Actually, it hasn’t only been these last two books. When I was asked to give this lecture, I went back and reviewed much of what I’ve written over the past 15 years or so, and I was struck by the persistence of that one question: How do we live together? My very first book was “What’s a Nice Republican Girl Like Me Doing at the ACLU?” (That was written as the GOP was abandoning its traditional roots and getting more and more…whatever it is the party has become.) It was in that book that I first explored something I called—and still call—“The American Idea.” And the best way I can explain what I do—what I teach and research—is to explain that “American Idea,” because it has been a constant theme throughout my tenure at IUPUI.

My fundamental premise is that America is more an idea than a place.

Ours was the first nation not to be based upon geography, ethnicity or conquest, but upon a theory of social organization. That theory—that idea—was incorporated in our constituent documents: the Declaration of Independence, the Constitution and the Bill of Rights. You might argue that America is uniquely situated to thrive in a world where trade and technology are making geography increasingly irrelevant; where travel, immigration and economics are forcing diversification of even the most insular societies.

The American Idea reflected certain assumptions about human nature and accordingly, privileged certain values—values that ought to be more explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our public morality. Understanding them is fundamental to our ability to understand ourselves and to construct a civic and civil society.

I wasn’t suggesting that the founders spoke with one voice, or that they embraced a single worldview. All of our governing documents were the result of passionate argument, negotiation and eventual compromise. And as remarkable as the founders’ achievement was, as enduring as the bulk of their work has proven to be, the system they established wasn’t perfect, nor was it sufficient for all time. History and context matter.

Take the issue of “original intent.” There are those who believe that the role of the courts is to identify the founders’ intent and mechanically apply it—nothing more. Such a view of the judicial function arguably misreads history. In any event, it’s impossible. Whose “original intent” are we supposed to apply? John Marshall’s? Thomas Jefferson’s? James Madison’s? And how are we to determine what that intent really was?

More to the point, constitutions are by their nature statements of basic principles to be applied to fact situations which may or may not be foreseeable at the time the principles are enunciated. Our inquiry, properly understood, must be to identify the principle or value involved and protect it in a rapidly changing world. The question isn’t: What did James Madison say about pornography on the internet? The question is: how do we apply this principle –protecting expression from government interference—to this new form of communication?

The great debates between the Federalists and Anti-Federalists were about the proper role of government. That debate continues today. While we have enlarged our notion of citizenship since the constitutional convention (we now include women, former slaves and non-landowners) the framework remains the same. The overarching issue remains where to strike the balance between state power and individual autonomy.

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, how you use your property. Who decides when the state may deprive you of your liberty? How do we balance government’s right to exercise authority and enforce order against the individual’s right to be secure in his person and free in his conscience? The founders answered that question by carving out, in the Bill of Rights, things the government was forbidden to do. (As I tell my students, the Bill of Rights does not confer rights. We have those rights by virtue of being human. The Bill of Rights was meant to keep government from interfering with them.) Protection of individual liberty was an overriding value, to be circumscribed only when absolutely necessary.

Over the years, the individual rights secured to citizens by the Bill of Rights have come under attack from both the Left and Right. (Libertarians are right—political spectrum not a line but a circle, with authoritarians on both ends.) The Right’s argument is that the U.S. has gone “too far” toward individualism and individual liberties, to the detriment of authority and traditional morals. The Left’s theory is that we’ve gone too far toward individualism and individual autonomy, to the detriment of our sense of community, and the rights of the majority. In both views, the good of the whole (as they define it) must take precedence over the rights of individuals.

That may sound nice, but what is the “common good”? And more importantly, who gets to decide what it is? What are the “rights” of the majority? How do we determine them? When we ask those questions, we immediately see that there are two very different answers possible. In a totally majoritarian system—the system too many of my students think we have—the rights of the majority at any given time are what the majority decides they are. In such a system, the only issue will be one of accuracy and definition: what shall constitute a majority for purposes of legitimizing the use of state power? How can we be certain the votes accurately reflect citizen sentiment? Who shall have the right to vote?

In a truly majoritarian system, voters would have the right to decide what books are printed and sold, which religious practices would be tolerated, how much authority the police could exercise, and so forth. The only limits to government’s power over individuals would be those sanctioned from time to time by the voters, and those limits could be changed at any time by a subsequent vote. A truly majoritarian system would certainly reflect “community values” at any given time. It would also impose those values on those who do not share them. Holders of minority opinions, dissenters from the prevailing wisdom, would have no recognized or enforceable right to be different.

Such a system is precisely what the founders feared: it’s what they meant by “tyranny of the majority.”

The second answer to the question of majority rights is the one chosen by the founders of our republic. In the system they bequeathed us, the rights of the majority are derivative of our individual liberties; the right to participate equally with one’s peers to make those decisions which are properly assigned to majority vote; the right to be protected from those who would threaten our physical safety or otherwise deprive us of social benefits to which we are entitled; the right to have our agreements with each other enforced and our disputes mediated—all without favoritism or bias. And of course, there is the right which Justice Louis Brandeis once called the greatest right conferred by a civilized society—the right to be left alone.

History provides us with plenty of examples of what happens when the “good of the many” is piously invoked to outweigh the rights of individuals. A paraphrase from George Orwell’s Animal Farm sums it up best: Everyone is equal, but some are more equal than others.

Today, we have groups on the political right who “know best” what books we should read, what prayers we should say, and whom we should love. We see groups on the political left endorsing “hate speech” legislation and censorship of materials they believe to be offensive to women or African-Americans or others. Both want to use the power of the state to impose “goodness” on the rest of us. The problem is, they want to be the ones who define goodness. If they had even a rudimentary civic education, they would know that under our form of government they are absolutely prohibited from doing so. In our system, individuals have the right to make their own political and moral decisions, even when most other people believe those decisions are wrong.

When people fail to understand that the central issue is the use and abuse of power, they confuse support for constitutional rights with support for unpopular uses of those rights. The issue is who decides what books you read—not the merits of the books you choose. A lawyer who represents a child molester is not “endorsing” child molestation. He or she is upholding the right of every citizen to the due process of law. An insistence on a woman’s right to choose abortion is not the equivalent of a “pro-abortion” position—many women who oppose abortion nevertheless do not believe that government has the right to make that decision for individual women. An insistence upon freedom of the press most certainly does not translate into approval of anything the press may choose to publish. Voltaire said it best: “I disagree with what you say, but I will defend to the death your right to say it.” The central issue for civil libertarians is the power of the state—or the majority—to compel our behaviors or infringe our liberties. When people do not understand that, our public discourse is impoverished and ultimately unproductive.

Of course, individual rights carry with them civic responsibilities. One reason citizenship was originally restricted to landowners was the founders’ belief that citizenship required a proper understanding of one’s responsibilities, and the elitist notion that only “substantial” folks were prepared to assume the burdens of citizenship.

While the American legal system and the American media frame most issues in terms of the rights involved, the lack of emphasis on responsibilities shouldn’t obscure their importance. Our entire system depends upon the willingness of citizens to exercise responsibility: to display the public morality without which government and society cannot function. Just as the media focuses on crime, rarely commenting on the far more common incidents of lawful behavior, we tend to pay far more attention to social pathologies than we do to the fact that most Americans do continue to demonstrate the values and civic virtues necessary to the maintenance of an open and orderly society.

It is what we do when people don’t meet expectations for responsible citizenship that defines our commitment to civil liberties and the rule of law, and discloses our familiarity or lack thereof with the basic premises of American government.

Unfortunately, too many Americans who don’t know American history or philosophy  favor essentially totalitarian responses. The people you see on TV and at town halls  spouting anti-government rhetoric are the same ones who demand government fixes for things that offend them. 

 These are the people who claim parents aren’t monitoring what their kids watching on TV, so the government should ban inappropriate content. They are the people who are convinced that today’s children aren’t getting “proper” religious instruction, so the public schools—government schools—should make them pray. If movies are getting too racy, they demand that the government censor them. And on and on.

 Aside from the hypocrisy, these “easy” answers run afoul of our most basic constitutional values. People demanding these measures in the name of “American values” display an appalling ignorance of those very values.

 Civic literacy requires an acquaintance with basic constitutional principles. They aren’t mysterious or difficult. As I wrote in that first book,

  • There is the value of liberty. Americans believe in our inalienable right to hold our own opinions, to think for ourselves to assemble with our friends, to cast our votes, to pray or not—all free of government interference or coercion.
  • There is the value of equality before the law. This is not to be confused with the fuzzy notion that we are all somehow interchangeable. It is not to be confused with the belief held by some religions that all people are equally worthwhile. This is a more limited proposition—the notion that government must apply the same rules to all its citizens, that groups do not have rights, individuals do. It was a radical notion in 1776. It is fundamental to the way we understand ourselves and our society today.
  • We value the marketplace of ideas, the supreme importance of our ability to communicate with each other, unfettered by government censorship.
  • I said then that we value government legitimacy and the rule of law; I hope we still do, although we’ve come through a depressing and very damaging eight years.
  • And I hope we still value the civic virtues that are necessary to the conduct of responsible government, although some of them seem in short supply lately: honesty, courage, kindness, civility, mutual respect and tolerance.

 In a country where, increasingly, people read different books and newspapers, visit different blogs, watch different television programs, attend different churches and even speak different languages—where the information and beliefs we all share are diminishing and our variety and diversity are growing—these are the core values Americans have historically agreed upon. That agreement is what Americans have in common. They are the values we must teach our children.

 Let me just conclude this talk by reading from the afterword of my most recent book, which—among other things—elaborated on the importance of being able to trust our government to be faithful to our constitutional values. Those values are what create e pluribus unum: they allow us to make “one” out of our “many” in this age of dramatically increasing diversity. (As you will see, I’m still harping on the American Idea—I’m sort of a broken record that way.)

 “Most countries have gone through periods of turmoil, corruption or worse. I know of none that have escaped episodes of poor—sometimes disastrous—leadership. And as anyone who follows the news knows, democracies are hardly immune; the electoral process is no guarantee that you won’t get leaders who are ill-equipped to govern. All governments are human enterprises, and like all human enterprises, they will have their ups and downs. In the United States, however, the consequences of the “down” periods are potentially more serious than in more homogeneous nations, precisely because this is a country based not upon identity but upon covenant. Americans do not share a single ethnicity, religion or race. We never have. We don’t share a worldview. We don’t even fully share a culture. What we do share is a set of values, and when those whom we elect betray those values, we don’t just lose trust. We lose a critical part of what it is that makes us Americans.

Policy prescriptions and ten-point plans are all well and good, but at the end of the day, our public policies must be aligned with and supportive of our most fundamental values, and the people we elect must demonstrate that they understand, respect and live up to those values.

 As we have seen, the word “values” means different things to different people. In the wake of the agonizingly close 2004 Presidential election, pundits told us that voters had come out on November 4th to vote for “values.” What they meant by values—opposition to reproductive choice and equal rights for gays and lesbians, and nationalistic jingoism masquerading as patriotism—was the antithesis of the American values most of us really do care about. Let me be quite explicit about what I believe to be genuine American values—values that have been shaped by our constitutional culture, values that are shared by the millions of Americans who have been dismayed and dispirited by the revelations of the past eight years. They are the values that infuse the Declaration of Independence, the Constitution and the Bill of Rights, the values that are absolutely central to the American Idea.

  • Americans believe in justice and civil liberties—understood as equal treatment and fair play for all citizens, whether or not they look like us, and whether or not we agree with them or like them or approve of their reading materials, religious beliefs or other life choices.
  • Americans believe in the rule of law. And we believe that no one is above the law— most emphatically including those who run our government. We believe the same rules should apply to everyone who is in the same circumstances, that allowing interest groups to “buy” more favorable rules or other special treatment with campaign contributions, political horse-trading or outright bribery is un-American.
  • Americans believe in our inalienable right to speak our minds, even when—perhaps especially when—we disagree with the government. We understand that dissent can be the highest form of patriotism, just as mindless affirmation of the choices made by those in power can wreak untold damage on the country. Those who care about America enough to speak out against policies they believe to be wrong or corrupt are not only exercising their rights as citizens, they are discharging their most sacred civic responsibilities.
  • Americans believe that when politicians play to the worst of our fears and prejudices, using “wedge issues” to marginalize immigrants, or gays, or blacks, or “east coast liberals” (a time-honored code word for Jews) in the pursuit of political advantage, they are being un-American and immoral.
  • Americans believe in the importance of reason, the need for tolerance, and respect for evidence, including scientific evidence. We may go “off the reservation” from time to time, especially when the weight of the evidence points to results we don’t like, but eventually, Americans will place reason and compromise above denial and intransigence in the conduct of our collective affairs.
  • Americans believe, to use the language of the nation’s Founders, in “a decent respect for the opinions of mankind” (even European mankind).  
  • Finally, Americans believe in the true heartland of this country, which is not to be found on a map. The real heartland is made up of all the Americans who struggle every day to provide for their families, dig deep into their pockets to help the less fortunate, and understand their religions to require goodwill and loving kindness. The men and women who make up that heartland understand that self-righteousness is the enemy of righteousness. They know that the way you play the game is more important, in the end, than whether you win or lose. And they know that, in America, the ends don’t justify the means.

 Americans’ ability to trust one another depends upon our ability to keep faith with those values.

Life in a liberal democratic polity is never going to be harmonious. Harmony, after all, wasn’t the American Idea. Despite the dreams of the communitarians, we aren’t all going to share the same telos; at most, we will have what John Rawls called an “overlapping consensus.”[i] In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. But there are different kinds of discord, and they aren’t all equal. When we argue from within the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds and learn how to bridge our differences. When our divisions and debates are between powerful forces that want to rewrite our most basic rules and citizens without the wherewithal to enforce them, we undermine the American Idea and erode social trust.

 At the end of the day, diversity (however we want to define it) is not the problem. And that’s a good thing, because the fact is that increasing diversity is inescapable. The real issue is whether it is too late to restore our institutional infrastructure and make our government trustworthy again, whether we can once again reinvigorate the American Idea and make it work in a brave new world characterized by nearly instantaneous communications, unprecedented human mobility, and the twin challenges of climate change and international terrorism. There are hopeful signs, but the jury is still out.”

 

 

[i] John Rawls,  Political Liberalism (Columbia University Press, 1993).

Rendering Judgment

In the wake of the Bush administration, Americans are debating the meaning and importance of the rule of law. With Justice David Souter’s resignation, that discussion has intensified.

 

Most legal analysts give Souter high marks, and it is worth considering why. Souter was a brilliant and accomplished legal scholar, but there are many equally brilliant lawyers who would make terrible judges. Intellectual credentials are necessary, but they are not sufficient. Judges need an appropriate “judicial temperament.”

 

What does that mean?

 

Judges should demonstrate a commitment to what I call the American Idea—the vision of individual liberty that grew out of the Enlightenment and found its first institutional home in the U.S. Constitution and Bill of Rights. Many years ago, Judge Learned Hand defined the spirit of liberty as “the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.” It would be hard to improve on that definition.

 

During his own confirmation hearings, Chief Justice Roberts likened judges to umpires. This was taken to mean that both simply serve to apply clear rules, with a minimum of “interpretation.” Several of my colleagues immediately pointed out that baseball umpires have wide and unquestionable discretion (one cited a handbook for umpires that instructed officials to “interpret the rules according to their spirit and purpose”), and dismissed the comparison as misleading. I disagreed. I think—I hope—what Roberts meant was that an umpire is not a player, not a member of either team. The umpire’s job is to call them like he sees them—recognizing that ultimately he can only “see” through his own eyes.

 

Much has been made of President Obama’s use of the term “empathy” to describe both David Souter’s service and the qualities he wants in his replacement. Words mean different things to different people, but to me, “empathy” implies the absence of rigid ideology, the ability to evaluate each case on its own merits, and an appreciation for the human consequences of decisions. 

 

Cases that make it all the way to the Supreme Court are by definition those without clear-cut, obvious answers. Judges must apply the principles and values of our constitution to situations the Founders never contemplated. (What did James Madison think about porn on the internet? Are sobriety checkpoints Fourth-Amendment “searches”?)

 

Some years ago, I was a member of a panel of judges for Indiana’s We the People constitutional competition. One of the student teams gave a particularly insightful answer to a question posed by our panel. One of my fellow judges looked at those high school students for a long moment, and then said something I still remember. “You know, the constitution’s like a song. It’s important to know the words; but you guys also hear the music.”

 

David Souter heard the music. Let’s hope his successor does as well.

 

    

Constitutional Culture

As Americans prepare to go to the polls, the nation is teetering on the edge of an economic meltdown. If we are to avoid electing someone who will make things even worse—never mind beginning to turn things around—it behooves us to consider how and why we are in this mess.

Permit me to suggest that our current problems—including our economic problems—are rooted in the fact that for the past eight years, we have been governed by an administration that has operated far outside of what I call America’s constitutional culture. As we prepare to say “adios” to the Bush calamity and to choose a new President, we would be well advised to look closely at each candidates’ approach to the constitution, because a willingness to operate within its constraints will tell us much more than the issue papers and campaign promises that are the staples of electoral strategies.

A constitution does many things: in its more pedestrian provisions, it lays down the mechanics of governing—how old must a person be to run for President? How shall the legislature be selected? Those sorts of things. More fundamentally, however, constitutions provide a statement of national values—a moral code governing our necessary civic infrastructure. America’s constitution places a high premium on protecting individual rights by limiting the scope of government power, by the separation of powers, and an insistence on checks and balances and the rule of law. 

For the past eight years, the Bush-Cheney Administration has shown nothing but contempt for those constitutional constraints, and the policies it has favored have been consistent with that contempt.

It’s not just the Patriot Act, NSA spying, or the establishment of the prison at Guantanamo, alarming as those and similar measures have been. It’s not just the careful selection of judges who can be expected to favor the prerogatives of government over the rights of citizens. It’s not just the use of signing statements to circumvent constitutionally prescribed policymaking processes. It can also be seen in the proliferation of no-bid contracts, privatization, cronyism, and lack of regulatory oversight that has precipitated our current financial crisis.  (Make no mistake—the administration’s anti-regulatory fervor is part and parcel of its general disdain for the rule of law, and has been a major contributor to our current economic crisis. Notwithstanding the florid rhetoric from self-proclaimed advocates of the free market, markets cannot function without clear ground rules and impartial umpires willing to enforce those rules.)

Fine, you may say. I agree the people we elect ought to be bound by the rule of law. But what does the constitutional commitment and knowledge of a Presidential candidate  tell me about his or her policies most likely to affect me?

 

Consider the following:

·        A President who understands the First Amendment’s religion clauses will not try to change the laws to incorporate particularistic religious beliefs about abortion, homosexuality or science. That means supporting stem-cell research. It means no Terry Schaivo dramas, no “Defense of Marriage” acts, no creationism in the classroom.

·        An administration respectful of the Fourth Amendment will not  read your email or eavesdrop on your telephone conversations.

·        A President who respects the rule of law, who enforces laws and regulations impartially (and thus prevents the wholesale looting of the treasury by the well-connected) is far less likely to preside over an economy where jobs are lost, homes foreclosed and retirement accounts devalued.

·        A President who understands the philosophy and intent of the Equal Protection Clause of the Fourteenth Amendment will respect diversity and insist upon equal rights for all Americans.

Barack Obama taught constitutional law. He and Joe Biden have given ample evidence that they understand, and are committed to, constitutional principles. John McCain’s embrace of constitutional limits has been spotty, at best; Sarah Palin has given no evidence of ever having read the constitution (or much else).

I am as aware as anyone that this country has often failed to live up to its highest aspirations and constitutional institutions. But the damage done by the Bush Administration has been both systemic and insidious, because it has called those very aspirations into question. It will not be easily repaired.

Political partisans always insist that “this election is the most important ever.” It’s easy to dismiss overheated pronouncements (like my own!) as predictable election-year rhetoric. But as the old sayings go, even paranoids have enemies and even stopped clocks are right twice a day. When Americans go to the polls November 4th, we will be voting for far more than a President. We will be voting to reclaim—or to jettison what is left of–America’s constitutional culture.

 

 

Of Guns and Guantanamo


Last month, the Supreme Court was an equal-opportunity disappointer, handing down one decision that enraged conservatives and one that outraged liberals. Permit me to make myself even more unpopular than usual (no mean feat) by suggesting that both decisions were correct.
The first ruling came in Boumediene v. Bush, in which the Court upheld the right of detainees at Guantanamo to file habeas corpus petitions. Any competent lawyer could have predicted the result; the most worrisome feature of the ruling (to me) was that it was a 5-4 decision. The theatrics from predictable sources may have obscured what the ruling did and didn’t do. It didn’t order Guantanamo closed. It didn’t require that the detainees be freed. It didn’t even require that they be given full trials.
The right of habeas corpus guarantees prisoners only the most bare-bones fundamental fairness; it allows people who have been imprisoned to challenge government’s right to hold them. It allows them to demonstrate that they are being held in error—that they aren’t who the government says they are, or that they were not involved in the actions for which they are being held. Allowing someone to say, “hey—you’ve got the wrong guy” hardly endangers America.
Nor will the ruling unleash the routinely predicted “floods of litigation.” Every one of the 2.2 million prisoners currently held in the U.S. criminal justice system can file a habeas petition. Letting 335 Guantanamo detainees do so as well is hardly going to overwhelm the system.
In District of Columbia v. Heller, the Court struck down the nation’s most restrictive gun law, and finally settled the question whether the Second Amendment protects a personal or collective right—that is, whether the Amendment’s authors were referring only to militias, or whether they were also protecting an individual right to gun ownership. The screaming this time came from liberals, but it was no less over-the-top.
First of all, the Court did not invalidate all efforts to regulate firearms. The ruling simply said that a personal right exists, and government therefore has the burden of justifying regulations that propose to restrict or infringe that right, just as we insist that government must justify other efforts at regulation that may restrict personal liberty. The Court said the ordinance in question—which required, among other things, that a handgun kept in the home be disassembled—went too far.
Both sides have substantially inflated the likely effect of Heller. Purists who believe the Second Amendment protects their right to build small nuclear devices in their back yards are gleefully planning challenges to far more reasonable regulations that are quite likely to pass constitutional muster. For their part, doom-and-gloom gun control advocates have conveniently overlooked the fact that a majority of state constitutions explicitly protect a personal right to gun ownership. (While states cannot restrict rights guaranteed by the U.S. Constitution, they are free to offer their citizens more extensive protections.)
You can quibble with the details, but the Court got these right.

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Alternate Universe Cheney

Amazing. In his most recent bid to avoid anything remotely similar to accountability, Dick Cheney has taken the position that the Vice-President of the United States is not part of the Executive Branch.

 

That sound you hear is generations of Constitutional law professors dropping their teeth.

 

A bit of backgound: The National Archives oversees classified documents. An Executive Order requires that all members of the Executive Branch who are entitled to see such documents cooperate with the National Archives to ensure that sensitive materials are protected. For the past four years, Cheney has simply refused to comply. When the folks at the National Archives appealed to the Justice Department (the proper channel, however futile an appeal to Alberto Gonzales is likely to be), Cheney simply claimed that this law—like so many others—doesn’t apply to him, because he is not part of the executive branch.

 

As Maureen Dowd mused in the Sunday New York Times, “Even in my harshest musings about the vice-president, I never imagined that he would declare himself not only above the law, not only above the president, but actually his own dark planet—a separate entity from the White House.”

 

As other commentators have noted, this position raises some fascinating questions, among them why, if Cheney isn’t a member of the Executive Branch, he keeps claiming Executive privilege.

 

Or why, since the clear language of the Executive Order applies to anyone “entitled to receive classified documents,” it even matters, for purposes of the rule’s application, what he calls himself.

 

As Representative Rahm Emanuel recently stated, announcing legislation to remove the Vice-President’s office from an upcoming funding bill,  “The Vice President has a choice to make. If he believes his legal case, his office has no business being funded as part of the executive branch. If he demands executive branch funding, he cannot ignore executive branch rules.”

 

This bizarre episode would be funny if it didn’t point up a tragic truth: this is an Administration that does not adhere to nor operate under the most fundamental American value—the value of the rule of law.

 

From Abu Ghraib to Valerie Plame, from signing statements to Guantanamo, from the blatant politicization of the Justice Department to the recent revelations about FBI lawbreaking, Bush and Cheney persist in operating under their widely discredited, incoherent and self-serving theory of a powerful “unitary executive.” As a result, we are losing precious safeguards against government malfeasance that generations of Americans have fought and died to protect.

 

Maybe that sound isn’t Con Law professors’ teeth dropping. Maybe it is the sound of the nation’s Founders, spinning in their graves.

 

 

 

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