Category Archives: Constitution

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 4^th, 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.

 

 

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.

Comments

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.

 

 

 

Comments

Op Ed Submission                                                        Sheila Suess Kennedy

January 21, 2007                                                          500 words

 

A Nanny State on Steroids                                                                                

 

You might think the Bush Administration would reconsider some of its more “creative” constitutional positions in the wake of the midterm elections. You would be wrong.

 

On January 11^th, Deputy Assistant Secretary of Defense Charles Stimson criticised law firms for offering pro bono (free) representation to detainees being held at Guantanamo. Stimson not only suggested that such representation amounted to “helping terrorists,” he went further. He urged the CEOs of corporations who employed them to “make those law firms choose between representing terrorists or representing reputable firms.”

 

And how do we know the detainees are really terrorists? Because the Bush Administration says so.

 

A letter signed by 100 law school deans criticized Stimson’s remarks as “contrary to the basic tenets of American law,” and reminded the Administration that providing such representation protects “not only the rights of detainees, but also our shared constitutional principles. In a free and democratic society, government officials should not encourage intimidation of or retaliation against lawyers who are fulfilling their pro bono obligations.”

 

The Defense Department subsequently repudiated the remarks. But Stimson is still there, and if he has been punished in any way, it hasn’t been reported.

 

If there are any doubts that Stimson’s sentiments are widely shared within the Administration, Alberto Gonzales has been busily putting them to rest. In recent testimony before one Senate committee, Gonzales insisted that Federal judges are “unqualified” to make rulings on national security policy, and should simply defer to the will of the President. At another hearing, Gonzales disputed the existence of the time-honored right to habeas corpus, arguing that habeas is just a “default rule” that can be waived in the interests of national security by the Commander-in-Chief. 

 

Gonzales seems confident that  Presidential power trumps that of both the courts and Congress; last June, he was quite matter-of-fact when he told another Senate committee that the President had personally killed a Department of Justice internal investigation into the process that justified the NSA domestic spying program. Apparently, once the President decides something is legal, it’s legal. (He is, after all, the “decider.”)   

 

And then there was the Signing Statement that accompanied the President’s signature on a postal reform bill on December 20, in which Bush claimed sweeping new powers to open Americans’ mail without a judge’s warrant. That claim was not only contrary to the bill he had just signed, but contrary to existing postal law, leading one commentator to call the Administration “a nanny state on steroids.”

Now, reports are emerging of a “purge” of U.S. Attorneys, most of whom were appointed by this Administration, and their replacement under an obscure provision of the Patriot Act that allows the President to bypass the usual Senate hearings. When questioned by Sen. Dianne Feinstein, the White House informed her that at least ten U.S. Attorneys would be replaced in this fashion. No one knows why, although there is speculation that some of those being forced out have been reluctant to follow Administration orders.

 

Checks and balances, anyone?

 

 

Comments