Bush vs. Constitution
President Bush's conception of his own powers is even more
dangerous than his specific abuses.
By Paul Starr
Issue Date: 03.10.06
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Repeatedly through our history, the liberties guaranteed by the
Constitution have been threatened in war by an overreacting government and then
reaffirmed in peace by calmer leadership. The Alien and Sedition Acts of 1798,
Lincoln's suspension of habeas corpus, the suppression of free speech during
and after World War I, the internment of Japanese Americans during World War
II, McCarthyism, and the wiretapping of Vietnam-era dissenters -- all of these
came to be seen, once fears subsided, as violations of our freedoms and
embarrassments to our heritage.
George W. Bush's presidency is another era of overreaction at the
expense of constitutional rights, but the prospects for a quick correction are
not auspicious. Nothing has helped end earlier bouts of repression so much as
the fact that the wars themselves came to a close, and nothing has so exposed
our liberties to indefinite jeopardy as the conception of a "war on terrorism"
with no end.
The president claims an inherent power to imprison American
citizens whom he has determined to be this country's enemies without obtaining
a warrant, letting them hear the charges against them, or following other
safeguards against wrongful punishment guaranteed by the Bill of Rights. Under
his administration, the government has engaged in inhumane treatment of
prisoners that amounts to torture, and when Congress passed legislation to ban
such treatment, he declared he would simply interpret the law his own way.
Although the Constitution says treaties are the "supreme law of the land," the
president has abrogated them on his own. And, we now know, he ordered a secret
program of electronic surveillance of Americans without court warrants.
But there is something more dangerous than any of these specific
abuses and usurpations, and that is the theory of inherent powers that Bush
invokes to justify most of these actions and the possibility of its being
effectively institutionalized by a meek Congress and, worst of all, by a
deferential Supreme Court.
My concern is analogous to the one that Justice Robert H. Jackson
articulated when he dissented from the majority in Korematsu, the infamous
Supreme Court decision in the midst of war (1944) upholding the
constitutionality of the military order to intern Japanese Americans. A
judicial construction sustaining the program, he wrote, "is a far more subtle
blow to liberty than the promulgation of the order itself." For by
rationalizing the order, "the Court for all time has validated the principle of
racial discrimination in criminal procedure and of transplanting American
citizens. The principle then lies about like a loaded weapon ready for the hand
of any authority that can bring forward a plausible claim of an urgent need."
The real danger today is the loaded weapon that Bush and his
defenders are willing to put in the hands of all future presidents. Even
members of his own party ought to be able to see that danger, and act to stop
it.
Americans have been slow to react to Bush's actions because the
great majority of them no more identify with the Arabs who are the chief
targets of the "war on terrorism" than the majority in the 1940s identified
with their fellow citizens of Japanese descent. But the principles that Bush is
undermining protect us all. Our Constitution divides the president's authority
with Congress and the courts so as to create a system of mandatory
consultations. That requirement does not make injustice and misuse of power
impossible, but it makes them less likely. To survive, the system chiefly
requires that if those in power cannot remember our traditions, they can at
least imagine themselves out of power in the future.
Not long ago, the Supreme Court could have been counted on to
restore the checks that Bush has thrust aside. But the confirmation of the
president's two nominees to the Court may now tilt it in his direction. The
common element in the background of the new justices is not merely their
political conservatism, but their history of support for a broad construction
of executive powers.
The combined effect of a changed court and a putative state of
perpetual war could radically distort our whole constitutional framework. An
increasing number of congressional Republicans have recently expressed doubts
about the legality of Bush's surveillance program. The real battle, however, is
about general principles applied across a wide range of policies. Of course, if
the voters elect a Democratic president in 2008, perhaps even the Court's new
justices may discover constitutional reasons to limit the president's inherent
powers. I am not saying this is the only hope. But in a democracy, those who
cannot imagine being out of power deserve another experience of being without
it.
© 2006 by The American Prospect, Inc.
[Non-text portions of this message have been removed]
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