Glenn Greenwald
Friday November 16, 2007
It's genuinely hard to believe that the writers of George Bush's
speech last night to the Federalist Society weren't knowingly satirizing him. They actually had him say this:
When the Founders drafted the Constitution, they had a clear understanding of tyranny. They also had a clear idea about how to prevent it from ever taking root in America. Their solution was to separate the government's powers into three co-equal branches: the executive, the legislature, and the judiciary. Each of these branches plays a vital role in our free society. Each serves as a check on the others. And to preserve our liberty, each must meet its responsibilities -- and resist the temptation to encroach on the powers the Constitution accords to others.
Then they went even further and this came out:
The President's oath of office commits him to do his best to "preserve, protect, and defend the Constitution of the United States." I take these words seriously. I believe these words mean what they say.
To top it all off -- by which point they must have been cackling uncontrollably -- they had him say this:
Others take a different view. . . . They forgot that our Constitution lives because we respect it enough to adhere to its words. (Applause.) Ours is the oldest written Constitution in the world. It is the foundation of America's experiment in self-government. And it will continue to live only so long as we continue to recognize its wisdom and division of authority.
Here is the still-valid and binding
September 25, 2001 Memorandum, written by then-Deputy Assistant Attorney General John Yoo, concerning Bush's view of his own power:
In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.
That Memorandum also "conclude(d) that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad" and hailed "the President's inherent constitutional powers to use military force" free of Congressional interference. It declared "the centralization of authority in the President alone . . . in matters of national defense, war, and foreign policy." And while the powers of Congress are virtually non-existent, "congressional concurrence is
welcome." Thus:
moreIn
a speech yesterday, President Bush described so-called "activist judges" as engaging in "judicial lawlessness," interpreting the Constitution to "mean whatever those activists want it to mean". In an issue brief released by ACS,
William P. Marshall, professor of law at the University of North Carolina School of Law, addressed claims that "activist judges" step beyond their constitutional role.
(O)ne of the interesting features of the conservatives’ judicial activism attack is how their use of the term has changed depending upon political exigency. Originally, conservatives defined judicial activism as the failure of the courts to defer to the decisions of elected officials; i.e. being counter-majoritarian. This definition, however, proved unsatisfactory after Republican presidents succeeded in appointing movement conservative justices and judges to the federal courts. At that point, the federal judiciary, now in conservative control, began striking down federal legislation at a record pace. In such circumstances, the principle of deference to elected officials began to fall by the wayside as the mainstay of the non-activist judge. No longer was counter-majoritarianism to be considered the hallmark of judicial activism. . . .
For similar reasons, the conservatives abandoned their previous claims that judicial activism was defined in part by failure to adhere to judicial precedent. The conservatives themselves were too busy trying to overturn precedents in order to be able to sustain this attack. Indeed, since much of the central thrust of the conservative agenda has been overruling cases such as Roe v. Wade and Lemon v. Kurtzman, any effort by them to decry overturning precedent as judicial activism would have been particularly ill advised. . . .
The real test of activism, according to the conservatives, (at least as they now state their case) is whether a judge properly adheres to principles of originalism. Actually, of course, originalism as a method of constitutional interpretation of course has its problems. . . .
(O)riginalism, even with its jurisprudential flaws, has become the conservative mantra. And occasionally, they actually follow it. . . . But the overall conservative record on this score is more complex, and the only true rule governing the conservative’s application of so-called originalism is that they will always apply it, no matter where it leads—except of course when they don’t. . . .
The rule is clear. Originalism is fine as long as it does not interfere with the conservatives’ political agenda. Or maybe better stated, the conservative mantra is that all non-originalism should be harshly condemned as judicial activism except when done in service of conservative goals. Originalism, in the conservatives’ hands, in short, is a doctrine only of convenience and not of principle.
The
issue brief is available here.
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