Not an endorsement, really...

Students of constitutional history need to monitor the actions of the next president--whomever he may be--over his first six months in office. Both the candidates have signaled their desire to end the executive excesses of the Bush Administration and restore something like dignity to the notion of constitutional government. Given that warrantless wiretapping is still an open issue, Guantanamo Bay remains open, and unaccountable military actions seem the norm these days, it is an enormously important that our next president demonstrate self-restraint. At the same time, the Congress is going to have to grow a pair if it is ever to restore constituional balance to the system. Back when revelations of George W. Bush's mendacity concerning the war in Iraq were coming to light, only Arlen Specter (a republican from Pennsylvania) talked seriously and openly about the possibility of impeachment. It would be nice if Congress prepared to defend its constitutional prerogatives, especially the power to declare war.

Meanwhile, I still harbor tremendous doubts about the Republican choice for President. Sadly, much of this comes from McCain's selection of Sarah Palin, who has now been identified by some as the "hope" of the Republican Party. If this is true, then the Republican Party deserves the drubbing it will receive on November 4. It deserves to become a permanent minority party. As George Will--in something a little more than a statement of good will and a little less than an endorsement of Obama--put it:

Some polls show that Palin has become an even heavier weight in John McCain's saddle than his association with George W. Bush. Did McCain, who seems to think that Palin's never having attended a "Georgetown cocktail party" is sufficient qualification for the vice presidency, lift an eyebrow when she said that vice presidents "are in charge of the United States Senate"?

She may have been tailoring her narrative to her audience of third-graders, who do not know that vice presidents have no constitutional function in the Senate other than to cast tie-breaking votes. But does she know that when Lyndon Johnson, transformed by the 1960 election from Senate majority leader into vice president, ventured to the Capitol to attend the Democratic senators' weekly policy luncheon, the new majority leader, Montana's Mike Mansfield, supported by his caucus, barred him because his presence would be a derogation of the Senate's autonomy?

Perhaps Palin's confusion about the office for which she is auditioning comes from listening to its current occupant. Dick Cheney, the foremost practitioner of this administration's constitutional carelessness in aggrandizing executive power, regularly attends the Senate Republicans' Tuesday luncheons. He has said jocularly that he is "a product" of the Senate, which pays his salary, and that he has no "official duties" in the executive branch. His situational constitutionalism has, however, led him to assert, when claiming exemption from a particular executive order, that he is a member of the legislative branch and, when seeking to shield certain of his deliberations from legislative inquiry, to say that he is a member of the executive branch.

McCain has been careless in this campaign, and it does not bode well for America should he be elected. He seems to fly by the seat of his pants, makes decisions from the gut, and has abandoned his former virtues of moderation, independent thought, and coolness. The Economist opined the same sentiment when it endorsed Obama earlier this week--the editors clearly pined for the old McCain, but cannot see him leading in any real way as President.

As a constitutional scholar concerned about the preservation of rule of law in this republic and the advancement of human rights worldwide, it matters less to me who is president than what the next president does. Personally, I can't wait until this election is over. It has been exciting, but it is quickly approaching tedious. I'm looking forward to casting my ballot on Tuesday. I'm then looking forward to holding whoever is elected to account for his actions for the next four years. And I would like to see some constituitonal history in the making, reversing the trends begun by Bush, Cheney, and that lawless crew that has run the White House like it was a biker bar for the past eight years.

Your Highness, the President of the United States

George W. Bush--or whoever whispers in his ear--continues to issue signing statements declaring his ability to dispense with certain sections of laws. I have blogged about this in the past. What Bush has clearly done is create a precedent which, for better or worse, is now part of the official record.

The dispensing power in executive authority is not new. James II claimed it in 1685 when he became King of England. Parliament called him to account by ousting him from the throne. The resulting constitutional settlement--the Glorious Revolution of 1688-89--crimped executive royal power for good.

The president is, in many ways, an elected king. The president wields a powerful veto on legislation, commands the armed forces, and directs the execution of our nation's laws. We have seen the powers of this office grow in the twentieth century. The president now commands armies in peacetime as well as in war, and sets policy and often times the agenda for Congress. If the president can add to his list of powers the ability to dispense with parts of laws, we may have moved backward in time to the seventeenth century conception of a monarchy.

We are watching constitutional change in its incipient form. The signing statements have not the force of law unless courts begin accepting them as authoritative. The next president has not yet been elected, so we do not know if the practice will die away or continue unabated.

So, stay tuned.

Palin, Biden and what does a constitutional office entail, anyway?

Palin and Biden did as expected. Both were feisty, Biden tried his best not to be condescending, Palin offered up lots of facts and figures to indicate she is fit for national office, and the two clashed on substantive issues. They also clashed on one constitutional issue: the position and role of the vice president.

The question came long into the debate, when both candidates appeared fatigued. Palin had just explained her understanding of the role of vice-president in relation to the president. McCain has already signaled, apparently, that she would head up energy policy and "reform of government over all" and working with families with special needs. Biden answered that he was a man of independent judgment, but that he was working for Barack Obama.

Gwen Ifill, the moderator, then asked a question which appeared to be something like a spontaneous follow up. (Here's the transcript I'm working with, by the way). "Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it is also a member of the Legislative Branch?"

This gets to the crux of the issue. And while both candidates have doubtlessly been boning up on policy subjects, this straying into a constitutional matter may have tested their substantive understanding of the Constitution. It is an important question, given that the officer we ultimately elect is not just a policy wonk, but someone charged with defending and protecting the Constitution. Here was Palin's answer:

Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president's agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we'll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.

Huh? I'm not sure which founding father deserves credit for imbuing the office of vice president with "flexibility," but I'm sure he would be surprised to find this out. Of course, invoking the "wisdom" of the founding fathers is always a more political than intellectual argument, and as such we should not take that so seriously. In truth, Palin did not answer the question. This is a dodge that has become typical of her when she is cornered--she meanders, then tries to say something about her experience as a mayor or a mother. In this case, she went with mayor/governor, to highlight "executive" experience.

Biden's response was emphatic. He rejected Vice President Cheney's interpretation of the Constitution as dangerous. He then gave a somewhat confusing answer about where the vice president's office is defined in the Constitution, citing "Article I" but saying it is an executive office. If I followed him correctly, he was saying that Article I only gives the VP one role when he presides over the Senate, and that is to cast a vote in the event of a tie.

At this point, I wish Biden had tried to pin down Palin. He studiously avoided doing anything that would come off as condescending (possibly to avoid cries of sexism). This may have been a good political move, but someone needed to get Palin to answer the question: do you believe, as does Cheney, that the office of Vice President is not under the sway of the executive? That it is an independent office that exists neither in the executive or legislative branches?

I have blogged in the past about my concern over McCain's selection of Palin. VPs are usuallly ciphers, but given McCain's advanced age and 100 plus pages of medical report, Palin has to demonstrate she is ready. She has given a series of shaky interviews in the past few weeks suggesting that she is out of her depth on the national stage. Now, in the only part of the debate that asked the candidates to display a substantive understanding of the Constitution, she has stumbled again. She is not yet "a heartbeat away from the presidency." But if she someday is, then my only advice: be afraid.

Sketch of a Villain

Excuse, if you will, a few disconnected thoughts about the Republican National Convention: about Palin, Huckabee, and (sadly disturbingly) Mitt Romney.

Sarah Palin, the surprise pick for VP, did not surprise anyone with her speech. Well delivered and strong, full of falsehoods and half-truths: everything we have come to expect from a VP. If she survives the ethics investigation in her home state (they are, after all, REPUBLICANS who are investigating her and most likely will fall into line before recommending censure or impeachment for her clear ethics violations), she will get the base foaming at the mouth.

Huckabee made one revealing statement in what was otherwise a boring speech. He praised McCain for never renouncing his country while a POW in Vietnam. If he had just renounced his country, said Huckabee, he could have gone home early. This is not the way I understand the story. McCain did break under torture and did sign a statement saying he was a war criminal and an air pirate (or whatever they shoved under his nose). His heroism came from his refusal to leave the camp before POWs who had arrived before him were released. I find such a story tremendously moving, as it does recommend McCain's character. Sadly (for Huckabee or whoever wrote his speech) it doesn't comport well enough with the "country first" theme of the Convention.

Mitt Romney is fast emerging as the Republican villain. His speech was replete with meaningless platitudes. He tried to whip up a frenzy over radical Islam, suggesting that George Bush did the right thing by labeling certain countries part of an axis of evil and starting a war in one of them. (This got surprisingly few cheers, by the way.) He took a backhanded swipe at Michelle Obama. And he castigated as liberal the establishment at Washington--an establishment that has been resoundingly republican for the last fourteen years. And there is simply something frightening about a man who says that the Democrats are the party of "Big Brother" yet scolds the Supreme Court (apparently a liberal bulwark, in Romney's pea-brained world) for upholding habeas corpus against the doctrine of unlimited executive power.

For the constitutional scholar, Mitt Romney is the villain. He is the partisan without thought-out principles. He promotes power rather than limits on power. His understanding of foreign affairs is mean spirited and, sadly, seems to animate a small portion of our population. His principles are on the edge of unacceptability--he ought to be tossed out by any legitimate political party, not given a prime spot at a speaking convention.

My only consolation was that no one seems to care about him much. They didn't in the elections and they didn't last night at the convention. So much the better for America and the Constitution.

If Mitt Romney represents anything like the future of the Republican Party, we are in trouble. I anxiously await McCain's speech...

Torture, the CIA, and Conspiracy

Conspiracies are part of the paranoid's delusion. They are, also, very much a part of the American mindset. From John Winthrop's seventeenth-century claims that Massachusetts Puritans were beset by enemies plotting their destruction to Salmon P. Chase's 1850s allusions (not originally his) of the "slave power's" power over the northern government to Oliver Stone's curious historical reworking of JFK's assassination, conspiracy theories have been perennial.

I don't believe in them. Conspiracies are easy to piece together with circumstantial evidence but depend in the end on both a willingness to believe in rumor, the absence of direct evidence, and a kind of paranoia that makes them acceptable. We may jettison with safety now Winthrop's fears that the pope, all Catholics, and the Pequot Indians were conspiring to undermine the Massachusetts Bay Colony. Someday we may be able to do the same thing with JFK's assassination.

But this long-winded introduction does not mean to suggest that conspiracies do not exist. And the CIA has gone a long way in covering up a huge conspiracy to violate U.S. law, international norms, and human rights in Guantanamo Bay. I refer, of course, to its destruction of videotapes documenting harsh interrogation techniques at Guantanamo Bay in 2005.

Revelations that the CIA destroyed the tapes came months ago. But it is only now that the relevant due process questions are being raised. The government was under a court order to turn over relevant information in several cases when the CIA began destroying tapes. This willful violation of judicial authority will, of course, come with consequences. At the very least, the government's prosecution of alleged terrorists is now seriously in question. We must beware the state that destroys its own evidence. There is also the question of whether the agents who did this are criminally liable for their actions.

But there is a third problem with this. If the CIA was acting under general orders from the Administration, then we may be witnessing the most egregious misuse of executive authority by this president yet. Of course, no such evidence has yet come to light (to my knowledge). But given that there is significant evidence that "harsh interrogation techniques" (or whatever the euphemism may be) were certainly part of the executive plan on prosecuting the war on terror, then this may well be part of a design. And if it is part of a planned design, then it may be an impeachable offense.

To some degree, I am engaging in rank speculation. But Congress has yet to take serious action on the question of its constitutional responsibilities to contain a president who flouts the laws of the country so willfully. For this reason, it is reasonable to wonder whether this CIA action is simply more evidence (albeit indirect) that Congress is fast becoming the weakest branch of government. One might even wonder if this is part of, well, a design.

Now that would be a conspiracy.

Civil Liberties and the Unitary Executive

What Would Jefferson Do? This is not really a question that seems to animate the Bush administration, whose intellectual muscle has expressed a decided preference for the thinking of Alexander Hamilton (pictured, or, more properly, caricatured, below). Hamilton, of course, appreciated the energy of the executive and rarely tired in promoting the powers of the president. Famously, he advocated the creation of a large standing army under the chief executive's control, and opined (somewhat disingenuously) under the pseudonym "Pacificus" that the framers of the Constitution had intended to leave the whole matter of foreign affairs in the hands of the President. Neither the legislative nor the judicial branch, he suggested, could interfere with the President's power.

Madison may have chided Hamilton in print (Hamilton had argued quite the opposite in the Federalist Papers) but few people are taking notice these days. The conservative Federalist Society continues to promote an originalist argument for the idea of the "unitary executive" and the Bush administration has perpetually struggled to augment its powers and exert executive privilege whenever questioned.

Nowhere is this more disconcerting than in the area of civil liberties. In addition to warrantless wire tapping and the blatant disregard for habeas corpus, the administration has on several occasions suggested that federal officers can deploy torture techniques in violation of federal law.

In Jack Goldsmith's new book, reviewed here by David Cole for the New York Review of Books,
we catch a glimpse of the cosseted world of the Bush and Cheney administration, where dissent (even from conservatives) was not tolerated and lawyers relentlessly worked to shield the President's men from the rule of law. Goldsmith found himself often on the wrong side of the administration's policies. But he occupied a privileged position being head of the Office of Legal Counsel, which provided interpretations of federal law for the executive branch, and thus could not be ignored. When Goldsmith suggested, for instance, that all Iraqis were protected by the Geneva Conventions, the administration had to take note. And, unlike other critics of the Bush administration, Goldstein's account is all the more compelling because it comes from a true believer. As David Cole writes:

Goldsmith's account is credible not only because he was an insider, but because he shares so many of Addington's views. Like his classmate at Yale Law School and onetime friend John Yoo, another Office of Legal Counsel lawyer who worked closely with Addington to justify the administration's most extreme assertions of unilateral power, Goldsmith made his reputation as a scholar with articles highly skeptical of international law, human rights, and international institutions. While serving in the legal counsel office at the Department of Defense, he wrote a memo for Donald Rumsfeld dismissing international law as a tool of the weak. He accused other nations and nongovernmental organizations of creating a "web of international laws and judicial institutions that today threatens USG interests," and recommended that the United States "confront...the threat." And Goldsmith is equally critical of domestic legal constraints; in The Terror Presidency he characterizes post-Watergate legal limits on executive power—the very limits Addington and Cheney so resented—as "one of the Bush administration's biggest obstacles in responding to the 9/11 attacks."

Cole's review is elegantly written, informative, and critically beautiful. And on a subject we need to pay more attention to during our coming presidential elections.