Bush vs. Constitution

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.

Related: For more on this subject, read Gordon Silverstein's review of The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 by John Yoo.

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