BUSH ENVEN MORE DANGEROUS THAN HE APPEARS

[Guest guest]

Bush vs. Constitution

President Bush's conception of his own powers is even more dangerous

than his specific abuses.

By Paul Starr

Issue 03.10.06

 

 

 

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.

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