July 2007
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Day July 5, 2007

Originalism, Constitutional Interpretation, and Executive Power

Just a short post, before I head to bed for the night. It struck me more forcefully than ever, reading Mason and Madison in the Virginia debates on ratification, that originalism or textualism is a double-edged sword for the Republican party and the conservative movement in general.

For although they have a point about originalist understandings of things like the Commerce clause, the modern doctrine of Executive power, and especially the John Yoo-types who preach about the “Unitary Executive” have to stay awfully quiet about original understandings and texts.

Because the Founders were emphatically clear on this point, and left behind a stark record of their fears on Executive power. In keeping with a short post, I’ll simply point you to Farrand’s Records of the Philadelphia Convention, and the Federalist Papers, as key texts in elucidating the Founding opinion concerning executive power. The “elevator pitch” is this: the Founders had just rebelled against the tyranny of a strong Executive who appropriated legislative and even judicial authority in his dealings with the Colonies, and the original “constitution” for the newly free states — the Articles of Confederation — reflected this general fear and left the Confederal government nearly powerless in most respects.

Indeed, the Founders who gathered in Philadelphia in 1787 to revise the Articles, but who decided to write a new Constitution instead, gave much thought to the proper limits on Executive power. Alexander Hamilton, himself in favor of a relatively strong Executive branch and Federal government, took pains in Federalist No. 69 to demonstrate the many ways in which the new Constitution rendered the Presidency unlikely to transgress the limits set forth for it. It is well worth reading — not because the Founders got it right, the 20th and 21st centuries amply demonstrating how presidents can escape these bounds — but for the tone and mode of Founding thought. Even Founding advocates of a strong Executive branch had major concerns about the dangers that lie in interpreting the powers of the Presidency too broadly.

And this is merely a sample. Read any of the Federalists, who supported the new structure, and you’ll see the same fear of an overreaching executive. Read any of the Anti-Federalists, who opposed the entire idea of a strong Federal government, and you’ll see even stronger arguments for limits on Presidential and Federal power.

What you won’t see is an originalist or textualist basis for the “Unitary Executive” or the “National Security State” or any of the other modern justifications for the massive erosion of the separation of powers now underway.

And that has to make you wonder, are they simply employing originalism, textualism, and “strict construction” when it suits them? The answer seems clear: originalist legal scholars are largely consistent, while political appointees and elected officials appear fairly “opportunistic” in their deployment of interpretive principles.

So just say “no” to John Yoo and other scholars who purport to have evidence that the Founders wanted a strong, activist Executive Branch all along. Read the Founders for yourself and understand why they trusted Congress far more than the Presidency. Read the Founders and I think you’ll come away with the same feeling I have: there is absolutely no question that James Madison, George Mason, Alexander Hamilton, and others would look at the modern Presidency and conclude that we had recreated monarchy, without inheritance. That contrary to the spirit of the Founding generation, the modern Presidency is headed towards — or has already become — an elected monarchy.

One wonders what James Madison, not to mention Thomas Jefferson, would think about our blind acceptance of what they fought to escape.

Pardoning Your Own Staff: What The Founders Thought

As we’ve all seen and read in the past week, the President’s power to pardon and extend clemency is nearly unrestricted. Article 2, Section 2 of the Constitution reads: “…and he have shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” There is no question that the clemency extended to Scooter Libby is within President Bush’s purview.

But the larger question of corruption remains: not because the action taken in the Libby case is not a legal exercise of power, but because there is a very real possibility of collusion between Libby and the President and/or Vice President in obstructing justice. Patrick Fitzgerald, the special prosecutor in Libby’s case, suspected that such collusion existed within the office of the Vice President, but has chosen not to pursue the legal case further at this point. We may never see a legal proceeding which adjudicates this issue.

Instead, we may have to satisfy ourselves by considering the constitutional lessons from this case. The Founders did indeed endow the Presidency with a nearly unrestricted pardon power, but the historical record is also clear that a chief concern of theirs was corruption within the Executive Branch. This subject didn’t see much explicit discussion at the Philadelphia Convention in 1787, but it was highlighted especially well by George Mason and James Madison in the June 1788 debates in the Constitutional Convention held in Virginia.

Founding Father George Mason, present in Philadelphia and a key figure in Virginia ratification, worried especially about the problem of the President using unrestricted pardon power to excuse his employees and cronies:

Mr. GEORGE MASON:….Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.

James Madison, the most acute observer of institutional power and its foibles in the Revolutionary era, felt strongly that vesting the pardon power in the legislature was even more dangerous than vesting it within the executive. In particular, he felt that Congress would be tempestuous, ruled by “passions” and less trustworthy against corruption of this sort. Even so, he recognized that the President may be tempted to use the pardon power in the service of his own agenda, and in such cases, impeachment was the remedy available:

Mr. MADISON:….There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended fill he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.

Clearly, the Founders extended the pardon power to the President because it needed to rest somewhere, and somewhere trustworthy. But just as clearly, the Founders recognized the possibility for corruption and self-dealing that the pardon power represents. And even before the Constitution had been ratified, before the any actual experience with Presidential power, Madison and others recognized that the danger it represented also had a clear remedy, spelled out as well in Article 2, Section 4: impeachment.

President Bush, and likely with the help, advice, and collusion of Vice President Cheney, appears to be “connected, in any suspicious manner” with Scooter Libby, and there are certain ground to “believe he will shelter him” from additional testimony, subpoenas, and legal proceedings. Rep. John Conyers is beginning hearings next week concerning this very issue, and I sincerely hope that he drives forward investigating the inappopriateness of the use of the pardon power in this case.

Comparisons with Bill Clinton are smoke and mirrors, from a White House desperate to deflect this scandal. Mark Rich was not a member of the administration, and even his Republican attorney (at the time) Scooter Libby approved of the pardon. Susan McDougal, though a friend and business associate of the Clinton’s, was not a member of the administration, and she served 21 months in prison before being pardoned, well after the investigation into Whitewater cleared the Clintons of any criminal wrongdoing in the case.

The only major pardons granted by Clinton involving administration officials both involved officials whose wrongdoing was independent of the White House: Henry Cisneros, the Secretary of Housing and Urban Development, lied about payments to a former mistress during an FBI background investigation, and former CIA Director John Deutch faced criminal charges in allowing classified material onto an unclassified computer. Both were legitimate charges, but in neither case was the White House involved in covering up the issues, or was there a possibility that the individuals in question were “covering” for White House officials.

So clearly there is something different, something unique here. The circumstances surrounding clemency for Libby are not anywhere close to Clinton’s actions in office, and in fact Mr. Bush’s actions are much closer to the situation against which George Mason and James Madison warned us, and gave us a remedy. Now it is up to Rep. John Conyers to investigate this matter, and the American public to keep up the pressure to do so. For even if nothing can be done now, we need to remember this moment when we go to the polls in 2008.

(Bibliographic note: the quotes above are available in Elliot’s Debates, Volume 3, at the Library of Congress website).

“Even Richard Nixon Knew It Was Time to Resign”: Keith Olbermann’s Special Comment

If you don’t watch Countdown with Keith Olbermann on MSNBC, or missed it due to the holidays, I strongly recommend catching his recent Special Comment on the Libby commutation. Salon has the transcript, but I recommend heading straight to the video, which Crooks and Liars has in Windows Media and Quicktime format. Olbermann continues to combine aspects of Edward R. Murrow, the younger Bob Woodward, George Orwell, and Thomas Paine. Unafraid to speak truth to power, unafraid to give rhetorical voice to the “dissenting” tradition in American politics, Olbermann does our country a service with his “Special Comments.”

An excerpt of his Comment on July 3rd:

“I didn’t vote for him,” an American once said, “But he’s my president, and I hope he does a good job.” That — on this eve of the Fourth of July — is the essence of this democracy, in 17 words. And that is what President Bush threw away yesterday in commuting the sentence of Lewis “Scooter” Libby.

The man who said those 17 words — improbably enough — was the actor John Wayne. And Wayne, an ultra-conservative, said them when he learned of the hair’s-breadth election of John F. Kennedy instead of his personal favorite, Richard Nixon, in 1960.

“I didn’t vote for him but he’s my president, and I hope he does a good job.” The sentiment was doubtlessly expressed earlier. But there is something especially appropriate about hearing it, now, in Wayne’s voice: The crisp matter-of-fact acknowledgment that we have survived, even though for nearly two centuries now, our commander in chief has also served, simultaneously, as the head of one political party and often the scourge of all others.

We as citizens must, at some point, ignore a president’s partisanship. Not that we may prosper as a nation, not that we may achieve, not that we may lead the world, but merely that we may function.

But just as essential to the 17 words of John Wayne is an implicit trust, a sacred trust: that the president for whom so many did not vote can in turn suspend his political self long enough, and for matters imperative enough, to conduct himself solely for the benefit of the entire republic.

Our generation’s willingness to state “We didn’t vote for him, but he’s our president, and we hope he does a good job” was tested in the crucible of history, and earlier than most.

And in circumstances more tragic and threatening. And we did that with which history tasked us. We enveloped our president in 2001. And those who did not believe he should have been elected — indeed those who did not believe he had been elected — willingly lowered their voices and assented to the sacred oath of nonpartisanship.

And George W. Bush took our assent, and reconfigured it, and honed it, and shaped it to a razor-sharp point and stabbed this nation in the back with it.

Were there any remaining lingering doubt otherwise, or any remaining lingering hope, it ended yesterday when Mr. Bush commuted the prison sentence of one of his own staffers.

The rest is even better. I strongly recommend downloading it to watch, and then sending the video (or download URL) to your friends, neighbors, and co-workers.

Vieux Telegraphe 1995

Last night I opened a half-bottle of the 1995 Vieux Telegraphe Chateauneuf-du-Pape, to have with dinner, partially to celebrate the holiday, and partially to celebrate the fact that my allergies had abated sufficiently that I could actually smell something. No clue why the pollen count has been so bad lately, but last night was a welcome respite and a great bottle of wine. The 1995 VT is the wine which convinced me to start collecting, a little more than a decade ago, so it has a special place in my cellar. The wine is superb, but not the dense or massive wine one expects in the greatest years. But given the tendency of Chateauneuf producers lately to make high-alcohol, highly extracted wines, I actually find older wine and second-tier vintages to be more my cup of tea. The 1995, and often VT in general (apart from the massively cough-syrupy 2003, which I couldn’t stand on release), have a balance and elegance which is missing when — to be frank — producers fight to achieve high Parker scores.

The 1995, upon opening, had herbal notes on top of a deep tarry or leathery funkiness, all overlaid on a background of dark cherry, the “signature” of this vintage and wine I’d come to expect from drinking a good deal of this after release. After an hour in the decanter, the leathery component had largely gone, leaving a deep red fruit and slightly herbal quality. In the half bottle, the aging curve may be a little faster, with a slight bricking to the color, but otherwise I don’t see any signs that the wine needs to be drunk up soon. I haven’t touched my full bottles of this vintage yet, and I expect to start doing so little by little over the next five to ten years, depending upon how it ages. But I still have 1988, 1984, 1983, and 1982 in my cellar, all second or even third-tier vintages, and most of them are elegant and lovely. If you’re interested in an older, more elegant, less massive style of Chateauneuf, Vieux Telegraphe continues to be a good bet.