Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » December 2005 » More Constitutional Worries Ahead...

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12/29/2005: More Constitutional Worries Ahead...

A good piece about the trouble with this entire bAdmin views of the “Executive Powers”, the dismissive attitude of Constitutional Values, and the Alito nomination:

…So what does explain Alito's nomination, given that by any plausible account McConnell would have been a more distinguished nominee with easier prospects of confirmation? The answer, I suggest, is the belief by insiders in the Bush Administration that he would be better on the one issue they REALLY care about, which is the aggrandizement of Executive power. The events of the past two weeks, following the disclosures about literally unwarranted wiretapping and data-mining by the National Security Agency, bring into sharp focus the intent by the Administration, led by Dick Cheney, to assert almost unlimited executive powers linked to the "Commander-in-Chief" Clause of Article II of the Constitution.

To be sure, if the Administration has the commitment to Executive branch aggrandizement that I am describing, one might think that an even better nominee would have been Fourth Circuit Judge Michael Luttig. But Luttig is in fact too visible; he has written too many opinions that allow easy identification of his views with those of Justice Thomas. To this extent, Alito is more the "stealth" nominee. The Third Circuit simply doesn't have the array of relevant opinions on national security issues, not least because the Administration explicitly places as many such cases as possible in the conservative-dominated Northern District of Virginia and then the Fourth Circuit Court of Appeals, secure in the knowledge that it will rarely lose. But it is wildly unlikely that the justice-pickers were indifferent to Judge Alito's likely proclivities.

This makes it essential, obviously, that every member of the Senate Judiciary Committee grill Judge Alito on his views of Article II, the Commander-in-Chief Clause, and, for that matter, the Oath of Office, given that University of Minnesota Law Professor Michael Stokes Paulsen reads the Oath to license the President basically to do whatever he wishes so long as there is a good faith belief that it is "defense" of the Constitution. Quoting Lincoln, Paulsen argues that just as one can amputate a limb in order to save the life of a person, so can a President in effect ignore any given part of the Constitution, including, of course, any of the protections of the Bill of Rights, in order to save the Nation. To put it mildly, this theory of the "amputated Constitution" should give us all pause.

Had Alito been nominated two years ago, many of these questions might have sounded "academic." In the aftermath of the disclosure of memos written within the Department of Justice justifying the President's "inherent" right to torture and then, more recently, of Bush's own public claims to almost limitless executive authority following the NSA disclosures, there is nothing at all academic about them. They go to the heart of whether we can maintain ourselves as a constitutional republic…”

Judge Alito and Executive Power by Sandy Levinson (via Daily Kos).

Update: Here is yet another good piece on the problematic *logic* that informs the idiots in favor of Suspending the Constitution tilted to a view of Supreme Executive Powers during a time of War; from Larry Johnson (No Quarter):
Do you think that John Yoo, the guy who authored the Department of Justice memo justifiying torture, believes that pedophilia is okay as long as the President believes it is necessary to save the nation? That my friends, as absurd as it sounds, is the thrust of the logic underpining the arguments Woo and his buddies are making. Their assault on the traditional conservative view that the power of Federal Government should be limited is truly frightening. In the name of saving the nation they insist that international accords against torture and inhumane treatment no longer apply. They are also on board for holding American citizens in prison indefinitely without a chance to confront their accusers in court. If it is done in the name of "national security" it is okay.

It is too bad that the term "fascism" is such a hot button term, because it is a word that appears to accurately define Yoo's views on Presidential supremacy. I guess we are resigned to labeling him a neo-conservative imperialist, because he believes that the President's status as the Commander in Chief grants an inherent manifest destiny to wield unbridled power.
It would help if we could put the threat of terrorism in a proper historical perspective rather than create a fantasy land of fear. While there is no denying that the radical Muslims would like to cause us great harm, they do not have an air force with long range bombers nor do they have an armada of aircraft carriers. They also do not have submarines armed with submarine launched ballistic missiles. Their ability to attack us is greatly constrained. Even if they get their hands on one or two nuclear devices, they face significant obstacles delivering them. Let's not ignore this threat, but neither should we surrender our civil rights to it just because we're afraid.

Yet, night after night we are confronted with some thick headed TV reporters and pundits who repeat the nonsense that because the threat is new spying is justified. Enough already! We can accept the fact that terrorism is a threat that must be taken seriously but it should not be employed as an excuse to pursue any activity that is cloaked in the aura of "security". If we use the fear of terrorism to excuse torture and permanent imprisonment then we are only a hop-skip-and-a-jump to making sex with children okay as long as the President believes it will keep us safe from Osama.

Karen on 12.29.05 @ 10:18 AM CST

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