Bring It On!

How Bush Turned The Constitution Inside Out

July 22nd, 2008 | by Ken Grandlund |

“Stop throwing the Constitution in my face. It’s just a goddamned piece of paper!” -George W. Bush, November, 2005

The context for the above quote lies in a meeting President Bush had with Congressional Republicans and aides back in 2005 when they were discussing how to renew the Patriot Act. His outburst came after an aide pointed out that certain provisions of the Patriot Act undermined the U.S. Constitution. Yet even without this quote, which has been vigorously denied by conservative lapdogs, a look at the Bush presidency reveals the disdain Bush has for our national charter, and by association, the concept of democratic governance.

When the American colonists broke the chains of servitude to the monarchy, they set out to create a government by, for, and of the people, modeled on the ancient Greek experiments with democracy. Having endured the abuses of power ubiquitous in a monarchical government, the framers of the U.S. Constitution sought to create a government whereby the people were to be protected from the abuses of governmental intrusion and largess. Under a monarch, there were no individual rights, no quarter from the dictates of the king, no protection from abusive or arbitrary rulings. When the king wanted money, he took it. When the king wanted to go to war, he conscripted his troops. When the king declared a law, there was no room for recourse or debate. This kind of rule offered no freedom, and it was this kind of rule that the Constitution was created to protect against.

And by and large, even with the imperfections and inequities of its origin, the U.S. Constitution has endured and even expanded the concept of freedom and equality over our 220+ years of existence. It has done so for one very important reason- successive generations of American citizens and political leaders have embraced its underlying and all encompassing central theme- government exists at the will of the people, to serve the needs and desires of the people, and must, in its course, be accountable and transparent to the people.

That is not to say that all American politicians throughout our history have embraced these concepts equally. It’s not hard to find dozens of examples of elected officials subverting democracy for personal gain or from a sense of historic necessity. And if the truth shall be told, a great many 20th century American politicians have been complicit in the erosion of a strong tripartite government, in the weakening of the power of the people, and of the overall dismantling of our carefully crafted charter. Indeed, were it not for complicit Congresses, no president alone could have managed to transform our democratic republic into an oligarchy. Regardless, before Geroge W. Bush had himself annointed “Decider in Charge,” most politicians still held that no one, not even the president, could be above the law and that even the president had to abide by the restrictions set forth in the Constitution. And with but a few notable exceptions, even during this country’s greatest challenges like the Civil War and World War II, presidents and congresspersons alike held fast to the provisions in our Constitution that guaranteed certain powers to each branch of government and guaranteed certain rights to American citizens.

I should concede right now that the general powers of our government today are very different than those originally anticipated by the writers of our Constitution. Our government is much more intrusive then they would have liked it to be. And the addition of layers of federal bureaucracy over the decades have grown the size of our government to enormous proportions. But with a few exceptions, governmental expansion, and with it an increase in the power of government and its various branches, has been codified into law with the consent of the governed. The New Deal programs that helped lift this country out of the Great Depression of the 1930’s greatly expanded the role of government into everyday life, but it did so under the support of the majority of Americans. The expansion of governmental services crafted under the Great Society were somewhat more controversial, but were still acted upon with the consent of a majority of Americans who sought to create a more enlightened government that would help its people achieve success without squashing their freedoms. While these governmental expansions clearly exceeded the original intent of the federal government, verbage in the preamble of the Constitution does indeed allow for government to act to “promote the general welfare” and under the sometimes silent direction of their constituents, elected politicians promoted and passed laws to cover a wide range of “public” issues. However, with each passage of a new program or policy, bureaucracies and departments had to be created to fulfill the various mandates, and by the nature of the Constitution, all those new bureaucracies and departments fell under the Executive branch, in essence giving more and more power to the president and his appointees. Most presidents tried to balance the addition of power with the constitutional theory of balance of power. And most congresses and Supreme Courts took pains to keep each branch of government in check. Even Richard Nixon found that the idea “if the president does it it isn’t illegal” didn’t hold water in American government and was forced to resign the presidency for abusing the powers of his office.

But something about following the rules just doesn’t seem to sit well with our current president, George W. Bush. And under the guise of “national security” and “terrorism,” and with our history’s most compliant and spineless Congresses, Bush has turned our government into a parady of its founders vision. Under Bush, not only has abuse of power run roughshod over the tenets of democratic governance, the very notion of government by the people has been corrupted to become government in spite of the people. Where once the Constitution was used to protect people from the abuses of government, now the Constitution is subverted to protect government from the people.

Consider the constant use of signing statements under Bush. While there is plenty of historical precedent for presidents to attach commentary to bills they sign, no president has done so with such frequency and vehemence than Bush. Where other presidents may have used the “signing statement” opportunity to clarify thoughts on laws, Bush has used them to justify ignoring or effectively anulling the law altogether.

Or consider Bush’s claims of executive privilege for anything under the sun, including applying it to instances where it has no legal basis. Executive privilege was designed to shield a president, their actions or words, from public scrutiny when the topic at hand required secrecy and the ability to drop diplomacy from the conversation. But Bush has extended “executive privilege” to cover any situation of any executive branch function, regardless of whether or not the president was involved in a particular conversation or not. The most recent and classic examples involve Bush’s order to former aides Harriet Miers and Josh Bolton to ignore a congressinal subpoena, and to his Justice department to refuse to act on the subsequent contempt of congress charges. Executive privilege was designed to shield a president, not every political hack he ever appointed to a position of incompetence.

Yet these transgressions (or rather, willful acts of constitutional subversion) are only the tip of an unwelcome iceburg of constitutional debasements perpetuated upon America by George W. Bush. Whereas previous presidents often had the public on their side for major governmental shifts on purpose, Bush and his congressional lackeys have not had large scale public support for their most odious and harmful actions. And such support as they may have originally held in the wake of the 9-11 attacks has withered away as presidential excess has destroyed American credibility and debased the Constitution to “just a goddamned piece of paper.”

Abuses of power and the dismantling of the Constitution under Bush has reached previously unknown heights, and our nations great founders are likely rolling in their graves. Among the most grevious transgressions:

Warrantless wiretapping and the presidential decree that private business be shielded from prosecution for abetting illegal governmental actions. The constitution forbids warrantless searches, but some have been allowed through subsequent legislation provided that certain steps are followed. Bush decided he didn’t even need to follow those rules and ordered the most massive warrantless spying program in history.

The introduction of presidentially approved torture, kidnapping and detention in the name of national security. Violating the Constitution is like Bush’s hobby. The Bill of Rights explicitly forbids punishment that is cruel and unusual (torture) as well as detention without charges or trial. And kidnapping is illegal pretty much throughout the civilized world. No amount of argument about how the “terrorists” do it so we will too is acceptable. Security does not require giving up your humanity.

Government secrecy, from Cheney’s secret energy meetings to covering up or ignoring the truth about Iraqi weapons programs to the world’s biggest “lost e-mail” treasure trove, in the Bush administration, information is not for public consumption. Our government was designed to be open and accountable, but to be so it requires that information be shared and public. Under Bush, accountability is non-existant, in part because the flow of information stops at the White House door.

The list could go on for pages and pages, but most of us, even the deniers and Bush lovers, are familiar with the multitude of constitutional transgressions put forth by George W. Bush. And while it is important to recoginze the shared culpability of all elected officials who have given this man-child free reign, it is even more important to recognize that had we not had a president of such pettiness and immaturity, a great many of these abuses would never have occurred and America might still have some standing on the world stage that was not accorded simply due to the might of our military.

Make no mistake- I allow no excuse for the elected Republican and Democrat leaders who have sat idly by and acquiesced or abetted Bush on his path of Constitutional destruction. They are all guilty of cowardice at best, of treason at worst. The congress has repeatedly abrogated its own responsibility as an equal branch of government and allowed these things to go unchallenged.

But it is Bush, and Bush alone, who is responsible for debasing our Constitution and for setting precedents that will make future presidents even less accountable to the people. Now, because of Geroge W. Bush, our only real hope in restoring the concepts and ideals of democracy is to actually get a president who respects not only the Constitution and its meaning and historical importance, but who respects the American people and is ready and willing to deconstruct the vile separation that has been built between the people and our government by George W. Bush.

(cross posted at Common Sense)

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  1. 27 Responses to “How Bush Turned The Constitution Inside Out”

  2. By mr bigstuff on Jul 22, 2008 | Reply

    62 million american fools got what they voted for…………………twice. the last summer of bush is on us now. this is the first summer ever that i didn’t want to see the sun shine or go outdoors. w is worst than a tequila hangover.

  3. By Chris Radulich on Jul 22, 2008 | Reply

    Not quite bush alone. certian an electorate that was to frighten to stand up for their principles deserve some of the blame.

  4. By Ken Grandlund on Jul 22, 2008 | Reply

    Kind of a trite sentiment Big Stuff- i doubt many anticipated that Bush would turn out to be as heinous as he has been. to blithely push off Bush’s actions on the voters as “you deserve what you get” leaves the other 240 million Americans in the lurch-we neither asked for nor voted for Bush or his imperial reign. And we certainly didn’t expect a CIC who took it upon himself to dismantle the constitution.

    Chris- I don’t wholly blame Bush- I also blame the spinless elected congresscritters who either actively helped Bush along or stood spinelessly by and did nothing. to blame the electorate for Bush is too easy- had all the facts been known, had not we become a swift boating nation at election time, had the voters actually had a chance to see the evidence of Bush’s illegalities, the outcome may well have been different- hell, if our politics weren’t so debased by power and money and instead filled with civic spirit, we’d likely still have an accountable government. And that doesn’t even take into consideration the electoral irregularities in Florida and Ohio, both of which tipped things towards Bush.
    No, I don’t blame the voters nearly as much as you both seem to want to do- we can only go by the information we receive, and in the case of Bush, it has been far too little, much too late.

    further, those voters who have spoken loudly have been marginalized by a rhetoric campaign that paints all who disagree as traitorous and un-American.

  5. By manapp99 on Jul 22, 2008 | Reply

    The quote was retracted due to the fact that it could not be verified. Just another lefty lie but that doesn’t stop you from building a whole mess of other lies around it.
    That’s o.k. because Obama time is coming.

  6. By Craig R. Harmon on Jul 23, 2008 | Reply

    The constitution forbids warrantless searches

    It isn’t quite that simple.

    While this is generally true, there are a number of exceptions to the rule that have nothing to do with Congress passing laws (which, of course, would be unconstitutional if it were true that the Constitution required a warrant for every search). Such exceptions are, rather, judge made rules through case law. For example, plain-sight searches are lawful without a warrant, searches by border guards are valid without a warrant, searches of individuals and their vehicles by police officers during arrests are valid without a warrant. There are a number of exceptions to the warrant rule detailed here under “Exceptions to the warrant requirement”.

    And while Congress has passed laws to reign in the executive officer’s powers, such laws are generally regarded as unconstitutional by those who hold the office of president.

    Specifically, whether the president can engage in signals intelligence gathering consequent to a military action authorized by Congress without a warrant, so far as I know, the Supreme Court has never settled the question but any number of lower court cases have determined that presidents do, indeed, have inherent Constitutional powers to do so. So it seems to me that the question is an open one at the moment.

    The Constitution no more requires warrants for every search (only for those otherwise viewed as unreasonable), than it requires an arrest warrant for a lawful arrest and it is neither presidents nor Congress that have so determined but courts.

    Were one to deliberately bug a police officer until the officer gives a direct order for one to bug off and then refuse to obey the order, one would find that the police officer does not need to get an arrest warrant to make an arrest. The officer can and likely will make the arrest on the spot. The officer, then, will very likely conduct a search of one’s person, again, without a warrant. One should not expect to go into court and tell the judge, “Your honor, the officer had no arrest warrant to arrest me or search warrant to search me. Therefore, the officer infringed my constitutional rights under the fourth amendment.” The judge will probably direct one’s lawyer to clarify the concepts of lawful arrest and of searches incident to a lawful arrest.

    The question is, is the search reasonable, not just, does the officer have a warrant to conduct a search.

  7. By Craig R. Harmon on Jul 23, 2008 | Reply

    There is also the matter of In re: Sealed Case, a 2002 ruling by the FISA court of appeal per curiam ruling, which includes the following:

    Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

    Now this was not the question before the court and this is dicta, that is, “an opinion voiced by a judge on a point of law not directly bearing on the case in question and therefore not binding” but I would have to assume that the court knew of what it spoke. Whether the Supreme Court would likewise take that inherent power for granted is another question, one that I doubt anyone could answer. Certainly I cannot answer it but it does indicate to me that the very court established to hear appeals to rulings by the FISA court, and therefore one would have to assume that they knew a thing or two about the FISA act, considers that presidents have inherent powers to search for national security information without a warrant and that FISA cannot constitutionally infringe upon that presidential power.

    It doesn’t prove the point but it can hardly be ignored.

  8. By Craig R. Harmon on Jul 23, 2008 | Reply

    When the American colonists broke the chains of servitude to the monarchy, they set out to create a government by, for, and of the people, modeled on the ancient Greek experiments with democracy.

    After reading the Constitution as written by the founders, it seems extremely unlikely that they intended to create a government of or by the people — seeing as how they excluded the vast majority of the population of the country from even voting, let alone participating in any more active role in government — and it is obvious that the document they produced bore no resemblance whatsoever to any ancient Greek experiment with democracy. After reading The Federalist that would be confirmed. Creating a democracy of or by the people was the farthest thing from their minds. Surely the original Constitution’s anti-democratic features are numerous and should disabuse anyone of the notion contained in the quote above.

  9. By Craig R. Harmon on Jul 23, 2008 | Reply

    Consider the constant use of signing statements under Bush. While there is plenty of historical precedent for presidents to attach commentary to bills they sign, no president has done so with such frequency and vehemence than Bush. Where other presidents may have used the “signing statement” opportunity to clarify thoughts on laws, Bush has used them to justify ignoring or effectively anulling the law altogether.

    Several things here. One, since signing statements have been staples used by Presidents almost for as long as our constitutional government has been in existence, the fact that Bush has used them more often and more vehemently than others seems hardly relevant to anything. So what? is the question that comes to mind.

    Second, the president is constitutionally commanded to execute all laws. Surely, this must mean only laws that are constitutional since unconstitutional laws are null and void on their face. Therefore, he is constitutionally required to arrive at a decision regarding the constitutionality of various laws and to act accordingly in executing said laws.

  10. By Chris Radulich on Jul 23, 2008 | Reply

    It is not the presidents place to rule on the constitutionality of a law. That is the courts. If he decides to do something against a passed law it is illegal. If he want to have its constitutionality check he has to go to court.

    they set out to create a government by, for, and of the people,

    So you disagree with Lincoln.

  11. By brilyNJ on Jul 23, 2008 | Reply

    We have become a people driven by myths rather than facts. Convinced of our national superiority and invincibility, few citizens feel any need to check in to see how well our republic is doing. Leave that to the talking head celeb’s and the “experts” on “talk radio.” There is barely enough time to shop or watch the games we have pre-recorded.

  12. By Chris Radulich on Jul 23, 2008 | Reply

    By 2004 it was painfully obvious that he was a disaster. That he lied about Iraq. That he had no respect for the constitution. So yes the voters share in the responsibility.

  13. By Craig R. Harmon on Jul 23, 2008 | Reply

    Chris,

    With your first point, obviously, I disagree. It is the job of all three branches to make an independent determination of what the Constitution requires and permits in the way of laws passed.

    1. Surely the Constitution doesn’t authorize Congress to pass on unconstitutional bills to the president who, in your telling, has no power to pass independent judgment on said bill and may, in any case, be of a mind to sign said unconstitutional bill into law thus, unconstitutionally restricting the rights of the people he’s been elected to protect. Right?

    2. The veto power of the president is proof positive that the President must make such a determination otherwise he would have to just sign every bill passed out of Congress and then enforce said law, hoping that the Supreme Court will take a case he’s prosecuting and overturn the law.

    3. One might argue that, if the president thinks a provision of a law is unconstitutional, he is required to veto it but nothing in the Constitution, of which I am aware makes that mandatory. For example, a bill might come across his desk that is, in all provisions but one, legislation that the President thinks good for the country and within the central government’s constitutional powers to enact. He might think that one provision is unconstitutional or even just that, if applied in certain ways, would be unconstitutional. The bill might have been years in the making and vetoing the bill because of the one provision might derail the whole legislative process for years to come. In such a situation, it seems reasonable that a president might sign the bill into law.

    But he can’t be executing unconstitutional provisions. He’s sworn to protect and defend the constitution, not to arrest people and try them for disobeying laws that are unconstitutional on the off chance that the case will get picked up by the Supreme Court some years down the road (they turn down many more cases than they take up for consideration).

    4. Think. Would you like to be the guy arrested for breaking an unconstitutional law? How’s the prospect of years of litigation, hoping that the Supreme Court will, eventually, years later, overturn the unconstitutional provision of the law…only to find out that the Court has decided not to consider your case? How’s that sound?

    Or maybe you’d just prefer to obey the law, however unconstitutional, hoping that some other schmo gets caught and prosecuted and hope HE’LL successfully take it to the Supreme Court and the law gets overthrown…or maybe not.

    5. A president simply cannot protect and defend the Constitution while prosecuting people for offending laws that he thinks are unconstitutional.

    And yes, I disagree with Lincoln. That’s permitted, you know. He was, after all, several generations removed from the founders and he was engaging in a vast revamping of the nation’s understanding of the Constitution and Declaration of Independence, a fact that is rather commonplace among historians in general and among historians of the law, I believe. I’m certainly not asserting anything new by saying that.

    Also, raising the specter of Lincoln, whose views of constitutional presidential powers were near limitless, in a post complaining about expansionist executive powers seems, well, incongruous. Lincoln thought that the Constitution granted him authority to do whatever he thought he needed to do in order to protect the Union…including ignoring a habeas corpus order by the Chief Justice of the United States. He just ignored it. Refused to obey. Not even Bush has done that.

    All in all, in a post complaining about expanded executive powers, I would think that Lincoln would be the very last interpreter of the Constitution for the purpose. In fact, I wouldn’t think he’d even be on the list.

  14. By Craig R. Harmon on Jul 23, 2008 | Reply

    And so now, the buck DOESN’T stop at the president’s desk…it stops at the voters. Wonderful notion. Gotta wonder what H. S. Truman would have thought about that though. On the whole, I doubt he’d agree.

  15. By Ken Grandlund on Jul 23, 2008 | Reply

    Actually Craig, the Constitution says this:

    Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

    It offers no specific rationale for a president rejecting duly passed legislation. Some may reject bills for reasons they believe make the law unconstitutional. Others may reject laws based on ideological rationale. A president has no constitutionally mandated role for determining constitutionality of a law.

    the decision on whether a law in or is not constitutional rests with the judicial branch. That is not to say that legislators do not or should not effort to determine whether proposed legislation meets constitutional standards- they should and often do. However, the Supreme Court has often struck down laws passed by the congress and signed by the president as going against a provision or intent of the constitution.

    that a president feels he alone has the power to determine constitutionality is absurd. the constitution offers no such power to the executive. there duty is to implement duly passed and signed laws. other functions of the modern presidency have been either usurped or expanded through general government growth.

  16. By Craig R. Harmon on Jul 23, 2008 | Reply

    One solution to the problem of signing statements publicizing the fact that the president considers provision x of said law to be unconstitutional would be to give presidents line-item veto. As the Constitution stands now, that IS unconstitutional and, therefore, it seems that a constitutional amendment would be required in order to allow presidents to veto certain provisions of bills he otherwise passes into law. Highly unlikely but I do think a line-item veto would be a more elegant solution.

    On the other hand, signing statements are not incumbent upon future administrations to follow. They merely state what the current administration thinks about certain provisions of the law. In this way, president X can fulfill his oath of office as he sees it, executing all but provision A of a given law while future presidents can, on their own understanding, reverse president X’s decision. Whereas, if president X line-item vetoes some provision of a law he otherwise passes, the country’s stuck with that unless Congress, under some future administration, re-passes those same provisions and a future president passes them. That is, signing statements are less permanent, so far as I can tell are constitutional and, in my opinion, cause less chaos to the process of legislating and enforcing laws.

    But that’s just my opinion.

  17. By Ken Grandlund on Jul 23, 2008 | Reply

    I don’t necessarily have a problem with signing statements per se, but the use of them under Bush has been both more extensive than by any other president and of a different nature. Whereas past presidents may have used the signing statement in the manner you have described, or to clarify what they feel the intent of the law may be, Bush has used his signing statements to effectively pass then ignore laws or to pass laws in general but insist that they do not apply to the executive branch and its various assigns.

    Thereing lies the difference, and IMO the contra-constitutional effects of Bush signing statements.

  18. By Craig R. Harmon on Jul 23, 2008 | Reply

    Well, again, Ken, I disagree for the reasons listed above. The very existence of the veto power is proof that the president is expected to make an independent assessment of the constitutional bills that come to his desk. The thing is, the Constitution requires him to protect and defend the Constitution. That is the constitutional authorization/mandate to arrive at an independent judgment on the constitutionality of laws he is to enforce. The Constitution cannot authorize the President of the United States to enforce unconstitutional laws. THAT would be the absurdity. He cannot carry out his mandate while prosecuting laws he thinks unconstitutional.

    In any case, I’m not aware of any Court ruling that signing statements are an unconstitutional exercise of executive authority. One may do so in the future but until that happens (and I don’t think it will happen), I don’t think they’re unconstitutional.

  19. By Craig R. Harmon on Jul 23, 2008 | Reply

    Ken,

    We’re not going to settle the issue here at BIO! since I doubt Supreme Court Justices read Bring It On! and, thus, we’re not going to sway them one way or another. It’s interesting to discuss but pretty moot in our forum. I’ll let it go at what I’ve written.

  20. By Ken Grandlund on Jul 23, 2008 | Reply

    I’m sure we’ll continue to disagree then, but let me posit this…

    Most presidents are NOT constitutional scholars. They have legal advisors to help them. These legal advisors are also not always constitutional scholars. So at best, these folks are taking a guess whether or not a law is constitutional. Thus, the courts exist for this purpose.

    The power of the veto, as I noted, is not qualified in the Constitution. The oath only provides that a president uphold the constitution “to the best of his ability.” Clearly, GWB is no genius, constitutional or otherwise-in fact, his general ability in any capacity is highly questinable. Veto power, thus being unqualified, often occurs based upon ideology. Not constitutionality.

    Further, since the president is not required and not even necessarily competent to decide whether a law is or is not constitutional, merely signing bills into law does complete his constitutional requirement in this vein. Congress passes a law, he either does or does not sign it. When a veto occurs, it goes back to the congress for another shot. If a bill overrides a veto, it becomes law-and throughout all of this constitutionality is not the prime factor at play. Often politics is.

    It then goes to the courts to decide if a law passes constitutional muster. But that only occurs if the law is challenged.

    If congress passes an unconstitutional law, and then a president who thinks it is a good law signs it, the matter becomes law and is not constitutionally challenged in thin air. An individual or organization must then challenge the law, get it into court, and go from there.

    The veto power exists to as an executive check to congress, but not all checks are done with constitutionality in mind.

  21. By Chris Radulich on Jul 23, 2008 | Reply

    Craig

    Basically what you are saying is the president is above the law. I truely doubt that is how it was intended when they wrote the constitution.

  22. By Chris Radulich on Jul 25, 2008 | Reply

    The point is not that the president has the right to make signing statements. Nor is the point that the president can make a determination if a bill is unconstitutional and veto it. The point is that bush signs bills into law and then says he will not follow parts of the law because he believes it to be an infringement of his powers ( unconstitutional).

    Once he signs it into law then the whole thing is a law until the supreme court says otherwise. So if he acts against the law he is a criminal. He does not have a line item veto.

  23. By Craig R. Harmon on Jul 25, 2008 | Reply

    No Chris, what I’m saying is, there is a separation of powers. One branch of the Government cannot constitutionally encroach upon the constituional powers of another. So yes. It’s possible for Congress to pass on laws that are unconstitutional. One of the ways laws can be constitutional is that they impermissibly encroach upon the powers of either the president or the judiciary. That’s all I’m saying. That’s what the FISA court of appeals said and what every other court ever to rule on the question has said.

    How to put it any plainer, I know not.

    I’m positively giddy that you disagree with me on this issue. But I’m not going to spend any more time pressing my case. As I told Ken, we here at BIO! ain’t gonna resolve the question so, while I’ve enjoyed the conversation, I’m through with it.

  24. By Chris Radulich on Jul 25, 2008 | Reply

    By your logic anyone who takes an oath to uphold the constitution has the right to break any law he/she deems unconstitutional and not get arrested.

    PS signing statement mean nothing under the law.

  25. By Craig R. Harmon on Jul 25, 2008 | Reply

    By your logic anyone who takes an oath to uphold the constitution has the right to break any law he/she deems unconstitutional and not get arrested.

    Actually, that sounds like a pretty fair definition of civil disobedience. Except for the “and not get arrested” part, I would agree entirely. I would only alter your formulation slightly to bring it into full accord with my views:

    By your logic any American has the right to break any law he/she deems unconstitutional and, assuming the President agrees that said law is unconstitutional, the President must refrain from enforcing that law.

    That’s not quite the same as saying that he has a right not to be arrested for breaking a law he thinks is unconstitutional but we’re not talking about just any American. We’re talking about the American that is constitutionally charged with enforcing constitutional laws and, by refusing to enforce unconstitutional laws, protecting and defending the Constitution.

    But it certainly WOULD apply to anyone who has taken such an oath. A US Attorney General, for instance, ought not to prosecute people for breaking laws he thinks unconstitutional, even if the President orders her to do so. The US Attorney General might get canned for doing so but the AG ought never to arrest anyone for breaking a law she believes to be unconstitutional. And she ought not be arrested for refusing to do so. She took an oath to defend the Constitution, not to dismantle its protections of the people’s rights.

    And no, she ought not be arrested for doing so. Indeed, she ought not be fired for doing so.

  26. By Chris Radulich on Jul 27, 2008 | Reply

    That’s not quite the same as saying that he has a right not to be arrested for breaking a law he thinks is unconstitutional but we’re not talking about just any American. We’re talking about the American that is constitutionally charged with enforcing constitutional laws and, by refusing to enforce unconstitutional laws, protecting and defending the Constitution.

    In other words he is above the law.

  27. By Chris Radulich on Jul 27, 2008 | Reply

    Yes there is a separation. That is why a president can not say a law is unconstitutional once he signs it. That is the function of the supreme court.
    Army oath
    “I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;

    so everyone in the military can decide which laws are unconstitutional and disregard them.

  28. By Craig R. Harmon on Jul 28, 2008 | Reply

    Chris,

    He is above laws that unconstitutionally infringe upon his own constitutional powers, as per In re: Sealed Case, whether signed into law by himself or, like FISA, by some prior president.

    As for the rest, I’ve already said that taking an oath is irrelevant to my point since every American has the right to ignore or break unconstitutional laws. That’s actually how the cases reach the Supreme Court. Someone is arrested for breaking a law, gets convicted and appeals the case as far as he can go.

    My only point is that the President, who is in charge of those who enforce laws ought not be arresting people for breaking laws he believes are unconstitutional.

    I’m simply repeating myself, at this point — in fact, I’ve been repeating myself now for quite some time and I’m tired of it.

    This is me signing off of this discussion. If you really want more of me repeating myself, I suggest you go back and re-read what I’ve already written as many times as you want. I’m done typing the same thing over and over.

    G’bye, Chris.

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