In my recent post about the recent decision by the U.S. Supreme Court (Gonzales v. Oregon), I wrote that the decision was a victory for the principle of limited government. Broadly speaking, Justice Kennedy held that the law gave the Attorney General only what authority Congress had intended to grant him, while Justice Scalia took the devil's view that the executive could claim any authority he could read into the text of the legislation, regardless of Congressional intent.
The Justice Department's defense of the President Bush's warrantless wiretaps of American citizens in the U.S. mirrors that same corrosive logic. According to the NY Times,
The research service report found there was no indication that Congress intended to authorize warrantless wiretaps when it gave President Bush the authority to fight Al Qaeda and invade Afghanistan. But the Justice Department did not back away from its position in Thursday's report, saying the type of "signals intelligence" used in the NSA operation clearly falls under the Congressional use-of-force authorization.
The real contest, however, is not a semantic tussle over whether the text or intent of legislation should be controlling. Rather, it is a fight to defend the bedrock principle of the American social contract: that the Constitution is a limited grant of power from the People to their government, not a limited grant of rights to the people from their Government. When so-called "strict constructionists" take the devil's view of our social contract, they leave us terribly vulnerable to abuses like those Nixon and Bush have perpetrated in the name of "national security."
5 comments:
LTG says, "Rather, it is a fight to defend the bedrock principle of the American social contract: that the Constitution is a limited grant of power from the People to their government, not a limited grant of rights to the people from their Government. "
In addition to that, another bedrock is the separation of powers. As Al Gore said in his Martin Luther King Day Speech to the Commonwealth Club, if you start to say that the President can do whatever he deems necessrary, or that he can interpret law any way he wants, then what can't he do? Can he authorize genocide for instance?
To say you don't want activist judges is to say that you want a neutered Supreme Court that can be controled from the Oval Office just as Congress is now.
// posted by USWest
Although Dr. S. and LTG are accustomed to being mistaken for each other at times, this is the first time it has occurred in the blogosphere :-)
You guys even write the same! What a hoot!
// posted by Raised By Republicans
Thank you, Dr. Strangelove, for the quote below. That sums up everything that is at issue with what I am calling (in an article I'm writing) the Tory view of the constitution (making the government, not the people, into the locus of sovereignty and of broad undelegated sovereign power, despite the plain meaning of the 10th and 9th amendments that this is not so). When Hamilton called for "energy in the executive" he was absolutely not (as conservatives claim) arguing for either (a) formal equality in the power of the executive and legislative branches or (b) asserting that the executive was fundamentally above the law.
Dr. S. wrote:
"Rather, it is a fight to defend the bedrock principle of the American social contract: that the Constitution is a limited grant of power from the People to their government, not a limited grant of rights to the people from their Government."
// posted by LTG
LTG: I look forward to reading your article. Thanks for the compliment re the quote. The 9th and 10th Amendments provide instructions for dealing with situations where the Constitution is silent: side in favor of the people over the government.
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