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Wisdom of Ancient Ways
“So? It’s a free country!” In this refrain, popular when I was kid, rested a pearl of conviction. We kids just knew that the founding principles of our nation meant that one might conduct one’s personal affairs without interference. We learned that checks and balances secured our liberty by dispersing power so that no single viewpoint could gain a stranglehold on government. We understood that there existed longstanding boundaries, living, invulnerable, in our beloved Constitution.
Nowadays, I’m not so certain. Conservatism’s stranglehold could leave those ideas and the Constitution gasping for air for… well, it could be a while.
President Bush’s use of the “signing statement” potently illustrates his and his supporters’ unbounded sense of power. He signs bills into law, but has penned some 800 accompanying signing statements saying he needn’t abide by the laws. All previous presidents combined issued 600. Liberals and conservatives register alarm, but they differ on why. Signing statements are not law; they are statements of opinion. Presidents and their lawyers are entitled to their opinions about whether provisions of a bill are Constitutional. The American Bar Association says Congress should consider (and Republican Arlen Specter introduced) legislation to prevent courts from deferring to one President’s interpretation. Walter Dellinger, a former head of the Justice Dept’s Office of Legal Counsel, and Laurence Tribe, Harvard law professor, believe signing statements themselves aren’t the problem.
Dellinger describes Bush’s refusals to enforce law as “frequent and cavalier,” aggravated by “avoidance of judicial review and even public disclosure...” Tribe says Bush’s signing statements are symptomatic “of how this particular President is abusing his power and bragging of his intention to go on abusing it.” The problem is this president. He plays fast and loose with the separation of powers, minimizing courts, demeaning Congress, signing bills with a wink and a nod.
While there may be nothing illegal about Bush’s signing statements, he mocks a jewel formed laboriously, and treated reverently, by his predecessors.
The Constitution emerged from the scalding broth of the ideas of its authors. Conflicts existed in the thinking about the separation of powers. Even so, the framers birthed a nation that has endured for more than two centuries. It endures because its structure inhibits major and rapid change, giving moderation a chance to prevail.
Vital to this equation is our system of jurisprudence, and chiefly the Supreme Court. The law of the land evolves, but slowly, only in the context of actual disputes among real people, and only with abundant deliberation and debate. For example, the privacy right discussed in Roe v. Wade was not brainstormed and cranked out one rainy day, as one might think listening to Roe’s critics. Supreme Court opinions building on each other for a century recognize a right of privacy protected by the Constitution. Critics neither mention Roe’s lengthy dissertation on the law of individual liberty and privacy, nor acknowledge its meticulous weighing and balancing of prenatal rights, pregnant women’s rights, and government interests.
This administration chisels away at the concept of separation of powers and builds a vision around a flying chip. “The White House has declared that the Constitution allows the president to sidestep laws that invade his executive authority. … [H]e … has long intended to make reinvigorating the presidency a priority. Vice President Dick Cheney has rightly deplored the ‘erosion of the powers and the ability of the president of the United States to do his job…’ ” (John Yoo, Professor of Law, U.C. Berkeley, and former Assistant Attorney General, NYT Op-Ed 9/17/06) This “unitary executive” theory of the presidency Cheney’s and Justice Samuel Alito’s autocratic dream lives and breathes in Bush’s signing statements. These men are extremists.
Checks and balances presume that individual leaders will exercise some restraint. One ought not, in other words, purge voter lists, tap phones, pack courts, sell influence, avoid judicial review, wage war, and cloak executive action in secrecy, just because one can.
Our system, for centuries a symbol of liberty and justice for all, thrills and inspires. Playing fast and loose with the Constitution, Bush transforms it into a smiley face that smirks at a heap of abandoned ideals. Personally, I’d prefer someone who cherishes the Constitution, the checks and balances, the great concepts of liberty and justice. The grand and thoughtful, slowly evolving edifice of the law. Someone who leads so generations of kids keep rumbling and shouting, “So? It’s a free country!”
Lisa Mayfield Stewart is an attorney/mediator and aspiring writer in Salem, Oregon. She can be reached at email@example.com.
Site updated Fall 09