Bench Memos

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Our Real Constitutional Problem


How did I miss, until now, this column by Rich Lowry from yesterday?  Yes, he is quite right that talk of a “constitutional crisis” is downright promiscuous on the left today.  Bush commutes Scooter Libby’s sentence?  Why, it’s the burning of the Reichstag!  Unlawful alien enemy combatants held outside the territorial United States are denied habeas access to civilian federal courts?  Bush might as well be snatching up an emperor’s crown and placing it on his own head!  The administration authorizes electronic surveillance of enemies in wartime?  Well, the next thing you know the Bushies will be sending the National Guard to everyone’s doorstep to confiscate all privately owned firearms!!  (Whoops, that’s one our friends on the left would be for.)

Unlike those who suffer from Bush Derangement Syndrome, I am loath to use the language of “crisis.”  But I do think we have a serious constitutional problem in our present circumstances.  It is represented by (but is not identical with) the seriousness with which putatively sensible people take all this “crisis” talk.  For an up-to-the-minute example, see this glowing review yesterday, by the NYT’s Michiko Kakutani, of an undoubtedly bad new book on President Bush’s “threat” to our constitutional order.

That’s just a sign of the trouble, though.  The real problem of which this is a symptom, and it’s a story yet to be told in its fullness, is that President Bush has suffered more inroads on, setbacks to, and invasions and usurpations of the executive power accorded him by the Constitution than any wartime president in our history.  The courts, the organized bar, and the dominant opinion elites, sometimes aided and very rarely thwarted by the Congress even when Republicans held it, have done their damnedest to diminish the rightful authority of the presidency almost from the moment the echoes died away from the president’s 2002 State of the Union address.  Lincoln and FDR, if they could survey the present scene, would wonder how they could have won their wars if they faced the assault on their constitutional authority that George W. Bush has faced for five years.


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