Bench Memos

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Playing at What If?


Dahlia Lithwick is apparently practicing how to channel Maureen Dowd. Oh, wait. Is Maureen Dowd still living? Can you channel a living person? Anyway, in the Lithwick universe where 9/11 changed nothing but the excuses for opposing a Republican president, we now have her very Dowdy view of what life would have been like if it had never happened. Are we supposed to take seriously her casual assertion that the president would have appointed Roy Moore chief justice?

But even a fool can prompt a serious thought, however inadvertently. Lithwick seems to think that Bush has managed to greatly expand the powers of the presidency these last five years, held barely in check only by the bravely written prose of Justice O’Connor, who said that “a state of war isn’t a blank check for the president.” The reverse is more nearly the case.

A few months ago I was part of a small conference of scholars from several disciplines—law, political science, history, even literature—who were reading and discussing the debate over presidential power that occurred in 1793 between Alexander Hamilton and James Madison (the “Pacificus-Helvidius” debate prompted by George Washington’s Neutrality Proclamation, if you’re that interested). At one point Madison remarks: “War is in fact the true nurse of executive aggrandizement.” I said, and got a good deal of incredulity in response for saying, that I thought Madison had it wrong, at least as a prediction for the future course of American history—that in fact most of our wars have had the effect of putting executive power under siege. Certainly this is the case in the modern age, at least since Korea, and it may be the pattern throughout our history.

One thing is certain: George Bush has had to contend with invasions of his proper constitutional authority as president—chiefly on the part of the judiciary—that would not have happened in a peacetime America. And commentators like Dahlia Lithwick cheer from the sidelines as the judges usurp presidential authority.

Tags: Franck


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