More from the Washington Post

Sanford Levinson SLevinson at
Sat Dec 10 15:14:16 PST 2005

This is a link to a piece that Jeff Tulis had in a Nieman Fellows
publication re Bush's quite unprecedented refusal to speak--and even
more certainly take questionsn from--any group that isn't handpieked:

Whether or not a politicized Justice Department "started with Bush"--I'm
sure it did not, see, e.g., JFK's egregious appointment of his brother
to be AG, though it may have turned out quite well--I think that W. is
taking it to new levels.  It's ironic that Richard is invoking Clinton
inasmuch as, for better and worse, he had less control over his own
Justice Department than any president perhaps in history, given the
independence of Janet Reno.  But let's stipulate that Bush is behaving
"normally."  The question remains, from my first posting on this, what
"we" (whether legal academics or political scientists) should be
teaching our students about the notion of "the rule of law."  Why don't
we simply rename "The Department of Justice" as "The Department to
Achieve the President's Agenda Through Politically-Driven
Interpretations of Law"?    

I wasn't aware of FDR's calumny against Tom Dewey.  But did he make this
comparison while giving a speech at a military base?  No one has any
objection, at least procedurally, to Bush saying whatever he wants about
Democrats at Republican fundraisers.  The question is his use of the
military as backdrops for his partisan photo-ops.  (Why John Kerry
didn't put the "mission accomplished" stunt on TV round the clock is
beyond me, but I digress....) 


-----Original Message-----
From: Richard Dougherty [mailto:doughr at] 
Sent: Saturday, December 10, 2005 5:35 PM
To: Matthew J. Franck; conlawprof at; Sanford Levinson
Cc: Jeffrey Tulis
Subject: RE: More from the Washington Post

I think that this supports Matt Franck's point -- this didn't start with
Bush, and it's a bit unclear why we should be surprised to all of a
sudden discover that there is politics in administration.  Do I recall
correctly something at the start of the Clinton administration involving
Justice lawyers?

What so you think of FDR suggesting that a Republican victory in 1944
would be like the Nazis winning the war?

Richard Dougherty

---------- Original Message ----------------------------------
From: "Sanford Levinson" <SLevinson at>
Date:  Sat, 10 Dec 2005 14:46:32 -0600

>My colleague Jeff Tulis has written a very interesting book, The 
>Rhetorical Presidency, that suggests that it was indeed a change of 
>constitutional dimension when, e.g., Woodrow Wilson started giving his 
>State of the Union message in person or Teddy started treating the 
>presidency as a "bully pulpit" for his favorite policies.  There is, 
>for better and for worse, no comparison at all between the kinds of 
>appeals to public opinion of president's #1 and #43.  The very idea of 
>campaigning (let alone a "permanent campaign") would have appalled 
>Washington beyond belief.  It's certainly true that he suppressed the 
>Whiskey Rebellion.  But did he give any speeches at army forts 
>denouncing his opponents?  Did Lincoln go to military bases to 
>denounced Democratic copperheads?  I'm certainly not aware of any such 
>speeches by Lincoln.
>From: conlawprof-bounces at 
>[mailto:conlawprof-bounces at] On Behalf Of Matthew J.
>Sent: Saturday, December 10, 2005 3:24 PM
>To: conlawprof at
>Subject: RE: More from the Washington Post
>I do not know it to be a fact, and I doubt it to be the case, that "the

>Bush administration seeks to silence contrary voices in the
>At least I regard its efforts to control the "message" out of the 
>executive branch to be well within normal boundaries of historic 
>practice by presidential administrations.  And well it should seek that

>reasonable control; I seem to recall something about the unity of the 
>executive somewhere in the Federalist.
>I can relieve Sandy's mind on whether I regard "constitutional law" as 
>"what courts do" and nothing more.  I do not.  But I think that if we 
>are to embark on a discussion of the propriety of Pres. Bush's 
>rhetorical practices when speaking before military audiences and 
>offering fairly mild-mannered criticism of unnamed "Democrats," we are 
>then having a conversation with only the most tenuous connection to 
>some high-level abstractions about what "constitutionalism" means.  We 
>are not at all talking about the normal subject matter of this list, 
>which is the meaning of the Constitution (fixed or fluctuating).
>Does Sandy mean to suggest that some core principle of constitutional 
>republicanism is jeopardized by this sort of presidential speechifying?
>If so, then we have teetered on the brink of the collapse of 
>constitutionalism countless times in our history (times that I have 
>shamefully failed to notice), beginning with the Whiskey Rebellion if 
>not earlier.  Doesn't this become a Chicken Little routine after a 
>Matthew J. Franck
>Professor and Chairman
>Department of Political Science
>Radford University
>P.O. Box 6945
>Radford, VA 24142-6945
>phone 540-831-5854
>fax 540-831-6075
>e-mail mfranck at
>At 02:36 PM 12/10/2005, Sanford Levinson wrote:
>	Matt writes: 
>	Mark takes a more moderate line, plausibly arguing that a) the 
>president's speeches are irresponsibly partisan, and b) that the Bush 
>administration unwisely seeks to silence contrary voices in the 
>government.  I disagree with both arguments but find them respectable.
>[Matt, do you disagree, empirically, that the Bush administration seeks

>to silence contrary voices in the government, or, normatively, that it 
>unwise for them to do so (or both)?] I note, however, that stated thus,

>they cease to be arguments about constitutional law, so I will say no 
>more about them on this list.
>	 I genuinely don't know why "they cease to be arguments about 
>constitutional law," unless one is a Holmesian who reduces law to 
>predictions about courts (I agree that no court will, or should, enjoin

>Bush from using military bases as venues for partisan speeches).  But, 
>as I wrote earlier, I take it that one of the most basic issues facing 
>any constitutional regime is the relationship between civilian leaders 
>and the military and the absolute importance of keeping the military 
>"above" "low politics" (even if, as sophisticates, we know that this
>might be a childish fantasy).   It is especially dispiriting if Matt
>believes we're not talking about constitutional law because he is a 
>political scientist who ought to be immune from the worst pathologiy of

>legal academics, which is the reduction of "constitutional law" to 
>"what courts do."
>	sandy

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