Legitimacy crisis?

[Miguel Schor]

Is it so obvious?  I think Francisco Martin makes a good argument but
shouldn't the question be when do amendments transform the assumptions that
undergird the constitution?  The president's argument is that the power of
constitutional dictatorship is a structural feature of the Constitution and
the rights entrenched in the Bill of Rights were not intended to change that
understanding.  I'm no fan of the argument but I think it is more than
colorable.  

I think Sandy's point is very much on the mark, however, even if it comes at
the problem from a different direction.  The argument is that the
President's actions are actually an attempt to transform the Constitution
and that his attempts to augment the power of the Presidency may lack the
legitimacy to endure.  There is a real tension between seeking to change or
modify the understandings of the open-ended provisions of the Constitution
and the administration's political strategy of divide and conquer.  Any
attempt to transform the Constitution should require, at least in theory, a
broad consensus whereas the president's political base is narrower.  The
president's political strategy may well undermine his longer-term
constitutional goals.  

 

Miguel Schor, Associate Professor of Law, Suffolk University Law School

 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Francisco Martin
Sent: Monday, January 23, 2006 9:51 AM
To: Conlawprof at lists.ucla.edu
Subject: RE:Legitimacy crisis?

 

I haven't been following the threads related to the NSA spying, so please
forgive me if this already has been raised.  Given that the President is
ultimately relying on his Article II authority as commander-in-chief for the
constitutionality of these intercepts, doesn't the Fourth Amendment (like
the Third Amendment's prohibition of quartering of soldiers during peacetime
without lawful authorization) qua amendment restrict the meaning of Article
II commander-in-chief authority? The Bush Administration appears to be
trying to interpret the Article II commander-in-chief authority as if the
Fourth Amendment did not limit it.  In other words, the Administration is
reading Article 2 to have the same constitutional authority as the Fourth
Amendment, but the Fourth Amendment is an amendment to Article II (and the
other Articles).  The same goes for the Bush Administration's interpretation
of AUMF, which Congres! s made pursuant to its Article I powers.  The Fourth
Amendment limits the reach of Article I war-declaration authority.

 

I know that this argument should be obvious, but I don't think anyone has
pointed it out so far.

 

Francisco Forrest Martin

President

Rights International, The Center for International Human Rights Law, Inc.

 

 

----- Original Message ----- 

From: Sanford <mailto:SLevinson at law.utexas.edu>  Levinson 

To: Conlawprof at lists.ucla.edu

Sent: 1/22/2006 10:34:18 PM 

Subject: RE:Legitimacy crisis?

 

Polls indicate that the country is split almost evenly on the NSA
revelations and other instances of domestic surveillance.  But two
dimensions seem to be present at the same time:  1)  There is a policy
debate:  Is the NSA program a good idea?  2)  Is the program, carried on at
the behest of the President, legal.  It's one thing if there is a close
split on the policy question.  In that way, it's like many other contentious
issues at present.  (E.g., Is the medicare drug bill a good idea?)  But if
those who support the program also believe that it's perfectly legal, and
those who oppose it believe that it is unconstitutional, and the President
who ordered it a quasi-tyrant, then do we have the makings of a legitimacy
crisis far more serious than even Bush v. Gore.  It's true, as Scott Gerber
has been kind enough to point out, that Jack Balkin and I resolved not to
call ! George W. Bush "President" until he was lawfully elected, and we
didn't view 2000 as counting.  (I think that 2004 does count.)  But,
candidly, our position was that of a very small minority, and it was, I
suspect, especially after Sept. 11, viewed as either stupid or "cranky"
(like believing that the income tax is unconstitutional).  But what if there
really are 40-50% of the public that view Bush's actions as profoundly
illegitimate, while the remainder (perhaps a majority, perhaps not:  the
events of the next week might be particularly important in that regard, what
with the Specter hearings and the full-court press by the Administration)
believe they are easily defensible?  Will this be simply an interesting
public opinion factoid, or will it have significant political--and even
constitutional--implications.  Will we, for example, drift ever farther
apart in the very languages we use to describe these current events?  (I
continue to be! lieve that Laurence Tribe's cessation of his treatise was a
truly sign ificant event in this regard.)

 

sandy

 

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