Wednesday, March 29, 2006

The anti-conservatism of the Bush GO(tcha)P


"Once is happenstance. Twice is coincidence. Three times is enemy action." -- Auric Goldfinger, in Ian Fleming's Goldfinger


But in politics, I'd say that twice, from the same proximate source, is a trend.

In oral argument before the Supreme Court on Hamdan v. Rumsfeld (which will presumably dispose of the question of what rights, if any, the administration's Guantanamo Bay detainees are entitled to have respected), the Bush administration holds that Congress can act "inadvertantly" to give the administration something it wants but that Congress has no intention of giving it. From Dahlia Lithwick's coverage in Slate:

Clement says it's not necessary for Congress to have "consciously thought it was suspending the Writ." Perhaps the lawmakers just "stumbled on the suspension of the Writ," which would also be fine, Clement suggests.


This perked my ears, because it closely resembles the argument cobbled together by Attorney General Albert Gonzales in defense of Bush's illegal wiretap program. On the one hand:

[I]n terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.


But on the other (op. cit.):

We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.


In other words, "we knew Congress wouldn't give us the power if they knew they were giving us the power. They didn't mean to give us the power, but they did."

This is anti-conservatism at its worst, and we need go no further than the Supreme Court itself to establish that -- specifically, the cause celebre of judicial conservatism, failed Supreme Court nominee Robert Bork. For going on 18 years now, it's been an article of faith on the Right that Bork's philosophy is the epitome of proper jurisprudence, and that that philosophy should govern the operations of the Court.

And what, precisely, is Bork's philosophy? It's referred to as "original intent," and he applies it to both Constitution and legislative action.

Let me get one aside out of the way here: I do not agree with Bork's judicial philosophy because of one specific side note within it. He rejects what he calls a "libertarian theory of justice" which would impute to government only those powers specifically constitutionally delegated to it. Instead, he holds, in The Tempting of America, that:

In his 1905 opinion, Justice Peckham, defending liberty from what he conceived to be "a mere meddlesome interference," asked rhetorically, '[A]re we all ... at the mercy of legislative majorities?" The correct answer, where the Constitution is silent, must be "yes."


As it happens, I reject Bork's holding on this matter on the basis of his own theory of jurisprudence: Original intent. It was clearly, unambiguously and beyond any question the original intent of the framers of the Constitution -- even, and specifically, Alexander Hamilton, the biggest proponent of expansive government among them, who held that it was so self-evident that the Bill of Rights wasn't required -- that government was to exercise only the powers specifically delegated to it. In other words, the correct answer, where the Constitution is silent, is that the legislature is powerless.

But let's get back to "original intent" per se. It should be pretty clear what it comes to: The law means precisely what those who proposed and passed it intended it to mean, nothing more and nothing less.

On the judicial side of things, this means that courts must work to discern what those intentions were and rule accordingly. If Congress proposes, debates and passes a national speed limit of 55 mph, then unless there's evidence of a typographical error or that the members of Congress were speaking in a code which mandates that all numbers in legislative debate be doubled and have 35 added to them, it would be errant of a court to rule that they actually meant (and that the law therefore mandated) 10 mph or 80 mph or some random number between 30 and 120 mph. (N.B. No, I'm not claiming that a 55mph speed limit is constitutional, or a good idea -- I'm speaking only to the question of legislative intent)

For the executive branch, the intent of Congress has equal import: When determining whether or not Congress has conferred upon them the authority to do "X," the actors need to determine whether or not Congress intended to confer upon them the authority to do "X." If Congress didn't intend to do so, then Congress didn't do so. Period.

The arguments in Hamdan v. Rumsfeld mark at least the second time that the Bush administration has publicly attempted to turn this obvious principle on its head. Every time the Busheviks get caught breaking a law, they giggle and gleefully exclaim that they've found an unintended loophole in congressional action. That dog won't hunt under anything resembling a conservative theory of jurisprudence, and nobody leading that dog out on a leash to put on its show has any legitimate claim to the political label "conservative."

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