Constitutional Democracy Colloquium

I take my text from the noted political theorist Jon Stewart of The Daily Show, who said, “When the Supreme Court that hand picks you to be President tells you that you’ve just overstepped your bounds . . . you’ve overstepped your bounds.”

In the last three years we have learned that George W. Bush seems genuinely to believe that swearing to uphold the Constitution of the United States gives him the right to imprison, incommunicado and indefinitely, anyone he designates an “unlawful enemy combatant.” He has appointed a Department of Justice whose Office of Legal Counsel, that agency within Justice specifically charged with thinking about the Constitution, writes memos claiming that the president should be exempt from certain inconvenient laws that ban the use of torture-the only stricture apparently being that he should really, really believe that it was necessary.

Even a previously complacent national media, which have been grading Bush on the curve since the 2000 election, were shaken by hearing the president’s reaction after the Abu Ghraib prison photos rocketed around the world-that he didn’t remember if he read those memos recommending torture or not.

As someone who once worked in the White House, although without benefit of legal training, I know enough to state with certainty that these kinds of memos do not arise in a vacuum. They were the products of the same mindset as the announcement by White House Counsel Albert Gonzalez that the United States does not feel wholly bound by the Geneva conventions, whose provisions he referred to as “quaint.” The attorney general of the United States believes the war on terror requires secret courts to check up on what books people are reading (but not to check on gun sales!) and convenes well-publicized press conferences to announce indictments against suspected terrorists-charges that somehow never quite match up to the initial publicity.

The U.S. Supreme Court decisions this past June upholding the Constitution’s checks on presidential power were an important step toward restoring the balance that is essential to America’s constitutional democracy-but just a step. And although I would like to agree with the question posed by Dissent that a “politically diverse” group is now concerned with the assault on our basic liberties, there is little reason to expect such concern-however well expressed-to have a serious impact on Bush administration policies.

For an example of the limitations on bipartisan outrage in the current political balance of power, consider the vote in late June in the House of Representatives to remove some of the excesses of the Patriot Act. As introduced, the amendment had bipartisan support reflecting concerns about government overreaching among Democrats and some conservative Republicans as well. But when the initial vote showed the amendment passing, the House...