Aristotle, author of Constitution of the Athenians
The Unitary Executive Theory crossed my radar over a year ago now, during the Roberts and Alito Supreme Court nomination process. I started several threads of discussion on it at the Thom Hatmann Message Community (linked in the right column of this blog now), and with the sometimes contentious help of some often disturbed-sounding conservative voices, I've explored what the UET is, and what effect it is having on the balance of powers in our tripartite government, which we have all been led to believe is based on a Constitutionally created system of checks and balances.
The last thread and the last post in series of discussions -- starting in Jan., 2006 -- was Nov. 1, 2006, just before the election. The following was a friend of mine's last question, and it's a good lead in to the discussion I want to develop here in this blog. It was addressed to a conservative who had consistently tried to defend the president's constitutional rights to do what the UET has been "arguing" since the Reagan era that a presidency should be doing in our democratic republic:
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It's curious that members of Congress don't sound an alarm. Why do you think that is?
Well, now we have a new Democratic majority Congress, and there is some evidence they are sounding an alarm, and then some. I've been keeping an eye on how they are organizing themselves to deal with the problems we have witnessed and examined for more than a year now. Problems that are in a great extent being created by some of the last Congresses back to the Reagan era, so the responsibility for the trend towards a strengthening Executive Branch and a ever weakening Congress is not to be laid upon any party, even though it's tempting to at times, especially since what happened in the last six years might be described as the UET on steroids with a rollover Congress. The advancement of the UET in the Bush II era can be seen to have been instigated primarily at the hands of the legal team under Cheney's direction, which dedicated itself to feretting out any indication of a line in a Bill that might "threaten" what they perceive as executive authority, which in their terms is based on the Unitary Executive Theory, as advanced by people who are members of a private judicial think tank that calls itself the Federalist Society. This process has led to the signing statement controversy which finally hit the corporate media about a year ago in the Boston Globe through a series by a young and very astute reporter named Charlie Savage.
Chris Kelley, who did his doctoral dissertation on the Unitary Executive Theory and Signing Statements, has an excellent blog, called Media Watch (linked in my side bar), where he too is keeping a watch on this process, and I will be keeping watch on his blog. In lieu of that, I'll share something from a February blog entry that prefaces this new examination of what the new Congress will be doing in the next two years related to this topic:
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First, I am a member of the Coalition to Defend Checks and Balances at the Constitution Project, and they are working up a draft statement on the Military Commissions Act of 2006, that terrible bill passed in the fall....The MCA of 2006 was passed to over turn the "Hamdan v Rumsfeld" decision from the last term of the Supreme Court. That decision struck down the "Detainee Treatment Act of 2005," the one that generated all the heat due to President Bush's signing statement that nullified the deal he made with Senators McCain and Warner over torture as an interrogation technique. The MCA of 2006 1) gave the executive branch the power to deny habeas corpus to enemy detainees and 2) denied the jurisdiction to hear any appeal from a military court to any federal court/judge. Congress is given the sole authority to deny habeas corpus, and even then when there is domestic insurrection afoot. And yet the first chance they took, they ceded it to the President to spite the Supreme Court. I am reminded of the line in Star Wars III: "So this is how democracy ends. To thunderous applause" or something like that.
The Constitution Project sent me this rebuttal from University of Chicago Law professor Richard Epstein to the MCA of 2006, and I am passing it along to you.
The second bit of news to pass on to you is the hearing held in the House Judiciary Committee today on the revisions President Bush made recently to Executive Order 12,866. This is a good sign. The public does not normally care much for who influences the bureaucracy. So to devote time to an issue that has never found a public radar, it is a good sign that the Democrats in the House are taking steps to reverse the awful path the Republicans put the Congress in the last six years towards becoming a second rate institution, or as I recently argued in a law review article, towards becoming the next "inferior executive branch department or agency."
Note that the House Judiciary Committee is headed by John Conyers, while the Senate Judiciary Committee is headed by Patrick Leahy. Both have been chomping at the harshly held bit the Republicans who headed these committees held in their grubby little hands through most of this administration. Perhaps that's why Bush only just discovered his nearly forgotten veto powers I heard him mention just yesterday. That's actually a good sign, I've decided. It's a sign Congress is waking up to its responsibilities.
So who cares?
When I first started looking into what the UET and presidential power was about, I went through some legal articles that I realized are not the sort of thing that makes the evening news. But as I kept reading more and more, it dawned on me this is probably far more important an issue than something like the Foley sex scandals, or even instances of Congressional corruption, that bring out voters, yet it goes nearly completely under the media, and thus the public's radar, because the effort to describe it puts people to sleep. There's just no good way to sound bite the problem.
In my efforts to understand the Unitary Executive Theory over the past year, I've discovered that it's both unreadable to most folks, yet ultimately fascinating to them when I finally am able to unravel enough of it to frame in some comprehensible perspective for the poor wretch I've managed to corral in my excitement. I admit, that doesn't happen often. I'm usually looking at blank faces and rolled back eyes. I've found it to be something like studying the boiler room on Titanic as it steams for the ice bergs in the North Atlantic, and about as interesting to explain, because it's not exactly the focus of attention they make the drama of movies out of; but without the boiler room the ship would never hit the ice berg, thus no movie. Or without a stage there would be no play... or without a constitution there would be no goverment, formal one anyway... But of the thirty or so people in your 12th grade government class, how many came out of it with much more than the ability to recite a couple of lines from the preamble to the Constitution? And, as I noted, it's very difficult to bring such a complex subject to the evening news in any form that will catch the attention of the exhausted and work stupified public.
Since I first looked into the elements that form the UET in the undercurrent of legal publications and scholarly articles, the issues of presidential signing statements on bills, and the various ways that has been misconstrued, has moved through our media at different levels. So there is at least some news about it, even if often poorly defined and often in essence wrong about the intent of signing statements and what they actually can do for the president, that has finally penetrated into the popular, corporate media, and if one uses the term "imperial president" or "king george" one can get some flickers of registration on benumbed faces here and there.
So to reiterate: This is an issue to do with transforming the legal machinery of government. It goes deeply into issues of whether we will govern ourselves as a democratic republic, or continue to transform to something else. And while the Federalist Society (a fancy name for a conservative judicial think tank) has been instrumental in laying out the strategy from the research of the legal scholars who organized the Society during the Reagan era, to call it a conservative "conspiracy" to increase presidential power would not be quite accurate. I'm reminded of these words from Molly Ivans:
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There is no conspiracy about it. There's nothing hidden. It's all right out there in the open. It always has been. For thirty years now, a bunch of rightwing money has funded think tanks and subsidized publications and intellectuals to sit around and tell us how bad government is. These are the kind of people who always hated taxes, always hated government -- same old same-old. And, you know, you look again and again, and you find those same foundations behind one effort after another. And, of course, it has a cumulative effect. I mean, most people think government could screw up a two-car funeral.
If you want to listen to (rather than read) a good discussion about why it's difficult for the media to get this very important information to the public so we can know about it and make intelligent decisions, influence our legislators with properly composed letters or emails, and just discuss it intelligently with one another, I recommend listening/watching at least part four (linked below) of the ten parts of a streaming google video of the Presidential Powers Conference. It's about the media's role and whether it has abdicated responsibility in holding the President accountable. One of the people on the panel is Charlie Savage, of the Boston Globe, who broke the stories on the signing statements last winter and spring. He also acknowledges the work Chris Kelley did, and then Chris stands up during the session and asks some questions, so for me, it was like seeing two people who I have come to feel are somewhat heroic in their efforts to breach this chasm between what's going on in our government, and the public's attention to the matter, especially through the media.
Here's a link to view a video of that session: Presidential Power in America: the role of the media
This entire conference will offer anyone interested some excellent scholarly background to understand this entire discussion I am going to present on the Unitary Executive Theory and its serious ramifications on our form of government. Important discussion in the sessions include considerations of the potential effects of the now conservative dominated, somewhat "originalist" oriented Supreme Court, and what that can mean both for the UET arguments for expanding executive power, which is it's own, albeit radical, "originalist" version of Constitutional interpretation. Also involved in the sessions are discussions of other theories about the challenges now facing the U.S.'s representative Republic style of government today. The tenth and final session pertains to the issue I am raising in this first edition on this topic: The culpability of Congress in allowing presidential power in America to get stronger and broader in its role. Included will be a few suggestions of what needs to be done, and what probably won't be able to be done, to meet an what has been thought by many to be an evolving constitutional crisis.
Antonin Scalia
As an exemplary person on which to focus my discussion of originalism, Scalia offers a number of interesting and publically accessible expressions of his version to examine. In addition to his expected support for any cases involving the enhancing of the Unitary Executive Theory, Scalia may, with the addition of Bush's latest success's, Roberts and Alito, finally have his way in cases involving these issues where he would formerly most likely have been in the minority of dissent:
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when given a chance to write a decision on wetlands, Scalia's opinion cast aside 30 years of environmental law and largely limited the federal clean-water authority to "navigable" waterways.
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Scalia has scorned the notion of a strict separation of church and state, saying the 1st Amendment was intended only to bar the government from supporting an official national religion. In his first year on the court, he defended the teaching of creationism in the public schools, and he has voted regularly since then to allow the government to promote religion in general.
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The justices will hear the Bush administration's claim that taxpayers lack the legal standing to challenge how the president and his advisors conduct affairs. A Supreme Court assent could make it much harder for critics to legally challenge government programs that promote religion.
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Scalia also has called for a ban on the use of race as a decision-making factor by government agencies, including public universities and other public schools. Without fail, he has voted against affirmative-action policies, but because of O'Connor, previous court majorities stopped short of outlawing affirmative action.
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Scalia has repeatedly called for overturning Roe vs. Wade and letting states decide whether to permit abortion.
Supreme Court's new tilt could put Scalia on a roll: The outspoken justice is poised to lead a new conservative majority.
What makes Scalia an important point of discussion is his position on originalism, it's connection to the other conservative Justices on the court, and to the UET as a legal strategy itself. So I'm going to be exploring those issues and discussing them in a way that I hope weaves together a picture that's beginning to form for me about how this globalized world of ours is moving along with these systemic forces, and I'm hoping to reaveal how those forces influence events, and the political nature of the U.S.
So I will be exploring the following question a little here in this blog as an introduction, but considerably more in future blogs, as well:
What are the basic assumptions involved in the conservative position that creates this whole issue of distinction between "originalism" and the "activist" judge interpretation of the law?
Here is one way Scalia has answered the question:
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Scalia:
"I'm one who believes the Constitution should be interpreted exactly as it was adopted," he said in a recent speech. "It should be interpreted as it was written — nothing more, not less."
Unfortunately for Scalia, that's not always the way it works out for him in his written decisions. More on that later.
Some of the reasons why it doesn't work out entail an understanding and a critique of originalism itself. To some extent that critique is taking place in institutions of higher learning across the land as more legal scholars become imbedded in the full range of universities that teach law. The question of "as written" brings up all kinds of complications, including time, and the intention of those who are now dead who can't say what they meant in the context of their time, but the implications must be dug out of the words they've left behind. As I understand it, the word "private" wasn't used at the time in quite the same way we use it today, because it related to activities performed in an outhouse. So we have many of those kinds of little distortions of meaning when we read words from a time long past. The "map" is from the past, but the "territory" of interpretation has changed, and we have much evidence that words change meanings with context over time in ways that can be almost unrecoverable from the original intent. That's a basic problem I keep seeing over and over, and one that seems to create an impasse in coming to an agreement with folks who reason in differently principled ways about this. And that can be understood, at least, to be for a multitude of reasons, some of which seem to come down to the essence of group behavior (I'll be exploring that more in the Lucifer Effect blogs) and the basis of democratic decisionmaking itself.
Some people may think of all this as a sort of puzzle. I'm not sure I would choose the word "puzzle" except to imply its meaning as "perplexing." Puzzle has a denotation of pieces that can be fit together to make a solution, which also could imply the "original" meaning of something is determinable. I think part of the problem here is a debate over whether that's even possible. Adding a fourth dimension of time to written words that are interpreted through time and changing cultural circumstances creates additional complexities to an already complex interpretive effort, and it seems to give scholars an unending source for their PhD dissertations. In a more modern, philosophical understanding we've come to, we have the problem raised of intention within context, an understanding itself that has evolved from the time of the framers. With this, the notion of meaning of words changing over time through a patterned process that can't be pinned down and fit together like pieces of a puzzle comes about.
Perhaps, in a way that might seem strange to some, this relates to current discussions of authoritarianism and correlations to psychological types that may underly what makes up different groupings in society. Fundamental meaning, as fundamentalists "types" may look for it in various ways, in the "words" of their religion, or in the words of the constitution, relies on a set of thought patterns that implies stable, stationary, and "reliable" meanings can be determined outside the ever folding processes of time.
What I see going on here, is a tension between the principles of modern philosophical thought, sometimes railed against as a "poisoning" of the fundamental and pure mind that occurs in universities by "liberal" professors, who have in various ways recognized through their own intellectual questioning the principles of context and relative meaning to contextual changes through time, and an urge to have something stable and reliable that stands firm beneath that, and thus we get these supporters of "originalism."
So called "liberal" law professors are supposed to have said something like:
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originalism is more effective as a slogan than as a formula for shaping legal opinions.
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"It is a good for public relations, and it's good to put in speeches, but it doesn't work in deciding cases," Harvard University law professor Mark Tushnet said.
And then they go on to point out that they see how Scalia himself is unable to hold to his principles of "originalism."
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Scalia's critics also say he has not consistently followed his own principle.
For example, Scalia has regularly voted in favor of white males who have challenged affirmative-action policies that benefit blacks, Latinos or women. He has done so on the basis of the 14th Amendment, adopted after the Civil War, which says no state may deny any person "the equal protection of the laws." Originally, the amendment was intended to protect blacks from discrimination by Southern whites.
So one of the interesting part of this discussion that intigues me is the deeper philosophical issues that involve a consistency of meaning in the problem our judicial arm of our tripartite government has in interpreting the law in a way that is consistent with the democratic intent of the constitution. In fact, from the standpoint of what I just said: "in a way that is consistent with the democratic intent of the constitution," an originalist like Scalia might see that statement itself as framing a bias. I'll try to get into why that might be later. It's not that easy to see, and it involves a discussion of different philosophical arguments that will take us into the realms of the positivists, the empiricists, and eventually all the way through to the post modernists, whom I dare say, would be reviled in a court run by justices Scalia, Alito, Roberts, and Thomas.
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