Column No. 94 By Steven Jonas, MD, MPH - January 26, 2006
The Alito nomination is before the Senate. It is likely that he will be confirmed, but most interesting will be finding out whether the Senate Democrats have enough of an awareness of what is really going on in this country under Georgite rule to mount a filibuster attempt, even if were to fail. Last week I wrote about “Original Intent” according to Scalia. I pointed out that he does have a peculiar interpretation of the term. I also wrote about something of what the plain language of the Constitution tells us in reality about the original intent of the founders. That understanding is rather different from that of Scalia, and of Alito in fact. Since George Bush has touted the Scalito twins as “Original Intentionists” I thought that it would be useful this week to look at what Bush himself means when he says “original intent.”
To help in that understanding I begin this column with, once again, my short definition of fascism:
“Fascism is a politico-economic system in which there is: total executive branch control of both the legislative and administrative powers of government; no independent judiciary; no Constitution that embodies the Rule of Law standing above the people who run the government; no inherent personal rights or liberties; a single national ideology that first demonizes and then criminalizes all political, religious, and ideological opposition to it; and total corporate determination of economic, fiscal, and regulatory policy.” (If you would like to see my longer definitions, please refer to my columns of May 27, 2004 “On Fascism -- And The Georgites,” of Jan 27, 2005 “Comparing George W. Bush and Adolf Hitler”, and of February 10, 2005, “The Georgite Version of ‘Freedom and Democracy’.”)
George Bush claims that he is an “Original Intentionist.” He tells us that Justice Scalia, who as noted, also claims to be an Original Intentionist, is his model Justice, and that his judicial appointments are also going to be of Original Intentionists or, to use an alternate term for the classification “Strict Constructionists.” Scalia, of course, already has told us that Strict Construction and Original Intent mean that the Constitution is over-laid by something called “Natural Law,” handed down by “God.” That there is no such wording remotely referring to such a matter in the Constitution itself would seem to be a mere detail of, dare I say it, interpretation, for Scalia. In this light, it is interesting to see just what George Bush and the Georgites mean by “Original Intent” and “Strict Construction.”
For example, the Fourth Amendment to the US Constitution reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
According to Bush the Strict Construction of this language means that the President on his own authority can conduct warrantless searches if he deems it necessary to preserve something he calls “national security.”
The Constitution (see last week’s column), using declaratory language, rests the power to declare war in the Congress. According to Bush the strict construction of this language means that when, absent a forma Congressional declaration, he puts the US into a war in the vernacular sense of the term which he uses, that means that war has been declared in the Constitutional sense as well.
The Original Intent of the Constitutional Commander-in-Chief clause is not clear, except that it refers to the Army, the Navy, and “the militia.” In a document that is supposed by the Right not to be open to interpretation, it is a highly interpretable article. However, it has never been interpreted as Bush is interpreting it. What happened to Truman when he tried to take over the nation’s steel mills in time of war to prevent a strike is instructive. His move was disallowed by the Supreme Court, and just about every major politician thought that that was a fine decision. Here is the famous quote from Justice Robert Jackson on that one:
His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.
But for the Bush version of “Strict Constructionism,” never mind. Actually, if one were to literally follow the Constitutional language, Bush would not be Commander-in-Chief of the Air Force because it is not specifically mentioned, and certainly the National Security Agency isn’t. But according to Bush, the Original Intent of the Commander-in-Chief clause is that he can do anything he likes, on both the legislative and judicial (see Guantanamo, Padilla, Abu Ghraib, and etc.) sides, as long as he states that the nation is at war and under the threat of “terrorism.”
I have dealt frequently in this space with The Patriot Act and how it over-rides not only the Fourth, but also the Fifth (due process) and Sixth (jury trial rights in criminal cases). I guess that the power to do such over-rides, actually first taken by the Congress before it handed it to the Executive Branch, comes under the Bush definition of “Original Intent” and “Strict Construction” as well.
“Vice-President” Cheney's original objection to the supposed torture prohibition legislation that was eventually passed by Congress was on the grounds, not that torture is a good thing to have in one’s quiver (although he may well believe that; we don’t know), but prohibiting its use by the President would interfere with Presidential power to what he wants to do “in time of war” (whether in the vernacular or the Constitutional sense). The “Signing Statement” (which the Georgites claim allows the President to over-ride legislation he doesn’t like) deal plays right into this one. I’ve looked at the Constitution in detail, but I can find nothing that says that legislative authority is shared between the legislative and executive branches, or any reference to “Presidential Signing Statements” at all, whether they would have legal standing or not. Another score for the Bush meaning of “Original Intent.”
As for Scalito, Bush picked him for more than one reason (and as I have said elsewhere it is becoming quite clear that the Miers nomination was a classic bait and switch move to mobilize the Christian Right base behind Alito). And here is a prime one (Progress Report, Jan. 3, 2006, “SUPREME COURT: Alito's Imbalancing Act”):
FOR -- UNCHECKED PRESIDENTIAL POWER: While working in the Reagan Justice Department, Alito wrote in 1984 that "the attorney general should have absolute immunity for warrantless wiretapping." Separately, Alito also helped establish a new practice of issuing presidential bill-signing statements that served to "tip the balance of power between Congress and the White House a little more in favor of the executive branch." The Palm Beach Post recently opined that Alito has shown "a desire to give government the kind of power most conservatives abhor." In arguing for presidential signing statements, Alito said, "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress." And so now we know as well what Alito means by “Original Intent” and “Strict Construction.”
Finally, as my good friend Jack Dalton said recently:
“Was it not George W. Bush who stated 5 years ago, ‘…this would be much easier if this were a dictatorship, as long as I was the dictator?’ Was it not George W. Bush who was quoted recently [as] stating, ‘The Constitution is just a goddamn piece of paper?’ (Jack's Straight-Speak 1-2-06, http://jack-dalton.blogspot.com/).”
But hey, you can’t blame George. It’s in his genes. His Dad was quoted as saying something similar about dictatorship when he was President. His grandfather, Prescott Bush, stopped his financial dealings with Nazi Germany in February, 1942 only when FDR threatened to prosecute him under the Trading with the Enemy Act. (Hitler had declared war on the US on December 8, 1941 --- yes, Hitler, as surprised by Pearl Harbor as we were, reluctantly declared war on us under a treaty obligation he had to Japan, President Roosevelt did not first declare war on him.) And a maternal great-grandfather, George Herbert Walker, began financing Hitler and the German Nazi Party in 1924. With this background, it is only natural that George W. Bush’s interpretation of the terms “Original Intent” and “Strict Constructionism” mean that the Constitution, yes indeed, does provide for a Presidential dictatorship, just as long as one George Bush or another is the dictator.