> (This is an excerpt from a very long essay that appeared
> today in the New York Times. In the portion not extracted
> below, the author references the "stinging dissent" by
> Justice Antonin Scalia in the Hamdi case, arguing that an
> American citizen may not be detained without trial in the
> United States so long as the courts are open and Congress has
> not exercised its power to suspend the writ of habeas corpus.
> It is ironic, and significant, that one of the strongest
> voices against unrestrained executive power should have come
> from so unlikely a source. SR) ...
In this vein, I would like to start seeing arguments about "strict constructionism" as it pertains to executive power. The words "national security," endlessly repeated by the administration as justification for its actions, never appear in the Constitution, and it can be directly inferred from Congress' explicit power in the Constitution to declare war (among others, including its powers to "make rules for the government and regulation of the land and naval forces" and to "define and punish ... offenses against the law of nations") that it is that branch which determines and acts to secure the nation. Not the executive, whose role as commander-in-chief is limited to securing the objectives assigned to it by the Congress (i.e., winning a declared war), as in by directing troops on battlefields. There is no "inherent authority" in the Constitution for the president to spy on Americans in the interest of "national security," and the President should not "read powers into" the Constitution which are quite clearly not there. When there is no declared war, he commands nothing. That is, if we are strict constructionists.
Does Bush think the Constitution means what it literally says, as he often publicly says, and that his powers are circumscribed by what the Framers believed them to be at the time? Or is his a half-assed strict constructionism that only applies to limitations on State power vis-a-vis individual rights? I'm sure everybody here already understands the "doctrine" of strict constructionism to be mere post-hoc rationalized pretext for desired ends (which it is), but it would be nice to see some verbal attacks on the President along these lines for its propaganda value, as well as to readjust the balance of power between the executive and legislative.