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Conservatives and the Courts


It is always amusing to watch conservatives react to court decisions they don’t like. They were firmly in character last week when Federal District Judge Anna Diggs Taylor ruled that the Bush administration broke the law and violated the Constitution when it began wiretapping, without warrants, international phone calls between Americans and “suspected terrorists.”

She’s a Carter appointee, they said. She’s a liberal. What did you expect?

It doesn’t take much to see that this is not a refutation of Judge Taylor’s ruling. It is misdirection. Constitutional scholar Robert Levy of the libertarian Cato Institute also thinks the wiretapping is illegal. He points out that it is well-established law that the president’s power is most circumscribed in areas where Congress has expressly spoken. Well, Congress has spoken on the matter of warrantless wiretaps. The Foreign Intelligence Surveillance Act (FISA) declares them illegal, with only two exceptions: during the 15 days after a declaration of war and for 72 hours in an emergency. Over the years the special FISA court has been most accommodating of presidents’ requests for warrants. President Bush had many opportunities after 9/11 to ask Congress to change the law, but he didn’t. Now he claims that the authorization of force in Iraq contained an implied change. But no such congressional intent can be shown. Neither do any “inherent war powers” permit a president to defy an outright congressional ban. Congress too has war-related powers under the Constitution.

Levy can’t be dismissed as a Carterite or a “liberal.” So those labels do nothing to rebut Judge Taylor’s ruling, weakly argued as it may be. Invalidation of the National Security Agency’s intrusive program is well grounded in established legal principle. (Her ruling is being appealed.)

Conservatives still don’t get the constitutional game. (Not that so-called liberals are much better.) In that game you put your money down and you take your chances. You know going in you can lose. Judge Taylor did not break into a courthouse, steal a judge’s robe, and begin issuing rulings. President Jimmy Carter didn’t break into the White House and start appointing judges. (Some people still believe that George W. Bush essentially did that.) They got into office by constitutional means. Conservatives just don’t like the results. They might like to take “their” Constitution and go home, except it’s not their Constitution. As a political document, it’s up for interpretation, and Judge Taylor has been constitutionally empowered to interpret it.

Conservatives pride themselves on being “strict constructionists,” the keepers of the one true interpretation of the Constitution. But this claim rests on a weak foundation. There is no one true interpretation. The historian Merrill Jensen noted that Alexander Hamilton, a staunch nationalist, and Thomas Jefferson, a staunch decentralist, looked at the same Constitution and saw two contradictory things. Each saw a plan of government consistent with his own predilections.

These days conservatives oppose implied congressional powers while seeing implied presidential powers everywhere (as long as they like the president). I smell an agenda.

What are they to make of James Madison, one of the architects of the Constitution? He told the public that Congress’s powers are “few and defined.” But during debate over the Bill of Rights he told his fellow congressmen “it was impossible to confine a government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae” (emphasis added).

He had a point. A Constitution can’t list everything the government may do. But the alternative, as Madison acknowledged, is to look for implied powers. How do you contain that process?

The only way conservatives could hope to contain it to their exact liking would be to make Rush Limbaugh, Mark Levin, or Ann Coulter the absolute dictator. Heaven help us.

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    Sheldon Richman is former vice president and editor at The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.