Scholars are split on the Bush administration's use of the Federalist Papers to justify its position on presidential war powers
By Charlie Savage, Boston Globe
SINCE THE TERRORIST ATTACKS of Sept. 11, 2001, the Bush administration has made sweeping claims about the power the Constitution gives the president as ``commander in chief." Because the president is responsible for protecting national security, the administration has argued, Congress cannot restrict his powers in a time of war.
President Bush hasn't been shy about putting his philosophy into action. In a series of ``signing statements," Bush has claimed that he has the authority to disobey several recent laws passed by Congress, including a ban on torturing detainees and oversight provisions in the USA Patriot Act. Nor has the president limited his opposition to laws passed on his watch; Bush has also authorized the military to wiretap Americans' international phone calls without warrants, defying a 1978 law, the Foreign Intelligence Surveillance Act, or FISA.
To make his case for these broadened powers, Bush and his administration have fallen back on a familiar strategy: pointing to the Constitution and looking to the founders as a guide to its meaning. This ``originalist" approach has been a hallmark of the Bush White House, informing everything from its taste in judges to its opposition to abortion. Relying on a tried and true method of divining the original intent of the Founding Fathers-reading the Federalist Papers, the essays written in 1787 and 1788 by three of the founders to explain the meaning of the Constitution-the administration asserts that it is using executive power as the founders intended.
Yet scholars from across the political spectrum question the historical cases Bush and Vice President Dick Cheney have made. In an effort to find backing for their view of presidential power, these scholars argue, the administration has quoted selectively, taken passages out of context, and simply ignored what many constitutional scholars say is the Federalist Paper that most squarely addresses the president's wartime powers: Federalist 69.
Richard Epstein, a conservative law professor at the University of Chicago who embraces originalism, said Federalist 69 shows that the administration's legal theory is ``just wrong" and called its failure to acknowledge the paper ``scandalous."
``How can you not talk about Federalist 69?" he said. ``All you have to do is go on Google and put in `Federalist Papers' and `commander in chief' and it pops up."
(The rest is here.)
SINCE THE TERRORIST ATTACKS of Sept. 11, 2001, the Bush administration has made sweeping claims about the power the Constitution gives the president as ``commander in chief." Because the president is responsible for protecting national security, the administration has argued, Congress cannot restrict his powers in a time of war.
President Bush hasn't been shy about putting his philosophy into action. In a series of ``signing statements," Bush has claimed that he has the authority to disobey several recent laws passed by Congress, including a ban on torturing detainees and oversight provisions in the USA Patriot Act. Nor has the president limited his opposition to laws passed on his watch; Bush has also authorized the military to wiretap Americans' international phone calls without warrants, defying a 1978 law, the Foreign Intelligence Surveillance Act, or FISA.
To make his case for these broadened powers, Bush and his administration have fallen back on a familiar strategy: pointing to the Constitution and looking to the founders as a guide to its meaning. This ``originalist" approach has been a hallmark of the Bush White House, informing everything from its taste in judges to its opposition to abortion. Relying on a tried and true method of divining the original intent of the Founding Fathers-reading the Federalist Papers, the essays written in 1787 and 1788 by three of the founders to explain the meaning of the Constitution-the administration asserts that it is using executive power as the founders intended.
Yet scholars from across the political spectrum question the historical cases Bush and Vice President Dick Cheney have made. In an effort to find backing for their view of presidential power, these scholars argue, the administration has quoted selectively, taken passages out of context, and simply ignored what many constitutional scholars say is the Federalist Paper that most squarely addresses the president's wartime powers: Federalist 69.
Richard Epstein, a conservative law professor at the University of Chicago who embraces originalism, said Federalist 69 shows that the administration's legal theory is ``just wrong" and called its failure to acknowledge the paper ``scandalous."
``How can you not talk about Federalist 69?" he said. ``All you have to do is go on Google and put in `Federalist Papers' and `commander in chief' and it pops up."
(The rest is here.)
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