Constitutional Cafeteria

By Michael Kinsley
Friday, May 5, 2006

Last Sunday's Boston Globe carried an alarming 4,000-word front-page article about President Bush and the Constitution. It seems that Bush has asserted the right to ignore "vast swaths of the law" simply because he thinks that these laws are unconstitutional.

The article is specifically about "signing statements," in which the president offers his interpretation of an act of Congress as he signs it into law. This was an innovation of the Reagan administration, intended to give courts something other than a law's legislative history -- that is, Congress's side of the story -- in any future dispute. Bush often signs a law and at the same time says that parts of it are unconstitutional. Sneaky!

The Globe does not report what it thinks a president ought to do when called upon to enforce or obey a law he or she believes to be unconstitutional. It's not an easy question. The power of judges to have the last word in constitutional interpretation is not explicitly in the Constitution. The logic is that every officer of the government has an obligation to follow the Constitution, and courts get the last word because their words literally come last in any dispute. The Constitution is like a hot potato, and the judges are holding it when the music stops.

The tradition of judicial review is almost universally accepted and has served this country very well. What was dangerous about the Reagan administration's signing statements initiative was the claim that a president is entitled to govern according to his or her own interpretation of the Constitution even after the courts have ruled. This is a recipe for near-dictatorial executive power, not to mention governmental chaos in which no fundamental issue can ever be resolved. But the Globe does not even suggest that Bush is claiming the right to thumb his nose at the courts in this way.

The complications come when the courts haven't, or haven't yet, ruled on the subject at hand. In that situation, shouldn't the president -- who swears to "preserve, protect, and defend" the Constitution -- follow his own sincere beliefs about what the Constitution requires? Well, yes and no. It depends on how unclear the issue really is and how plausible is the president's interpretation. A president shouldn't force the courts to rule again and again on some issue because the specific facts of each case are slightly different. More than that: After 220 years of constitutional interpretation, the doctrines are pretty thick on the ground. As a general rule, even on some novel issue, the president ought to follow the Constitution as he sincerely imagines that the courts will see it, rather than as he wishes they would see it. On the other hand, even the Supreme Court does change its mind occasionally. And the president, like anyone else, has the right to present a test case. But this is a right best used sparingly.

Bottom line: It is not necessarily an outrage for the president to run the government according to his own interpretation of the Constitution. It is certainly not an outrage for the president to simply state his view and then do nothing about it. Legitimate outrage comes when the president acts in flagrant violation of the Constitution, defending his actions unconvincingly, disingenuously or not at all. And Bush has offered plenty of grist for this mill in his assertion of the right to kidnap people off the streets, keep them locked up for years without a trial or even a public acknowledgment of their existence, to torture them, and so on. But nailing Bush simply for stating his views on a constitutional issue, without even asking whether those views are right or wrong, is wrong.

It's wrong especially when contrasted with another current fever running through the nation's editorial pages: the ongoing issue of leaks and anonymous sources. Many in the media believe that the Constitution contains a "reporter's privilege" to protect the identity of sources in circumstances, such as a criminal trial, in which citizens ordinarily can be compelled to produce information or go to jail. The Supreme Court and lower courts have ruled and ruled again that there is no such privilege. And it certainly is not obvious that the First Amendment, which seems to be about the right to speak, actually protects a right not to speak. Yet many in the media believe that it does, and moreover they believe passionately that it is not merely okay but profoundly noble to follow their own interpretation and ignore the Supreme Court's.

Why must the president obey constitutional interpretations he disagrees with if journalists don't have to?

Last Sunday, same day as the Globe piece, the New York Times had a front-page article about the other shoe waiting to drop in these leak cases. The Bush administration may go beyond forcing journalists to testify about the sources of leaks. It may start to prosecute journalists themselves as recipients of illegal leaks. As with the Globe story, this turns out to be a matter of pugnacious noises by the Bush administration. Actual prosecutions of journalists for receiving or publishing leaks are "unknown," the Times article concedes. But this could change at any moment.

Well, maybe. And maybe journalists are right in their sincere belief that the Constitution should protect them in such a case. But who wants to live in a society where every citizen and government official feels free to act according to his or her own personal interpretation of the Constitution, even after the Supreme Court has specifically said that this interpretation is wrong? President Bush would actually top my list of people I don't want wandering through the text and getting fancy ideas. But why should he stay out of the "I say what's constitutional around here" game if his tormentors in the media are playing it?

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