“There are no hereditary kings in America and no powers not created by the Constitution,” she wrote in a 48-page ruling. “So all ‘inherent powers’ must derive from that Constitution.”
I could not have said it better....
I disagree with the people that think that the president can IGNORE the Constitution because of some unitary presidential power, as President Bush and his cronies believe....
I disagree that the president can break the constitution when he swore to uphold it....the only thing he has to swear to do, when being inaugerated.
AN OATH!!!!
the way Damo's comment and your comment came out, acts as though the president CAN CHOOSE TO IGNOR OUR CONSTITUTION and ALL of that is all hunky dorey, until a judge rules on it...and quite frankly , YOU BOTH ARE WRONG on this....
For one .. I will be the first to admit that I am very weak when it comes to Constituional Law ..so I try to avoid ..to borrow from Orielly ...bloviating in an area that I will become quickly overmatched ..
But ..it is not without precedent that a President will go beyond Constitutional Authority during War time ...
WHAT IS THE CONSTITUTION'S ROLE IN WARTIME?:
Why Free Speech And Other Rights Are Not As Safe As You Might Think
By SANFORD LEVINSON
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Wednesday, Oct. 17, 2001
Does law speak in time of war? And, if so, to whom, and how loudly? No question is more important to a polity that claims to be structured by constitutional norms.
The United States Constitution contains no "emergency power" or general "suspension" clause of the kind found in the Weimar Constitution or the current Indian Constitution. It is difficult to read our constitutional history, however, without believing that the Constitution is often reduced at best to a whisper during times of war.
The most obvious source of examples to support this proposition is the Lincoln presidency. Indeed, one of Lincoln's first acts was to order suspension of habeas corpus.
The Constitution does allow the suspension of habeas corpus — in the single clause that establishes even a limited authority to abrogate law in wartime. This clause, however, appears in Section 9 of Article I — the Article defining Congress' powers — not in Article II, where the President's powers are defined. That placement strongly suggests that Congress must grant prior authorization when habeas corpus is suspended. In 1861, Lincoln had no such authorization.
Early in his career, Lincoln had spoken of "reverence for the laws" as the "political religion of the nation." He also called on all Americans to "swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others."
How then, did Lincoln defend his unilateral suspension of habeas corpus? He made the claim — a dubious one, as noted above — that the Constitution empowered him to do so. But he also posed a rhetorical question: If "all the laws, but one, [are] to go unexecuted, and the government itself to go to pieces, lest that one be violated?" Lincoln knew most citizens would favor the suspension of habeas corpus over the destruction of the government, given the choice.
The Emancipation Proclamation
Later, with a stroke of the pen Lincoln, in the Emancipation Proclamation, unilaterally ordered one of the most extensive confiscations of "property" in world history. His authority was based on "the power in me vested as Commander-in Chief . . . and as a fit an necessary war measure." One could plausibly view this as a violation of the Constitution's prohibition on the government's taking property without due process or compensation.
Consider the response of one newspaper that supported the Proclamation: "Nobody pretends this act is constitutional, and nobody cares whether it is or not."
Justice Benjamin R. Curtis quoted this newspaper's comment in his pamphlet attacking the Proclamation. Curtis deemed the Proclamation a particular "cause for alarm" in that it showed, he thought, a "tendency to lawlessness" even by public officials. "[P]ublic servants may themselves break the fundamental law of the country . . . in violation of their solemn oath of office; and 'nobody cares,'" Curtis complained, suggesting that Lincoln, with the Proclamation, broke his oath to uphold the Constitution.
I suspect that most of us find Curtis's concerns almost beside the point. Ironically, though, that simply establishes the validity of his basic insight: Even today, nobody cares.
Of course, it is not only the Lincoln presidency that exemplifies the truth behind Justice Holmes's assertion that ordinary constitutional norms may be relaxed "when a nation is at war."
Indeed, Holmes himself wrote the infamous anti-free speech Debs opinion for the Supreme Court. The opinion allowed Eugene Debs, the leading socialist politician in our history, to be jailed for ten years because he had expressed opposition to World War I.
Years later, in 1951, the Court still viewed speech in wartime (Cold War-time) much the same way. In Dennis v. U.S., the Court upheld the imprisonment of top leaders of the Communist Party.
The Court's rationale? In part, it based its decision upon the rule suggested by Learned Hand that the ability of the state to punish speech should be the result of multiplying the likelihood of the threatened event by the "gravity" of the evil. The formula, of course, is troubling: A threat that is extremely unlikely to become reality, but is also extremely grave, might still justify suppressing speech.
To be sure, Dennis and Debs seem implicitly to have been overruled by the 1969 Brandenburg decision. There, the Court overturned Ku Klux Klansman Clarence Brandenburg's conviction for calling for "revengeance" against blacks, Jews, and Catholics, on the ground that the conviction violated the First Amendment.
Still, the barest acquaintance with American constitutional history teaches that nothing is necessarily forever. In 1969, Brandenburg was viewed as basically irrelevant; society, in the Sixties, seemed to have triumphed over the Klan.
Would today's Supreme Court be as protective of a vocal supporter of Osama bin Laden? What if the speaker were a Moslem resident alien identified with a radical Islamic fundamental group? And what if the speech were given to other members of the same radical group — calling for participation in a "jihad" against a hated United States?
Congressional Protection of Civil Liberties?
If we cannot look to the Court to protect our civil liberties in the coming years, we can at least ask Congress to do so. Perhaps unexpected–some might say unholy–coalitions in Congress between Representatives like Bob Barr and Barney Frank will spring up.
Or perhaps usually opposed groups like the National Rifle Association and the American Civil Liberties Union, who claim to be able to hear a resonant Constitution that speaks during times of war, may see a common interest. One can scarcely be optimistic about these coalitions or groups prevailing, however.
Many readers may find "optimism" the wrong word; they might instead endorse the claims of Attorney General Ashcroft that emergency does indeed call for the maximum exercise of governmental power and concomitantly flexible constitutional interpretation.
Or perhaps they might agree with Alabama Senator Richard Shelby that the United States in effect should emulate Great Britain by passing the equivalent of an "Official Secrets Act." The Act could make it a criminal offense to receive information that the recipient knows to be classified, a proposal that would already be law were it not for a courageous veto by former President Clinton late in his term. (It helped, no doubt, that Clinton was encouraged to exercise the veto by almost every major news organization.)
The most serious constitutional debates in coming weeks will take place in plain view, as it were — in the nation's editorial and letters-to-the-editor columns, on talk shows, and in Congress.
All Americans have a vital stake in the outcome of these debates and all, therefore, should feel empowered to participate in them. One scarcely needs legal training in order to understand the basic issues posed by "balancing" national security claims against traditional individual liberties. This is not a situation where "experts" can tell us what to do — it is one in which we must look to our own conscience, values and beliefs.
In any event, it is naïve to believe that the Supreme Court will invalidate any government action that receives both congressional and presidential imprimatur as necessary and proper to protect Americans against the terrorist threat. If our liberties are to be protected, it is up to us to protect them.
http://writ.news.findlaw.com/commentary/20011017_levinson.html
