Why you should be happy George W. Bush is our President

[packsaddle]

Assuming the "kool-aid" reference is to the Jonestown thing, I must note that it was FLAVOR AID, not Kool Aid.

I think Merlyn is applying reductio ad absurdum to TheScout's interpretations.

[Hal_Crawford]

Packsaddle:

I appreciated that Merlyn's post was fluent Absurdity in the past ironic tense. Much like an number of a I know that the Jonestown folks drank Flavor Aid but "drank the Kool-Aid" is what made it into the pop culture lexicon. I guess given the forum I could have said drank the bug juice but hey, what the heck? And there is no proof that Jim Jones' last words were "Hey, I could've had a V-8".

Hal

 

 

 

[TheScout]

Well Meryln's theory of Presidential legitimatism shows how literalism is a faulty method of Constitutional interpretation. There are many vague parts.

 

As was brought up with the Unitary Executive Theory, what does the Takings Clause mean? Or the Vesting Clause? Clearing we can't agree on how the 1st Amendment should be interpreted. These are just a few examples.

 

This is why it is important to look at the original intent of those who wrote the Constitution and the States that ratified it.

 

We can try to find out what they meant by "due process" and "cruel and unusual," etc. We can try to be faithful to the document as it always has been, and not try to change it to our whims.

 

BTW Beavah, I think you point to the wrong problem. I don't think the Unitary Executive Theory is so far-fetched. I think some of the actions President's have made while claiming the theory are the problem. It is the extension of the separation of powers to an extreme.

[Merlyn_LeRoy]

TheScout writes:

Meryln's theory of Presidential legitimatism shows how literalism is a faulty method of Constitutional interpretation. There are many vague parts.

 

It isn't my theory.

 

This is why it is important to look at the original intent of those who wrote the Constitution and the States that ratified it.

 

Sure. Now could you answer my question from earlier?

 

I've already posited a situation where congress says X is constitutional and SCOTUS says it isn't, so now where do you turn to determine what is consistent with the constitution?

 

 

[Beavah]

We can try to find out what they meant by "due process" and "cruel and unusual," etc.

 

Yah, but there's no way to ask 'em, eh? All we have are the written reflections of a few of 'em, and some notes. Those deliberations were all behind closed doors.

 

More importantly, those fine gentlemen weren't tryin' to write rules for all time. They were doing their best for their time, and respondin' primarily to prevent the worst depredations of the "unitary executive" George III and his Parliament. (One of da reasons why the neocon "unitary executive" notion is such balderdash from a true conservative/constructionist point of view).

 

We can try to be faithful to the document as it always has been, and not try to change it to our whims.

 

There is no "always has been," though 'tis a pleasant fiction. The document was argued about and actively interpreted and re-interpreted from the moment it was written. Far more important is da force of example they left us - when they acquiesced, either in humility or frustration, to their fellow Americans serving in the other branches. It wasn't their assertion of prerogative that mattered most, eh? It was their willingness to yield.

 

Yah, but I don't want to get in the way of Merlyn's question, eh? Other than calling you or conducting a seance with the Spirits of Patriots Past, how are the various public bodies to "properly" interpret the Constitution?

 

Beavah

 

[TheScout]

"Sure. Now could you answer my question from earlier?"

 

"I've already posited a situation where congress says X is constitutional and SCOTUS says it isn't, so now where do you turn to determine what is consistent with the constitution?"

 

Lete everyone decide! The executive should favor which side he believes is constitutional. States shouldn't allow either branch to pursue illegal methods. The people should ignore or resist illegal measures as well. It is not an absurd theory. Many early American statesmen thought in such a way.

 

Recall, James Madison said,

 

"Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the Judicial authority." James Madison

 

 

Beavah, I think you point out the difficulty in Originalist theories of interpretation.

 

Perhaps that is why Original Meaning is better than Original Intent as that does not seek to determine the thinking of any writer, but instead the plain meaning in the time when a document was written.

 

So I would say that is how they "properly" read the Constitution.

 

In the end there are really only two ways to do so. One is to try to determine what people meant at the time it was written . . . or to make it up. I don't think we should make it up.

 

I don't know why there is so much recent hatred for the Unitary Executive Theory though. It is really not that new or radical. It seems to have become a whipping boy for people who hate things George Bush does. I think you are stretching call George III's government a "unitary executive" or by the contention that the Constitution was written to stop that. Even at this time the King's ministers were responsible to Parliament, and I guess I have never really though about it before, but it seems that Westminister governments leave much more responsibility to individual ministers.

 

Also recall that the Convention specifically rejected the New Jersey Plan's notion that there should be a plural executive in favor of the single executive they have today. And they decided not to limit the reelection of the President. Doesn't sound too much like a group set on crushing executive power, does it?

 

It seems the single executive was decided on as to not allow the President to hide behind his appointes or in a crowd. This way all could see that any corruption or error in the executive branch was the fault of the President.

 

I also do not understand why you call it a neocon theory. It existed before neo-conservatism. I think it is a very legitimate theory and I have never advocated any tenant of neo-conservative and consider myself a faithful paleo-conservative ( I guess what you called a "true conservative."?)

[Beavah]

Yah, sorry TheScout. The notion of a unitary executive in modern parlance is very much a Nixon/Cheney/GWB neo-con idea. It's anathema to us true conservatives, and particularly troubling to the libertarian style Ron Paul conservatives. Honestly, at its core is a notion that the office of President is closer in construct to the Roman Emperor, eh? As Commander in Chief, he is free to ignore the other branches in the declaration and conduct of war and foreign policy; as Chief Executive he is free to nullify the other branches on anything that pertains to governmental authority with "signing statements." Parliament can dither about roads and schools, but the King calls up the Army.

 

Manifestly unconstitutional balderdash. In our social history, while there were some among the founders who argued for a king-like President, that notion was soundly rejected by Washington, Jefferson, Franklin, and those who followed. They rather embraced the notion of humble, and temporary, and deferential executive service. To embrace such a "theory" is to reject the example of those fine men. And the plain text of the document ascribes very little authority to the president, eh? Make treaties or appointments, but only with the consent of the Senate. Receive ambassadors and ministers. Recommend measures to congress. Grant pardons. Request the opinion of department heads. Serve as Commander in Chief. That's it. Beyond that, he is charged with the duty to take care that the Laws (of Congress) be faithfully executed.

 

After readin' Article II, go listen to Cheney's farewell interviews on Presidential Authority and unitary executive, eh?

 

In the end there are really only two ways to do so. One is to try to determine what people meant at the time it was written . . . or to make it up.

 

Nah, that's poppycock and we both know it, eh? There are many ways to read any document. And your analysis blithely ignores the fact that many men of the time disagreed on the "plain meaning". So imagining contemporaneous plain meaning to be some objective reality which can be readily accessed is just a chimera. We are always "making it up." Even the founders. The question is only whether we do so humbly, with enlightened reason, full discussion, and deference to the views and positions of others. Or whether the guy "making it up" can be Unitary.

 

The measure of honor in governmental service is not who "wins", eh? More often than not, the measure of real honor is who defers to the role and judgment of other fellow citizens in service.

 

Beavah

 

[Merlyn_LeRoy]

TheScout re constitutional interpretation:

Lete everyone decide!

 

Like I said, you've reduced supreme court opinions to the level of a movie review. Why bother having them at all, then?

[Beavah]

For a decent exposition of the development of the "unitary executive" theory by the neocon movement, this article by John Dean (yah, that John Dean from the Nixon white house) does a good job:

 

http://writ.news.findlaw.com/dean/20070323.html

 

as does this academic paper

 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=943046

 

(yeh did say you were Catholic, TheScout? The paper authors are as well, and teach in a Catholic law school).

 

Beavah

 

[TheScout]

Beavah,

 

I think maybe you have a different definition of the Unitary Executive theory than I do. I must admit I do not know too much about that. I never got the whole Roman Emperor idea or the fact that he "ignores" other branches.

 

To me, the "core notion" is that theh President has complete control of legitimate actions of the executive branch. One of the biggest aspects of it I reckon is the Presidential appointment/removal power. History shows many battles between the President and Congress about this. This is what President Andrew Johnon's impeachment was about. That is why I don't reckon it a "new" theory.

 

It also seems a built faulty to blame the expanion of Presidential power on "neocons". I reckon the likes of Lincoln, Wilson, and FDR played a rather large role in it. All probably expanded executive power for more than Bush I seem to think.

 

I actual consider myself a "true conservative." I actually voted for Ron Paul in the primaries and Bob Barr from the Liberatarian ticket in the genreal election. But saying that, I don't think the Unitary Executive is inconsistent with the constitutional limitations of the office. I see no reason why the President should not have full power over the executive branch - as long as he does it according to the Constitution. It seems to be that the fact that "The executive Power shall be vested in a President of the United States of America" pretty much gives all executive power to him.

 

It seems to me that some of these problems come more from Congress abdicating its responsibility to make decisions than the President taking power. The Iraq War Resolution for example, gave the President the deceision to go to war or not. The intent of the Constitution was to have Congress decide. But Congress does not like to make unpopular decisions. If Congress stuck to their powers as much as the President stuck to his, I think we would have a much more healthy constitutional structure and more true to the original vision.

 

I assure you both don't know the plain meaning is "poppycock." All the men at the time don't have to agree on the plain meaning Original Meaning requires. It does not look at intent at all, but what the words meant at the time. A subtle, but probably better difference from Original Intent.

 

If you suppose we are just making it up, why do we bother having a Constitution at all? Or maybe we should just have one that lays out the structure of the government and is silent on the powers, if the powers will always change. Why did the founders limit the powers of the federal government then if they expected us to change the powers at every age?

 

Some of the states would not have ratified if they knew these limitations on federal power were not there. Were they just put there to gain their agreement to be changed later? That seems quite bad faith. Almost trickery.

 

Maybe the deference we should have is to the Constitution. To the will of the people who voted to ratify it.

 

If I may say it seems you have odd constitutional views for a "true conservative." Most are pretty much in the originalist camp (even the neocon's claim to be!). Your living document theory seems to be more in touch with liberals.

 

Merlyn, thats a good point! The Supreme Court always seems to be the odd man out. Isn't that why its Article is so short and vague, no one at the time could really agree on it?

 

Interesting enough, though the Confederate Constitution which was almost identical to the US one authorized a Supreme Court, but the Confederate Congress could never agree on how it should be composed and its powers so it was never created through the life of the Confederacy.

 

There is an interesting book, "The Confederate Constitution of 1861: An Inquiry into American Constitutionalism" by Marshall Derosa. It has a chapter about the Confederate judiciary. It is intereting to read how the national, but mainly the state courts resolved differences without a Supreme Court in what sounds like a rather efficient manner. Other than that it covers the other Constitutional innovations of the Confederacy. Makes an interesting read.

 

 

[TheScout]

I didn't see your last post when I wrote mine. And I am Catholic by the way.

 

That author seems to have a little axe to grind though perhaps?

 

I know its only Wikipedia, but this seems to offer a maybe less political view of the theory. More in line of what I always believed it was.

 

"In American political and legal discourse, the unitary executive theory is a doctrine of constitutional interpretation that basically means the president controls the entire executive branch. Although that general principle is widely accepted, there is disagreement about the details, and therefore some people favor a "strongly unitary" executive whereas other people favor a "weakly unitary" executive. The general principle stems from Article Two of the United States Constitution, which says that only the President is vested with the power to execute the laws in the executive branch. The federal executive branch is very different from many state governments, where the attorney general and other executive officers may be elected separately from the state's governor.

 

According to those who believe the Constitution provides for a "strongly unitary" executive, Congress cannot bar the president from firing any executive branch officials, and the president can control policymaking by all executive agencies within the limits set for those agencies by Congress. Some people oppose the unitary executive theory, or one of its two forms, while still supporting its constitutionality; in other words, they believe a constitutional amendment would be needed to eliminate it."

 

Just a little research led me to a fellow from Northwestern Law School, Christopher Yoo, who wrote 4 papers, titled, "The Unitary Executive During the First Half-Century" (then Second Half-Century, etc.) Thats why I can't believe that it is a new theory.

 

 

[Beavah]

Wikipedia? Surely yeh jest. And of course Yoo is a modern writer and a neocon, eh? While John Dean is a Barry Goldwater libertarian conservative much like you claim to be.

 

Sorry, mate, the "unitary executive" is a modern theory created by neocons out of nearly whole cloth, most of whom were apologists for Nixon's views. That kind of expansive notion of the presidency goes well beyond FDR (himself a bastion of conservative thought ), and is contrary to both the libertarian folks you voted for and traditional conservative values. You've been drinkin' the neocon Koolaid.

 

Yah, those with an imperial notion of the presidency believe he can appoint and remove at will, yada yada. Of course the constitution only vests the president with the power to appoint with the advice and consent of a supermajority of the Senate. And Congress, not the president, may grant either the president, the courts, or the heads of departments power to appoint inferior officers "as they think proper." Plain text of Article II, Section 2, eh?

 

Yeh can't pretend to be a traditional conservative and agree with the unitary executive notions. The two beliefs aren't compatible.

 

Beavah

(This message has been edited by Beavah)

[TheScout]

Hmm, well Yoo doesn't seem to be a neocon, he could be but I do not really know. But he is not the only one who has written such things.

 

I doubt we are really that far apart as it seems.

 

I would say (even though its Wikipedia) that the definition is probably a pretty fair, non-political one. Wouldn't you?

 

Now what in that definition do you not agree with?

 

Maybe I am just totally out of touch on this one, but I don't get why everyone just seems to hate this theory!

 

It also seems odd that you pretend to be a traditional conservative and seem to agree with the living constitution theory. The two beliefs aren't compatible.

 

 

[packsaddle]

..sputtering...Flavor Aid...it's Flavor Aid! NOT Kool Aid! I'm doin' my best to stamp out revisionist history here. Flavor Aid! Neocons drink grape Flavor Aid, not Kool Aid! It's a cheap knock-off of the real thing, like their ideologies. And about as healthy for the country.

 

Edited to add: Answer to question about the unitary executive 'theory' - because we don't want a despot.

Answer to the comment about the 'living constitution' - because it's unavoidable if we are to compete in an evolving world...an expression of honest pragmatism in politics.(This message has been edited by packsaddle)

[Beavah]

Hmm, well Yoo doesn't seem to be a neocon, he could be but I do not really know. But he is not the only one who has written such things.

 

Sorry for my lack of clarity. Yoo is a modern writer because the unitary executive is a modern theory. Yeh won't find any references to a "unitary executive" theory prior to the Nixon administration. It's of course not at all surprising that a modern writer would try to see how or if it fits historically.

 

I would say (even though its Wikipedia) that the definition is probably a pretty fair, non-political one. Wouldn't you?

 

No. I think the wikipedia article is written by a neocon making a sales pitch. The point of the sales pitch is to package a poorly reasoned argument as best as possible, while omitting all contrary evidence, counter-arguments, objections, and the applications to which adherents of the theory have put it to use. That is neither fair nor apolitical. The article contains a number of unsupported statements which are objectively false.

 

Maybe I am just totally out of touch on this one, but I don't get why everyone just seems to hate this theory!

 

Because it is unconstitutional and dangerous. You should read Ron Paul on the topic, eh? Like a classic libertarian conservative, he soundly rejects all of the notions of unitary executive theory: "No branch of government should be able to act unilaterally, no matter how cumbersome the legislative process may be. The beauty of the Constitution is that it encourages some degree of gridlock in government, making it harder for any branch to act capriciously or secretly. When we give any president- one man- too much power, we build a foundation for future tyranny."

 

It also seems odd that you pretend to be a traditional conservative and seem to agree with the living constitution theory. The two beliefs aren't compatible.

 

You are mistaking a rejection of simplistic notions of Originalism as embracing the opposite extreme. Life is not a choice between extremes. There are all kinds of rational (albeit not always simplistic) positions in the middle.

 

And unlike conservativism and the unitary executive, the two beliefs are not incompatible; they're independent. Being conservative does not ipso facto determine a constitutional philosophy.

 

Beavah