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

[TheScout]

Well somebody must have a good article/definition of the theory if wikipedia doesn't? The article you supplied was just pure bashing and didn't even pretend to be unbiased.

 

And though the article omitted counter-arguments, etc - it supposes to be an encyclpedia article. Those aren't often points of debate. (Though I suppose with wikipedia that is changing).

 

But I do ask, do you have a better definition? I would actually like to see it.

 

Nobody advocates that it is an unconstitutional theory. One would just say the President has complete power of the executive branch within the bounds of the Constitution.

 

 

"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."

 

I don't know why originalism is simplistic. I find that a bit insulting. I don't know why it is any less "rational" then any other method.

 

But I would contend that in total there are only two methods in sum. Seeking some type of originalism or making it up.

 

Conservatives by definition seek to maintain a status quo and hence have always fallen in the originalist camp.

 

[Beavah]

Yah, the article by Dean I chose for you because John Dean is a Barry Goldwater conservative, eh? In fact a personal friend of Goldwater, who collaborated on Dean's Conscience book until his death. I chose the article for yeh because it offered the perspective of a traditional libertarian conservative, which you claimed to be. Not because it was "unbiased." There is no such thing. But 'tis true, "unitary executive" theories do make true conservatives foam at the mouth a bit.

 

And that wikipedia article was just pure promoting and didn't even pretend to be unbiased, eh?

 

If yeh want to understand a theory, go read the views of those who generated the theory and follow the actions of those who supported it. That would be the Nixon folks and the neocons. Things like Cheney's arguments around Iran-Contra, for example, or Addington's positions, or Bush's use of da theory in "signing statements." For academic apologetics, Yoo and Calabresi will give yeh the goods, too, but yeh have to be savvy about readin' academic papers from partisans. They're tryin' to whitewash a pig, eh? To promote a view that has been largely rejected by everyone else in the legal and scholarly community.

 

I don't know why originalism is simplistic.

 

Originalism doesn't have to be simplistic. But the notion of absolute textual originalism is, as is the notion that theories of constitutional interpretation are either originalist or "made up." There is really a continuum, and along several dimensions not just one.

 

Conservatives by definition seek to maintain a status quo and hence have always fallen in the originalist camp.

 

Yah, yeh really need to do some reading from classic conservatives and broaden your contact with constitutional scholarship. The world is really a much more complex and interesting place than you're making out, and the intellectual tradition of conservativism is really much richer.

 

Beavah

 

[TheScout]

I guess we will not agree on this. But it seems to me the Wikipedia definition is the most concise you will get. Its not an argument like you seem to demand. Simply a base definition.

 

I don't get how you say originalism does not have to be simplistic, but absolute textual originalism is. Is it better if we are originalist and only partially faithful to the original intent/meaning.

 

I am not the one who made up the only two ways to interpret the Constitution thing. That was actually taken from a quote my Justice Scalia. I guess you don't like him or think much of his intellect either though?

 

If you're a dedicated originalist, there is not continum. Just the original intent/meaning - whatever you subscribe to.

 

It seems to me the that "classic conservatives" are very much strict constructionists in some form. Look at the most classic of American conservatives. Pick a John C. Calhoun or a Jefferson Davis. Read the South Carolina Exposition and Protest or the Rise and Fall of the Confederate Government. Both men only desired the maintenance of the constitutional system that their fathers lived under - originalism.

 

From what I know and from a bit of recent reading it seems to me simply that the Unitary Executive Theory is that the President has complete control over the Executive branch - hence the name. What part of the executive branch or its actions do you think the President should not have control of?

[Beavah]

But it seems to me the Wikipedia definition is the most concise you will get. Its not an argument like you seem to demand. Simply a base definition.

 

Yah, it's a theory, not a word, eh? You need to stop thinkin' in terms of definitions and encyclopedia blurbs. That's schoolboy stuff. Yeh have to understand the theory and its context and applications. There's no such thing as a "definition."

 

Similarly correlation does not imply causation, eh? Conservatives tend to be constructionist because the Constitution tends to be a conservative document, a framework that is coincident with our ideals. So naturally, we want it read that way, strictly limiting the power of government, and checking it where it cannot be practically limited. But where the Constitution is not in line with those ideals (some might cite the 14th Amendment...), a conservative might not be constructionist. Conservativism is a philosophy of governance, not of constitutional law.

 

And like theories, yeh can't really understand a philosophy by lookin' up a definition.

 

Beavah

(This message has been edited by Beavah)

[TheScout]

Even a theory needs a definition. I think that is why we are having so much trouble even arguing about it. We don't even have a common agreement on what it even means. Once you understand what it means, then you can debate its applicability. For example we know what Marxism is, or Capitalism is, or Liberatarianism and can explain it and such we argue about it.

 

I would send conservatives do not tend to be strict constructionists because it supports their ideals. They believe so because they think that is the right way to interpret it. A responsible person would not just cast this aside when it comes to something they do not agree with, like the 14th Amendment. (Of course that being said you can say the original meaning of the 14th Amendment is much more conservative and limited than that applied today)

[Beavah]

Yah, I suppose a few physical science theories have definitions. Guv = 8(pi)Tuv and all that. I don't reckon that definition conveys much of an understanding of Gravitation without the rest of the theory and applications.

 

I really don't think this is hard, mate. "Unitary Executive" as a theory was first proposed under Reagan, and expounded on by neocons in the Heritage Foundation and the Federalist Society. Those folks are hardly a quiet bunch, it's not hard to find their work. The original target of their opprobrium was the independent counsel statute (i.e. they supported Nixon in the Saturday Night Massacre).

 

And therein lies the rub, eh? Unitary executive theory, at its core, espouses the notion that the president can remove any executive officer or law enforcement official who is investigating executive misconduct, or who is in any way faithfully executing the laws contrary to the will of the president. Just like Nixon did. If clean water is not a "priority" of the Unitary Executive, the president has authority to appoint or direct the Administrator to functionally refrain from enforcing those pesky environmental laws too. And on and on.

 

Beavah

 

[TheScout]

Well now we are on to an actual difference.

 

The power of the President to remove an executive officer and the power of the President to set a "clean water" policy.

 

I am afriad the removal power is not new or radical. This was confirmed as the Tenure of Office Act, the cause of Johnson's impeachment was declared unconstitutional. Myers vs. the United States held the same thing for the Postmaster General. It is clearly within the Presidents power to make such removals. So we are back to the real problem - Congress failing to do its job. Congress has the power to impeach and remove any executive officer - that is the constitutional method.

 

 

And on water policy, someone in the executive branch has to determine how to execute Congressional policy. Should it be the elected President, or some bureaucratic hack? In such a case there is a major difference between intrepting how it should be done and refraining from doing it as you mention. One is within the bounds the other is not.

 

Now the issues of Presidential removal power and authority over policy making are not new. It is more productive to discuss the issue like this than to rant about neocons waterboarding people.

 

[Beavah]

So yeh agree with Nixon and the neocons on the Saturday Night Massacre then? It should perhaps be telling that the conservatives in congress at the time did not.

 

The Nixon firing of Cox is the same "unitary executive" issue as torturing people, eh? Congress can pass a law prohibiting torture, but under a unitary executive theory, the president can appoint people to positions who agree with torture, remove those who don't, as Executive order them not to release information to Congress because it is privileged, pursue the practice overseas where the writ of the other branches is limited, and then pardon those who happen to get caught.

 

Same with warrantless wiretapping, eh? Or suspending habeas corpus for those declared combatants by the Unitary (even though you'd recognize that suspending habeas is an Article I power belonging to Congress).

 

You are correct that the ultimate response from congress has to be the impeachment of the president, just as it was for Nixon and many argue should have been for Bush. But all it really takes is a third of the Senate to believe in a unitary executive to eliminate even that final line of protection for the republic (not to mention the difficulty of convicting on high crimes without the ability to subpoena evidence or testimony). That's a final line of protection, eh? It isn't designed to be used frequently.

 

Yah, da neocons really love that obscure Myers ruling, but yeh can't place all your eggs in the that basket, eh? Read the opinion and the dissents, and then Humphreys, and then Morrison, US v. Nixon, the Civil Service Reform Act, etc. The courts by and large have looked askance at "unitary executive" notions, Mr. Justice Taft's narrow majority notwithstanding. More to the point, true conservatives look more askance at the "unitary executive" than even the courts do. It really is only a small but vocal group of Nixon proteges and neocons that formulated and embraced this toxic doctrine.

 

Of course, there is an additional remedy other than impeachment, eh? That's prosecution by the subsequent administration. Sadly, that is quite probably a reasonable thing to pursue for some of our recent adherents to "unitary" philosophy.

Beavah

(This message has been edited by Beavah)

[manoj87]

george w.b has should have taken in freedom in amerika .

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manoj87

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Drug Intervention Oklahoma-Drug Intervention Oklahoma

[Merlyn_LeRoy]

Beavah writes:

Of course, there is an additional remedy other than impeachment, eh? That's prosecution by the subsequent administration.

 

A second remedy (sort of), but it's more like karma. It's when a subsequent administration continues to (ab)use the same powers but for a radically different agenda.

[mmhardy]

Tick...tock..the End of an Error.

 

God Bless these United States!

[vol_scouter]

Beavah,

 

Two comments. First, I tend to agree that most conservatives do not agree with unfettered executive power. It is clearly wrong to fire someone whose job is to investigate crime in the executive branch. Similarly, if congress passes a law with which the President does not agree, then the President should not appoint persons who will not carry out the will of the congress because theoretically that is the will of the people. At the same time, the President should be able to demand some degree of loyalty and release those who do not support presidential policy. The extremes are easy to see but much is in a gray area.

 

My second comment is regarding interpreting the constitution. I believe that most conservatives wish there to be a 'strict' ruling is so that the process can work with input from the people. If the SCOTUS is strict in interpretation of the constitution, then unpopular laws will be addressed by the congress. Politicians like to avoid controversy so they prefer to let the courts take the blame for controversial decisions. If an activist judge interprets the constitution as a 'living' document, then the rule of law becomes arbitrary. The supreme court judges are appointed by the president after being confirmed by the senate. Thus, the people have limited input. The congress should make the constitution and the law a living document, not the courts. I believe that most conservatives see that as the issue.

 

For example, the Second Amendment was written so that the people could mount an armed rebellion against a government that they deem oppressive. The SCOTUS ruled correctly in the recent case although it was a disappointing 5 to 4 instead of the appropriate 9 to 0. If those that oppose the Second Amendment are upset, they should feel that the appropriate action is to change the constitution with a new amendment that can be presented to the voters through ratification (mostly through their respective legislatures). That is more democratic than trying more court cases to try to legislate from the bench because the congress will not fulfill its' rightful role.

 

As a conservative, I have been horrified by many of Bush's policies and I fear that the new administration will gladly use powers that have measurably decreased our freedoms.

[Beavah]

Yah, vol, I agree 100%.

 

Beavah