Judge Anna Diggs Taylor’s legal ruling released yesterday, which declares George W. Bush’s warrantless wiretapping practices to be both illegal and unconstitutional, isn’t just substantively compelling. It’s also very well written, drawing on surprisingly broad conceptual themes about the role of government and the dangers of tyranny.
My favorite passages have to do with the essential difference between Kingship and the American Presidency:
Our constitution was drafted by founders and ratified by a people who still held in vivid memory the image of King George III and his General Warrants. The concept that each form of governmental power should be separated was a well-developed one. James Madison wrote that:
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. THE FEDERALIST NO. 47, at 301 (James Madison)….”
[Justice Robert H. Jackson] further wrote of the President’s powers that:
“The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated. Id. at 641.”
After analyzing the more recent experiences of Weimar, Germany, the French Republic, and Great Britain, he wrote that:
“This contemporary foreign experience may be inconclusive as to the wisdom of lodging emergency powers somewhere in a modern government. But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the ‘inherent powers’ formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience. Id. at 652.”
Justice Jackson concluded that:
“With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Youngstown, 343 U.S. at 655 (Jackson, J., concurring)….”
We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers†must derive from that Constitution.
Thank you, Judge Taylor (and through you, Justice Jackson). It shouldn’t have to be said, but thank you for stating what so many have forgotten:
This is America. We have no Kings.
