an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
All Hail King Bush, God's Captain and Leader of His People
The below post, with the same title, was initially put up on July 31st of this year. Matters seemed bad enough five months ago to write such a post. As it turns out, that was just an early moment in a stream of revelations to come of conduct by the Bush Administration that blatantly flouts the law. Marty's detailed posts below on the impropriety--that is, illegality--of the conduct involved in the latest disclosures are right on. The basic proposition requires no detail, however: the Bush Administration believes it is above the law, and this is flat wrong.
For what it's worth, a bit of history, again:
The 1628 session of the English House of Commons was occupied with debates over the king's claimed martial power to imprison people outside of ordinary legal processes as the king deemed necessary in defense of the state. The king's Secretary gave the following justification:
There is no man but desires to live under the law, and we all hold the common law our inheritance that does preserve us. We are in the government of a state. The martial law touches kings highly. It is their very original. They are God's captains and leaders of his people. The name of kings is sacred, and the foundation of the commonwealth depends on them. All civil government may pass well and have a happy success. And for arms and conducting of armies, it can admit of no formal law.
Four centuries later, the Bush Administration has offered much the same argument: we are a nation under laws, but in his global war on terror Bush exercises authority above the law.
A distinction should be drawn, though, between trumping common law through an appeal to divine right ("They are God's captains and leaders of his people. The name of kings is sacred, and the foundation of the commonwealth depends on them.") and trumping common law through the adoption of a martial stance in what most would consider peace time, then invoking constitutional powers in the name of providing "security." You and I find both appalling, but they are public appeals to different authorities, however much we may speculate on Bush's personal sense of divine mandate.
Thanks for reminding us of this post, Brian. It had gone through my mind when reading the recent House of Lords ruling on torture - for this drama plays itself out in 1628, the same dramatic year in which King James' favorite, the Duke of Buckingham, was assassinated, and of which you write here. The new king, Charles I, was asked to authorize torture of the assailant to secure information about conspirators, and to do so on the basis of Royal Prerogative. But he asked 'Does the law allow it?' Then as Blackstone records, the judges of England were gathered in Serjeants' Inn and they rendered their famous decision that the common law never admitted of torture. King Charles then declined to authorize the torture warrant. It is strange that with George Bush, recourse is readily taken to what the common law forbade, and indeed the rational for this step is in its essence the very Royal Prerogative that the Civil War brought to an end in England and which our Founding Fathers believed they had buried utterly in our Constitution. David S Addington, John Yoo and Dick Cheney reflect a venerable tradition in their interpretations - but it is most decidedly not an American one.
I think it's somewhat strange and hypocritical that a bunch of atheist libertines dress themselves in Puritan robes like this, posturing like the real revolutionaries who overthrew King Charles. Doesn't it seem more likely, when we evaluate the totality of the circumstances, that the law profesors of today are the arrogant and powerful establishment, and that the religious right are the diggers and levellers who will overthrow you? Think about it. Or ask your maid what she thinks.