Bush not only one playing `I say what's constitutional' game

May 07, 2006|By MICHAEL KINSLEY

SEATTLE -- Last Sunday's Boston Globe carried an alarming 4,000-word front-page article about President Bush and the Constitution.

It seems that Mr. Bush has asserted the right to ignore "vast swaths of the law" simply because he thinks that these laws are unconstitutional.

The article is specifically about "signing statements," in which the president offers his interpretation of an act of Congress as he signs it into law. Mr. Bush often signs a law and says that parts of it are unconstitutional at the same time.

Sneaky!

The complications come when the courts haven't ruled on the subject at hand. In that situation, shouldn't the president - who swears to "preserve, protect and defend" the Constitution - follow his own sincere beliefs about what the Constitution requires? It depends on how unclear the issue really is, and how plausible is the president's interpretation.

A president shouldn't force the courts to rule again and again on some issue because the specific facts of each case are slightly different.

More than that: After 220 years of constitutional interpretation, the doctrines are pretty thick on the ground. As a general rule, even on some novel issue, the president ought to follow the Constitution as he sincerely imagines that the courts will see it, rather than as he wishes they would see it.

But even the Supreme Court changes its mind occasionally. And the president, like anyone else, has the right to present a test case.

But this is a right best used sparingly.

Bottom line: It is not necessarily an outrage for the president to run the government according to his own interpretation of the Constitution. And it is certainly not an outrage for the president to simply state his view and then do nothing about it.

Legitimate outrage comes when the president acts in flagrant violation of the Constitution, defending his actions unconvincingly, disingenuously, or not at all. And Mr. Bush has offered plenty of grist for this mill in his assertion of the right to kidnap people off the streets, keep them locked up for years without a trial or even a public acknowledgment of their existence, to torture them, etc.

But nailing him simply for stating his views on a constitutional issue, without even asking whether those views are right or wrong, is wrong.

It's wrong especially when contrasted with another current fever running through the nation's editorial pages: the ongoing issue of leaks and anonymous sources.

Many in the media believe that the Constitution contains a "reporter's privilege" to protect the identity of sources in circumstances, such as a criminal trial, in which citizens ordinarily can be compelled to produce information or go to jail.

The Supreme Court and lower courts have ruled and ruled again that there is no such privilege.

Why must the president obey constitutional interpretations he disagrees with if journalists don't have to?

Also last Sunday, The New York Times had an article about the other shoe waiting to drop in these leak cases. The Bush administration might go beyond forcing journalists to testify about the sources of leaks. It might start to prosecute journalists themselves as recipients of illegal leaks.

Who wants to live in a society where every citizen and government official feels free to act according to his or her own personal interpretation of the Constitution, even after the Supreme Court has specifically said that this interpretation is wrong?

Mr. Bush would actually top my list of people I don't want wandering through the text and getting fancy ideas. But why should he stay out of the "I say what's constitutional around here" game if his tormentors in the press are playing it?

Michael Kinsley is a social commentator.

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