Balkin on Constitutional Erosion

Jack Balkin with some thoughts on the Bush Administration and the Constitution

What does this have to do with the proper interpretation of the Constitution? Actually, more than you think. If President Bush had handled the Iraq war better, and had brought it to a successful conclusion, his supporters would have forgiven him a lot in terms of his policies on detention and interrogation, his euphemisms about torture, his abuse of Presidential signing statements, his illegal program of domestic surveillance, his suspension of habeas corpus, and what now appears to be his misuse of the Justice department for partisan ends.

Win the war in Iraq and the Republicans probably keep control of Congress; the Democrats are cowed; Congressional oversight remains toothless (as it was during the years of Republican control); and the press increasingly lauds Bush and everything he did to keep us safe. The dominant story in the press and the public would no doubt be that Bush had to break a few eggs to make a successful omelet, and that, after all, the Constitution is not a suicide pact. Bush would be viewed as an aggressive but successful President, an example of how determination and self-confidence through trials and tribulations lead to ultimate vindication in history. (Indeed, this is still Bush's view of himself; it is simply no longer the view of most of the public).

If the Iraq war had not turned into a disaster, any critics of Bush's perversion of the Constitution would probably be dismissed as they were during the period from 2001 to 2004-- as "nabbering nattering nabobs of negativism," to use Spiro Agnew's famous phrase. People like Levinson and myself, who were calling attention to the dangers of this Presidency in the early days after 9-11, would be regarded as deranged bitter enders, a bit like Justice Curtis ranting on about how "nobody cares" about the legality of the Emancipation Proclamation. Nobody would care about the intelligence failures leading up to the war, about the yellow cake debacle, about Gitmo, about Abu Ghraib, about Jose Padilla, about domestic surveillance, about any of it. After all, we won the war, didn't we? Isn't that all that matters?

He is, I'm afraid, all too correct in this. That is, I think, the worst perversion of the American system, the idea that the Constitution is bendable as long as we win. (Why does the phrase "business ethics" keep running through my mind?)

Balkin goes on to bring up a point I've made before, many times:

The next President will surely castigate and distance him or herself from parts of what George W. Bush and his Adminstration did. That will be partly how he or she gets elected. The more interesting question to consider in the years to come will be what parts of Bush's innovations the next President will quietly continue.

And just to open your eyes a little to the cesspool we're headed for as a country, read this post from Andrew Sullivan.

Some days outrage just isn't enough.