I am reluctant to contradict Alexander Hamilton, so I will merely note that the public, press and the U.S. Senate have lately been spending what would be an inordinate amount of time, if Hamilton were right, worrying about the "least dangerous branch" of government. We act, and not without reason, as though the future of our republic and the rights guaranteed therein depend on who sits on the U.S. Supreme Court and how they may be inclined to rule.
Strange, isn’t it? The rights we shall enjoy as individuals and the powers of government we shall possess as a people all depend on the whims and predilections of a virtual priesthood of lawgivers who, once confirmed by the U.S. Senate hold their positions for life, during good behavior. And what constitutes good behavior? Well, it’s not clear, but one might expect, at a minimum, that a life free of conspicuous lawbreaking might be part of an eminent jurist’s "lifestyle." Otherwise, we might have different Justice Ginsburg on the Supreme Court today. Reagan nominee, Judge Douglas Ginsburg, you may recall, had to withdraw from consideration following the discovery that he had, in the wild and crazy days of his youth, actually smoked pot. God only knows how shocked the senators might have been if they had found a speeding ticket in Ginsburg’s past.
That was after the Senate had rejected Judge Robert Bork for the same seat, due to Bork’s excessive reading and heeding what the Constitution actually said. So Reagan had to pick a third time and, just like Russian roulette, he finally fired from the chamber that contained the fatal round. He came up with Anthony Kennedy, who, as associate justice on the high court, authored one of the most bizarre opinions in the history of penumbras and emanations. It came in 1992 Planned Parenthood v. Casey case, which forced the court to revisit its 1973 Roe v. Wade decision. Kennedy wrote that at the core of liberty were rights heretofore undefined, including the right of the individual to define his her own concept of existence, of the meaning of life and, indeed, "the meaning of the universe." Whoa! Kowabunga, Kemosabe! Heavy, Captain Kirk! This Kennedy dude is, like, far out.
Justices O’Connor and Souter signed on to that grandiose declaration of the right to define the universe. (Did anyone consult NASA about this?) The upshot was that, following the "Roe" precedent, the states still may not outlaw, and are severely restricted in how they may regulate, abortion, a subject the Constitution nowhere mentions nor even hints of. That’s the kind of rule that results when the states and the other two branches of the national government become overly deferential to the "least dangerous branch."
The Constitution stipulates that the first branch of government, the one that has been given the power of the purse and the authority to declare war, has also the power to limit the appellate jurisdiction of the Supreme Court. But, of course, Congress will do no such thing. Whether you consider either the "Roe" or "Casey" decision as bold and progressive, or regard both as abominations, the nation’s legislators can tell you it’s not their doing. Their hands are as clean as Pontius Pilate’s.
The same is true of the war in Iraq or any other war into which an overweening executive may wish to drag the country. Congress has long since abdicated its power to declare war. Now the most it does is "authorize" the president to wage war if the president purports to find it necessary, though only if certain conditions are not met and only (wink, wink) as a "last resort." Although Hamilton, Madison et al. warned against leaving the decision of war and peace in the hands of the executive, the reaction of the Congress, as of the public, to any proposal by any president for a new war amounts to "Okay by us, we guess."
So what do we need the Congress for? To spend more and more of the people’s money every year and then play Santa Claus by voting us tax cuts? To sit on its hands when the executive runs amok at home as well as abroad, suspending habeas corpus for those he designates enemy combatants and guaranteeing to ousted dictator Saddam Hussein the right to trial he denies U.S. citizen Jose Padilla? To forget it’s supposed to represent the people’s conscience as well as our interests?
Consider again, please, that recent Senate vote on an amendment to a defense appropriations bill to outlaw "cruel and inhumane" treatment of prisoners taken in combat. It was a lopsided vote, 90-9 in favor. But a telling point was made in Jim Lobe’s article on the Lew Rockwell web site, when Lobe quoted an aide to one of the Democratic senators as saying that had the war in Iraq been going better, the Republican senators would not have voted the way they did and thereby "embarrass the president." Apparently, under that theory, the Republicans have determined that the president had already fully embarrassed himself with a war that has not been going well since the days of "Mission Accomplished."
How the Republican senators might have voted under other circumstances is, of course, a matter of conjecture. But it is a conjecture that brings to mind one of many unpleasant events in the sordid presidency of one William Jefferson Clinton. That was when an Arkansas woman came forward and said that Clinton, when he was that state’s attorney general, had raped her. We do not yet know, whether the allegation is true. But as columnist Joe Sobran noted at the time, what no one was saying — what no one could say credibly — was that it couldn’t be true, because Bill Clinton is not that kind of man. Even Vice President Gore, while campaigning to be Clinton’s successor, wouldn’t crawl out on that limb.
Our U.S. Senators are in the same boat. Would they have kept their consciences quiet on the issue of torture if our Maximum Leader were still riding high in the polls? I don’t claim to know the answer. But like Diogenes, I shall go forth with a lantern, seeking one honest man who can tell me, with a straight face, that our senators are not the kind of men and women who would let partisan political considerations influence a "vote of conscience" on something as fundamental as whether the United States shall sanction and engage in the use of torture.
I’ll report back soon.
Manchester, NH, resident Jack Kenny [send him mail] is a freelance writer.