I’m of course in agreement with the letter by these academics seeking to limit the president’s power and recalling the congressional role the Constitution envisioned in matters of war.
In a way, though, half these people are only getting what they deserve. Bruce Ackerman, the very first signatory (the signers are listed in alphabetical order), has for years been peddling the idea that the Constitution can be altered in ways other than the formal amendment process. The country may pass through a “constitutional moment” — such as Reconstruction and the New Deal — in which a new way of thinking about the Constitution, understood to constitute a general consensus among government and people, spontaneously overturns the earlier view, which at that point the Supreme Court (or anyone else) would be simply reactionary to continue to defend.
Well, can’t The Decider just turn around and say that 50+ years of presidential activism in warmaking, with only a few pathetic peeps from Congress — if even that — constitutes another “constitutional moment”? How could Ackerman have a leg to stand on at that point?Oddly enough, I find myself quoting Alexander Hamilton (speaking here about the representatives of the people) against Ackerman: “Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act” (Federalist #78).
11:16 am on January 25, 2007
