The Constitution was written and ratified to secure liberty through limited government. Central to its design were two principles: federalism and economic liberty. But at the beginning of the 20th century, Progressives (ancestors of modern liberals) began a frontal assault on those principles. Drawing on the new social sciences and a primitive understanding of economic relationships, their efforts reached fruition during the New Deal when the Constitution was essentially rewritten, without benefit of amendment. Now, in How Progressives Rewrote the Constitution, University of Chicago law professor Richard Epstein traces this history, demonstrating that our modern "constitutional law" was fashioned largely by the New Deal Court in the late 1930s, not in our country's founding principles. He also shows how so many of those "progressive" ideas -- however discredited by more recent economic thought -- still shape the Court's decisions.
Clearly, this is not some Warren-Court-worshipping liberal jurist. This is a conservative, through and through.
Which is why Professor Epstein's harsh criticism of the Bush administration's authoritarian legal theories is all the more remarkable. He wrote an Amicus Brief on behalf of Hamdan before the Supreme Court, arguing against the Bush administration's executive branch power grab, and he has excoriated the Adminstration's unlawful NSA wiretap program:
Richard Epstein, a University of Chicago law professor and a member of the group, said he believes the Supreme Court would reject Bush's assertions that his wartime powers authorized him to override the law.
''I find every bit of this legal argument disingenuous," Epstein said. ''The president's position is essentially that [Congress] is not doing the right thing, so I'm going to act on my own."
Today, in the Chicago Tribune, he explains the danger of Bush's aggressive use of signing statements, showing how Bush's practice could be used by an unscrupulous executive (such as the one in power now!), to topple our Constitution's unique system of checks and balances:
But put the point in reverse: If the presidential signing statements are no big deal, why does the president make them? One reason is that it skews the administration of a statute by presidential subordinates before a matter gets into court. A second--and more troubling--point relates to the larger question of the role of judicial review.
Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president's ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers--he just couldn't use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.
Read the whole thing. Epstein may have uncovered Addington and Cheney's grand strategy to undermine the Court system, by creating a separate body of executive law over which the Court has no power. This formulation is uniquely dangerous to our system of checks and balances, and could allow an unscrupulous executive to run roughshod over the other branches, and even defy the Supreme Court!
And remember, this is not some insane ranting lefty warning that Bush is Hitler. Rather, this a person who has been one of the leading lights of the conservative movement for the past several decades, and one of the leading judicial scholars in the country. The threat of unchecked executive power, and of a move towards a dictatorial-style regime is real. It must be reported on and stopped before it is too late.