If you skipped Anthony Lewis's NYT Book Review essay on two recent Bush books, good call -- Lewis is clearly one of those old guys who can no longer identify what counts as common knowledge. (Random cliché sampling: "The one clear winner from the invasion and the consequent civil strife has been neighboring Iran ... Bush seems to lack the intellectual curiosity that makes for an interesting mind ... there is another, less attractive part of the Bush persona: the mean-minded frat boy ... what I think will be seen, along with the Iraq war, as the most important legacy of Bush’s presidency: his effort to enlarge the unilateral power of the president.")
Lewis wraps up this bloviation with a conclusion that's off-base on two counts. He writes:
There is a profound oddity in the position of the presidentialists like Yoo, Cheney and Addington. Legal conservatives like to say that the Constitution should be read according to its original intent. But if there is anything clear about the intentions of the framers, it is that they did not intend to create an executive with more prerogative power than George III had.I'm not sure this "oddity" really exists. First of all, the statement "legal conservatives like to say that the Constitution should be read according to its original intent" is almost exactly wrong. The poster boy for originalism, Antonin Scalia, in his "Theory of Constitutional Interpretation" speech, said this:
You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words.But even if Lewis had accurately represented the views of conservative originalists, that wouldn't mean that executive-branch-supremacists like Dick Cheney and David Addington were hypocrites. As far as I know, neither is specifically associated with constitutional originalism. (John Yoo is a slightly more complex case.) Some conservatives believe in being faithful to the constitution. Some believe in letting the president do whatever the hell he wants at all times. This is not a "profound oddity"; it's an easily observable fact.
Am I wrong about this? People who actually know something about the law, please let me know.
