[donaldscrankshaw] Donald: Ann Althouse on the NSA decision

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Posted by Donald:
Ann Althouse on the NSA decision
http://www.donaldscrankshaw.com/posts/1156478126.shtml


   Ann's [1]article on the wiretapping decision is very good:

     [T]he president is not claiming he has powers outside of the
     Constitution. He isnât arguing that heâs above the law. Heâs making
     an aggressive argument about the scope of his power under the law.
     It is a serious argument, and judges need to take it seriously. If
     they do not, we ought to wonder why a court gets to decide what the
     law is and not the president. After all, the president has a sworn
     duty to uphold the Constitution; he has his advisers, and theyâve
     concluded that the program is legal. Why should the judicial view
     prevail over the presidentâs?
     This, of course, is the most basic question in constitutional law,
     the one addressed in Marbury v. Madison. The public may have become
     so used to the notion that a judgeâs word is what counts that it
     forgets why this is true. The judges have this constitutional power
     only because they operate by a judicial method that restricts them
     to resolving concrete controversies and requires them to interpret
     the relevant constitutional and statutory texts and to reason
     within the tradition of the case law.
     ...
     If the words of the written opinion reveal that the judge did not
     follow the discipline of the judicial process, what sense does it
     make to take the judgeâs word about what the law means over the
     word of the president? If the judgeâs own writing does not support
     a belief that the rule of law has substance and depth, that law is
     something apart from political will, the significance of saying the
     president has gone beyond the limits of the law evaporates.

   I am not worried about presidential abuse of power. No matter how bad
   he gets, the President faces re-election every four years, cannot hold
   office more than two terms, does not have the power to make laws, and
   can be overruled by Congress and the courts. It's the courts I'm
   worried about. Who elects them? When do they leave office? Who
   overrules them? In theory, Congress can write new laws, but the courts
   seem to believe they have the power to overrule anything less than a
   Constitutional amendment. Our system of government, which is supposed
   to be by the people and for the people, is everyday slipping more into
   government by the lawyers and for the lawyers.

References

   1. http://www.nytimes.com/2006/08/23/opinion/23althouse.html?ex=1313985600&en=a1275476a0b0b0ea&ei=5090&partner=rssuserland&emc=rss