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December 25, 2005

Cruel Intentions

By Jim Dallas

"Jeebus Alito's a fascist" is Atrios's response to this recent New York Times editorial which asserts, in part, that:

In a second memo released yesterday, Judge Alito made another bald proposal for grabbing power for the president. He said that when the president signed bills into law, he should make a "signing statement" about what the law means. By doing so, Judge Alito hoped the president could shift courts' focus away from "legislative intent" - a well-established part of interpreting the meaning of a statute - toward what he called "the President's intent."

In the memo, Judge Alito noted that one problem was the effect these signing statements would have on Congressional relations. They would "not be warmly welcomed by Congress," he predicted, because of the "novelty of the procedure" and "the potential increase of presidential power."

Frankly, Atrios is overreacting; even at its worst, consolidating power in the presidency is more monarchism than fascism (and I might as well say now that, while I disagree with Judge Alito and probably wouldn't vote to confirm if I were a senator, he's certainly smart, qualified, and not a fascist).

More importantly, though, I think that the discussion raised by Alito's memo is an important discussion that people (not just lawyers) ought to be having. I'll explain why below the fold.

I think most appellate judges - and not just conservative "originalists" - will tell you that looking at the intentions of the founding fathers and subsequent law-givers is an important undertaking when interpreting the Constitution or a statute. This is spurs from a common-law tendency to attempt to read documents as their authors meant them. At least until the 19th century contracts were interpreted (kindasorta) through the lens of subjective intent; the buzzword today is "objective intent". Wills are treated in a similar way. There is pretty much an agreement among most people that laws are not just made up on the spot.

But that's where the agreement breaks down, at least with statutes, because the question is - whose intent should matter? The bill author? The whole Congress? The mark-up committee? Legislative intent is difficult to figure out. Some judges - for example Justice Breyer - will give weight to conference committee reports, while others - for example Justice Scalia - won't. And so while there tends to be an agreement that intent matters, there are many different yardsticks for assessing it.

The New York Times reports that Judge Alito once preferred - and may still prefer - to give the President's interpretation weight. I presume this position is rooted in the logic that "the buck stops there." Rather than having 535 opinions to sort through, a presidentialist would only worry about one - the president's. Already, some folks will give at least a little weight to presidential signing statements. The controversy seems to be how much weight to give it.

I personally think that giving too much weight to the president would be a mistake - and not just because I have an instinctive pro-Congress bias (like most liberals, I think, when it comes down to questions of presidential versus congressional prerogative). The problem with relying on the president is that he (or she) doesn't have to give any opinions at all. Many presidents - like George W. Bush - are basically just rubber stamps, rarely ever vetoing bills, and often giving scarce attention to the contents of bills that reach his desk. To be sure, many members of Congress don't read the bills they vote on. But at least they're supposed to have an opinion (or intent) about them.

The reason why I say this is something everyone should consider is because it really is a question about who writes history. As Orwell wrote, he who controls the past controls the future. Ultimately, judges must decide which history (or histories) should be given controlling weight. All too often I think our current president has been willing to doctor history for political purposes (Members of congress do it too, I'll concede, but at least you get both sides of the story when reading the Congressional Record). Do you really want the judiciary relying heavily on politically-sanitized history? I don't.

Posted by Jim Dallas at December 25, 2005 12:53 PM | TrackBack


"I think most appellate judges - and not just conservative "originalists" - will tell you that looking at the intentions of the founding fathers and subsequent law-givers is an important undertaking when interpreting the Constitution or a statute. This is spurs from a common-law tendency to attempt to read documents as their authors meant them. At least until the 19th century contracts were interpreted (kindasorta) through the lens of subjective intent; the buzzword today is "objective intent". Wills are treated in a similar way. There is pretty much an agreement among most people that laws are not just made up on the spot."

I think the founding fathers would have been more "exacting" in their establishing a constitutional foundation had they known that the foundation they established would eventually be eroded by the "subjective versus objective" interpretations that followed. They instead trusted that a "higher good" would always prevail in a country where the basis of law was exact and guaranteed equality among other things under the law. Sadly, we have no such equality under the law and haven't had since they affixed their signatures.

My personal impression has always been that the Constitution was meant to be a "living document" by which its principles could be expanded as society itself expanded. Thomas Jefferson knew it would be scandalous had anyone known he had a "Negro" mistress with whom he had a son and that few if any would accept it. But you have to believe on some level that he hoped at some point they would. And if you believe that, you have to also believe that he was instrumental, if not insistent, in the wording of 9th Amendment. Just because the Constitution did not specifically grant certain protections and rights to some did not mean that the Constitution denied those protections and rights to anyone. And yet our courts have continued to maintain that it does.

The founding fathers wanted a constitional foundation that could be built upon as society changed. To include rather than exclude. The Republicans for the most part reject that premise in order to exclude. The Democrats for the most part reject anything other than that premise in order to include. For Republicans, equality for all is a narrow and limited "for all" while for Democrats, equality for all is just that.

This latest revelation about Alito's personal beliefs is alarming. Whether you want to call it monarchy, fascism, or oligarchy, it would narrow constitutional law even further and allow no room for interpretation whatsoever. There are some in Congress who would like Congress to have the right to overrule the Supreme Court. Having a president "define" the interpretation of law would only strengthen their ability to do so.

That is extremely alarming because it establishes an "authoritarian" right of a president to establish an "absolute" standard in law that the Constitution simply does not give a president.

We already have an Attorney General who believes the president has the right to ignore the Constitution and the protections and rights it guarantees. Do we really want a Supreme Court justice who believes in the same right of a president?

Law itself is absolute when framed by the Bill of Rights. The application of law, and the interpretation which allows the application, is not.

To grant a president the right to define the interpretation makes the law even less absolute and instead merely establishes an authoritarianism which the Constitution simply does not grant to the executive branch or to Congress and basically rescinds the constitutional right of the Supreme Court to rule on matters of constitutional law.

None of us can stop it. Only the Senate can and it is doubtful that the Senate will.

Posted by: Baby Snooks at December 25, 2005 02:21 PM

So is your idea of the "confirmable" Supreme Court justice one who uses international law as a guide to interpret our own laws (i.e. Ruth Bader ACLU Ginsberg)??
To this day, it baffles me how at least 85% of Republicans in the Senate voted for Ginsberg's confirmation, given the Democrats' current labeling of Alito as a "facist."

Posted by: Trey at December 25, 2005 10:22 PM

Like most Republicans, you don't believe international law applies to us. Only to everyone else. We are not the world. And because of the attitude that international law does not apply to us, we are becoming less a part of the world.

Of course most Republicans don't believe any law applies to them. So why would anyone expect that they would respect international law when they don't respect our own?

Maybe those Republicans who voted to confirm Ginsburg had a brief moment of reflection on what our founding fathers intended a Supreme Court justice to be and recognized her as a justice who would be open to consideration of our changing country as well as our changing world in her rulings as framed by not only the Constitution but what the founding fathers intended.

Posted by: Baby Snooks at December 25, 2005 10:36 PM

Baby Snooks-

International law doesn't apply to us, except for treaties which have been ratified by the US Senate. The highest law in this land is the Constitution, and if the Democratic Party seeks to commit itself to some other principle, count me out of the party.

It would not have been terribly scandalous for people to know that Jefferson slept with his slaves: many planters did. The scandalous thing would have been talking about it in polite company. Indeed, when talking about the sexual conduct of historical figures the analysis tends to reflect more on the mores of the historian than the figure him or herself. This is particularly true in cases such as this one, when the analyst is an amateur.


If you believe Alito to be "smart, qualified, and not a fascist" why would you not vote to confirm him? The president has appointment powers in order to allow him or her to implement his or her philosophy in the various branches of government: particularly the judiciary. The Senate has confirmation powers in order to make sure that the president doesn't appoint people who are unqualified or a threat to the Constitution and its ideals. It does not exist to substitute conservative theories for liberal ones or vice versa.


That is why the GOP voted to confirm Ginsburg, or at least I would hope so. Samuel Alito, as much as I disagree with him on issues such as the rights of the accused and executive powers is terrificially qualified and though passionate in his beliefs is well inside the mainstream of judicial thinking. The guy deserves to be confirmed: period.

Back to Jim-

Fascinating stuff, over all. I would of course agree with your interpretation of liberal versus conservative views of the powers of the executive and the legislative branches, which is why I am a liberal. I know I just made a big spiel in favor of broad presidential powers above, but this is a case where the Constitution grants the president such powers. In general, I would say that the Constitution clearly gives the legislative much of the initiative in governing. They control the purse strings, which really is all that matters at the end of the day. This terrific power made the founders terrified of the branch, but the limits they set on it were internal (splitting the branch into two bodies) and a rather limpwristed executive check in the form of vetoes which can be overridden. The executive has the power of appointment and its finger on the trigger of our military, but one is subject to legislative approval and the other still has to be paid for by Congress. The biggest advantage the executive has over other branches--the one that the founders saw as essential to the executive getting anything done in these constraints--is the fact that it is a single person: the president.

This, it seems, is where Alito's idea comes in and why it gives me pause. The fact of the matter is that Congress' greatest weakness is its division into a multitude of personalities: 535 members of Congress divided into dozens of committees and split among two (or at times, more) parties with hierarchies and fiefdoms that keep the average citizen in the dark about more than a few personalities. This is the result of the attempt to keep factions from destroying the country: if you have enough legislators nobody has enough votes to pass balkanized legislation. You have to build coalitions, which means that there are many reasons that Congress passed a law and many reasons why some voted against it. There are some laws, to be sure, that are very simple--but these are the ones that don't need a lot of jurisprudence to understand. At the end of the day the more complicated a law the more "intents" there are behind it and also the more likely it is to be subject to litigation.

But the president's power is in his or her singularity, in the unity of the office. The president may have multiple reasons for signing or vetoing a piece of legislation, but these statements that Alito supported still puts all the ideas in one simple location. On the legislative end, the various "intents" could be scattered in literally hundreds of statements and arguments, and many are certain to have not been preserved. For those seeking to find legislative intent, it seems they would find it easiest and most often in the words of the president, which would usurp not a delineated power of the legislature, but indeed the spirit of legislative power.

What would the result of this all be? It is hard to say, but I believe that at the minimum it would contribute to the already positively unstoppable trend of history and government being interpreted as solely a string of presidents to the detriment of any study of legislative history or process. The result of this is that same Orwellian maxim: who controls the past, controls the future. The place of the legislature continues to fade until the very initiative that the Constitution seeks to put in the hands of the legislature works its way into the hands of the executive, the balance of power is finally tipped and all sorts of mischeif can arise. I think that Alito's suggestion (which came while he was in the employ of the cheif executive, and fulfilled the founders' understanding that each office would seek its own self-interest) is a bad one, but not fascistic, nor monarchistic but rather just plain ol' conservativism. This doesn't disqualify Alito from the bench.

Posted by: Andrew Dobbs at December 26, 2005 03:14 AM

"This is particularly true in cases such as this one, when the analyst is an amateur."

I forgot that you are a noted historian and political analyst.

"International law doesn't apply to us, except for treaties which have been ratified by the US Senate."

What I was referring to was international law we have agreed to respect and abide by and no longer do.

Your comments would indicate you believe we stand alone and above everyone else in the world. That mirrors the very attitude I was referring to.

Posted by: Baby Snooks at December 26, 2005 09:15 AM


Not to be too picky, but the Appointment Power is a joint power with the Senate. The President has the sole power to nominate, but the actual appointment power is a shared power. An nuanced, but important distinction.

Posted by: Craig at December 26, 2005 11:17 AM
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