Executive Privilege: A "Right Of Privacy" Not in the Constitution; And A Comment On Pardons

The general argument for Executive Privilege is that the President has what amounts to a "right of privacy" to discussions that occur with his subordinates and others that may give him advice. Although not in the Constitution, the Courts (the wicked "activists") have found that privilege, under certain circumstances, to be part of the Executive's needs to carry out its functions.

Although almost every Administration has argued for such a privilege, it is curious when those asserting it simultaneously deny the right to privacy that underpins the Roe v. Wade decision. In Griswold v Connecticut, the Supreme Court held that it was a violation of a married couple's privacy to forbid them from using contraceptives, based on the 9th Amendment (rights not otherwise enumerated reserved to the people) and the assertion that the Due Process Clause of the 14th Amendment provided individuals a continuum of rights. While the radical rightwing has never found practising the most rank hypocrisy either troubling or shameful, the case for the right of privacy for the Executive arising from the "emanations and penumbras" of the Constitution is considerably weaker than the personal right to privacy that they have challenged continuously.

The Constition was, we should remember, created by "we, the people". Hence, ANY privilege that any branch of government asserts that is not in the Constitution, or in a statute itself, can only be justified by arguing that it is of benefit to the people, not that is is beneficial to "the President".

By contrast the right of privacy for an individual goes directly to the people. Hence, finding implicit in the 9th Amendment a right to be free of government interference in using condoms (Griswold v. Connecticut, the case prior to Roe on the right to privacy) more clearly arises from the Constitution than does Executive Privilege. As Justice Harlan wrote in Poe v. Ullman, "the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."

Moreover, the right of privacy called Executive Privilege should extend no further than what actually DOES benefit the people; and, when there are benefits and harms, those must be weighed. Does shielding Karl Rove's involvement in the firings of the US Attorneys provide a clear benefit to the people? Does shielding the considerations that went in to the Scooter Libby commutation?

Bush, Cheney, et al. are looking to their Supreme Court appointees to uphold the right to privacy of the Executive, a right not found written in the Constitution. Strict constructionists ought to find this very troubling, and certainly more troubling than the right to privacy for individuals. Of course, they will not--they will write about the Presidency as if it had "rights" apart from those that clearly benefit the people. And, when a challenge to Roe reaches their desk, they will wring their hands in horror that a right to privacy, that goes directly to the people, has been found in precedents.

A word on the clemency power---let us face it, the last three Presidents (two Bushes and a Clinton) have abused it. The remedy--a Constitutional Amendment that would fly through the Congress and Legislatures that limited that power a) to February through October so that it cannot be abused without political consequences; and b) by excluding from its purview anyone who is, or who has ever, served that President or Vice-President during their term of office. While they are at it, the amendment could include a specific limitation on Executive Privilege.

Together, these measures would make people think twice before they ran roughshod over individual rights, violated the Constitution, or lied to the American people. As Scooter showed, jail is a potent deterrent.