07/18/2006 08:58 pm ET Updated May 25, 2011

The Erosion of American Constitutional Principle

When Benjamin Franklin told a friend/stranger/passerby that he and his fellow nation-builders had given the country "a republic, if you can keep it" (the story may be fiction but the point is dead-on), this is what he had in mind: not that America would be overwhelmed by alien invaders, though that was certainly a possibility, but that well-meaning people might nibble and chew at the edges of the Constitution until its protections were frayed and the system destroyed, much to the surprise of those who had not even noticed the document's gradual destruction.

Franklin's admonition came to mind after I published an article in The Nation in which I expressed (with considerable restraint, I thought) my alarm at the broad assertions of presidential authority emanating from the current White House, focusing primarily on the President's use of a rhetorical device known as the presidential signing statement, a relatively innocuous tradition which has, in this President's hands, been transformed into a dagger ripping at the heart of America's central governing principle: separated (and thus constrained) power.

Just to bring everybody up to date: President Bush has issued more signing statements (that is, he has challenged, and hinted that he might not obey) more provisions of more laws than all 42 of America's previous presidents combined. He has used these statements not merely to express his opinions regarding legislation presented to him for his signature, but also to suggest that he does not feel bound to obey the bills he has just signed into law. And under his view of a "unitary executive" -- all federal departments and agencies are de facto extensions of the President's own corporeal being ("l'etat c'est moi"), one may assume that if the President does not feel bound by the laws he signs, government agencies (i.e., his agencies) are not bound by those laws, either.

(These concerns might have been addressed had the President vetoed the legislation he found objectionable -- if he thought the bills were actually unconstitutional, as he has sometimes suggested, he was required by his oath of office to veto them -- but the President and his legal team knew that if they vetoed bills, the Congress mightly simply override his vetoes, which is the authority granted the Congress by the Constitution. Or he might have found himself in an unresolved conflict with the Congress which could lead the Courts to decide that, President or not, he was simply wrong. Better to just sign the bills, thereby preventing the possibility of challenge, and then simply ignore the law.)

Back to Benjamin Franklin's point: In response to the essay in which I expressed these concerns, I received an email from a well-known Washington attorney who challenged me to cite a single instance in which the President had, in fact, refused to obey a law he had signed into being. Here's a straightforward answer: no, I don't know of any law the President has signed into existence and which he is currently refusing to enforce. That doesn't mean there's no such instance, of course, because much of what the current Administration does is done in secrecy, as we have learned, one shock at a time, over many months. The President deliberately ignored the requirement that security-related wiretapping of U.S. citizens be authorized by court order, but that was legislation signed into law by a previous President; it's an example of presidential lawbreaking but not specifically of lawbreaking by use of a signing statement.

But my questioner misses the point -- my point and Franklin's. When one branch of government claims authority not assigned to it by the Constitution, and the other branches fail to challenge that assertion of expanded power, a precedent is set which worms its way into both the law and the public consciousness. The best-known example, of course, is the Supreme Court's early assertion of its right -- found nowhere in the Constitution -- to be the final arbiter of what is, and is not, constitutional. But there are other examples as well, including numerous instances of presidents sending American troops into combat without first obtaining a constitutionally-mandated congressional declaration of war.

This is the nub of the matter. The problem is not merely presidential overreaching (self-aggrandizement is not a trait peculiar to this President alone), but acquiescence by those constitutionally obligated to maintain a check on presidential power. What my questioner failed to understand was that once one cedes a basic principle, its distortion, abuse, and ultimate abandonment are sure to follow. Shortsightedness is a dangerous thing in a system of mediated democracy, for it is the mediation -- the built-in checks, balances, constraints -- that are at the heart of the system, and to permit any branch of government to escape the oversight and challenge of peers is to invite disaster, if not with this President, then with another.

During the presidencies of Ronald Reagan and George H.W. Bush, Republican members of Congress, despite their avowed allegiance to the principle of strict constitutional construction, let their frustration at what appeared to be a permanent minority status in Congress, coupled with a seeming Republican stranglehold on the presidency, lead them to embrace the idea of a line-item veto which would essentially surrender the legislative branch's constitutional authority (and obligation) to shape federal spending and, thus, federal priorities. Some of us (a distinct minority, to be sure) warned that aside from the constitutional violation to which the proposal's sponsors seemed oblivious, there was a pragmatic reason not to transfer such authority over spending decisions to the White House. Hard as it was to believe at the time, we said, there might someday be a Democrat in the White House whose priorities might be quite different from those of congressional Republicans. But the Republicans had taken a position they could not easily back away from and when they finally did gain control of Congress and were able to pass the line-item veto, the President who gained this additional power was a Democrat who disagreed with every major element of the Republican agenda. If the courts had not been less willing than the Congress to ignore the Constitution, this shortsighted abandonment of principle would have almost surely come back to haunt the bill's sponsors.

That is precisely where we are today with George W. Bush and his signing statements. Even those who would defend his assertion of the right to ignore provisions of legislation he himself signs into law (generally because they agree with his approach to the ongoing "war on terror" or just share his general political outlook) have an obligation to join in the effort to rein in Mr. Bush's unprecedented expansion of presidential power. The authority this president claims would accrue not merely to himself but to the office of the presidency itself. And those who facilitate or acquiesce in this erosion of American constitutional principle will come to regret it.