Category Archives: The Constitution

Where’s It Written?

 

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This morning I picked up my Wall Street Journal and read the following quote from a college classmate, former Watergate Special Prosecutor, and long-time Democratic Party mouthpiece – Richard Ben-Veniste:  “The president of the United States should not be involving himself in an ongoing investigation by soliciting details about that investigation from the head of the investigative agency. That’s just not the way the system is supposed to work.”  The head of the investigative agency is, as you probably know, the now ex- FBI director James Comey, and the president is you-know-who. I am certainly not an expert on this (and I welcome corrections from anyone out there who is), but I would like to know where it’s written that the president is forbidden to do that? Ben-Veniste would have been on firmer ground if he had said: The head of an investigative agency should never hold press conferences where he exonerates or indicts anyone. That responsibility belongs to prosecutors (the Attorney General), not investigators (the FBI).

I am constantly amazed by the definitive statements people (many of whom should know better) make about what’s legal or illegal, what’s a rule violation and what isn’t, and what’s constitutional and what’s not. One example is the popular belief that the missile strike on Syria was either illegal or unconstitutional because Congress didn’t approve it. The Constitution is not very clear on this, perhaps purposely. Yes, Congress has the power to declare war, but there have been only 11 formal declarations of war and more than 20 undeclared wars and military actions, including the Korean War (37,000 plus Americans killed) and the Vietnam War. The last formally declared war was World War II. There is the post-Vietnam War Powers Act in which Congress tried to limit the president’s power to make war, but that too would have allowed the strike on Syria, and besides, most presidents purportedly limited by the law have declared it unconstitutional and intimated that they would ignore its restrictions if they felt it necessary.

The only way to settle this difference of opinion between the president and Congress is to take it to the Supreme Court. To my knowledge, no such cases have gone to The Court. The reason is that neither side wants to risk the chance of losing, for the losing side would lose the power it believed it had. Both branches are afraid of a clear decision on the issue.

I also doubt that the Supreme Court would want to make a clear, definitive ruling on such a crucial constitutional issue. The Court sometimes hands down rulings with loopholes and a modicum of room for “interpretation.” For example, the Court has refused to decide unequivocally whether “affirmative action,” aka, racial quotas, is constitutional or not. The Justices know that racial discrimination is definitely unconstitutional, so they have ruled that race alone cannot be used by university admissions people. That word alone allows universities to make up other excuses for what is plainly racial discrimination.

And so the universities created the diversity standard; An important mission of the university is to insure a diverse student body. But there are many different kinds of diversity: class, ideological, religious, ethnic, and geographical. But the truth is that the universities want more blacks and Hispanics and thus fewer “whites” (Polish, Italian, Irish, Jewish etc.) and Asians (Koreans, Chinese, Vietnamese etc.). And the Supreme Court ruled that diversity (without defining it) is a “compelling interest” of the university, so affirmative action apparently will live forever, thanks to The Court’s equivocal, politically motivated rulings.

If the president’s war powers issue ever goes to the Supreme Court, it would be entirely predictable that The Court would hand down the same kind of unclear, compromise  ruling and the struggle between the executive and legislative branches would continue. Nothing would be settled.

So when you read or hear that a political issue is “written,” always ask- where?