My Debate With John Yoo, Who Misunderstands the Constitution

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The Bush-administration lawyer and advocate of virtually unlimited executive power in war dismisses as "simpleminded" concerns he once shared

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John Yoo is the Bush-administration lawyer best known for his expansive view of what the president is empowered to do in wartime (he thinks, for example, that crushing the testicles of an innocent child might be legal, depending on the circumstances). On Ricochet, an enjoyable right-leaning forum for conversation, we occasionally cross paths. And he has just responded to my argument that Tea Partiers are typically inconsistent in their embrace of "constitutional conservatism."

Put simply, I think Tea Partiers are strict constructionists when it comes to domestic affairs, but ready to concede extreme powers to the executive branch so long as it's in the name of fighting terrorism. (Or the War on Drugs. Or gangs. Or mosques near Ground Zero.) Here's the short excerpt from my piece that Prof. Yoo was read by the capable host of a Ricochet podcast:

Establishment conservatives and Tea Partiers alike are more likely than not to defend Dick Cheney, David Addington, the Patriot Act, the indefinite detention of American citizens, stripping the judiciary of its power, presidential assassinations of American citizens, and all the rest. Many of these people claim to be constitutional conservatives, but are ardent about that disposition only in domestic affairs. If national security, police powers, or foreign affairs are implicated, they are constitutional conservatives in name only, blind to executive branch excesses corrosive to individual liberty and often even to the constitution itself.

Said the host: "What do you say to a guy like Conor who says, 'You can't have it both ways. Unchecked power is unchecked power. It's going to erode individual freedom.'"

John Yoo's response:

Well I think he suffers from the same fallacy that Ron Paul suffers from, which is, well, because you have to have a limited executive in domestic affairs, that means you have to have an identically limited executive in foreign affairs. And I think that's just simplemindedly wrong, because if you look at the Constitution ... the executive power in foreign affairs is broader, it's just a question of how much broader than it is in domestic affairs. One could go through a lot of this. You could look at the text of the Constitution. But to me the most important thing is if you go back and look at the Federalist papers. And the reason that the Framers put the presidency into the Constitution to start with, it was because the presidency should be there to respond quickly and decisively and speedily to unforeseen circumstances, and they would say clearly, the area where we expect this to happen most would be in foreign affairs.

This is a strange way to frame the disagreement. Is anyone arguing that the president's foreign and domestic powers need to be "identically" expansive or limited? How would one even compare vetoing legislation versus executing laws versus being the commander in chief? Perhaps a unit of presidential power called the Yoo could be created to make  comparisons?

My concern isn't whether or not foreign affairs confers a disproportionate number of Yoos on the president. It is that some conservatives are happy to ignore specific limitations the Constitution itself imposes on the presidency. The Constitution gives to the legislative branch the power "to declare war," the power "to raise and support armies," the power "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Anticipating the problem of U.S. citizens joining up with enemies of the nation, the Constitution defines treason and lays out the specific protocol through which American citizens can be found guilty of it.

And the Constitution's larger logic isn't just to divvy up who does what: it is to check and balance each branch. Despite that fact, Yoo derives his expansive view of a virtually unchecked executive in war from the following passage: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." In this way, he is much like the liberals, routinely denounced by "constitutional conservatives," who find the commerce clause permits most anything, and that the Constitution contains a right to privacy that covers abortion, but not smoking marijuana cigarettes in one's home, or selling one's kidney, or not buying health insurance, which requires giving private corporations a detailed account of one's medical history. They too cite precedent and practical need in an attempt to justify their position. Unlike the Tea Party, they don't claim to being strict constructionists, originalists, or "constitutional conservatives." They argue that the Constitution is a living, breathing document. "Constitutional conservatives" ridicule them for it, but don't ridicule Yoo for stretching the document as far.  

The Constitution also limits every branch of the federal government. For example, the Bill of Rights recognizes certain specific rights that every American possesses. Most relevant are these:

  • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 
  • No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  • In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
  • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

When Yoo says that "the reason that the Framers put the presidency into the Constitution to start with, it was because the presidency should be there to respond quickly and decisively and speedily to unforeseen circumstances," he acts as if that somehow magically disappears all the actual checks on the executive branch, whether imposed by other branches or the Bill of Rights.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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