Do as I say, not as I do

I find it remarkable that those who love to crow about "original intent" are so willing to trample on provisions of the constitution that so clearly reflect their intent. Nowhere is that more true than in the case of the 4th Amendment, which grew out of colonial anger at the British practice of using "general warrants" for searches. These general warrants could be issued on mere suspicions and allowed blanket, door-to-door searches of entire neighborhoods and of any person, any place at any time. That is why the 4th amendment begins with the presumption that searches are unlawful unless carried out within carefully defined parameters. The usage of an "inherent" authority to override one of the protections resulting from one of the main colonial grievances would certainly be offensive to the framers.

 

We have a Supreme Court precedent addressing the extent of inherent authority and congressional restrictions, the 1952 Youngstown Sheet & Tube Co. v. Sawyer decision. Under a claim of inherent authority, Harry Truman ordered steel mills to be seized to avoid a strike during the Korean War. Truman lost. Black's majority opinion is rather perfunctory, but there are some brilliant concurrences. Frankfurter wrote that "absence of authority in the President to deal with a crisis does not imply want of power in the Government. Conversely the fact that power exists in the Government does not vest it in the President. The need for new legislation does not enact it. Nor does it repeal or amend existing law. No authority that has since been given to the President can by any fair process of statutory construction be deemed to withdraw the restriction or change the will of Congress as expressed by a body of enactments."

Douglas adds that "If we sanctioned the present exercise of power by the President, we would be expanding Article II of the Constitution and rewriting it to suit the political conveniences of the present emergency. Article II which vests the "executive Power" in the President defines that power with particularity. Article II, Section 2 makes the Chief Executive the Commander in Chief of the Army and Navy. But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs."

Perhaps most telling is the thoughtful reflection of Justice Jackson, who wrote that "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. …..When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

 

And then of course, let us look back yet another generation to the eloquence of Justice Louis D. Brandeis, dissenting in Olmstead v. United States (1928), where he stated "Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them on any subject, and although proper, confidential, and privileged, may be overheard. . . .The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the one most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."