[NYTr] History Doesn't Impeach, But It Will Judge

[All the News That Doesn't Fit]

Michael Moore.com - Aug 20, 2007
http://www.michaelmoore.com/mustread/index.php?id=908

History Doesn't Impeach, But It Will Judge

by Dan DeWalt

One of the more ridiculous utterances coming from the mouths of
Democrats who refuse to defend the Constitution and hold the Bush
administration accountable is that “History will impeach George Bush”
so they won’t have to. Vermont’s Peter Welch has trotted out this
phrase, but if he would take a moment to read some history, he would
understand that he has it exactly backwards.

Louis Fisher, citing the 1803 case of Stuart v. Laird in his American
Constitutional Law states: “The boundaries between the three branches
of government are also strongly affected by the role of custom and
acquiescence. When one branch engages in a certain practice and the
other branches acquiesce, the practice gains legitimacy and can fix the
meaning of the Constitution.”

In a 1952 ruling, the U.S. Supreme Court declared unconstitutional
President Truman’s attempt to take national control of steel mills in
order to avert a strike. When they wrote their opinions, the justices
took pains to explain how they came to their decisions. And one factor
which figured prominently was whether the Congress had taken action to
counter the President, or if they had acquiesced and allowed a
precedent to be set.

Justice Jackson, in his opinion concurring with the majority put it
this way: Therefore congressional inertia, indifference or quiescence
may sometimes, at least as a practical matter, enable, if not invite,
measures on independent presidential responsibility. In this area, any
actual test of power is likely to depend on the imperatives of events
and contemporary imponderables rather than on abstract theories of law.

Justice Frankfurter also addressed this issue in the same ruling: The
Constitution is a framework for government. Therefore the way the
framework has consistently operated fairly establishes that it has
operated according to its true nature. Deeply embedded traditional ways
of conducting government cannot supplant the Constitution or
legislation, but they give meaning to the words of a text or supply
them. It is an inadmissibly narrow conception of American
constitutional law to confine it to the words of the Constitution and
to disregard the gloss which life has written upon them. In short, a
systematic, unbroken, executive practice, long pursued to the knowledge
of the Congress and never before questioned, engaged in by Presidents
who have also sworn to uphold the Constitution, making as it were such
exercise of power part of the structure of our government, may be
treated as a gloss on "executive Power" vested in the President by
[sec.] 1 of Art. II.

Frankfurter also saw fit to include this warning: The accretion of
dangerous power does not come in a day. It does come, however slowly,
from the generative force of unchecked disregard of the restrictions
that fence in even the most disinterested assertion of authority.

Not only are Welch and his fellow travelers ignoring the Bush
administration’s crimes and constitutional over-reaching, they are
establishing a precedent of acquiescence that will make it even harder
for a future Congress with backbone (should that ever occur) to hold
the next runaway executive branch to account.

We are facing a severe perversion of our Democracy. The Republicans
have criminalized the executive branch. The Democrats, rather than
fighting to protect the Constitution (or represent the will of the
nation in ending the Iraq occupation), are willing actors in the drama
that is unfolding. Regaining power matters above all else. And they
have cynically decided that the best way to achieve power is to ride
the disintegration of the Bush administration to the bitter end,
reaping the political benefits and ignoring the “collateral damage” of
lives and constitutional damage that the next seventeen months will
bring.

History will judge, not impeach. And the Congress, as well as the
President will be condemned for leading the country down such a
disastrous and dishonorable path.

What will History have to say about the American people? Will we too be
condemned for our inaction? Or will we take action now and be the only
bright footnote in this dismal narrative?

[Dan DeWalt is a woodworker and selectboard member in the town of
Newfane, Vermont, and the author of a successful town resolution
calling for the impeachment of President Bush.]