Glenn Greenwald has a good post (via Sullivan) on the absurdities of Bush’s speech to the Federalist Society, but I think he still doesn’t go quite far enough. It is ridiculous that this President delivered remarks about the co-equal branches of government and the theory of checks and balances, given everything he has done to usurp new powers for the executive branch and run roughshod over the limitations placed on his office. Yes, it’s shameless and almost unbelievable.
But this is nothing new. His nods to strict constructionism have always been entirely cynical, and he has never demonstrated in the conduct of his own administration or in his handling of legislation that he believes this in the least. This speech is pure pandering to the people at the Federalist Society, and serves as a convenient way to maintain the fiction that Bush-style “conservatives” respect the Constitution. This allows most Republicans to pretend that the leaders of their party are still substantially better than and different from their Democratic counterparts on questions of constitutional interpretation and the judiciary, which are some of the last things that are supposed to hold the coalition together. Without this fiction, anyone on the right remotely interested in constitutionalism would be forced to judge the two parties based on what they have done (at least recently), which would not give the GOP a very good reputation. This fiction also lends a patina of respectability to what has become a prolonged episode of “executive tyranny” every bit as harmful to our institutions and form of government as the judicial tyranny against which conservatives have (correctly) railed in the past.
Giuliani is playing the same game now during the campaign, telling people that he will appoint strict constructionists and oppose judicial activism and all the rest. This is seen mainly as a way to placate social conservatives, but it should be understood as an attempted deception of anyone on the right who still attaches some importance to constitutionalism. Should he somehow be elected (God forbid), he will continue the same dual-track approach to the Constitution, mouthing Jeffersonian phrases and insisting on enumerated powers in the morning and embracing the most abusive policies possible under the President’s supposed (non-existent) “inherent powers” as “Commander-in-Chief” in the afternoon. There is something slightly less disturbing about an out-and-out believer in the “living Constitution,” since we can be confident from the beginning that he will twist and warp the fundamental law to whatever end he so desires. This false front of strict constructionist fidelity allows Bush and others including Giuliani to continue to exploit resentment over judicial activism and usurpation when it is done by the left, all the while merrily subverting civil liberties, separation of powers and constitutional limits on presidential authority. It is a rhetorical tactic used to keep conservatives afraid of the left while engaging in abuses of the Constitution that, were they committed by liberals, would have these same people calling for impeachment and a rejection of consolidated power.