Sunday, July 16, 2006

Professor Spicoli

Who's smarter: stoner Jeff Spicoli from Fast Times at Ridgemont High or Stanford law professor and presidential sycophant John Yoo?

Well, Yoo's take on history is basically that when the Founding Fathers wrote the Constitution they intended to give the President essentially the same power as the king of England had to make war. Forget the Congress, forget the people, when the Constitution said the President is commander in chief that means he gets to do whatever he wants, no questions asked, no check on his power. Why? Because when they were writing the Constitution they envisioned an executive with the same power as the English king.

Spicoli has another take on it: So what Jefferson was saying was "Hey! You know, we left this England place because it was bogus. So if we don't get some cool rules ourselves, pronto, we'll just be bogus too." Yeah?

Here's what legal scholar Cass Sunstein says about the question: Speaking of monarchs: Yoo emphasizes Blackstone and British practice, arguing that the United States closely followed the British model, in which the executive--the king!--was able to make war on his own. But not so fast. There is specific evidence that the British model was rejected. Just three years after ratification Wilson wrote, with unambiguous disapproval, that "in England, the king has the sole prerogative of making war." Wilson contrasted the United States, where the power "of making war and peace" is in the legislature. Early presidents spoke in similar terms. Facing attacks from Indian tribes along the western frontier, George Washington, whose views on presidential power over war deserve special respect, observed: "The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated on the subject, and authorized such a measure." As president, both Thomas Jefferson and John Adams expressed similar views. In his influential Commentaries, written in 1826, James Kent wrote that "war cannot lawfully be commenced on the part of the United States, without an act of Congress."

So again, my question is, who's smarter, Yoo or Spicoli?


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