Opening
Statement of U.S. Senator Russ Feingold
Hearing on “Restoring the Rule of Law”
Senate Judiciary Committee, Subcommittee on the Constitution
As
Prepared For Delivery
September 16, 2008
“Tomorrow,
September 17, is the 221st anniversary of the day in 1787 when 39 members
of the Constitutional Convention signed the Constitution in Philadelphia.
It is a sad fact as we approach that anniversary that for the past seven
and a half years, and especially since 9/11, the Bush Administration
has treated the Constitution and the rule of law with a disrespect never
before seen in the history of this country. By now, the public can be
excused for being almost numb to new revelations of government wrongdoing
and overreaching. The catalogue is breathtaking, even when immensely
complicated and far reaching programs and events are reduced to simple
catch phrases: torture, Guantanamo, ignoring the Geneva Conventions,
warrantless wiretapping, data mining, destruction of emails, U.S. Attorney
firings, stonewalling of congressional oversight, abuse of the state
secrets doctrine and executive privilege, secret abrogation of executive
orders, signing statements. This is a shameful legacy that will haunt
our country for years to come.
“There can
be no dispute that the rule of law is central to our democracy and our
system of government. But what does ‘the rule of law’ really
mean? Well, as Thomas Paine said in 1776: ‘In America, the law
is king.’ That, of course, was a truly revolutionary concept at
a time when the King, quite literally, was the law.
“Over 200
years later, we still must struggle to fulfill Paine’s simply
stated vision. It is not always easy, nor is it something that once
done need not be carefully maintained. Justice Frankfurter wrote that
law:
is an enveloping
and permeating habituation of behavior, reflecting the counsels of
reason on the part of those entrusted with power in reconciling the
pressures of conflicting interests. Once we conceive ‘the rule
of law’ as embracing the whole range of presuppositions on which
government is conducted . . ., the relevant question is not, has it
been achieved, but, is it conscientiously and systematically pursued.
“The post-September
11th period is not, of course, the first time that events have caused
great stress for the checks and balances of our system of government.
As Berkeley law professors Daniel Farber and Anne Joseph O’Connell
write in testimony submitted for this hearing: ‘The greatest constitutional
crisis in our history came with the Civil War, which tested the nature
of the Union, the scope of presidential power, and the extent of liberty
that can survive in war time.’ But as legal scholar Louis Fisher
of the Library of Congress describes in his testimony, President Lincoln
pursued a much different approach than our current President when he
believed he needed to act in an extra-constitutional manner to save
the Union. He acted openly, and sought Congress’s participation
and ultimately approval of his actions. According to Dr. Fisher:
[Lincoln] took
actions we are all familiar with, including withdrawing funds from
the Treasury without an appropriation, calling up the troops, placing
a blockade on the South, and suspending the writ of habeas corpus.
In ordering those actions, Lincoln never claimed to be acting legally
or constitutionally and never argued that Article II somehow allowed
him to do what he did. Instead, Lincoln admitted to exceeding the
constitutional boundaries of his office and therefore needed the sanction
of Congress…. He recognized that the superior lawmaking body
was Congress, not the President.
“Each era
brings its own challenges to the conscientious and systematic pursuit
of the rule of law. How the leaders of our government respond to those
challenges at the time they occur is, of course, critical. But recognizing
that leaders do not always perform perfectly, that not every President
is an Abraham Lincoln, the years that follow a crisis are perhaps even
more important. And soon, this Administration will be over. So the obvious
question is: ‘Where do we go from here?’ I believe that
one of the most important things that the next President must do, whoever
he may be, is take immediate and concrete steps to restore the rule
of law in this country. He must make sure that the excesses of this
Administration don’t become so ingrained in our system that they
change the very notion of what the law is.
“That, of
course, is much easier said than done. It’s not simply a matter
of a new President saying, ‘Ok, I won’t do that anymore.’
This President’s transgressions are so deep and the damage to
our system of government so extensive that a concerted effort from the
executive and legislative branches will be needed. And that means the
new President will, in some respects, have to go against his institutional
interests.
“That is
why I called this hearing – to hear from legal and historical
experts on how the next President should go about tackling the wreckage
that this President will leave. I’ve asked our two panels of experts
who will testify to be forward-looking – to not only review what
has gone wrong in the past seven or eight years, but to address very
specifically what needs to be set right starting next year and how to
go about doing it.
“In addition
to the testimony of the witnesses here today, I solicited written testimony
from advocates, law professors, historians and other experts. So far
we have received nearly two dozen submissions from a host of national
groups and distinguished individuals. I want to thank each and every
person who made the effort to prepare testimony for this hearing. You
have done the country a real service.
“All of this
testimony will be included in the written record of the hearing, which
I plan to present to the incoming Administration. The submissions we
have received so far can be seen on my website at feingold.senate.gov.
I hope that many of these recommendations, along with the testimony
we will hear today, will serve as a blueprint for the new President
so that he can get started right away on this immense and extremely
important job of restoring the rule of law.” |
