GOLDSMITH ON "ORIGINAL INTENT"

Jack Goldsmith is a Professor of Law at Harvard and was a legal counsel in the Bush Administration. He has an interesting article in The New Republic about Presidential power and includes a brief rebuttal of the wingers insistence on interpreting the Constitution only for original intent.

Consider the famous debate in 1793 over the legality of George Washington’s unilateral proclamation of American neutrality in the ongoing European wars. Hamilton, writing as Pacificus, supported the proclamation based on a broad reading of the president’s “Executive power.” He also argued that the president’s authority to execute, and thus to interpret, treaties gave him the power to determine whether the United States was at war or at peace. Madison, writing as Helvidius, took issue with both points and accused Hamilton of trying to incorporate British royal prerogatives into the Constitution that had stripped the executive of the king’s power to determine war and peace. Within six years after they co-authored The Federalist Papers and five years after the Constitution was ratified, Madison and Hamilton sharply disagreed, each with plausible arguments, about what the Constitution says about a simple question of presidential power. The text and the original understanding of the eighteenth-century Constitution, taken alone, are less sure guides to presidential power in our very different world.