Executive Power and Breathing Space for Liberty

JURIST Contributing Editor Peter Shane of Moritz College of Law, Ohio State University, says that the Bush Administration's apparent lack of respect for norms of constitutional governance is more troubling than any breaches of technical law in either the NSA domestic surveillance program or the more recent FBI search of Rep. William Jefferson's congressional office...



Even more disturbing than the particular assertions of executive power embodied in the NSA surveillance scandal and the May 20-21 FBI search of the legislative offices of Rep. William Jefferson (D-LA) is what the two episodes reveal about how the Bush Administration thinks about the Constitution and about American freedom.

What the Administration does not understand is that effective governance depends not just on laws, but on norms - informal understandings that constrain behavior in order to help people and institutions achieve the benefits of ordered liberty.

Among neighbors, the point is obvious. Every property owner is protected by a set of technical legal rules that prohibit various forms of nuisance and intrusion. But no one thinks it is neighborly to be every bit as noisy, intrusive, and inconsiderate as the law permits. In order to achieve the peace and mutual enjoyment that is the essence of domestic tranquility, we learn to be quieter and more accommodating than we are technically compelled to be. We don't just obey the law. We follow the norms of good neighbors.

From the perspective of norms, the technical legality or illegality of NSA surveillance is almost beside the point. That is because, legal or illegal, such surveillance is a profound threat to freedom, virtually unprecedented in American history.

The point is perhaps easier to see if we think about a low-tech analogy, namely, the post office. Legally, none of us has an enforceable interest in privacy in what we write on the outside of our envelopes. If I am a suspected smuggler and postal inspectors write down the addressees of every parcel that carries my return address, my legal rights have not been violated.

It would follow, according to the Bush Administration's way of thinking about the NSA, that I would also have nothing to complain about should the Post Office decide to organize a database that records the addresses and return addresses on every piece of mail that any American sends anywhere. If reading the outside of one carefully targeted envelope is permissible, so is reading them all.

There is room for debate about whether such a database would be legal. What would be unmistakable, however, is that such data gathering would embody a fundamental breach in a norm of government respect for personal autonomy that we have always thought central to the American conception of freedom.

An America in which ordinary citizens have their mail "surveilled" would be a different America from the country in which virtually all of us think we live. Our freedom would be lost not because a law was broken, but because of the breakdown in respect for the norms of liberty and government self-restraint. This is precisely what is at stake in the case of NSA surveillance, as well.

The May 20-21 FBI search of the legislative offices of Rep. William Jefferson (D-LA) is disturbing for much the same reason. It reflects yet another distressing erosion in the norms of constitutional governance that have helped sustain American liberty for over 200 years.

Whether the search technically violated the so-called Speech and Debate Clause of Article I, section 6 of the U.S. Constitution is not clear. But it certainly violates its spirit.

The framers of the Constitution gave us a government of checks and balances, and of separated powers, in order to protect us from tyranny. The drafters of the Speech and Debate Clause realized that our liberty depends upon having a legislative branch co-equal in authority to the President and the courts.

Yet, Senators and Representatives could not function effectively as a co-equal branch of government if they were subject to being policed by the executive and judiciary in the conduct of legislative business. Seen in that light, it can hardly be doubted that the prospect of executive branch searches threatens the ideal of legislative independence with which congressional offices were supposed to be administered. The FBI may not have interfered directly in Rep. Jefferson's discharge of his duties, but the danger to all legislators is now patent.

If America is to survive as a free society, it is not enough that our Constitution and statutes set precise limits on executive, legislative, and judicial power. There must be a deep understanding by all public officials that freedom, like neighborliness, needs breathing space around law's precise boundaries. Our constitutional system cannot hope to achieve its intended virtues if every branch of government pushes its technical powers to their logical limit.


Peter M. Shane is the Joseph S. Platt - Porter, Wright, Morris & Arthur Professor of Law and Director of the Center for Interdisciplinary Law and Policy Studies at the Ohio State University's Moritz College of Law


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