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A Wunnerful, Wunnerful Constitution, John Yoo Notwithstanding
By: Mary Maxwell, Ph.D.
At the Law School graduation at Berkley in 2004, a quarter of the graduates sported red armbands to express disapproval of their professor, John Yoo, in relation to his support of torture. Perhaps next year the students will signify their disapproval of Professor Yoo’s assault on the Constitution.
During John Ashcroft’s tenure as US Attorney General, Yoo was an assistant in his office. Ashcroft and Yoo have spoken with one voice on the subject of executive power. Without a tinge of embarrassment they proclaim not only that the president can do as he wishes, but also that the Constitution supports this! In a recent publication, John Yoo has given this idiosyncratic doctrine a name. He calls it, not surprisingly, the Yoo Doctrine.
A better name might be the Fuehrer Principle. At Nuremberg in 1946, some German soldiers defended themselves at the International Military Tribunal by saying they had not been free to obey their consciences; they had to obey the Fuehrer (their leader) under the Fuehrerprinzip. The authority of the fuehrer was unchallengeable by law and not subject to any checks and balances.
When our Founding Fathers began their work in Philadelphia in June of 1787, they had no illusions. They knew it was their task to come up with a form of government that must, on the one hand, strengthen the federal union and, on the other hand, deliberately construct obstacles to tyranny. During the years since 1776, the 13 former colonies had been held together by the Articles of Confederation – a union that would be too weak to withstand enemies and economic rivals. Hence, the Founding Fathers wrote, “We the people…in Order to form a more perfect Union…and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.