No doubt that it is the duty of judges to say what they believe the law is, but that does not mean they are the only ones - juries have their role to play.
Presidential power scholar Stephen Knott discusses in this latest edition of Liberty Law Talk his book Rush to Judgment: George W. Bush, the War on Terror, and His Critics, recently released in paperback form by University Press of Kansas. Knott has a point in this book. He argues convincingly that the vituperative critics of George W. Bush’s use of executive power, in many instances, were willfully ignorant of the historical use of these powers. Past presidents, ranging from George Washington, Thomas Jefferson, James Madison, Abraham Lincoln and certain presidents in the twentieth century, defended and exercised powers similar to those employed by the Bush administration. But that, of course, raises deeper questions about the use of executive power in a republic that is governed by a written constitution.
A portion of this interview looks into those historical claims, but we also compare this use of power with the expectations of the Founders regarding executive power. In particular, their experience with crown prerogative shaped how they sought to limit such powers in the new Constitution. How does such an understanding square with much of our contemporary constitutional thinking and the precedents set by past presidential administrations? Finally, we consider the arguments made by Jack Goldsmith while he was head of the Office of Legal Counsel (October 2003 to June 2004), who contended some of the most striking actions taken by the Bush administration in the War on Terror were unconstitutional.