JOHN YOO: NOT QUITE AN ORIGINALIST

I see that today John Yoo has an 1,126-word Wall Street Journal op-ed in which he defends warrantless wiretapping as constitutionally permissible...

Our Constitution created a presidency whose function is to protect the nation from attack.

... without even once quoting a single word of the Constitution.

Goodness me -- what would Antonia Antonin Scalia say?

(Yoo does cite a couple of Supreme Court decisions -- one of which he praises FDR for ignoring -- and the War Powers Act -- which he also says presidents are right to ignore. Real rule-of-law guy, that Yoo.)

****

The closest Yoo gets to the Constitution itself is in a paragraph quoting the Federalist Papers -- Alexander Hamilton in Federalist #23 and #70. I'm wading in way over my head here, but I don't think Hamilton means what Yoo thinks he means.

Yoo:

The power to protect the nation, said Alexander Hamilton in the Federalist, "ought to exist without limitation," because "it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them."

The quoted words are in Federalist #23 -- but it's not correct to say that Hamilton argues for a complete lack of limits on the government in the foreign-policy realm. Hamilton is specific:

The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation....

No, everything in foreign policy shouldn't be "without limitation." And he's talking here, by the way, about the federal government as a whole, not just the Executive Branch.

Federalist #23 isn't about protecting the Executive Branch from pesky legislators -- it's about creating a system in which states are less powerful in this area, and the federal government more powerful:

...if we are in earnest about giving the Union energy and duration we must abandon the vain project of legislating upon the States in their collective capacities; we must extend the laws of the federal government to the individual citizens of America; we must discard the fallacious scheme of quotas and requisitions as equally impracticable and unjust. The result from all this is that the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues, which will be required for the formation and support of an army and navy in the customary and ordinary modes practiced in other governments.

****

Yoo continues:

To limit the president's constitutional power to protect the nation from foreign threats is simply foolhardy. Hamilton observed that "decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number." "Energy in the executive," he reiterated, "is essential to the protection of the community against foreign attacks."

That's all in Federalist #70 -- but Hamilton is discussing whether we should have one president, i.e., one executive, rather than, say, "the two consuls of Rome," or an executive with "counselors" who have veto power over his executive acts. But Hamilton isn't saying we toss out legislating altogether. Here's what he writes (emphasis added):

Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justness of their views have declared in favor of a single executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand; while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.

So, um, yeah -- according to Hamilton, legislators should legislate. Protecting innocent Americans from warrantless government intrusions on their privacy would, I think, be "securing their privileges and interests."