The Oath and the Office

June 18, 2018
Brettschneider, a Brown political science professor, delves deeply into the U.S. Constitution for legal guidance to the historically controversial question of the scope of U.S. presidential powers. He approaches the topic through an unusual—and occasionally awkward—conceit, positing himself as the legal adviser to an imagined reader who aspires to be the next president. Brettschneider begins with an exploration of Article II of the Constitution, which sets out the presidency’s explicit powers, then considers the implicit limitations on those powers imposed by the Bill of Rights, and completes his tutorial with a discussion of the Constitution’s provisions for impeachment. Among the questions considered are a president’s right to hire and fire members of the executive branch, constitutional prohibition of cruel and unusual punishment as it applies to torture, and the Constitution’s guarantee of equal protection under the law as it pertains to minorities and immigrants. Some readers will disagree with Brettschneider’s left-leaning conclusions, as when he rejects originalism, a literalist way of interpreting the Constitution associated with the late conservative Supreme Court justice Antonin Scalia, because “it does not account for some of the most widely recognized... rights that we have today.” However, all should find his core discussion of the many considerations inherent in the exercise of presidential powers to be accessible and timely.

June 15, 2018
A legal scholar advises presidents to read the Constitution with great care.During the 2016 presidential campaign, Brettschneider (Political Science/Brown Univ.; Civil Rights and Liberties: Cases and Readings in Constitutional Law and American Democracy, 2013, etc.) was shocked that "proposals to violate the Constitution that had been the stuff of far-fetched classroom hypotheticals" were part of Donald Trump's agenda. The author responded in articles for Politico, Time.com, and the New York Times, which became the basis for this pointed, cogent, and authoritative analysis of presidential policy and power. Addressing future presidents (and certainly the current office holder) and all citizens, Brettschneider parses the text of the Constitution and Bill of Rights, offers historical background to illuminate the reasons for and controversy over provisions, identifies salient exemplary cases, and concludes with recommendations for any president. He distinguishes between an originalist position, which reads the documents "according to the historical meaning of the words at the time of their passage," and a "value-based reading," which asks, "what is our best understanding of the moral principles of the Constitution enshrined in its text and in our case law?" Clearly, the author advocates a value-based reading, since originalists sometimes fail to investigate the history underlying certain provisions. Focusing on a question that arose during the George W. Bush administration regarding the use of "enhanced interrogation," Justice Antonin Scalia argued that the ban on cruel and unusual punishment did not apply, since extracting information is not technically punishment. Brettschneider argues, however, that the prohibition against cruel and unusual punishment, as stipulated in the Bill of Rights, was imported from the British Bill of Rights to end "the arbitrary and cruel abuses--especially torture--committed by kings and queens against their subjects." The author offers a clear explanation of many complex issues, such as the provisions of the 14th Amendment, which guarantees equal protection under the law; and the process involved in impeachment, including the question of whether obstruction of justice is an impeachable offense.A cleareyed, accessible, and informative primer: vital reading for all Americans.

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