Wednesday, December 20, 2006

An Open Letter to our Counter-Majoritarian President

Dear Mr. President:

Whenever the topic of the courts arises, you say that you favor judges who will “interpret the law” rather than “legislate from the bench.” I could quarrel with the claim that the conservative judges and Justices you have appointed actually follow this philosophy, but I certainly understand and sympathize with the core belief that motivates it: In our system of government, important decisions should be made by the elected representatives of the People, unless the Constitution clearly takes some particular decision away from them. With respect to the courts, you, sir, can proudly say that you are a small-d democrat.

Why then, I must respectfully ask, have you so little regard for the will of the People? I’m not referring here to the awkward circumstances in which you first won the Presidency. That’s water under the bridge in light of your victory in 2004. That latter victory was, as you said at the time, “an accountability moment.”

But while we’re on the subject of accountability moments, you may recall that we had another one just last month, and this time the People said - - about as clearly as they can say in a federal electoral system that does not have ballot initiatives and in which most citizens vote in politically gerrymandered districts - - that they disapprove of the conduct of the war in Iraq. Accordingly, you should reject the policy you are apparently considering: increasing troop levels in Baghdad for a “surge” of strength designed to secure the city.

I recognize that there are some military experts who think the surge plan could work, although there appear to be more military experts who think it won’t, and even some of its supporters think it probably won’t work but is worth a try before we just “cut and run.” Faced with tactical uncertainty of this sort, wouldn’t the right approach be to give some deference to the citizens who have made clear that any surge in U.S. troops should be directed towards, rather than away from, their bases back home?

Patriotically yours,
Michael C. Dorf