View Full Version : This is originalism?

November 7th, 2005, 12:48 AM
There is an extensive analysis of John Yoo's book The Powers of War and Peace:The Constitution and Foreign Affairs After 9/11 (http://service.bfast.com/bfast/click?bfmid=2181&sourceid=41397204&bfpid=0226960315) by David Cole (http://www.law.georgetown.edu/curriculum/tab_faculty.cfm?Status=Faculty&Detail=235) in the current issue (http://www.nybooks.com/articles/18431) of The New York Review of Books.

John Yoo (http://www.law.berkeley.edu/faculty/yooj/), if you can't place the name, is the former Justice Department attorney who was the original source of memos interpreting the Constitution to give the Commander-In-Chief virtually unlimited power to conduct war (including the infamous August 1, 2002 "torture memo" asserting that infliction of physical pain on prisoners was Constitutionally permissible so long as it did not cross the threshold of the level of pain associated with "serious physical injury, such as organ failure, impairment of bodily function, or even death."

The true irony is that he claims that this reading is consistent with the "original intent" doctrine -- that is, that this is actually what the Hamilton, Madison, Jefferson, John Jay, and others actually had in mind in 1787, despite a historical record that strongly suggests otherwise.

This seems much less like "original intent" to me than radical revisionism, but do read the article for yourseves--it is quite thought-provoking.