*Under Section 1 of Article II of the Constitution: "The executive power shall be vested in a President of the United States of America."

*Under Section 2 of Article II of the Constitution: "The President shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States;"

*Under Section 3 of Article 3 of the Constitution, the President "shall take care that the laws be faithfully executed, and shall commission all of the officers f the United States."

Law Professor Robert Turner is an avid proponent of the theory that the President's inherent powers under Article II of the Constitution are on steroids in the realm of foreign affairs and during wartime. Mr. Turner cites a letter dated February 19, 1804 to Treasury Secretary Albert Gallatin in which President Thomas Jefferson wrote: 

The Constitution has made the Executive the organ for managing our intercourse with foreign nations. . . . The Executive being thus charged with the foreign intercourse, no law has undertaken to prescribe its specific duties. . . . From the origin of the present government to this day . . . . it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President.

These were self-serving words from a President who had invested the authority of his office deeply into controversial foreign affairs via the purchase of the Louisiana Territory from France, and Thomas Jefferson had scorned such exaltation of Executive powers when the Federalists had been in control of the Presidency and Congress. Another important factor ignored by Mr. Turner is that Thomas Jefferson was speaking in general terms and was not articulating the inherent constitutional right of the President to violate the Fourth Amendment to the Constitution.

Mr. Turner quotes Chief Justice John Marshall's decision in the landmark Supreme Court case MARBURY v. MADISON (1803):

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. . . . [A]nd whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.

If this concept of Executive power were to be accepted at face value, it would legitimize a dictatorship, but it should be emphasized that this quote from the legendary Chief Justice Marshall is extremely vague with respect to any particular action by the President, and this quote is only relevant with respect to the power granted to the President by the Constitution. Any contrary inference drawn from this quote by Mr. Turner, to the effect that the President has the inherent authority to violate the Fourth Amendment to the Constitution in pursuit of foreign intelligence, is of dubious value. For good measure, Mr. Turner adds another quote from Chief Justice Marshall in the case of MARBURY v. MADISON that "an act of the legislature, repugnant to the constitution, is void." It should be equally obvious to Mr. Turner that an act of the President, that is repugnant to the Constitution, is void.

Mr. Turner quotes John Jay in Federalist Paper No. 64 to argue that the Constitution leaves the president free "to manage the business of intelligence as prudence might suggest," but in this quote, John Jay was referring to the power of the President to negotiate treaties with foreign nations in an environment in which secrecy would be conducive to obtaining useful information. However, the treaties which were negotiated by the President in such an environment then were subject to review and approval by the Senate, and John Jay was not conferring upon the President the power to spy on U.S. citizens. In fact, if the authors of the Federalist Papers had argued that the Constitution gave the President the sole discretion to determine the extent and the legitimacy of his authority, or if it had been argued that the President had the inherent authority to spy on U.S. citizens without warrants and without probable cause, the Constitution would never have been ratified by the States. John Jay was a proponent of a strong central government, and it may sometimes be instructive for constitutional scholars to use the Federalist Papers to indicate some of the parameters that were envisioned by the framers of the Constitution with respect to the powers of the three branches of the Federal government, but the Federalist Papers also contain some competing visions of the ways in which the three branches of the Federal government should operate, and the Federalist Papers are not the Constitution of the United States. Most people recognize that the Constitution is a legal framework rather than a set of legal statutes, but those who are concerned with interpreting the meaning of the language in the Constitution should agree with James Madison, who authored much of the original Constitution and many of the Federalist Papers, and who wrote that the legitimate meaning of the Constitution must be derived from the text itself.

Self-defined conservative Republicans profess to favor a strict construction of the Constitution, but the widespread support among self-defined conservative Republicans for the Terrorist Surveillance Program reveals the emptiness of their avowed adherence to a strict construction of the Constitution. Judges should not interpret law so rigidly that they cannot see the forest for the trees, but one salutary aspect of strict construction involves the attempt to understand the basic meaning of the language in the Constitution. Because people may disagree about the "plain meaning" of words, some constitutional scholars are dismissive of an approach to interpretation of the Constitution based on understanding the "plain meaning" of the text. However, as prominent literary theorist Professor Stanley Fish observes, if a person is not attempting to specify the intention of a text, that person is rewriting the text rather than interpreting it. Regardless of the the sophisticated scholarship or high-minded values that people may incorporate into their judicial philosophies, it would be foolish to attempt to interpret the Constitution without trying to understand the plain meaning of the text. We may all want to have our cake and eat it too, but it is not possible to have any broad consensus for a consistent and logical approach to interpretation of the Constitution if all of us expect that a “living Constitution” will evolve according to our own opinions.

The Ninth Amendment to the Constitution states:

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people,"

and the Tenth Amendment to the Constitution states:

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