HH: Joined now by Professor Geoffrey Stone of the University of Chicago Law School, author most recently, he’s authored many, many books, War And Liberty: An American Dilemma – 1790 to the Present. He is signing that after his panel Sunday at 1:30 on the campus of UCLA, where he’s appearing along with Max Boot. Professor, welcome, it’s good to have you here.

GS: Delighted to be here.

HH: Fair to describe you as a man of the left?

GS: Yeah.

HH: Yeah, ACLU board member?

GS: Yes.

HH: Okay, War and Liberty – did Lincoln act Constitutionally?

GS: Lincoln violated the Constitution, but he was justified in doing so.

HH: And so, how long do we have to wait to find out if George Bush is in the same position?

GS: George Bush violated the Constitution, and he was not justified in doing so.

HH: That of course is a judgment that many of Lincoln’s critics made at the time.

GS: Absolutely right. That’s right.

HH: And so, when did that opinion shift?

GS: Well, I think the opinion on Lincoln shifted when he proved successful. I mean, Lincoln would not have been remembered as Lincoln had the North lost the Civil War.

HH: Of course, so if, in fact, five years from now, Iraq is stable, and a productive ally of ours, will your arguments about Bush have lost their merits?

GS: No, I think people will say he acted unconstitutionally, but they will look at that much more sympathetically than they would at present. But certainly, certainly, you can be unconstitutional, and yet if the circumstances are so compelling, you can be right in doing so. So an example with Bush is the NSA surveillance program, which I think was clearly illegal. But if we someday learn that it really produced information that otherwise would not have been available, that prevented serious terrorists attacks, then history may well say this was an unconstitutional, unlawful act, but justified.

HH: You know, we picked up al Iraqi today.

GS: Yeah, well…

HH: And he shows up in Guantanamo. We got him somehow, right?

GS: Right, but the question is, is this how?

HH: Okay, that’s fascinating. That’s an interesting perspective. Now let me ask you as well the book starts with George Washington, obviously, and did the 1812 War, was that conducted Constitutionally?

GS: Yeah, the 1812 War, I think, did not involve the kinds of problems that most of our military conflicts have involved. And certainly, in 1798, when the United States was on the verge of war with France, when we adopted the alien sedition acts, there were very serious questions about the Constitutionality of those measures. But the War of 1812, I think, probably didn’t raise the same kinds of issues as most of the other major conflicts that the United States has been involved in.

HH: I thought that Madison had acted originally in forcing the issue with Britain, without consulting with the Congress at all, and arrogating to himself…so the Jeffersonian precedence about the Louisiana Purchase…so all of our great presidents have been dancing on the line?

GS: Yeah, I think great presidents, Roosevelt, and Wilson, I mean, great presidents have pushed the limits. And the question ultimately is whether historically, they proved to be right.

HH: But worst offense being FDR and the interment of Japanese Americans?

GS: The worst events in American history with respect to civil liberties is probably, yeah, Roosevelt’s interment of Japanese Americans, particularly because there was really no military justification for it.

HH: Are you surprised that no person of the left rose up, or perhaps I just don’t know the story well enough. Did anyone…of the academy, were there any Geoffrey Stone’s running around, or Erwin Chemerinsky’s who stood up at that time and said unconstitutional, dictatorial, as they attack Bush today?

GS: Well, Attorney General Francis Biddel vehemently opposed the decision by Roosevelt, and challenged it within the administration in very strong terms. Even J. Edgar Hoover, by the way, strongly opposed the Japanese interment on the grounds that it was racists and unnecessary. And there were some people at the time who criticized it, but for the most part, no, World War II was the kind of war where there was such a strong sense of the nation needing to rally to its own defense, having been attacked, and this had only been a few months after the attack. The mood at the time of the Japanese interment was much more like the mood of the United States three months after 9/11, when you see a reflexive rallying around the flag, and people were not being critical of steps the administration was taking, first of all, because that early, there weren’t so many that were problematic, and second of all because you gave the military and the executive the benefit of the doubt at a moment like that.

HH: Now you’ll be signing War and Liberty: American Dilemma – 1790 to the Present after your panel with Max Boot Sunday, again at 1:30. I want to go to the controversy you’re involved in right now. You blog, you’re one of the professors who blog, and I and many others have been very critical of something you wrote on April 20^th, and I’ll read it. It’s about the Carhart decision, Gonzales. And here’s what you wrote. “What then explains this decision [the partial birth abortion decision]? Here is a painfully awkward observation. All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out, but it is too obvious and too telling to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales.” Professor Stone, I thought that was bigoted. I just…I thought to raise the Catholic issue in that context was just…

GS: I think that’s absurd to say it’s bigoted. I mean, I would say the same thing if, for example, there were five African-American justices who took a position in a case where there was no sound, legal argument in support of the position, but had supported affirmative action or black reparations. I would say wait a minute, what’s going on here. If they cannot credibly be said to be applying traditional legal principles in a rational way, something’s explaining what they’re doing.

HH: Do you think they were applying catechism?

GS: No, no, no, no. I think they were seeing the issue through the light of their particular religious views, and confusing those with moral views, and I think that, in our country, where we talk about separation of Church and state, I think it’s very important for public officials, whether they be legislators or judges, to make a serious effort to separate their religious beliefs from their moral beliefs. And I think that this is a case where the justices, those five justices may have failed to do that.

HH: So if they didn’t separate their moral and their religious beliefs, they were applying catechism, in your view?

GS: I don’t know what it means to say applying catechism. But what I mean is I think that they saw the issue through the lens of their own personal experiences and beliefs, and those beliefs can be about religion, they can be about civil liberties, they can be about institutional judgments, about federalism. They don’t have to be about catechism or religion. But when you see a decision that’s not explainable in conventional legal terms, and you see a pattern of the justices voting in a way that just doesn’t make sense otherwise, you look for explanation.

HH: Why was it, in your own terms, mortifying to have to point it out?

GS: Well, because I think it did create exactly the kind of response that you stated, which is I knew people were going to say you’re being a bigot. And I’m quite certain I was not being a bigot. I would have said the same thing about black judges or Jewish justices. But the fact is I knew that was going to be the response.

HH: Why is it painfully awkward if it’s not bigoted to make the statement?

GS: Because people don’t want to hear it.

HH: Well then, it might be inconvenient, it might have caused debate, but painfully awkward and mortifying suggested to me immediately that you wanted the readers to consider that they acted as Catholics and not as justices upholding their oaths.

GS: I wanted to suggest that they acted as justices who allowed their religious beliefs to play too large a role in the way in which they resolve that particular case.

HH: So you really think their religious beliefs did play a role in that?

GS: Absolutely. That was the point of the op-ed. Exactly.

HH: Well, I’ll tell you, I’m not persuaded.

GS: You really think, do you really think justices are not influenced by their religious beliefs?

HH: I think if you had written all five justices in a particular case are Jewish, I don’t think you’d ever be on…I think you’d be a Don Imus moment. In fact, I think it’s close to Imus.

GS: Well, doesn’t it depend on whether the circumstances justify the observation?

HH: No.

GS: Well then, you’re just saying there are certain things we shouldn’t say, whether they’re true or not.

HH: No, I’m just saying I don’t think you can…we’re out of time. Next week?

End of interview.