"We Have a Duty": The Supreme Court and the Watergate Tapes Litigation

By Howard Ball; Paul L. Murphy | Go to book overview

NOTES
1.
See, for example, Nixon v. Administrator of General Services, 433 U.S. 425 ( 1975), at 447. Nixon's Attorney General, Richard G. Kliendeinst, argued that Nixon was "empowered to forbid federal employees from testifying before congressional committees under any circumstances and to block congressional demands for any document within the executive branch." Quoted in Raoul Berger, Executive Privilege: A Constitutional Myth ( New York: New American Library, 1974), pp.254-55.
2.
John H. Garvey and T. Alexander Aleinikoff, Modern Constitutional Theory: A Reader ( St. Paul: West Publishing Company, 1988), p. 178.
3.
"If the Framers decided to incorporate a requirement of separation of powers in the Constitution, that decision was implicit rather than explicit." Richard J. Pierce, Jr., "Morrison v. Olson: Separation of Powers and the Structure of Government", in 1988-The Supreme Court Review, ed. Philip B. Kurland, et al. ( Chicago: University of Chicago Press, 1988), p. 10.
4.
Louis Brandeis, dissenting, Myers v. United States, 272 U.S. 52 ( 1926), at 293.
5.
See James Madison, Alexander Hamilton, and John Jay, The Federalist Papers, ed. Isaac Kramnick ( New York: Penguin Books, 1987) 47, 51. In Federalist 47, Madison responded to critics of the Constitution who had objected to what they believed was the absence of a separation of powers, which Madison labelled an "essential precaution in favor of liberty." He wrote that "no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective may justly be pronounced the very definition of tyranny."

In Federalist 51, Madison wrote: "But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition."

But, in Federalist 48, Madison discussed the separation of powers concept in a very different manner. "It is agreed on all sides that the

-69-

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"We Have a Duty": The Supreme Court and the Watergate Tapes Litigation
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Exhibits ix
  • Preface xi
  • 1 - The Supreme Court in the Political System 1
  • Notes 13
  • 2 - The Watergate Scandal Unfolds 21
  • Notes 34
  • 3 - The Supreme Court in 1974: Personae, Process, and Politics 39
  • Notes 57
  • 4 - The Critical Issues: Separation of Powers, Executive Privilege, and Judicial Review (revisited) 61
  • Notes 69
  • 5 - U.S. V. Nixon, I: The Duty to Hear the Case 73
  • Notes 91
  • 6 - U.S. V. Nixon, Ii: Written Briefs and Oral Arguments 95
  • Notes 106
  • 7 - U.S. V. Nixon, Iii: The Substantive Debate Among the Brethren 111
  • Notes 137
  • 8 - Executive Privilege: The Court's Fashioning of an Inherent Presidential Power 143
  • Notes 150
  • Selected Bibliography 153
  • Index 161
  • About the Author 165
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