The Justice Department is probably correct in saying that it was legally entitled to search a congressman's office last month. But in ignoring history and established conventions in that case, some legal scholars say, the Bush administration has again unsettled widely shared understandings of constitutional relationships and freedoms that have existed for generations.....Does it bug you that when reporters ask lawprofs for a legal opinion, they get a political opinion? But that really does reflect the way many (most?) lawprofs think about difficult constitutional law problems. Liptak ends his piece with a quote from Supreme Court Justice Robert Jackson that is always cited for this attitude:
[T]he argument that Congressional offices are immune from law enforcement searches has something in common with the argument that the president has the authority to reinterpret the bills he signs into law, said Douglas W. Kmiec, a law professor at Pepperdine University.
"They have no taproot in the constitutional document," Professor Kmiec said of arguments. "They're all sound and fury."
Several legal scholars went further, saying they found it hard to take at face value the objections of many legislators about the search of Mr. Jefferson's office.
"Like a lot of these issues where separation-of-powers rhetoric is deployed and where you see cross-party lines of agreement, there's often a competing story," said Daryl J. Levinson, a law professor at Harvard. "Here the story that leaps out at you is that the Republicans are worried that they're next."
"While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government," Justice Jackson wrote. "It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.""Workable government" -- it's a nice phrase, but what does it mean? Does it "work" or doesn't it "work" for the Justice Department to search the offices of members of Congress when it has probable cause to believe a crime has been committed? And do you like the answer to that question serving as the answer to what the Constitution means?