WATERGATE AND THE CONSTITUTION by Philip B. Kurland

WATERGATE AND THE CONSTITUTION

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KIRKUS REVIEW

Now that the flood of ""first hand account"" Watergate books is leveling off, the academics will begin to move in. In the first wave are law professors arguing a case for or against some particular Watergate principle (Raoul Berger's Executive Privilege and Impeachment) or trying to assess its results for the judicial system. Kurland (Univ. of Chicago) takes up the second set of problems in a series of essays which attempt to clarify various issues related to the Constitution, such as the separation of powers, the prosecution of Presidents, etc. He comes to some definite conclusions--a sitting President is immune from legal action, judicial review of impeachment proceedings is invalid--but mostly, the issues remain unresolved, including the constitutionality of pre-conviction pardons and the legitimate appointment and removal of special prosecutors. Ambiguous constitutional status of specific acts and practices derives, Kurland makes clear, from the variety of approaches to constitutional interpretation, and, perhaps more importantly, from the tendency for governmental practices which are neither sanctioned nor forbidden by the Constitution to become legitimated as custom by the Supreme Court (such as the Court's own power of judicial review). This last trend, coupled with the popular conception of the judiciary as the most effective power in pursuing the Watergate coverup, has led, in Kurland's view, to a potentially dangerous expansion of judicial power. Even more alarming is the oft-noted expansion of the power of the executive (which Kurland rightly traces back to the Civil War), resulting in a collapse of the separation of powers and the principle of checks and balances. Although the copious citation of legal material makes the book rough going at times, and despite the fractured effect of the essay format, this is a welcome reminder that, although Watergate is past, the problems it epitomized remain.

Pub Date: April 25th, 1978
Publisher: Univ. of Chicago Press