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TUGGING ON THE CONSTITUTION

The Constitution of the United States is as flexible and durable as it is venerable. That's why it has endured for more than two centuries as the centerpiece of our system of representative government, the foundation for the rule of law.

It has to be tough, because so often it has been stretched and bent in ways that would have sundered anything built to lesser standards.

In December, the Supreme Court, on a split decision, pulled out of the Constitution's "equal protection" clause a rationale for intervening in the Florida election dispute and, in effect, handing the presidency to George W. Bush. Never before had the high court inserted itself so boldly into a process where the Constitution had left ultimate authority in the hands of Congress, providing that the legislative branch would supervise and authenticate the counting of electoral votes and, if no majority were found, would itself elect the president and vice president.

Conservative lawyers -- if they were not too busy celebrating Bush's capture of the White House -- expressed shock and amazement that the Supreme Court's conservative majority, normally so zealous in guarding states' rights, would turn about and pre-empt the Florida authorities with an edict from Washington. Scholars of all stripes speculated about the open-ended implications of the court's finding that variations in voting and vote-counting procedures might be a violation of constitutional rights.

January brought a second shock -- a rash of last-minute pardons from President Clinton, issued just hours before he rode up to Capitol Hill to watch Bush be sworn in as his successor. The pardon power is clearly given to the chief executive in Article II, Section 2. It has been controversial before; President Ford's pardon of President Nixon arguably cost Ford the election in 1976.

But for sheer arrogance of power, nothing came close to matching Clinton's exercise of the pardon authority at a moment when he was free of accountability and immune from legal or political consequences. The more that is learned about some of the beneficiaries of his largess, the worse it looks. The Justice Department, which normally reviews all applications for pardons and commutations, was cut out of the action. People who had provided political help or large campaign contributions to either Bill or Hillary Clinton, or both, were encouraged to bring their papers straight to the White House.

Given Clinton's history of self-justifying rationalization, we know what to expect. The man who had his law license suspended for five years and paid a large fine for giving misleading answers under oath in an Arkansas court proceeding and who was impeached by the House of Representatives for violating his duty as the nation's chief law enforcement officer now maintains that his dogged obstruction of justice during the whole matter was "in defense of the Constitution."

It will only be a matter of time before he tries to rationalize his flagrant abuse of the pardon power as another noble and selfless effort to preserve the constitutional prerogative of the chief executive.

By comparison, the proposal by President Bush to stretch the Constitution far enough to expand federal funding of social programs run by religious organizations looks to be almost decorous. His executive orders dealt only with matters clearly within his purview, notably the creation of a new White House Office of Faith-Based and Community Initiatives. The other moves -- such as allowing non-itemizers to deduct charitable contributions from their taxes -- require legislation and will become law only after careful consideration and extensive debate.

No power plays here, but nonetheless, the proposal raises serious constitutional questions. The federal government already subsidizes secular social work by many religious-oriented agencies, with safeguards designed to assure these activities are separate from instruction or indoctrination in matters of faith. Bush's proposal to expand this stream of funding raises twin concerns. Parts of the religious community are concerned about the regulatory implications of becoming too dependent on government funds, and guardians of church-state separation worry whether the lines can be maintained if the relationship becomes much closer.

It's one more tug on a Constitution that seems to be tested afresh with alarming frequency.

Washington Post Writers Group

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