In the legal realm, neo-conservatives talk a good game about the Founding Fathers and how we should be true to their original intent.

That grounding falls apart when it comes to the subject of presidential powers.  There is simply no way that Bush’s "President-as-King (during wartime)" arguments can be reconciled with the writings of the Founding Fathers, a point brought out in this excellent article in the Boston Globe by Charles Sweeney:

Relying on a tried and true method of divining the original intent of the Founding Fathers-reading the Federalist Papers, the essays written in 1787 and 1788 by three of the founders to explain the meaning of the Constitution-the administration asserts that it is using executive power as the founders intended.

Yet scholars from across the political spectrum question the historical cases Bush and Vice President Dick Cheney have made. In an effort to find backing for their view of presidential power, these scholars argue, the administration has quoted selectively, taken passages out of context, and simply ignored what many constitutional scholars say is the Federalist Paper that most squarely addresses the president’s wartime powers: Federalist 69.

Richard Epstein, a conservative law professor at the University of Chicago who embraces originalism, said Federalist 69 shows that the administration’s legal theory is "just wrong" and called its failure to acknowledge the paper "scandalous."

"How can you not talk about Federalist 69?" he said. "All you have to do is go on Google and put in ‘Federalist Papers’ and ‘commander in chief’ and it pops up."

Federalist 69 was written by Alexander Hamilton and compares the powers of the President to that of the King, noting that unlike a King, the President does not have unlimited authority, and is subject to "checks and balances".  Even in wartime:

Hamilton explained that the American commander in chief’s powers would be subject to strong checks and balances, including submission to regulation by laws passed by Congress. Hamilton describes the commander in chief as "nothing more" than the "first general" in the military hierarchy. The commander in chief’s powers are "much inferior" to a king because all the power to declare war and to create and regulate armies is given instead to Congress, he explained.

How does the Bush Administration and other "originalist" neo-cons deal with the unpleasant fact that the Founding Fathers don’t support their position of unlimited Presidential powers in wartime?

Badly:

Citing similar passages in other Federalist Papers, John Yoo, a former official in the Bush Justice Department, added that Federalist 69 is just one among many records of the founders’ thinking, some of which are contradictory or misleading. In his recent book, "The Powers of War and Peace" (Chicago), Yoo dismissed Federalist 69 as "rhetorical excess" that exaggerated the difference between a king and a president.

"Fed 69 should not be read for more than what it is worth," Yoo, who is now a Berkeley law professor, wrote in an e-mail. The administration, he added, is "following the general view of presidents of both parties for many years, since probably [President Franklin Roosevelt]," so its legal reasoning is not "unserious."

So in other words, these "originalists" choose to ignore what Hamilton wrote, but rely on what FDR thought about what Hamilton wrote.

How they can take that position and still claim to be "originalists" is beyond me:

But David Golove, a New York University law professor, said the buildup of executive power in recent generations is "completely irrelevant" from an originalist perspective. If the proper way to interpret the Constitution is by looking to what the founders intended, he said, then it is Federalist 69, not Franklin Roosevelt’s record, that matters. "The irony is that this administration claims to be originalists," Golove said.

Indeed.

Glenn Greenwald sums it up and admonishes the media:

It should not come as a surprise that the Bush administration’s theories of presidential power — which are guiding how our country is governed and which have spawned abusive scandal after scandal — relies upon the view that the views of the founders ought to be ignored. Federalist 69 is not all that long. All reporters could read it quickly and understand it easily. Like Savage did, they ought to. Perhaps then they could realize — and then inform the country — that the powers claimed by Commander-in-Chief George W. Bush are the very opposite of the core, defining principles of our country.