Not much should be made of judge Anna Diggs Taylor's ruling that the use of warrantless wiretaps on communications with foreign terrorists is unconstitutional. District Court cases are meant to be appealed, and her opinion will likely be overturned. However, her view of the Founding Fathers is widely held on the left, and needs to be refuted in the public arena.
The Founders were not academics debating abstract issues in the faculty lounge. They were experienced men of the world, who knew it was a rough place. Most of the delegates at the Constitutional Convention were military veterans. Everyone knew George Washington, who had commanded the Continental Army, would be the first president, establishing the role as commander in chief as that office's prime duty.
Judge Taylor asserted, "We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary kings in America." Indeed, creation of the presidency was the most important accomplishment of the Constitution. The lack of a strong executive had doomed the Articles of Confederation. Benjamin Rush campaigned to ratify the Constitution and later served as treasurer of the Mint during the administrations of John Adams, Thomas Jefferson and James Madison.
In regard to the lack of kingly authority in the Confederation, Rush argued in 1787 that immediately after the Revolution "we detested the British name; and unfortunately refused to copy some things in the administration of justice and power, in the British government, which have made it the admiration and envy of the world." The Constitution would rectify this error.
The greatest weakness of the Confederation was in foreign affairs and national defense. The United States was hemmed in by the British and Spanish empires. American merchants were vulnerable to plunder on the high seas. Congress proved incompetent in diplomacy. A centralized executive power was needed to manage foreign relations, westward settlement, international trade and national defense.
This priority is demonstrated in the Federalist Papers, where the original intent of the Founders is presented by John Jay, James Madison and Alexander Hamilton. Twenty-eight of the first 36 papers are devoted to topics related to national security. The problem of military weakness is discussed in papers 11,14, 23-32, 34 and 36. Papers 2-8, 15, and 18-20 deal with the risk of national disunity and how foreign interests might exploit it. The need for the government to retaliate against trade restrictions and provide a united front in negotiations is the subject of papers 11, 12, 22 and 23. As Hamilton complained in Federalist 15, "There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience."
Before the convention, Jay, a veteran diplomat who had served as secretary for foreign affairs, argued, "To be respectable abroad, it is necessary to be so at home: And that will not be the case until our public faith requires more strength."
In the Constitution, the power to declare war was retained by Congress, but the power to make war was invested in the president. President John Adams waged a "quasi-war" with France in the Caribbean, and President Jefferson sent warships to the Mediterranean to combat the Barbary pirates, both without formal declarations of war. There had been some dissent about creating a "standing army" that the president could command, along with the state militias. But these objections were easily voted down. It was recognized that in the real world, preparations for war had to be made during peacetime.
James Wilson addressed this issue in a way that is applicable to today's debate. Wilson both signed the Declaration of Independence and helped write the Constitution. He was appointed to the Supreme Court by President Washington. In an 1787 speech, Wilson blasted those who wanted to limit what could be done to protect the nation prior to an attack. This is how he characterized their argument: "Whatever may be the provocation, however important the object in view, and however necessary dispatch and secrecy may be, still the declaration must precede the preparation, and the enemy will be informed of your intentions, not only before you are equipped for an attack, but even before you are fortified for a defense. The consequence is too obvious to require any further delineation."
This line of reasoning applies not just to maintaining standing military forces, but also to operations like those conducted by the National Security Agency to warn of enemy conspiracies prior to actual terrorist attacks against America. As Oliver Ellsworth, a delegate to the Constitutional Convention and a member of the Connecticut Supreme Court wrote during the ratification process, "If you would be free and happy, a power must be created to protect your persons and property; otherwise you are slaves to all mankind." This is what the Constitution was about, and Judge Taylor and her ilk should be reminded of that at ever turn.
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