Antiwar leftists have returned to another theme from the Vietnam era: claiming that President George W. Bush is violating the Constitution in his vigorous prosecution of the war against terrorists. At Senate hearings on the nomination of Samuel Alito to the Supreme Court January 9, opening statements by leading antiwar leftists gave the need for judicial restraints on the president’s war powers a high priority.
Vermont Senator Patrick Leahy, Ranking Democrat on the Judiciary Committee: “In a time when this administration seems intent on accumulating unchecked power, Judge Alito’s views on Executive power are especially important. This nomination is being considered against the backdrop of another recent revelation – that the president has, outside the law, been conducting secret and warrantless spying on Americans for more than four years.”
Sen Ted Kennedy, D-MA, objected to Alito’s “clear record of support for vast presidential authority.” Sen. Russ Feingold, D-WI, repeated Leahy’s dubious charge that “this administration has for years been spying on American citizens without a court order and without following the laws passed by Congress” before arguing, “We need judges who will stand up and tell the executive branch it is wrong when it ignores or distorts the laws passed by Congress.” Sen. Dick Durbin, D-IL, told reporters, “You're going to have to go back pretty deep into history to find another nominee that will have faced so many questions on the power of a president, particularly during a war.”
Leahy, Kennedy, Feingold, and Durbin all voted against the resolution authorizing the use of force against Iraq, one of the acts of Congress that President Bush has cited in support of his domestic security program. But that resolution passed both houses of Congress – by a vote of 77-23 in the Senate. Feingold was the only senator to vote against the Patriot Act, six weeks after September 11th. Those in Congress who claim that they did not know what they were voting for when they passed the Patriot Act are even more disingenuous than those who make the same claim of ignorance about the resolution authorizing the use of force in Iraq.
The September 11th assaults were launched from within the United States. The terrorists planned and trained for their missions within the United States. They were not U.S. citizens, but they were able to operate freely within this country. As a result of this lapse in domestic security, 3,000 people were murdered. Everything done since, including the long investigation by the bipartisan 9/11 Commission, has stressed the need to improve internal surveillance to prevent another mass-casualty attack. In the War on Terrorism, America is a battleground, and the commander-in-chief needs to be able to deploy security and intelligence forces as he would on any other front.
The Bush administration has cited a number of laws and legal precedents to support its powers, as well as the actions of previous administrations from both parties. But President Bush has also cited inherent powers under the Constitution, so it is important to understand what the Founding Fathers were trying to do when they wrote it.
The principal failing of the Articles of Confederation was the lack of a strong central authority in defense and foreign policy. As Secretary for Foreign Affairs in 1786, future Federalist Papers author John Jay 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.” The creation of the presidency was the principle aim and achievement of the Constitution. A majority of delegates to the Constitutional convention were military veterans of the Revolutionary War and expected their former commander-in-chief, George Washington, to be the first president.
It is well known that the writings of John Locke had a strong influence on early American political thought. In his essay Of Civil Government, Locke argued, “Where the legislative and executive powers are in distinct hands, as they are in all moderated monarchies and well-framed governments, there the good of society requires that several things should be left to the discretion of him that has the executive power.” This is similar to the royal prerogative, which Locke defines as the “power to act according to discretion for the public good, without the prescription of the law and sometimes even against it.” The relative silence in the Constitution enumerating the specific powers of the presidency, as opposed to the more precise list of what the legislature is empowered to do, seems meant to give the president considerable latitude to manage affairs of state in the national interest.
The delegates to the convention were not, however, ivory tower academics. They were men of action and experience, with a realistic grasp of what it takes to operate in a dangerous world. They had examples from their own time on which to draw concerning what happens when nations lack a strong executive office.
Sweden had adopted a constitution in 1720 that limited the monarchy and placed more power in the hands of parliament. As Harvard historian John P. LeDonne has written, “In a country in which venality was widespread and the nobility as fractious as anywhere, the Constitution of 1720 was certain to create disorder and offer opportunities to paralyze the operations of government.” Russia was quick to exploit this weakness and seize important parts of what had once been a powerful Swedish empire. Russia also intervened to support those factions inside Sweden that wanted to maintain divided government for their own ends. In their efforts to destabilize Sweden, Petersburg spent large sums of rubles to aid the “Caps” party, which claimed to favor “liberty” above all else. Only the bold action by newly crowned King Gustav III in proclaiming the “restoration of the monarchy” in 1772 did Sweden avoid Catherine the Great’s plan to partition the country and turn much of Sweden into a Russian province.
Poland’s domestic political situation was even worse, and it did not avoid destruction. The Polish crown had been elective since 1572, and the Polish elite often chose a foreign prince to keep their own government weak. In 1652, the first “liberum veto” was invoked in the legislative Diet. This became the key right in the doctrine of “Polish liberty,” and also a political suicide pact for the nation: a single negative vote in the Diet would veto any measure being debated. It was based on the notion that every Polish nobleman was an equal whose opinion could not be overturned by any other noble, group of nobles or the king. This idea lives on in the U.S. Senate where a single member can place a hold on any piece of legislation; a modified version can be seen in the use of the filibuster.
Alexander Hamilton and James Madison cite Poland as a bad example in The Federalist Papers. In Federalist #19, written jointly by both, Poland is called “equally unfit for self-government or self-defense, it has long been at the mercy of more powerful neighbors; who have lately had the mercy to disburden it of one third of its people and territories.” This is a reference to the first partition of Poland in 1772 by Russia, Austria, and Prussia. The second partition, which would remove Poland entirely from the map, came in 1793.
In Federalist #39, Madison termed Poland an example of mixed government “in their worst forms.” Hamilton described Polish history as “a history of impotence, perplexity and disorder” in Federalist #75. The subject of this paper was the use of super-majorities in legislative bodies, which he argued “have a direct tendency to embarrass the operations of government, and an indirect one to subject the sense of the majority to the minority.”
As the world’s leading power, trying to defend its security and interests in a time of global turbulence, terrorist threats, and foreign wars, the United States cannot tolerate the kind of partisan politics that create “impotence, perplexity and disorder.” Whether motivated by a ideology of defeatism or mere self-interest, opponents of effective national leadership cannot be allowed to prevail by the American public. The Framers of the Constitution did not want their country to be weak, vulnerable, or a failed state.
Click Here to support Frontpagemag.com.