When he wrote the Constitution in 1789, James Madison
had a specific goal in mind: to create a system of
government that would constrain the tyrannous behavior
of an unaccountable executive. Only in this way,
Madison knew, would the "blessings of liberty" be able
to flourish and grow in the new United States.
The essential features of the government he envisioned
to carry out this aim included representation of the
people, separation of powers, checks and balances, the
rule of law, and protection of the citizenry from
unwarranted intrusion by the government.
But many of those ideals are at risk today in
President Bush's breathtaking assertion that he is
accountable to no one in his determination to spy on
American citizens. Indeed, according to the theory of
the "unitary executive" espoused by Samuel Alito,
there are literally no limits to presidential actions
so long as they are couched as part of the "war on
Yet claims of unchallengeable authority rooted in the Constitution are belied in a straightforward understanding of what Madison
intended to create. The founders had just fought the Revolutionary War to free themselves from the tyranny of an unbridled King -
one who would not even deign to obey his own laws. And before that, in the 1600s, the English people had fought a Civil War to
prevent their own subjugation to a series of despotic monarchs.
It is preposterous, therefore, to imagine that Madison
would then turn around and design a government where
the Executive, the president, had uncontrollable
powers in any circumstance. Only a fantastically
licentious, indeed, deceitful reading of the history
of the time can produce such an interpretation.
Democracy first died when Augustus Caesar overthrew
the Roman Republic in 28 B.C. It was not reborn until
the 1600s when the English people confronted a new
king, James I, who claimed to rule under the doctrine
of "the divine right of Kings."
James was an arrogant man. He had members of
Parliament arrested for questioning his conduct of the
war with Spain. Parliament responded that such
arrests challenged its very existence and that that
existence was not subject to the king's whim. This
was the first statement of the inherent right to
legislative representation independent of the
authority of the king.
James' son, Charles I, was even more imperious than
his father. He extracted "forced loans" from wealthy
members of Parliament and threw 76 of them in jail
when they refused to pay. Parliament responded in
1628 with the Petition of Right, a landmark in western constitutional law. It stated that the king could not force money from
people without the approval of Parliament. This idea would become the rallying cry of the American Revolution: no taxation without
Unbowed, Charles began imprisoning adversaries on
trumped-up charges including treason and even murder.
Parliament replied that before such charges would be
taken up, the king would have to "show us the body,"
habeas corpus. This became the foundation of the due
process of law, one of the most important protections
of the citizenry against a vengeful or renegade
In 1637, Charles started a war with Scotland. But he
did so without consulting Parliament, something that
had not happened since 1323. The war ended before
Parliament could rebuke Charles but when the Irish
rebelled four years later, Parliament refused to grant
Charles an army. It was a harbinger of the U.S.
Congress' power both to declare war and to allocate
monies for public purposes.
Charles' conflict with Parliament escalated into Civil
War. Charles lost the War and in 1649 Parliament cut
off his head. It was the first time in the western
world that a sitting monarch had been executed by a
rebellion of his own people. It signaled an
astonishing reversal in the historical relationship
between executive and legislature, and between citizen
In 1685, Charles' son, James II, became King. His
conflicts with Parliament harkened back to those of
his father. But by 1689, Parliament had wearied of
James' contemptuous treatment and threatened him with
the same fate as his father: beheading. James
abdicated and quietly quit England for France.
In his stead, Parliament invited James' son-in-law,
William of Orange, then king of Holland, to become
king of England. William and his wife, Mary, accepted
the position, but only after they had acceded to the
creation of the English Bill of Rights.
This "Glorious Revolution" of 1689 was a peaceful,
bloodless coup d'etat. For the first time in history
the rights of an entire people were enshrined into a Constitution and a Bill of Rights-a framework of laws that define how a king
may govern and how a government must relate to its citizens.
Over the course of this century, then, England made
the first-time-in-the-history-of-the-world transition
from an absolute monarchy based on the claim of the
divine right of kings to a constitutional monarchy
based on the twin ideals of the rule of law and the
consent of the governed. It was a breathtakingly
noble ascent to political maturity, the willingness of
a people to govern themselves by laws rather than
submit as cattle to the autocratic dictates of a
It should come as no surprise that the two leading
theorists of modern government emerged from this
epochal conflict. Thomas Hobbes was appalled at the
disorder of the country and wrote Leviathan, claiming
that the highest duty of the King was to protect the
security of the citizens. Hobbes, a firm believer in
the divine right of kings, is the philosopher on whom
George Bush relies to legitimize his peremptory
John Locke, on the other hand, theorized that a
government was made legitimate, not by divine right,
but rather by the "consent of the governed". Locke
believed that people had "natural rights" that could
not be taken away and that among these were "life,
liberty, and private property." Pointedly, it was
Locke and not Hobbes who Thomas Jefferson was
channeling (however imperfectly) when he wrote the
Declaration of Independence in 1776.
The colonists, of course, were Englishmen. The
American Revolutionary War occurred because a new
King, George III, refused to honor these ideals,
denying the protections of English law to his own
citizens, the colonists. As Thomas Jefferson wrote in
the Declaration of Independence, Americans had
"suffered a long train of abuses and
usurpations.designed to reduce them under absolute
In the Declaration, Jefferson listed 27 specific
offenses including, among others, the facts that the
. Dissolved Representative Houses repeatedly.
. Obstructed the Administration of Justice
. Quartered large bodies of armed troops among us
. Imposed taxes without our consent
. Deprived us, in many cases, of the benefits of Trial
So grave were these violations, and so intransigent
was the King in remedying them, that the colonists had
no recourse but to go to war.
There is no room for interpretation here: the
Revolutionary War was fought and the Constitution was
written to free the colonists from the abuse of
"absolute Despotism." The manner of securing such
freedom was the system of separation of powers
embodied in the Executive, Legislative, and Judicial
branches of government and the checks and balances
attendant on each of their roles.
Given this history, it is startling, even brazen, that
some try to claim a "unitary executive" that cannot be challenged by Congress, at least in times of war.
Challenging the executive in time of war is precisely
the way that America was born. Madison himself could
not have been more lucid on this point.
In 1795, he wrote, "Of all the enemies of true
liberty, war is, perhaps, the most to be dreaded,
because it comprises and develops the germ of every
other. In war, the discretionary power of the
Executive is extended; its influence is multiplied;
and all the means of seducing the minds are added to
those of subduing the force of the people." A more
prescient description of the allure of war - at least
for the executive - could hardly be written.
The supreme irony - if not hypocrisy - of the theory
of the "unitary executive" is that it is espoused by
the very same people who purport that the Judiciary
should be bound by an equally phantasmical theory of
"original intent." Under this theory the Supreme
Court should interpret the Constitution according to
the intent of its authors, an intent only these
latter-day "originalists" claim to be able to
But the Executive, on the other hand, should be freed
entirely from such original intent, liberated to
pursue a starkly post-modern vision of a virulently anti-democratic authoritarianism that would have been wholly repugnant to the
very same founders. Either Madison and the founders were schizophrenic or the current "theorists" are duplicitous. They can't have
it both ways.
The most dangerous of George Bush's formulations
surrounding the issue of unwarranted wiretapping is
that his own usurpations must continue so long as the
country is at "war." Bush's "war on terror" is
effectively endless because it is inherently
self-catalyzing, spawning more terror than it is
capable of eradicating.
Before Bush's invasion, Iraq was not a source of
terrorism. Today, it is the world's pre-eminent
trainer and exporter of terror. Major incidents of international terrorism have tripled since the invasion in 2003. Perhaps it is
this auto-inflammatory dynamic that Dick Cheney referred to when he claimed we were facing a war, "that will not end in our
lifetimes." Tellingly, Madison wrote, "No nation can preserve its freedom in the midst of continual warfare."
The confluence of these two startling facts, the claim
for unlimited power based on war, and the endless
nature of the war itself, poses grave threats to the
American Constitutional order. And the threat is made
all the more dire in the realization that the war had
been planned since the first days of the Bush
administration and that it was sold to the American
people through a vigorous, sustained campaign of
Shorn of all distractions, the "unitary executive" and
Bush's claim to legitimacy in spying amount to this:
that one man can lie the country into war and then, on
the basis of that war, declare himself above the law - essentially suspending the Constitution. It is a legal prescription for the
But the American form of government is a legacy that
belongs to all Americans, indeed, to all humans. It
is the product of four centuries of human aspirations
for protection from an abusive executive. It is not
Bush's to take away. Which is not to say that it
cannot be lost. Hannah Arendt once wrote that,
"Although tyranny may successfully rule over foreign
peoples, it can stay in power only if it first
destroys the national institutions of its own people."
Bush has openly declared and imperiously acted out his preference for a dictatorship-provided, of course, that he is the dictator.
But dictatorship stands against every value, every virtue that lies at the heart of America. It will require a fierce determination
on the part of the people to keep what is their most long lived, hard won, and (hopefully) deeply treasured gift. But it is a fight
that can and must be waged. The alternative is a return to a medieval darkness of divine right, autocracy and oppression.
Robert Freeman writes on history, economics, and
education. He can be reached at