Jan 20, 2006
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 terror."
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 representation.
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 executive.
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 and sovereign.
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 single man.
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 actions.
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 Despotism.
In the Declaration, Jefferson listed 27 specific offenses including, among others, the facts that the King had:
- 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 by Jury
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 accurately divine.
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 Executive deceit.
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 self-destruction of democratic government.
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.
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