[Peace-discuss] "unitary executive theory" debunked

[Paul Patton]

*Should the President be King? Reflections from the Deep Origins of America
*
  *by Robert Freeman *


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.

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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