[Peace-discuss] Constitutional crisis

[C. G. Estabrook]

[From a conventional historian and politician, a description
of the fix the USG finds itself in.  --CGE]

  3-27-06
  The Founders Never Imagined a Bush Administration
  By Joyce Appleby and Gary Hart

Joyce Appleby is professor emerita of history at UCLA and
co-director of the History News Service. Gary Hart is a former
U.S. senator and Wirth Chair in the Graduate School of Public
Affairs at the University of Colorado, Denver.


George W. Bush and his most trusted advisers, Richard B.
Cheney and Donald H. Rumsfeld, entered office determined to
restore the authority of the presidency. Five years and many
decisions later, they've pushed the expansion of presidential
power so far that we now confront a constitutional crisis.

Relying on legal opinions from Attorney General Alberto R.
Gonzales and Professor John Yoo, then working at the Justice
Department, Bush has insisted that there can be no limits to
the power of the commander-in-chief in time of war. More
recently the president has claimed that laws relating to
domestic spying and the torture of detainees do not apply to
him. His interpretation has produced a devilish conundrum.

President Bush has given Commander-in-Chief Bush unlimited
wartime authority. But the "war on terror" is more a metaphor
than a fact. Terrorism is a method, not an ideology;
terrorists are criminals, not warriors. No peace treaty can
possibly bring an end to the fight against far-flung
terrorists. The emergency powers of the president during this
"war" can now extend indefinitely, at the pleasure of the
president and at great threat to the liberties and rights
guaranteed us under the Constitution.

When President Nixon covertly subverted checks and balances 30
years ago during the Vietnam War, Congress passed laws making
clear that presidents were not to engage in unconstitutional
behavior in the interest of "national security." Then Congress
was reacting to violation of Fourth Amendment protections
against searches and seizures without judicial warrants
establishing "probable cause," attempts to assassinate foreign
leaders and surveillance of American citizens.

Now the Iraq war is being used to justify similar abuses. The
Foreign Intelligence Surveillance Act, providing
constitutional means to carry out surveillance, and the
Intelligence Identification Protection Act, protecting the
identity of undercover intelligence agents, have both been
violated by an administration seeking to restore "the
legitimate authority of the presidency," as Cheney puts it.

The presidency possesses no power not granted to it under the
Constitution. The powers the current administration seeks in
its "war on terror" are not granted under the Constitution.
Indeed, they are explicitly prohibited by acts of Congress.

The Founding Fathers, who always come to mind when the
Constitution is in danger, anticipated just such a
possibility. Writing in the Federalist Papers, James Madison
defined tyranny as the concentration of powers in one branch
of the government.

"The great security against a gradual concentration of the
several powers in the same department," Madison wrote in
Federalist 51, "consists in giving to those who administer
each department, the necessary constitutional means, and
personal motives, to resist encroachments of the others."

Warming to his subject, Madison continued, "Ambition must be
made to counteract ambition;" the interest of the office
holders must "be connected with the constitutional rights of
the place."

Recognizing that he was making an appeal to interest over
ideals, he concluded that it "may be a reflection of human
nature, that such devices should be necessary to control the
abuses of government." "But what," Madison asked, "is
government itself but the greatest of all reflections on human
nature? If men were angels, no government would be necessary.
If angels were to govern men, neither external nor internal
controls on government would be necessary."

Madison's solution to the concentration of powers that lead to
tyranny relied upon either Congress or the Supreme Court to
check the overreaching of a president. In our present crisis,
Congress has been supine in the face of the president's grab
for unconstitutional, unlimited power, and no case is working
its way towards a Supreme Court judgment.

If Madison's reliance on the ambition of other office holders
has failed us, we need to look elsewhere. Can what Thomas
Jefferson called the "common sense and good judgment of the
American people" help us now? In the past, they have been a
critical last resort when our leaders endangered the
constitutional checks and balances that have made us the
world's oldest democracy. But first the public must wake up to
this constitutional crisis.

This piece was distributed for non-exclusive use by the
History News Service, an informal syndicate of professional
historians who seek to improve the public's understanding of
current events by setting these events in their historical
contexts. The article may be republished as long as both the
author and the History News Service are clearly credited.