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Constitutional Theory

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Very graciously for the Emperor of the New World Order, President Bush has stated that he will consult Congress before going to war against Iraq and even promises to listen to people who don’t want to go to war at all.

But, as he remarked last week, after the consulting, the listening and the “debate,” then

“I’ll be making up my mind based upon the latest intelligence and how best to protect our own country plus our friends and allies.”

In other words, Mr. Bush thinks he has the right to initiate a full-scale war against a foreign nation.

He’s not the only one. Bruce Fein, a legal columnist for the Washington Times and a charter member of the neo-conservative Zionist war party yelling for us and them to fight, agrees.

Some people, writes Mr. Fein in a recent column, actually imagine that just because the U.S. Constitution gives Congress the right to declare war, that means only the Congress can declare war. How silly of some people. “The constitutional criticism,” he snorts, “is unconvincing.” [Washington Times, Warring under the Constitution, Bruce Fein, August 20, 2002]

But Mr. Fein’s case (and in general the case for presidential war powers that neo-conservatives make) rests on some very dubious reasoning and even more dubious facts. “The Founding Fathers,” he assures us, “held no pronounced prejudice against executive declarations of war.”

Really? This is what James Madison, “Father of the Constitution,” had to say about it in his “Political Observations” of 1795:

“Of all the enemies to liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. … In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The Constitution expressly and exclusively vests in the Legislature the power of declaring a state of war [and] the power of raising armies…. A delegation of such powers [to the president] would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments.”

In Madison’s Notes of the Constitutional Convention he quotes Elbridge Gerry as remarking “Mr. Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war,” while George Mason of Virginia “was agst. giving the power of war to the Executive, because not safely to be trusted with it.”

Mr. Fein also claims the Framers “were skeptical of handcuffing national security powers with legally enforceable constitutional constraints,” and to support that claim he quotes Alexander Hamilton in Federalist 23 that “[War] powers ought to exist without limitation, etc.”

This passage is grotesquely torn from context. Hamilton was not talking about the power to initiate war but merely the authority

“to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, etc.”

Mr. Fein also quotes the philosopher John Locke on the powers of the executive (which has nothing to do with constitutional powers) and cites Lincoln’s justifications of his “extra-constitutional” (i.e., illegal) actions in the Civil War.

Whatever the merits of Lincoln’s policies, their rationale was the “emergency” the republic faced if laws were not violated to preserve it. That excuse doesn’t apply to the current war. No one claims that Iraq is contemplating a war against us or that we face any “emergency” that justifies suspension of the laws and Constitution.

Finally, Mr. Fein points to a long series of executive-authorized military actions without congressional authorization as precedents.

Again, the argument is without merit. Citing the unconstitutional actions of previous presidents does nothing to justify unconstitutional action today. You might as well cite Bill Clinton’s perjury to justify lying by President Bush. Secondly, none of the executive actions Mr. Fein cites was a full-scale war; almost all were rescue operations intended to meet emergencies (e.g., McKinley’s dispatch of troops to rescue the besieged Americans in Peking during the Boxer Rebellion; President Ford’s rescue of the S.S. Mayaguez in Cambodia in 1975).

Military rescue operations are one thing; war — especially against a nation that has done nothing to attack us — is quite another.

In the end, it’s Mr. Fein who’s “unconvincing” in his case for virtually unrestricted executive war powers, and his phony arguments and fake facts are typical of the arguments the neo-conservative war lobby is mounting.

So far neither the president nor his “intellectual allies” in the Beltway Right have shown us any compelling reason to go to war at all – let alone that the president has the constitutional power to start one.

• Category: Foreign Policy • Tags: Constitutional Theory 
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No sooner had America fluttered into the political twilight zone to which last Tuesday’s election delivered it, that the sages who miscalled the Florida vote began to jabber about how we’ve just got to abolish the Electoral College. By the end of the week, the demand for transforming the country into one big happy land of direct democracy seemed to be taking root, with Senator-Elect Hillary Clinton herself calling for abolition. But however attractive the idea might seem, it involves a bit more than altering the way we elect presidents. It needs to be noted in the first place that abolishing the Electoral College is probably not politically possible, if only because doing so would require approval of a constitutional amendment by a number of small states that would thereby effectively disfranchise themselves in presidential elections. It’s quite true that the Electoral College gives small states –not only conservative ones, like most of those in the West that Republicans tend to win, but also several New England states the Democrats usually carry — far more power than if the popular vote determined winners.

Yet it’s also true that in the absence of the Electoral College, the left would benefit the most. Candidates would contend for the most popular votes and concentrate on the more leftish urbanized areas where most voters live. Small towns and rural areas rather than cities, white voters rather than nonwhites, and middle income rather than low-income people would tend to be ignored. That, of course, is why champions of the left, like Senator Hillary and her fan club in the national press corps, want the Electoral College to go.

But even if abolishing it were possible and desirable, Americans ought to think through what the college is, why it’s there, and what abolishing it would mean, not only for practical politics but also for theoretical reasons.

The pundits last week were coaxing their hired experts to say that the Framers adopted the Electoral College because they distrusted the common man and wanted to control the results of letting him vote at all. That’s only partly true, though there’s nothing wrong or outdated about it. Our whole constitutional system is in fact a means of controlling the power of each part of society and government by the power of others.

A bigger reason for the creation of the Electoral College is that in the eye of the U.S. Constitution and the men who created it, there is no such thing as “the American people” as a whole. What there is are the people of the states that created the Constitution.

It follows that “the American people” do not elect and never have elected anyone. The peoples of the states choose electors, who then choose the president. The purpose of the Electoral College is not to control American voters, but to control the federal government.

The system controls the federal government by recognizing and protecting the power of the states. Rather than creating one big union in which a bare majority would elect the president directly and thereby give him an excuse to claim that he is the embodiment of the general will, the Constitution sought, through the Electoral College, to perpetuate the power of intermediary institutions like the states as checks on presidential and federal power.

Abolishing the Electoral College even today would go far to strip the states of one of their vital constitutional functions. Abolition would imply, in effect, if not in principle, that the states no longer exist, except as administrative units. The people of the states would cease to choose the electors who choose the president; instead, one big people, no longer defined by and contained within the states, would pick der Fuhrer — the leader.

Abolishing the Electoral College, then, would go far to transform the United States from a federal republic, formed by the union of states, to a unitary state created by the will of a single people and represented in a single man. The federal government would become the expression of that will, and any limitation of government would be a limitation of the people’s will. The range of governmental power would then be virtually infinite.

That, of course, is more or less what the American Civil War tried to turn the United States into. It didn’t quite do it, simply because the forms of the old Constitution, including states, managed to survive. But if the fans of expanded federal power could get rid of the Electoral College, they would go far in getting rid of the states that compose and constrain the union. That’s yet another reason Senator Hillary and her pals want to get rid of the college — and why those who want to retain some semblance of the old republic should want to keep it.

• Category: Ideology • Tags: 2000 Election, Constitutional Theory 
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All things considered, it’s probably a good thing that police inform the people they arrest of their rights before questioning them. If I were arrested, I’d want to know my rights — insofar as I have any left — before spilling my guts to the cops. But just because it’s a good idea doesn’t mean it is or even ought to be in the U.S. Constitution — which is why this week’s Supreme Court decision upholding the Miranda Rule is full of hooey.

You could have guessed it was full of hooey because of the way the major newspapers drooled and dripped all over it. The Court refused “to overturn more than three decades of established law enforcement practice,” the Washington Post gasped in reporting the ruling. The New York Times was hardly less gushy, mooing over the Court’s upholding what it called “one of the most famous rulings of modern times.” The Constitution these papers recognize, you see, is the one that reads merely, “If you like it, it must be so.”

Well, sometimes their Constitution also reads, “If it’s been established for a long time, it must also be so.” That’s what the Constitution said this week, and even the Court agreed. “Miranda,” pronounced Chief Justice William Rehnquist in his decision, “has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Therefore, you see, it must be in the Constitution — at least this week.

But that’s not what the Constitution always says. Sometimes, when we’re talking about state laws that outlaw abortion or enforce racial segregation or ban pornography or outlaw burning the American flag or deny “rights” to homosexuals, it doesn’t matter at all whether a law or practice is “embedded” in the practice of local and state communities and their laws.

In these cases, “refusing to overturn more than three decades” of precedent is simply living in the past, refusing to understand that the Constitution is a living document, being ruled by dogma and prejudice, and other evil things. It’s really hard to tell what the Constitution says one week as opposed to what it says the next week. I guess that’s why you have to go to law school to understand it all.

In the case of the Miranda ruling of the Warren court, which pitched out precedent after precedent simply because they failed to conform to the leftist ideology of most of the justices, the original decision pitched out hundreds of years of police practices that also were “embedded” in our national culture. If today we all know the scenes where the cops read the bad guy his rights, back then we all knew the scenes where the cops gave the bad guy the third degree, sweating the truth out of a hoodlum under a bright light while he begged for a cigarette.

It remains unclear exactly how much damage the 1966 Miranda ruling ever did to law enforcement. Miranda himself, a petty kidnapper and rapist, was convicted despite the rejection of his unsolicited confession. Some crooks probably got off because their lawyers pulled the Miranda Rule out of their briefcases, but overall it’s probably not too hard for the police to remember to read the formula when they make a bust.

The real damage the Miranda ruling does is probably not so much to the legal cases against real criminals as to the Constitution itself. Despite the Court’s claim this week that the Miranda Rule is “rooted in the Constitution,” you could have fooled all the people who actually drafted and ratified the Constitution, as well as virtually every lawyer and judge who ever studied it until the Warren gang got hold of it. Miranda is merely one more instance of the irresponsible, unconstitutional and actually dangerous mentality that prevailed in the Court then and comes close to prevailing today.

It’s a mentality that’s irresponsible, unconstitutional and dangerous precisely because it insists on smuggling into the Constitution concepts that have legal force that are not there at all and were never put there by the people who wrote the law or the people who adopted it. The mentality that lies behind Miranda is a mentality that brazenly denies the very concept of the consent of the governed.

The Court’s refusal to reject Miranda tells us little about the merits or flaws of the police practice of informing those they arrest of their rights, but it does tell us a lot about the Court’s other and more important refusal, to reject the lawless mentality that generated Miranda and many other bad laws and has today virtually destroyed the Constitution — which is why neither you nor I nor much of anyone else in this country has very many rights left.

• Category: Ideology • Tags: Constitutional Theory 
Sam Francis
About Sam Francis

Dr. Samuel T. Francis (1947-2005) was a leading paleoconservative columnist and intellectual theorist, serving as an adviser to the presidential campaigns of Patrick Buchanan and as an editorial writer, columnist, and editor at The Washington Times. He received the Distinguished Writing Award for Editorial Writing of the American Society of Newspaper Editors (ASNE) in both 1989 and 1990, while being a finalist for the National Journalism Award (Walker Stone Prize) for Editorial Writing of the Scripps Howard Foundation those same years. His undergraduate education was at Johns Hopkins and he later earned his Ph.D. in modern history at the University of North Carolina at Chapel Hill.

His books include The Soviet Strategy of Terror(1981, rev.1985), Power and History: The Political Thought of James Burnham (1984); Beautiful Losers: Essays on the Failure of American Conservatism (1993); Revolution from the Middle: Essays and Articles from Chronicles, 1989–1996 (1997); and Thinkers of Our Time: James Burnham (1999). His published articles or reviews appeared in The New York Times, USA Today, National Review, The Spectator (London), The New American, The Occidental Quarterly, and Chronicles: A Magazine of American Culture, of which he was political editor and for which he wrote a monthly column, “Principalities and Powers.”