The Essential Problem with the Unitary Executive

Not So Eerie Parallel

By Kelly

The analysis of John Yoo's problem with Elena Kagan reminded me of something I attribute to the Watergate scandal, specifically G. Gordon Liddy. The paraphrase was something like 'The President can not give an unlawful order'. I can't find the quote, I might have it attributed to the wrong person. To be fair I'm basing it on 30-year-old memories but I was quite struck by how there could exist a class of person who was so willing to follow a leader regardless of direction, whether into battle or over a cliff. It is these men who allow their hyper-loyalism to distort their duty to the country; if I had to guess I would say that in their minds the President _is_ the country and what is right for one is automatically right for the other.

In political discourse it has become easy for the newly elected to delude themselves with "I won therefore I must be right" which taken to the logical extreme can become 'might makes right', the damage being to the idea that the entire constituency is the source of power not just the subset of people who agree with you and vote. If tolerence is supposed to be a virtue it must be getting lonely of late. Governing without regard to the minority has long been recognized as another form of tyranny; occurring in a democracy only makes it a minor tyranny whose overthrow is only an election away - but a tyranny still.

True patriots do not ask, "If you are not with us, you are against us", which relies on demagoguery and fear to quell dissent. A true patriot asks, "Is this what is best for the country as a whole?" We are not a country of one mind in complete agreement, of which our founding father's were quite aware, and to progress down the road of history will require those who rule to show respect for the opinions and beliefs of the minorities being ruled, how else to have the respect of the people - for if you show the people your scorn for them, you no longer are deriving your power from them and have begun to take the well-worn steps down the despot's road.

 

Did the Framers seek an imperial presidency after all?

The Balkinization blog held a symposium the past week on Bruce Ackerman's new book, The Decline and Fall of the American Republic. Stephen Gardbaum wrote one of the reflections on Ackerman's book, and he also provides a nice recap for the uninitiated:

Bruce Ackerman’s The Decline and Fall of the American Republic is a profoundly important constitutional wake-up call. It presents a powerful, multi-layered, yet highly accessible argument that the body politic faces the serious and unprecedented structural risk of presidential extremism and lawlessness -- and a series of new checks and balances that offer the rare combination of pragmatism and originality.

I have not read Ackerman's book yet, so I cannot comment on it.. However, I would like to comment on Gardaum's essay, Empire Rises. Gardaum agrees with Ackerman's assertion that the presidency has turned out to be the branch that has proven the most dangerous to republican government, but, unlike Ackerman, he does not want to let the Framers off the hook. He contends that the Framers had all the evidence they needed to draw the right lessons. They simply decided to institute a strong executive:

 

I think the Framers’ error went beyond this wrong guess to the governmental structure that they established. This structure was inherently and latently flawed at the outset in the way that has come to pass, not precisely of course but generally – and the knowledge to have avoided this was available to them at the time. For the republican revolution that they wrought was not entirely without precedent. The first took place in 510 B.C. when Rome expelled its last king and established the republic. The new republican constitution split both the executive and legislative branches of government into two or more. It replaced the king with two magistrates, the consuls, who were jointly endowed with full executive power, and separated/divided legislative power among several citizen assemblies. The Roman Republic, which became a superpower along the way, lasted for just under five hundred years before it fell when a concentration of power in just one person – Augustus – effectively returned the state to a monarchy under the Empire. In deliberately rejecting the plural executive of the Roman Republic, a far larger version of which was tried and failed during the Articles of Confederation, the Framers hewed too closely to the monarchical structure of government they were nominally rejecting. They effectively replaced the king with a president, and the distinctive British conception of separation of powers between King and Parliament with the analogous one between President and Congress. Hamilton’s Federalist 69 on the differences between the powers of King George and (likely) President George – including an absolute versus a qualified veto of legislation – is arresting in its strained, almost scholastic reasoning and “methinks he protests too much” quality.

I think modern technology, the Party system, and the nature of modern warfare have enabled the presidency to become much more powerful than even Hamilton could have imagined, but the seeds of the imperial presidency were enabled by the Constitution. I have often wondered at the vast number of similarities between the American presidency and the British constitutional monarchy of the eighteenth century. If this analogy is truly the root of the Framers' conception of the presidency, then the implications for American constitutional principles are vast, e.g., the congressional power to "declare war" truly is only a legislative function and the authority -- indeed, the expectation -- to wage war rests with the executive. In seventeenth-century Britain, the legislative check on war-making was the power of the purse.

To provide true legislative oversight of the executive, the parliamentary system might, in some delicious irony, be the most effective structure. Without its separation of powers, parliamentary government provides the legislature the ultimate structural control of the executive: the Government comes from and answers to the majority of Parliament.

 

Amar's Bill of Rights: The Military Amendments

In considering the constitutional state of war powers a few years back, I worried that "executive excesses would probably be tied to [the president using the military domestically], as might be the case if a President sought dictatorial powers through the imposition of martial law." At the time, I was not prepared to offer a structural solution to prevent such a calamity, and for good reason. Smarter people than I have pondered this problem before me, including the Founding Fathers.

Their solution to the question was in the way they structured the Union's military system. A standing, professional army as a dangerous concept to the Founding generation, having just fought the Revolutionary War to throw off the oppresive yoke of the British. Alexander Hamilton notes the danger in The Federalist 28:

 

[I]f the persons instrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which [the nation] consists, having no distinct government each, can take no regular measures for defense. The citizens must rush tomultuously to arms, without concert, without system, without resource....

The answer for the Founders was to be found in federalism, and the militia under the command and control of the state governments. Jon Roland helpfully reviews the original constitutional meaning of "militia", which is important when considering that the Constitution in Article 1, section 8, clause 16 gives States the power of "Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

Amar expands this thought on page 50 of his book The Bill of Rights:

 

in the event of central tyrrany, state governments could do precisely what colonial governments had done at Lexington and Concord and Bunker Hill: organize and mobilize their citizens into an effective fighting force capable of besting even a large standing army.

Amar quotes Madison in The Federalist 46, which is worth repeating here to drive home the point of just how much the Founders were counting on the local militia:

 

[T]he State governments with the people on their side would be able to repel the danger.... [A standing army] would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence.

The standing, professional army of the eighteenth century was often a hoarde of foreign mercenaries that had no allegiance or fealty to the people in the local countryside where they were ordered to fight. The very structure of the militia meant that it was composed of family members and neighbors who lived and worked together. Already tightly knit and bound to return to life together after war, the militia was bound together by trust and need, so picking their own leaders among them helped tighten their cohesion.

Yet this federalism check on military adventurism by the central government did not quell the objections of the Anti-Federalists. Many pointed out that Congress still had power "to provide for organizing, arming, and disciplining, the Militia." The Second Amendment was designed to limit congressional manipulation of the militia and leave them available to arming by the State governments.

While the meaning of militia has morphed over 200 years, the core concepts of the Second Amendment are still applicable: the militia was composed of all the people capable of bearing arms, so "the people", subjects of the federalism-based rights of the First Amendment, are also the subjects of the Second Amendment. And, as Amar argues, the "well-regulated" can't mean the power to disarm, as this was the very power it sought to keep away from Congress. Localism was the very heart of the militia system and for that reason, along with the experiences of the ratifiers of the Fourteenth Amendment that relied on standing armies to preserve the Union against the tyranny and abuses of localities and states (ironically the opposite experience of the Founders), there is good reason to incorporate the Second Amendment against the states.

As an aside, Amar also argues that the conscription is unconstitutional because Congress circumvents the power of the State governments to appoint the officers of the militia and training the militia. "Under this reading, the federal government cannot directly force ordinary citizens into it's army, but state governments can conscript, organize, and train their respective citizens -- the militia -- who can in times of emergency be called into national service." (p 53)

The Third Amendment also acts to support civilian values against an overbearing military, working to subordinate the military to the civil power. Amar writes:

 

No standing army in peacetime can be allowed to dominate civilian society, either openly or by subtle intimidation. The Second Amendment's militia could thwart any open military usurpation - say, a siege - but what about more insidious forms of military occupation, featuring federal soldiers cowing civilians by psychological guerilla warfare, day by day, house by house? Bostonians who had lived under the hated Quartering Act of 1774 knew that this was no hypothetical. Hence the Third Amendment was needed to deal with military threats too subtle and stealthy for the Second's "well-regulated Militia." (p. 59)

Modern jurisprudence has a tendency to use the Third Amendment to construct rights of privacy for the individual, but the original context of the Third Amendment placed further limits on Congress' conscription power and further enforced separation of powers between the legislative and the executive. Congress' conscription power was restricted because if civilians could not be impressed upon to limited service as Innkeepers and cooks for soldiers, then what sense does it make that civilians can be pressed into full military service? Separation of powers were further defined because it took Congress, not the executive, "in a manner prescribed by law" to conscript a person's house.

So we see that the Second and Third Amendments work together to subordinate the military to the civilian power and to place checks against the executive's misappropriation of the military for his own purposes. Combined with Congress' complete power to raise and govern the military and to declare war, the Founders erected a wonderfully symbiotic system to ensure that all parts of society truly believed war was necessary before the nation was committed to war and, once it was, that the military would be used in a responsible manner.

Some argue that is was necessary for the United States to evolve away from the militia system in order to become a great power. The Bible reminds us that Israel abandoned its reliance on God to anoint a King "like all the nations." If we want to wield power "like all the nations," then in order to not become serfs to tyranny "like all the nations", the people of the United States must insist on a symbiotic system of checks and balances around our modern-day war powers for our military arrangements, just as the Founders did for their own. Yet another lesson we have forgotten in our modern rush for convenience, efficiency and power.

 

"Declare war" is synonymous with going to war

Congress has the sole power to decide when, where, against whom, and to what extent the United State will go war, according to this paper from Saikrishna Prakash: Unleashing the Dogs of War: What the Constitution Means by "Declare War". For the Founders, Prakash argues that there was more than the formal way to declare war that we typically think of today. Attacking an enemy was considered a declaration of war, so the Constitution leaves it solely to Congress to decide whether the nation goes to war. The President, as Commander-in-Chief, has standing constitutional authority to defend the property, territory and people of the United States, but he does not have inherent authority to take offensive actions without authorization from Congress.

The paper does a superb job of looking at what "declare war" meant in the 17th through early 19th centuries and why the "formalist" theory of the war power - that the President is free to wage war as he sees fit and that Congress' ability to declare war only changes the formal state of relations between two nations and triggers certain legislation at home - doesn't make any sense and falls under its own contradictions.

If we held to this construction of war powers today, much of the consternation this blog has expressed regarding the war power would be moot.

 

John Yoo's problem with Elana Kagan

John Yoo has an op-ed piece in the New York Times today that takes Elana Kagan, President Obama's nominee to replace outgoing Supreme Court Justice John Paul Stevens, to task for her limited view of presidential powers. I have not seen enough to know whether I would vote to affirm Kagan's nomination were I a Senator (ah, the hubris runs deep this day...), but given John Yoo's constitutionally unanchored advocacy of a unitary executive, his professed problems with her view of inherent presidential authority is a big plus for her, in my opinion.

We have discussed the theory of the unitary executive on this blog before, and there is nothing wrong with that theory, per se. Indeed, it actually has a lot going for it as an interpretative grid for Article II. The problem, however, is with John Yoo's hijacking of the theory to push his extreme view of the presidency as a monarchical law unto itself. When Yoo argues that the President can commit the nation to war without congressional authorization, he runs into a constitutional wall. And when Yoo suggests that the President ignore laws that interfere with his "inherent constitutional powers", he has entered into a fantasy land where words on the constitutional page can not mean what they seem to imply.

 

Proposed Amendment: Presidential Question Time

There is an interesting idea at goldwaterinstitute.org to import the Prime Minister Question Time from Britain and adapt it to the federal and state governments. Apparently, a proposed state constitutional amendment is being considered in Arizona to do just that for the Arizona state government.

I like this idea for Congress and the president as well, as it would at least move the politicians past their part-line talking points and pithy sound bites. I applaud President Obama for the bipartisan health care summit he held late last month in an attempt to seek ideas from Republicans on health care reform. Many in the media thought it nothing more than a show on everyone's part, but I thought some very useful and insightful question and dialogue came out of it. If we had more of that sort of give-and-take, I would venture to guess that the walls of partisanship and group-think would start to weaken.

Here is a version of the proposed Arizona amendment adapted for the federal Constitution:

On request from the Congress, the president shall appear once every two weeks on the floor of Congress to receive and respond to questions from the members of Congress during periods of regular legislative session. The president shall alternate chambers, appearing on the Senate floor to receive questions from members of the Senate, then appearing two weeks later on the House of Representatives floor to receive questions from the members of the House of Representatives. Each appearance shall be for a minimum of thirty minutes and a maximum of one hour, and the majority and minority party of that chamber of the legislature each shall receive one-half of the question time.

Resolving the War Powers conundrum through the courts?

John Hart Ely wrote a book called War and Responsibility, in which he analyzes the evolution of the balance of war powers between the President and Congress and, as this blog has, laments the general acceptance of executive-initiated war since 1950. Ely diligently analyzes multiple difficulties regarding war powers through examination of Congress's authorizations of the Vietnam War, and applies the lessons learned from that era to draft a set of proposals that would restore the balance of war powers toward expectations of congressional-initiated war.

The effectiveness of the so-called legislative veto is questioned by Ely (although he also argues for its constitutionality in the context of the War Powers Act), even as it is the backbone of this blog's own proposed war powers constitutional amendment. However, Ely does present a potentially more poignant and effective proposal: pass a revised War Powers Act that explicitly states the courts shall render judgments to suits questioning whether congressional authorization for a particular combat operation has been given. The point would not be to lasso the judiciary into setting United States foreign policy, but rather call it back to its original function of upholding the sanctity of constitutionally-prescribed processes.

The courts have increasingly dismissed cases brought by members of Congress or other parties as non-judiciable political questions. But in these cases, all the court is being asked to render is a ruling on process, not to provide a judgment on the true political question of what the foreign policies of the United States should be. The Constitution demands that Congress authorize the wars that the United States enters into, and Congress either authorizes a war through the constitutionally-proscribed legislative process or not. It is not asking too much of the judiciary to hold the President's feet to the fire and uphold the demands of the Constitution.

Why Polls Matter

The Bush Administration is well known for ignoring polls, especially the ones showing low approval ratings. While I'm sure they secretly basked in the glow when the ratings were sky-high after 9-11, no one was asking if he believed in polls either; the opposite of a "sunny weather" phenomenon, only getting asked about poll numbers when they are going down.

After reading a passage in chapter 9 of Machiavelli's "The Prince" (Concerning A Civil Principality), I wondered if Bush's fate was described 500 years ago. Here, a "prince" was any sovereign leader of a State and "people" meaning the citizens of a free state as opposed to the subjects of a monarchy.

The worst that a prince may expect from a hostile people is to be abandoned by them;

My question is whether this is exactly what happened to Bush after Katrina. Through his personal inaction and acceptance of the incompetence of others. The best quote of article is,

"Brownie, you're doing a heck of a job," Bush said.

Brown resigned 10 days later.

Bush was abandoned by the people. His stubbornness continues through Obama's fateful inauguration. Could it have triggered the next step (see Machiavelli chap 19 "That One Should Avoid Being Despised And Hated")?

So, why do polls matter? Consider another quote from the L.A. Times article on Bush's former aides and their take on his presidency.

In the months after the 9/11 attacks, Dimock said, when his polling asked for a single word to describe Bush's presidency, the most frequent responses were "leadership" and "strength." After Katrina, he said, "the top word was 'incompetent.' "

Bush liked to brush off bad poll numbers by saying that making tough decisions makes you unpopular. People weren't just disagreeing with his decisions, they were changing their opinion his ability to lead. So, like the proverbial baby and bath water, Bush's rejection of polls didn't just disregard the people's opinion of him but turned a blind eye to the people's disregard and rejection of his presidency.

Bush's Final Report Card

Bush Wins and Losses

Stem Cell Research - L
Intelligence plane over China incident - W
9/11 - W
Afganistan - W
WMD - L
Iraq - L
The Surge - W
Mission Accomplished banner - L
Plamegate - L
No pardon for 'Scooter' Libby - W
Abu Graib(sp) - L
Guantanamo Bay - L
Torture/waterboarding - L
Supreme Court Nominees - no decision
Katrina - L
Head of FEMA nomination - L
Stimulus package 1 - L
Stimulus package 2 - L
SEC oversight - L
Financial industry oversight - L
Darth Chaney - L
unitary executive theory - L
VP part of the legislative branch - L
Politization of science policy - L
Firing of 8 Federal Procecutors - L
Keeping Rumsfeld too long - L
'Axis of Evil' - L
North Korea - W
Iran - L
Canning Kyoto - no decision
“Enhanced interrogation of terrorists.” - L
Rebuilding presidential authority - L
Mid-east policy - L
No Child Left Behind - L
Medicare prescription drug benefits - L
Better relations with east Asian democracies - W
Compasionate Conservatism - L
Global Gag Rule - L
Terri Shiavo - L
Extraordinary Renditions - L
Relations with Russia - L
Relations with Europe - L
Relations with South America - L
Genocide in Africa - L

I'll add more to this as I think of them.

To Torture or not to Torture?

Craig said, “While this is a necessary step to regain some semblance of control over the interrogation process, I hope we don't live to regret such a blanket prohibition on more forceful interrogation techniques. It would be wise to consider Bill Clinton's suggestion to allow the use of such techniques only under the explicit authorization of the President.”

I believe that Clinton was referring to a situation where torture was explicitly forbidden. If a scenario were so dire that torture was felt necessary, by commanders in situ, to obtain life-saving intelligence, the President has always had the power issue pardons after the fact.

Pre-authorizing torture has no place in a Republic that values "Liberty and Justice for all".

What does the "Rule of Law" mean?

People who defend the President in cases like this need to be aware that 1) it's dangerous for the Executive to be empowered to skirt existing laws, and 2) It is the Juciary's job to decide what is or is not legal. Letting the Justice department decide whether or not to investigate its own actions allows the Executive branch be judge, jury, and executioner which leads to an abuse of power and the persecution of those who stand in the way, which is a lesson Mr. Tamm is learning first hand.

The Administration and the GOP like to harangue the public with calls for "The Rule of Law" but the case of Mr. Tamm shows that what they really mean is, "The Rule of Law (but only the ones we like)". How else can you explain Bush's proclivity for signing statements? Their stance on torture? Their willingness to hold Bosnian's when the Bosnian Supreme Court and head procecutor agree that there is no evidence against them?

To protect and defend

In discussing the oath the Constitution calls on each president to make upon taking office, Amar in his book "America's Constitution: A Biography" makes the point that the President swears to defend the Constitution itself, as opposed to the laws passed by the Legislature, as did the king of England upon taking throne. "In England, Parliament's enactments were supreme positive law, and a law-abiding monarch thus had to pledge allegiance to them. Such was the bedrock principle of the Glorious Revolution. In America, the bedrock principle was not legislative supremacy but popular sovereignty. The higher law of the Constitution might sometimes allow, and in very clear cases of congressional usurpation might even oblige, a president to stand firm against a congressional statute in order to defend the Constitution itself." (p. 179)

A new era dawns

This blog fancies itself an expositor of big ideas and, specifically, consideration of American governance informed by sound constitutional principles, so I made the decision not to use this blog for any of my writings during the presidential campaign that just culminated in the election of America's first African-American president, Barack Obama. It would have been too easy to lose the spirit of this blog and slide into the day-to-day myopic vision of campaign politics. That is important and has its place, but not here. Now that the capaign has passed, I do have a few reflective comments I want to make before regular blogging begins over the next few weeks.

I'm not one for trying to read the tea-leaves beforehand, but I can't help but feel that the old Reagan era has run its course and something else has started. I don't know what is being ushered in with Obama's win, but I don't think things will ever be the same in this country's political landscape, and I don't think Republicans will win the presidency again until they reform their message and figure out how to reassemble a new majority coalition. Part of this election was the finishing of what the 2006 congressional elections began -- holding the Republican Party accountable for their failures in governance for much of the past eight years. Consistent defecit spending, years of lax oversight of the housing and credit markets that led to the economic collapse in September, fanciful theories of the unitary executive, and incompetent administration of the Iraq War (the surge saved American defeat there, but not soon enough to turn around popular opinion of President Bush) were simply too much for John McCain to overcome. But it is also true that Barack Obama ran a consistent, disciplined campaign, and he is an inspiring, charismatic leader, the likes of whom American politics has not seen since Ronald Reagan.

I found Obama's acceptance speech Tuesday night moving and inspiring. If he doesn't do what Bush did and run to the narrow, partisan end of his Democratic base, he has the chance of forging a governing coalition of the magnitude that FDR and Reagan built. It's also inspiring to witness the first black President be elected, to see the full promise of the Fourteenth and Fifteenth Amendments along with the Civil Rights Act of 1964 finally realized, and to have a chance to finally move beyond the racial divides that have paralyzed large segments of our society for decades centuries.

Of course, a lot has to happen to turn this inspiration and hope into reality, and a highly-charged political atmosphere remains in America. But I share in the sense of hope that Obama's presidency offers. It is now up to him to govern for the entire country and not cater to the liberal policy preferences of the extreme left. It is now up to the country to get behind our new president, supporting him where we can and vigorously debating with him where we can't.

We've said here many times that politics is the art of compromise. If the Obama presidency can bring this lost art back to American politics, then more old wounds than slavery will have been healed in the process of this historic election.

The Bush Who Cried 'Wolf'

I think one of the main roots of our troubles began when we started defending "America's Interests" overseas. We're all for self-determinism until a country crosses us. We did pretty good for ourselves in that first 150 years. I'd ask, what happened to change it, was it Roosevelt and his 'Speak softly and carry a big stick" speech? Your question about when to intervene is apt. At some point, we had so much potential power, we started asking why should we put up with these behaviors when we have the means to enforce our will? We didn't mind looking the other way with the whole invasion of Columbia to create Panama and it's been downhill from there. What do the poor countries do? Without the resources to throw around the world they actually have to get along with their neighbors and even _talk_ with them. That gives me an idea. What if we characterized the debate like apartment dwellers who share a wall/floor. When one of them becomes disruptive, what are the appropriate responses? The initial stages are normally to talk to the neighbor to resolve the problem. If that does not help then we can petition ever higher authorities to take action on our behalf. That's all well and good but doesn't exactly fit the situation we're discussing. Let's change things around a bit and talk about an apartment complex in which the owner lives in one of the units. Let's also change the scenarios to clarify the difference. In this scenario the problem neighbor is the apartment owner. If you lived in another unit of the same complex, you'd have to deal with your landlord in such a way that if you were to get on his bad side, you could find yourself without a place to live. The landlord wields power disporportionately compared to just another tenant. Now, let's say that the landlord, which I'll call "Laurie" doesn't like you. It wouldn't matter if you were as quiet as a churchmouse or as on-time with your rent as a Swiss watch. Laurie could refuse to renew your lease for any reason and there isn't much you could do about it. What does this have to do with the U.S. use of power on the global stage? Bear with me because I'm headed to a point here. If Craig owned his own apartment complex, he wouldn't necessarily care about how Laurie treats her renters but if Laurie were to convince Craig that a particular renter, Kelly, was a troublemaker then Kelly could find himself with fewer and fewer options but to capitulate to Laurie.

Here is the Geo-Political connection. At what point would Craig stop listening to Laurie and give Kelly a fair shake regardless of what Laurie says? If Laurie is the U.S. then she should be careful how much of her weight she throws around because the loss of her reputation among apartment-owning circles isn't that apparent at first. The question she should ask herself is whether a particular outcome will increase or decrease her influence and whether repeated uses of her influence could create a situation where the other owners turn a deaf ear to her requests. If she were to appear to be unfair to her own tenants, that might influence the other owners, much like the boy who cries wolf.

The U.S. needs to treat it's foreign influence like a rare and precious thing. Horded and collected, it becomes desired and respected e.g. financial advice from Warren Buffet; diluted and dispersed everywhere, it becomes cheap and ignored, e.g. paper money from a government who won't stop printing more and more money. So what if Hamas won an election, isn't the principle of elections more important than which party won? We're so interested in elections in Iraq but we're shown as hypocrites when Hamas wins a fair election and we refuse to aid to a government to which we've previously pledged our support. We show through our actions just how much we believe in free and fair elections so we should not be surprised when our foreign influence wanes.

Will the real conservatives please stand up?

Church history and theology are among my interests, particularly the Reformation and subsequent Protestant movements (yes, there have been and continue to be many). One thing that I think contributed to the endlessly multiplying number of denominations within Christianity is the calcification of the issues that the original Reformers brought to the fore. Issues that were meant to serve as correctives to a Roman pontificate stuck in a medieval mindset -- issues like sola scriptura (the belief that the Bible is the only inerrant authority in the life of the believer) and justification through faith -- became articles themselves in the belief structure of the heirs of the original Reformers. As a consequence, entire new churches and denominations were erected to protect the new articles of belief, rather than those original grievances serving as correctives to transform the original church from the inside out.

A similar phenomenon has happened to the modern-day conservative movement in America. What was a dynamic movement with a particular aim took hold of the means and fossilized them into the end goals themselves. Witness: the original goal of the American conservative movement was to preserve the Constitution of the United States. Means to this end were to push for smaller, more responsive government, protect the economic interests of small business and the middle-class, defend and expand civil liberties, work for lower taxes and fiscal responsibility, and commit to peace through a strong military.

Now the heirs of these great conservative founders have taken *some* of these means and calcified them into hardened, transcendent principles: lower taxes, even during a period of war and record government growth; strong military (what happened to the peace part) that we use to beat the rest of the world into submission to our will (or at least go down trying); protection of big corporate interests rather than small business and the middle-class worker. No sign of smaller government, fiscal responsibility, commitment to civil liberties. Rather, the opposite - all power is to be consolidated into the hands of the President at the expense of civil liberties, congressional prerogatives and responsibilities, and the Constitution. Insufferable! The greatest defenders of the Constitution have transformed themselves into its greatest threat!!

That's irony enough to make George Lucas himself proud.

The parallels and similarities between the heirs of the Reformation and the heirs of the American conservative movement are too much to be coincidental. This must speak to a tendency within our human nature. Kelly has asked the question well: "What is a good citizen to do when the irrationality of politics and partisanship drown out the rationality of the issues at hand? When a group is more interested in besting their opponents than doing the right thing or whitewashing their own failures to save face, how can we in good faith give them our undivided loyalty?

Why does it seem like the root of the problem for any political party (or any movement in general) is when they become so certain that they have all the answers that they no longer need to listen to criticism or feedback from those with whom they disagree. It goes beyond hubris and into self-delusion."

Conservatives indeed! In the tradition of socialism, communism, and every other traditionalist movement that sought to empower the Government at the expense of the people. The conservative movement of Barry Goldwater and Ronald Reagan that sought to preserve the Constitution of the United States, conservatism that was really an extension of eighteenth-century Enlightenment liberalism that sought to empower the people, has been swept aside by modern disciples of expanding presidential power at any and all cost.

And I want nothing of it!

Too old and tired for democracy?

But there is not a grain of evidence that primitive government was despotic and tyrannical. It may have been, of course, for it may have been anything or even nothing; it may not have existed at all. But the despotism in certain dingy and decayed tribes in the twentieth century does not prove that the first men were ruled despotically. It does not even suggest it; it does not even begin to hint at it. If there is one fact we really can prove, from the history that we really do know, it is that despotism can be a development, often a late development and very often indeed the end of societies that have been highly democratic. A despotism may almost be defined as a tired democracy. As fatigue falls on a community, the citizens are less inclined for that eternal vigilance which has truly been called the price of liberty; and they prefer to arm only one single sentinel to watch the city while they sleep.

...

But the spirit that endures the mere cruelties and caprices of an established despot is the spirit of an ancient and settled and probably stiffened society, not the spirit of a new one. As his name implies, the Old Man is the ruler of an old humanity . It is far more probable that a primitive society was something like a pure democracy. To this day the comparatively simple agricultural communities are by far the purest democracies. Democracy is a thing which is always breaking down through the complexity of civilization. Anyone who likes may state it by saying that democracy is the foe of civilization. But he must remember that some of us really prefer democracy to civilization, in the sense of preferring democracy to complexity.

--The Everlasting Man, Chapter 3, G.K. Chesterton

One of the great Christian writers of the 20th Century, G.K. Chesterton wrote The Everlasting Man as a critique of H.G. Wells' An Outline of History and as a history of Western Civilization. (It is also a remarkable apologetic for the Christian faith.) In the early chapters of the book, Chesterton spends a great deal of time highlighting just how little we actually know about prehistoric peoples. We find a tooth or a piece of pottery, and the imaginations of archaeologists, psychologists and biologists join together to weave an intricate picture of the society and culture that must have produced the two artifacts.

This is a gold mine of contradictions and incompetencies that Chesterton mines, but one of the points he brings to light is this notion that prehistoric societies must necessarily have been despotic. We are all familiar with the image of the Stone Age village submitting to the will of the strong man with the club. We assume that the path to democracy is a path of enlightenment and evolution that marks the progress of true civilization. Chesterton argues that this, however, is not the case.

True democracy is kept close to the people, bringing the entire community together to vote on any business effecting the community as a whole. Once we move beyond the community into more complex structures and layers of government, complexity, specialization, and distances necessarily erode the ability to govern by pure democracy, so the people send representatives to vote for them. The people of the local community are already starting to be removed from the process. So Chesterton's point that democracy is the enemy of civilization is well taken. The more complex a civilization becomes, the less democratic it can be.

What I find particularly insightful in Chesterton's analysis, however, is his contention that despotism is the by-product of a tired democracy. "As fatigue falls on a community, the citizens are less inclined for that eternal vigilance which has truly been called the price of liberty; and they prefer to arm only one single sentinel to watch the city while they sleep." We can see that this has happened throughout history to various civilizations, Athena and Rome the obvious two that come to mind. Rather than something human societies evolve out of, Chesterton observes that despotism and dictatorship is something that human societies evolve in to. Indeed, the more civilized a society becomes, the more susceptible to despotism it becomes.

I can't help but think of the Star Wars prequel movies. Although fiction, the story line that plots Senator Palpatine's orchestration to consolidate power illustrates a lot of truth about the human condition. The Republic has become brittle. Various factions are out only for their own interests and have no regard for the greater good. Morality has no place in the hedonistic environment that governs day-to-day interactions. People grow tired of the inability of the Senate to get anything done, so they gladly hand over power "temporarily" to the strong-man who promises to make everything right. Except once the emergency passes, temporary somehow becomes permanent. The Republic has somehow become an Empire.

It is a slippery slope indeed, and the people must be ever vigilant to keep such a nightmare scenario at bay.

It is natural to inquire as to the health of the American Republic. While it is silly, as some try (even if only for polemical reasons), to claim that President Bush is a dictator or monarch, it is undeniable that the institution of the presidency has been strengthened at the expense of congressional and judicial powers. Not only this, but power has been consolidated at the federal level at the expense of state and local governments and the civil and religious institutions of society continue to atrophy from neglect, abuse, and apathy. The stage is being set for one who is patient and crafty to orchestrate, through the presidency, the establishment of a dictatorship.

Perhaps the only reason we have been spared such a fate this long is because of the unique way in which we elect our Presidents (for the benefits of the electoral college, see my post on the direct election of the President.) The United States has been blessed with a remarkable cadre of exceptional and godly men to serve as president, even if they have been most guilty of gathering up power for the office of the presidency. We can only hope and pray that the people will continue to remain vigilant to protect the Republic and constitutional principles that we claim we are committed to.

Direct election of the President

There was some discussion in the 1970s of a proposed constitutional amendment to elect the president by popular election. One version of the proposed amendment can be found online here: 1977 version.

The reasons for desiring a change to the way Americans elect our President are obvious. "One man, one vote" has become the default election paradigm through various court rulings, constitutional amendments, and evolutions of our democratic traditions over time. That the states with smaller populations have proportionally more votes than the people of larger states through the electoral college seems inherently unfair to us.

Another reason to get rid of the electoral college is the problem of the faithless elector. While this has not historically been much of a problem, the possibility exists that a faithless elector or two could change the outcome of a presidential election in a very tight race, where one or two electoral votes separates the candidates.

The electoral college is not the institution that the Founders envisioned that it would be, if it ever was. The Founders meant for the electors to act as a "buffer" to the passions of the general public. They were to represent the people, but at the same time, they were to supply wisdom and deliberation to the selection of the Republic's next Chief Magistrate. Now, however, when a Party's nominee wins a state in the general election, said Party will choose loyal activists who pledge to vote for the Party's nominee when the electoral college formally meets. The electoral college has, in essence, become an out-of-date formatily.

As discussed in a 1970 report issues by the Senate Judiciary Committee, there are several benefits that the electoral college brings to American presidential elections:

• encourages the building of broad, geographically-dispersed majorities to elect a candidate that can win a majority of the electoral college, leading to more stable, moderate Governments that respect the rights of minorities;


• important support for maintaining federalism and the role of the States in the federal government (if we repealed the Seventeenth Amendment, I think this would be less of a worry);


• structurally enforces the U.S. two-party system;


• contains recounts to specific states or election precincts;


• allows control and responsibility of election process and administration to be maintained at the state and local levels, rather than at the federal level.

While I'm not sure about the claim that going to a direct election scheme would remove an underpinning of the two-party system, the support the electoral college lends to federalism and the containment of electoral recounts is obvious. Combined with the fact that State Legislatures have established direct election as the method by which their respective State electors are chosen (a power granted State Legislatures under the Constitution), and we can see why there is not the supermajority of support required to pass a proposed constitutional amendment to institute the direct election of the President. In essence, there are fifty state elections for president, rather than one national election. For the benefits that the electoral college bring, I'll be OK with the individual voter of Wyoming and Iowa having a greater proportional influence than the individual voter in Texas (my home State), New York and California.

The Unites States is, after all, a democratic republic, not a pure democracy.

John Yoo on the Unitary Executive

A recent speech by John Yoo to the Federalist Society provides some interesting insight to the current Administration's perspective on presidential power. A long-time proponent of what is known as the theory of the Unitary Executive, John Yoo uses the cover of a valid theory of constitutional (Article II) interpretation to push his extremist notions of presidential power.

I say the Unitary Executive is a valid option of constitutional interpretation because it is directly gleaned from Article II of the Constitution. To quote directly from the Wikipedia article:

The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive theory use this language along with the Take Care Clause ("The President shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."

While this might be a valid interpretation of the words of our Constitution, our tradition has evolved away from a strict implementation of the unitary executive theory. While the president retains vast power to direct the executive ship, there are areas of day-to-day governmental operation that we seek to rest above or beyond the realm of politics. For example, the Federal Reserve is not directly answerable to the President, although it is technically part of the Executive Branch. Same goes for independent agencies such as NASA or the Federal Election Commission. These agencies work in areas that Americans generally agree should remain free of the influence of presidential priorities and partisan wrangling. For the FDA, science is science no matter who is president.

Nevertheless, John Yoo thinks that everyone in the executive branch should be in lock-step with the President: "Every subordinate should agree with [the president's] views so there is a unified approach to the law..." He goes on to elaborate why the unitary executive is necessary:

“The president reacts to unforeseen events and emergencies that Congress can’t anticipate … like Sept. 11, that are outside the anticipation of written laws,” said Yoo. “The framers wanted a presidency that’s unified and can operate with speed and secrecy so they left [the office] with ambiguous limits on its power. It was not carefully defined, deliberately.”

Regardless of the defensibility of the Unitary Executive, Yoo's claims springboard into waters way beyond the realm of the theory. While Alexander Hamilton writes repeatedly in The Federalist Papers that the country needs an "energetic executive" or an "energetic government," I am not aware of any reference from the Founders that the Government should operate in secret. And they most certainly were not ambiguous on the limits of the presidency's powers. Checks and balances along with separation of powers are central to the framework that the Constitution erects. The president's realm is to execute the law, not make it or reinterpret it or ignore it. And the president (nor the Administration) certainly may not break the law, a la FISA-style.

The logical flaw of signing statements

If the Administration can choose how to interpret a law through issuing signing statements, there's no difference between this and the power to ignore existing laws that were in place before the President came into office. The fact that a law is in the process of being signed when the President declares his intent to ignore it, is irrelevant. If the President has the power to ignore this kind of law, he has the power to ignore laws that were in effect when he took office.

The part the executive branch plays in the constitutional balance of powers is in the need for any Administration to set priorities in the laws that it enforces. Resources are finite and must be rationed. The Clinton Administration put more importance on civil rights laws than the Bush Administration, which puts more emphasis on enforcing child pornography laws. But the constitutional charge of the President is to make sure all laws are faithfully administered; he has no power to ignore or interpret.

Asking the wrong questions. Again.

SCOTUSblog reports on in the case of Medellin v. Texas (06-984) and arguments before the U.S. Supreme Court over whether the president has the power to dictate the outcome of state judicial proceedings based on U.S. treaty obligations. The Fifth Circuit and the Texas Court of Criminal Appeals (the highest state court in Texas for criminal cases) both ruled that the President does not have authority to direct state courts to follow a ruling by the International Court of Justice. Lyle Dennison of SCOTUSblog writes: "In an amicus filing in the case of Medellin v. Texas (06-984), the government called for reversal of a Texas state court ruling that Bush did not have the power to ensure that state courts complied with the international tribunal's [World Court's] decision on the rights of foreign nationals arrested and prosecuted within the U.S. for crimes here."

The Administration is arguing that "the Texas ruling will undermine the President's authority to determine 'how the United States will comply with its treaty obligations.'" Their theory is that the treaty power trumps any federalism concerns.

My concern is that the Administration is, once again, building a strawman argument. Of course treaty obligations trump issues of federalism. But this is not the point that should be argued before the Supreme Court. The true question is whether the executive branch can dictate to the judicial branch. If someone asked if the president could tell the U.S. Supreme Court how to decide one of its cases, the questioner would be laughed out of the room. It sounds absurd because it is.

The judicial branch is an independent branch of government, separate from the executive power. The fact that in this case the judicial branch is that of an independent state only adds to the reasons why the Administration's arguments here are patently ridiculous.