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Dead Constitution See other Dead Constitution Articles Title: Sic Sempter Tyrannis Maybe the authors of the Federalist Papers were liars. Maybe they were just engaged in political propaganda in order to shove through the Constitution. In secret, perhaps, they were plotting a leviathan state with a president who can do all that the Bush administration claims he can, which pretty much amounts to whatever Bush wants to do. If that was the case, they knew better than to advertise it. The Constitution would never have passed. Fear of a powerful president was one of the main reasons that people were fearful of abandoning the Articles of Confederation, which had no executive to speak of. Recall that the founders had long tangled with the king in England. The entire Declaration of Independence was a personal attack on him and his policies. These were the days of “personal states” in the sense that a government was still thought to be the private property of a monarch. The bad aspect of this system was that the king could become a tyrant. The good aspect was that people knew whom to target to end the tyranny or, in the case of the founders, whom to denounce in the course of a political separation. As an alternative to the personal executive state, the founders (perhaps naïvely) believed that they could create a Roman-style republic with a twist. There would be a head of state, but he would be controlled by a legislature. In fact, controlling the president would be the main job of the legislature. The founders went this one better by refusing to invest much power in the central government. Instead, the powers were decentralized and belonged to the member states. The anti-federalists were skeptical. How can you create a presidency and not expect it to become corrupt? Alexander Hamilton was absolutely reassuring in Federalist 69. He said that the president bears no resemblance at all “to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.” He concedes that the president has some resemblance to the king of Britain, but there are important and critical differences. He would only be president for four years, which is too little time “for establishing a dangerous influence in a single State.” He raises a point that was very much central to the minds of that generation. A king cannot be removed from office through peaceful means. In contrast, the president “would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” Yes, said Hamilton, the president is commander in chief of the military. But this power is only “occasional”: when the legislature has authorized the military for actual service. He has no power to declare war or to raise and regulate armies. All these powers “appertain to the legislature.” Finally, he reminds us, if any powers are abused—such as the power of pardon—the president can be impeached immediately. One gathers from these passages a vision of the president as a temporary manager, doing only what the legislature approves, always under the relentless threat of impeachment. Presidents would come and go, and they would be in fear of the legislature. One misstep and they could be tossed out. Oh, and by the way, the president can’t get rid of the legislature except in one narrow case: he can adjourn them when they otherwise can’t agree on how or when to leave. What about his powers? He can negotiate treaties and commercial agreements. He can welcome ambassadors. Everything else can only be done with the advice and consent of the Senate. Was Hamilton a liar? He is usually presented as the advocate of presidential supremacy and certainly he went much farther than the Jeffersonians in his view of government. He was an extremist by any standard. He favored leviathan by comparison to the anti-federalists. And yet, from his own writings, the president in his vision of the Constitution is nothing more than a hired manager with few powers, and those not trivial are subject to the legislature. If he abuses power, he goes to the gallows in the republican fashion: he is impeached. How does this contrast with the view of the Bush administration? It is opposite in every respect. Consider the claim of John Yoo, author of The Powers of War and Peace, the bible of the Bush administration’s claim of totalitarian powers in war, and the reputed author of most of the Bush administration’s torture policies. Yoo’s book is a twisted mess, an attempt to justify reading the founding period in an opposite way from its historical reality. It’s like arguing that King Lear is a comedy, that Beethoven was second rate, or that the Bible endorses Satanism. There is always someone around to make any crazy claim you want, and if you are the ruling party, intellectuals will crawl out of the woodwork to say what you want them to say. In any case, this book by Yoo dismisses the whole of what Hamiliton says in Federalist 69 as “rhetorical excess.” And an article in the Boston Globe quotes him as saying that “Fed 69 should not be read for more than what it is worth.” Why? Because all presidents since FDR have used the imaginary war power to do their dirty tricks. This is an interesting argument. It says that because some tyrants have violated the Constitution, all presidents should presume the right to be tyrants in the manner in which the Constitution’s framers tried to guard against. Now if some intellectuals set out to say that the Constitution is really just a myth, that our past doesn’t matter, that the founders’ intentions are irrelevant, that the rule of law is and should be a dead letter, that would be one thing. We would be back to the fundamental debate of liberty versus despotism. Instead, keep in mind that the people arguing for executive dictatorship fashion themselves as conservatives. Contrast this with the genuine conservatism of Robert Taft, who saw the postwar period as a time to set matters right and return to first principles. He attacked Truman for his Cold War forays and stated clearly that Congress alone has authority to declare war and manage foreign policy. FDR’s attitude toward his power, Taft wrote, was inconsistent with our heritage. To return to my original question: what if the authors of the Federalist Papers were liars? This is not as crazy a theory as it might sound. Patrick Henry believed that they were, which is why he opposed the Constitution to begin with. It was too much of a risk, he said, to create any sort of president: “If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute!” Patrick Henry lost the debate because enough people believed that Hamilton was sincere in his promises and that the president would be restrained. So let us be clear about what the advocates of executive rule are really saying. They are saying things that if they had been said to that founding generation of Americans would have prevented the Constitution from ever being passed. But it did pass. So until we can restore the Articles, let’s live up to the Constitution, and stop the dissembling, especially in the name of “conservatism.”
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