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Gary Hart

Gary Hart

Posted: May 30, 2006 06:13 PM

Rushing Towards a Constitutional Crisis


By Gary Hart and Joyce Appleby

We are in the midst of a political crisis that goes right to the heart of our constitutional government. Yet, without a depression or civil war on the horizon, we have been slow to respond to this threat to the future of our democracy

The Founding Fathers made interpreting the Constitution easy. Gouverneur Morris, the delegate tasked with polishing its prose, preferred clear expression. Where the framers wished to be specific, he made the document transparent. Where they preferred to be vague, he produced felicitous phrases like the famous "necessary and proper clause." Where they utterly failed to anticipate a development like the emergence of political parties, there was an amendment process that could separate the elections of president and vice president, as did the 12th.

However easy to interpret, sustaining a consensus around any particular interpretation of the Constitution has proved more difficult. Our Supreme Court justices have never failed to fill up their docket. Against this background of successive and contending interpretations of the Constitution, it's important to distinguish between differences of opinion and a crisis. The differences arise over how to apply the Constitution in specific cases. When a development threatens the heart of our Constitution, a crisis looms. And it does so now with a president who explicitly and consistently works to extend his power in a way that upsets the balance of authority among the executive, legislative, and judicial branches of our government.

Like some wasting diseases, this constitutional crisis began years ago - with the Cold War in fact. The communist threat at the end of World War II, part of it real and part of it self-generated, wrought substantial changes in our balance-of-power, checks and balances constitutional system. Authority shifted to the executive branch. Much of this shift came from an outright grant of power by successive Congresses unwilling to assume responsibility for conducting a novel kind of warfare that was not concentrated on the open battlefield but in the back alleys of the world.

Declaring massive support for the South Korean government to be a "police action," President Harry Truman in 1950 sought congressional authorization to make war only obliquely under the aegis of the United Nations, not a formal declaration as required by the U.S. Constitution. This set a pattern that would be followed by successive presidents for the next half century. Truman further warned the Soviet Union not to meddle in Greece and Turkey through a policy that came to be known as the Truman Doctrine

The National Security Act of 1947 established a National Security Council, along with a permanent Department of Defense and United States Air Force, that quickly came to rival the Department of State for presidential attention and policy initiative. That Act also created a Central Intelligence Agency whose activities soon spread to destabilization, and sometimes overthrow, of unfriendly governments or those seen to be too friendly to the Politburo in Moscow.

Truman's decision to use atomic weapons in Japan, and his brisk, authoritative manner, caused few to want to challenge him where the communist threat was concerned. Conservatives, newly minted as anti-communists, found it difficult to question his increasing use of covert operations to counter Soviet initiatives or the emergence of the United States as the world's stabilizing force.

The Cold War badly battered American traditions. We fought police actions, proxy wars, and covert operations, using euphemisms to cover up our failure to follow the Constitution. The secret operations and lesser-of-two evils alliances of these years made a mockery of an earlier Wilsonian tradition of "open covenants, openly arrived at." The stark choice presented between a world of democratic governments and totalitarian communist regimes smoothed the path away from earlier American practices. Cold War diplomacy was anomalous, but an anomaly that lasts half a century can become the norm.

When President Richard Nixon's 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.

During the Cold War, intelligence became a marshal's baton. Those who had access to it, particularly the president, held a trump card over those who did not. The theme of "if you only knew what I knew you wouldn't question my decisions" helped a succession of Cold War president keep Congressional inquiries at bay. It has resonated most blatantly in the George W. Bush administration. "We know secrets having to do with national security that we cannot divulge even to Congress, let alone the American people," has been their message. Access to intelligence, real or imagined, became the justification for unilateral presidential action.

Bush's prosecution of the Iraq war has included 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 power of the presidency," even those powers have been explicitly prohibited by acts of Congress.

The issue of presidential power in wartime has plagued the American republic throughout its history. Once past the founding era principle of "no foreign entanglements," various administrations have tried to use conflict, whether genuine or not, to consolidate and concentrate power in the executive branch. Characterizing the fight against terror as a war has accelerated this pernicious development.

Terror is a method not an ideology or tangible enemy, but declaring "war" on it has enabled the Bush administration to justify unlimited detention of "enemy combatants" (a unique, self-invented category meant to avoid both the criminal justice system and international conventions). So too has the "war on terror" permitted surreptitious domestic wiretaps and surveillance, in violation of U.S. law and in circumvention of established judicial warrant procedures. Its exigencies have been called in to defend unilateral, preemptive invasions of sovereign states.

During the first post-Cold War decade of the 90s, power had become a bit more balanced between the Article One legislature and the Article Two executive. Not everyone liked this course correction. There is little question that Vice President Richard Cheney and Secretary of Defense Donald Rumsfeld, veterans of the Ford administration, came into office determined to reverse this trend and consolidate the executive authority that they perceived to have been eroded during Nixon's travail after the Watergate break-in.

There was little in January 2001 that could provide a fulcrum to lever an expansion of presidential powers. Then came 9.11. Al Qaeda provided the opportunity to carry out the long awaited project of restoring a dominant executive branch. War is always a convenient excuse to do that. Instead of overtly and directly announcing their intensions, the executive "restorationists" carried out their project largely in secret. No speeches were given, no mandate articulated. Senior Bush administration officials simply went about their business of making the presidency primus inter pares despite the importance in the Constitution of maintaining a balance.

The creation of a constitutional crisis became virtually inevitable once this program was in gear. Though the systematic effort to place ideologically motivated judges in federal district courts, courts of appeals, and Supreme Court positions was largely read as motivated by a social agenda centered on reversal of Roe v. Wade, there is now reason to believe that this effort was even more motivated by a realization that extra-constitutional concentration of power in the executive would, sooner or later, required judicial scrutiny and approval.

The Bush administration has built on the Cold War foundations of an imperial president, accelerating the rate of the power shift and openly defending the unlimited nature of the president's power in time of war. Five years and many decisions later, President Bush and his most trusted advisors have pushed the expansion of presidential power so far that we now confront a constitutional crisis.

President Bush has given Commander-in-chief Bush unlimited wartime authority. Relying upon legal opinions from Attorney General Albert Gonzales, then working in the White House, and John Yoo, in 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.

President Bush's interpretation of his war powers has produced a devilish conundrum, for no peace treaty can possibly bring an end to the fight against terror. There will always be some rogue terrorist. 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. The entire scheme has required not just a president intent on accumulating and consolidating executive power, but a compliant Congress, and a judiciary willing to ratify this systematic march toward a quasi-authoritarian structure as well. Arguably, there is no precedent for this dangerous project in American history. Upon its outcome could rest the future of our republic.

Nor has it only been in foreign affairs that President Bush has usurped the authority of Congress. Using an innovation from Ronald Reagan's presidency called "presidential signing statements," he has flouted his constitutional duty to "take Care that the Laws be faithfully executed," as stated in Article 2, Section 2. Rather than veto legislation and thereby give Congress a chance to override his veto, he has elected to announce that he does not intend to execute the law, in effect putting the president above the law. The Boston Globe has found more than 750 "presidential signing statements" expressing the president's intention not to execute the law before him. Many of these laws have specifically addressed President Bush's expansion of powers as part of the "war on terror," a notorious example being his rejection of the law against the use of torture after failing to stop its passage through Congress. This policy seems not to be terribly troubling to a complacent Congress, but it is one that massively unhinges the Constitution.

All of these novelties could be written into the Constitution through the amendment process, but of course that would trigger the debate we're not having. There are other ways to change the Constitution while avoiding the laborious amendment process. One is to silently ignore a provision, a course of action which takes the collusion of those in office. A spectacular example involves the Constitution's investment of the power to declare war to Congress. Despite the many hostilities the United States has engaged in over the past 60 years, Congress has not declared war since December 8th, 1941, when Franklin Delano Roosevelt asked Congress for such a declaration following the Japanese attack on Pearl Harbor.

Article 1, Section 8 of the United States Constitution is quite explicit in giving Congress, not the President, the power to declare war. No ambiguity here of the original intent. Nor should the Constitution be selectively respected.

So accustomed have Americans become to the president's assuming this authority that in the months leading up to the invasion of Iraq, during the spring of 2002, Alberto Gonzales, then presidential counsel, advised the president that he need not consult Congress. When the president decided to do so any way, it was not to ask it to declare war, but rather to authorize the use of force, leaving him to decide when or if.

A distinction without a difference? Hardly. The drafters of the Constitution gave this power to declare war to Congress because its members were the closest in contact with their constituents who would fight and pay for any war. Representatives of those who would bear the brunt of war would make the awful choice of resorting to violence. The Founders also sought to balance the power of the commander-in-chief against that of Congress, to avoid a dangerous concentration of power in the presidency.

To make matters worse, , after President Bush announced that he would consult Congress, as though it were a matter of his choice, not a constitutional imperative, he told crowds gathered in Indiana and Kentucky that he did not expect a Congressional debate to change his position. Later the president indicated his impatience with any prolonged congressional deliberations about his intentions. Yet it is exactly this function of hearing from experts, canvassing opinions, and expressing constituents' concerns that distinguishes Congress from the presidency.

Few in Congress complained publicly about this abrogation of the power to declare war, set forth in art. 1, sect. 8, but over 1,400 American historians complained in a petition presented to a delegation of representatives. The petition noted that "Congress has not asserted its authority to declare war for over half a century, leaving the president solely in control of war powers to the detriment of our democracy and in clear violation of the Constitution." To merely authorize the use of force, as Congress eventually did, is to avoid responsibility and leave the ominous decision to go to war with an officer who benefits from the extension of powers war brings.

The trouble with the course of action President Bush has taken is that it directly contradicts both the letter and spirit of the U.S. Constitution. The Founding Fathers, who always come to mind when the Constitution is in danger, anticipated the possibility of power grabs. Writing in the Federalist Papers, James Madison defined tyranny as the concentration of powers in one branch of the government, going on to point out that "the great security against a gradual concentration of the several powers in the same department 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, Madison concluded that it "may be a reflection of human nature, that such devices should be necessary to control the abuses of government." "But what," he 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."

What James Madison would have thought of a latter-day president who held himself above the law, treated Congress as a nuisance, subjected American citizens to state intrusion, and manipulated intelligence, meant to protect the people as a whole, is difficult to fathom. But it is most certainly the kind of presidency he was concerned to curb.

Madison's solution to the concentration of powers that he believed led to tyranny relied upon either Congress or the Supreme Court to check the overreaching from a president. In our present crisis, Congress has been supine in the face of the president's steady assertion of unconstitutional, unlimited power, and the Supreme Court has yet to decide on cases affecting detainees and executive surveillance of Americans' telephone calls and email messages.

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.