05/16/2011 08:57 am ET Updated Jul 16, 2011

The Constitution and the Tea Party Part Company

The proudest boast amongst Members of the Tea Party Caucus in Congress has been scrupulous adherence to the Constitution. They ridiculed House Speaker Nancy Pelosi's asperity to inquiries about constitutional authority to enact Obamacare: "Are you kidding?" They insisted on reading the Constitution's text on the House floor to remind Members that their sole oath of office is to uphold and defend the sacred parchment. They invite celebrated figures like United States Supreme Court Justice Antonin Scalia to deliver tutorials on constitutional intent and principles.

But as the proof of the pudding is in the eating, the proof of Tea Party Caucus Members is in action, not pontification. On that score, the Members have honored their proud boast more in the breach than in the observance -- at least in matters touching on national security.

President Obama usurped the exclusive congressional prerogative over war in gratuitously attacking Libya without congressional authorization required by Article I, section 8, clause 11 of the Constitution. The president concurrently sallied forth with the alarming Obama Doctrine. It embraces a counter-textual and counter-historical theory that crowns the president with power to commence war to promote "regional stability" or the "credibility or effectiveness" of the United Nations Security Council -- which means war at the whim of the president.

Congress is denied even a cameo appearance in the grave decisions to take the nation from a state of peace to a state of war. Military conflict means legalizing what is customarily murder, bloating government spending, substituting secrecy for transparency, crippling civil liberties at home, and sending brave men and women abroad to risk or give that last full measure of devotion. But Tea Party Caucus Members either whimpered or stood mute over Libya and the Obama Doctrine despite the clear unconstitutionality of presidential wars and their ominous implications.

Supreme Court Justice Robert Jackson warned in Youngstown Sheet & Tube v. Sawyer:

Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.

James Madison, father of the Constitution, wrote to Thomas Jefferson in 1798:

The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.

James Wilson, future Justice of the Supreme Court, explained at the Pennsylvania convention to ratify the Constitution:

This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large; this declaration must be made with the concurrence of the House of Representatives; from this circumstance we may draw a certain conclusion, that nothing but our national interest can draw us into a war.

Article I, section 8, clause 12 of the Constitution empowers Congress: "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years." Its purpose was to prevent the president from maintaining a standing army without returning Congress at least once every two years to obtain necessary appropriations. Standing armies were thought dangerous to domestic liberties and civilian supremacy in the hands of the President alone.

Alexander Hamilton elaborated in Federalist 26:

The legislature of the United States will be obliged, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.

Pentagon spending, however, is unaudited. It cannot confirm compliance with the Constitution's two-year limitation on funds appropriated to support and maintain an army. The consequence is not academic. President Obama has already expended $750 million conducting an unconstitutional war against Libya without a congressional appropriation for that purpose. At present, the Pentagon enjoys a lavish "slush fund" to spend on endeavors for which there are no identifiable congressional appropriations. The link between two-year congressional appropriations and Pentagon spending has been unconstitutionally severed. Yet any protest from the Tea Party Caucus has been inaudible.

The Patriot Act, including provisions up for renewal at the end of May, flouts the Fourth Amendment right of citizens to be left alone from government surveillance or snooping without probable cause to believe crime is afoot. Yet the Tea Party Caucus is not clamoring for repeal.

Despite the good intentions of its architects, the Act betrays bedrock constitutional principles. The individual is the center of the Constitution's universe. Aggrandizing government is the center of the Patriot Act. The Constitution salutes freedom and citizen sovereignty over absolute safety and citizen vassalage. The Patriot Act turns that hierarchy on its head. Where experience and facts are inconclusive regarding the need for government authority, the Constitution's default position is liberty. Under the Patriot Act, if a threat passes a microscopic threshold of danger, a Big Brother government is embraced, a descendant of the 1% doctrine.

The makers of the Constitution venerated man's spiritual nature, his moods, and his intellect, to borrow from Justice Louis D. Brandeis. They sought to protect Americans in their beliefs, their attitudes, their seclusion, and their challenges to conventional wisdom. They crowned citizens with the right to be left free from government encroachments, the hallmark of every civilized society. To protect that right, Justice Brandeis sermonized, "[E]very unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." The Patriot Act, nevertheless, shrivels the right to be left alone from Government snooping and surveillance.

Every Founding Father -- every Member of the Constitutional Convention of 1787 -- would have been appalled at the Patriot Act. They were electrified by patriot James Otis' denunciation in 1761 of villainous Writs of Assistance -- general search warrants which empowered petty officers to invade privacy and liberty on bare suspicion without oath. Otis elaborated:

It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law that ever was found in an English law book...Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, and murder any one within the realm.

Patriot John Adams was awed, and remarked, "[T]hen and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born."

The true patriots of the Constitution and the Republic are the "band of brothers" who stood or are standing in opposition to the misnamed Patriot Act. They understand that the secret of happiness is freedom. And the secret of freedom is the courage to accept risk as inherent to an enlightened and civilized existence. Proponents of the Patriot Act acted from weakness, not strength. Their motives were honorable. But as Justice Brandeis presciently observed:

"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent...The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."

In conclusion, if Tea Party Caucus Members wish to keep their constitutional escutcheons unsullied, they should not tarry in taking legislative action against unconstitutional presidential wars, unconstitutional unaudited military spending, and unconstitutional encroachments on the citizen's right to be left alone.