Saturday, December 24, 2005

That pesky little James Madison

Continuing with Federalist #41, General View of the Powers Conferred by The Constitution, we quickly find more of the genius of our founders, their anticipation of the issues we face today, and the fact that they faced them in the same or similar forms in their day.

Federalist #41 deals with military powers of the federal government. A great deal of it argues the need to provide for a standing army and a navy. These aren't so much issues today but some of the argument Madison, writing as Publius, used is very interesting in how he states a clear case for the need for a strong national defense but never without talking about the dangers inherent in such powers and the need for a Constitutional defense against their potential abuses by "a perfidious government against our liberties."

A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. The attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a Constitution fully adequate to the national defense and the preservation of the Union, can save America from as many standing armies as it may be split into States or Confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter.


"A bad cause seldom fails to betray itself." I have long said that this administration would eventually bring itself down. Such hubris as they exhibit always does. Let me see if I can re-work this paragraph just a little....

A bad cause seldom fails to betray itself. Of this truth, the management of the current federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to ignore on that side the prudent distrust entertained by the people, of unchecked executive power. The attempt has awakened fully the public attention to that important subject; and is leading to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against external and internal dangers, but that the Constitution and subsequent law are fully adequate to the national defense and the preservation of the Union, saving America from as many standing armies, terrorist organizations, domestic threats, executive abuses, and from such a progressive augmentation, of these establishments in each, without rendering them burdensome to the properties nor ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter.


Happily in Madison's day the oceans which separate us from the majority of the rest of the world provided a necessary ingredient for our defense as he shows in his defense of the need for a navy.

The batteries most capable of repelling foreign enterprizes on our safety, are happily such as never can be turned by a perfidious government against our liberties.


Sadly, in our day this is no longer true. No one among us is arguing that we do not need spy agencies or wiretaps or the FBI or border security in order to be safe and secure in our nation. Today more than ever the need to provide for the common defense and general welfare involves powers that can be readily and easily be "turned by a perfidious government against our liberties." It is more important now then ever that such powers be checked and appropriately be guarded against abuse while at the same time be allowed in order to provide for that common defense.

Madison goes on to repel an attack on the ability of Congress to pay for the national defense. While the argument he makes is directly in relation to this power it is a complete and total refutation of the Bush administrations argument of unlimited power based on the "Commander in Chief" language in The Constitution.

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.


The Bush administration argument basically boils down to a claim that the President has "an unlimited commission to exercise every power which may be alleged to be necessary for the common defense" based upon his responsibility to defend the nation as stated in his oath of office (Article II, Section 1) and the powers assigned to him in the Commander in Chief clause (Article II, Section 2):

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States."


The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States


Let's see how Mr. Madison addresses such "misconstructions"...

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."


Similarly, had no other enumeration or definition of the power of the President been found in the Constitution, nor had certain parts of this power been enumerated to the Congress in Article I, nor any limits placed on it's application domestically by the Bill of Rights, then the claims of the administration might have some color to it; though it would be difficult to find a reason for so clearly defined and limited a statement of authority to be used to describe an authority so absolute and overriding of all others as this administration claims for itself.

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?


Or, in the case of the Commander in Chief clause, no more than a comma.

Madison continues in a scathing refutation of an argument based on such abuse of common constructs of language:

If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.


"Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars."

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States


A general phrase, "Commander in Chief", qualified by a following recital of particulars, "of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States".

There is no language contained in there that even hints at overriding the 4th, 5th, 6th, 8th, 9th, or 10th amendments as this administration would have us believe. Quite the contrary, the expansive language of the 9th and 10th amendments makes clear that such powers and rights as are not enumerated in The Constitution itself are reserved to the People of the United States.

As Madison states, "But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity...."

And as Madison opens his complete destruction of his opposition...

"A bad cause seldom fails to betray itself."

So too, he closes...

"How difficult it is for error to escape its own condemnation!

PUBLIUS

2 comments:

nikto said...

Good old James Madison.

If he were alive today,
the GOP would have
to kill him.

Stephen Verbit said...

No group should be more troubled by President Bush’s apparent violations of federal law than the Republicans who sanctimoniously impeached and tried President Clinton on perjury and obstruction of justice charges for allegedly lying under oath about and trying to cover up his private sexual conduct. The Republicans insisted that the impeachment and trial of President Clinton was not about sex, but rather about upholding the Rule of Law. Their lofty and eloquent arguments about the Rule of Law are instructive in considering President Bush’s conduct.

During the Senate trial of President Clinton on the Articles of Impeachment, then-House Judiciary Committee Chairman Henry Hyde (R.-Ill.) vehemently argued:


Let us be clear: The vote that you are asked to cast is, in the final analysis,
a vote about the rule of law. The rule of law is one of the great achievements
of our civilization. For the alternative to the rule of law is the rule of raw
power... The ‘rule of law’ is no pious aspiration from a civics textbook, The
rule of law is what stands between all of us and the arbitrary exercise of power
by the state. The rule of law is the safeguard of our liberties. The rule of law
is what allows us to live our freedom in ways that honor the freedom of others
while strengthening the common good.


House Judiciary Committee member Rep. Ed Bryant (R.-Tenn.) argued to the Senate:


As the head of the Executive Branch, the president has the constitutional duty
to ‘take care that the laws be faithfully executed.’… In view of the enormous
trust and responsibility attendant to his high office, the president has the
manifest duty to ensure that his conduct at all times complies with the law of
the land.


In the House debate resulting in the impeachment of President Clinton, House Judiciary Committee member Rep. James Rogan (R.-Calif.) made this particularly pertinent argument:


There is no business of government more important than upholding the rule of
law. A sound economy amounts to nothing beside it, because without the rule of
law, all contracts are placed in doubt and all rights to property become
conditional. National security is not more important than the rule
of law, because without it, there can be no security and there is little left defending....

Equally relevant to President Bush’s authorization of warrantless domestic spying, and his administration’s justifications for it, is the argument presented to the Senate during President Clinton’s impeachment trial by House Judiciary Committee member Rep. Steve Buyer (R.-Ind.):


The president has a constitutional role of Commander in Chief.…[A]s the ‘single
hand’ that guides the actions of the armed services, it is incumbent that the
president exhibit sound, responsible leadership and set a proper example... In
order to be an effective...effective military leader, the president must exhibit
the traits that inspire those who must risk their lives at his command. These
traits include honor, integrity, and accountability…. America, again, is a
Government of laws, not of men. What protects us from that knock on the door in
the middle of the night is the law.


President Bush may believe FISA is unconstitutional. He may believe FISA’s procedures too cumbersome to adequately protect the American people. Nevertheless, FISA is the law of the land. Nothing in the U.S. Constitution authorizes the president to simply disregard, violate, or circumvent provisions of federal law he or she deems unconstitutional or impracticable. As long as FISA is the law of the land, President Bush must comply with it. If President Bush believes FISA must be changed in light of the exigencies of the “War on Terror,” our system of government mandates that he should try to get Congress to amend the law. Simply ignoring the law and violating the law are not permissible options for the president.

The righteous and high-minded members of Congress who sat in judgment of and prosecuted President Clinton believed they were articulating the standards by which all presidents should be judged. In assessing President Bush’s authorization of warrantless domestic spying in violation of FISA, the arguments leveled by the Republicans who impeached and tried President Clinton should not be overlooked or forgotten.