REFLECTONS ON THE UNITED STATES CONSTITUTION AND AN EPIDEMIC OF CONSTITUTIONAL ILLITERACY11/17/2024
Bruce Fein
The Committee for the Republic November 18, 2024 Something is rotten in the United States of America. It is not President-elect Donald Trump. It is not defeated Democrat candidate Kamala Harris It is not the Republican Party. It is not the Democratic Party. It is not Congress. It is not the multi-trillion-dollar military-industrial-security complex. It is us. We have idled amidst an epidemic of constitutional illiteracy. We have shied denouncing and opposing at every turn the crumbling of separation of powers in favor of a presidency indistinguishable from dictatorship. Civic courage is as rare as unicorns. Among other things, we have acquiesced in extra-constitutional presidential power to initiate nuclear war, to order the assassination of any person the President secretly speculates might become a national security threat, and to spy on the “not-yet-guilty” without warrants taking George Orwell to a new level. President Grover Cleveland’s first inaugural address underscored the duty of every citizen to master the United States Constitution and to hold elected officials accountable for infidelity. He explained, “this is the price of our liberty and the inspiration of our faith in the Republic.” We have refused to pay the price. You reap what you sow. Poof of our constitutional illiteracy is the orthodoxy that the United States is a democracy—a belief as misplaced as the geocentric theory of the universe. The Constitution’s architects deplored democracy. John Adams, first Vice President and second President, expressed the consensus: “Democracy never lasts long. It soon wastes and exhausts and murders itself. There never was a democracy yet that did not commit suicide.” Thomas Jefferson, scorning democracy in his Notes of the State of Virginia, opined that 173 despots would be as oppressive as one. James Madison’s notes on the constitutional convention are devoid of the word “democracy.” Mr. Madison argued that even if every Athenian citizen were a Socrates, a collection of them all would still be a mob. The Constitution itself is a repudiation of democracy. It establishes legal norms that even unanimity cannot transgress. They depend on the outcome of no elections. Fourteen procedural features of the Constitution reject majority rule—a structural bill of rights to forestall tyranny. We in this room are clueless, proof of our constitutional illiteracy.
Constitutional illiteracy finds expression in the wildly popular Broadway Musical Hamilton. It completely miscasts the protagonist. The real Hamilton was a royalist, not a democrat. He cajoled George Washington three times to become a king without result. He was evicted from the constitutional convention for advocating a lifetime presidency. He was appointed a major general in the United States Army in anticipation of a war with France. The Constitution was the brainchild of Madison not Hamilton. Notwithstanding Tom Brokow, the Founders were the greatest generation by many orders of magnitude. It was the only generation in history emancipated from species narcissism. It was the only generation that understood the universal depravity of mankind that could only be kept from succumbing to tyranny, war, and venality by pitting institutional ambition against ambition, bad guys against bad guys via separation of powers blocking democracy. Otherwise, they knew, liberty, peace, and the rule of law would be destroyed for themselves and their posterity. Jefferson explained, “[I]n questions of power then, let no more be heard of confidence in man, but bind him from mischief by the chains of the Constitution.” The Founders knew they were not God’s new chosen people. The Constitution began to crumble brick by brick when the founding generation passed, constitutional illiteracy began to metastasize, and presidential impeachable offenses proliferated with impunity. President James K. Polk resorted to annexing Texas in 1845 by statute in lieu of a constitutionally required treaty requiring a two-thirds Sente because that threshold was beyond political reach. That circumvention was Mr. Polk’s first impeachable offense in the eyes of the Constitution’s authors. Delegate George Mason at the constitutional convention declared that attempts to subvert the Constitution would be impeachable. President Polk committed a second impeachable offense in 1846 by duping Congress into declaring war against Mexico by falsely accusing the Mexican army of killing an American soldier on American soil. The Constitution’s authors would have impeached President William McKinley for misleading Congress about the explosion of the U.S.S. Maine in Havana harbor to justify the Spanish-American War and for suppressing the right of Filipinos to self-determination by force of arms. They would have impeached President Theordore Roosevelt for invading Panama to secure its independence from Colombia without a congressional declaration of war to build and operate the Panama Canal. They would have impeached President Woodrow Wilson for invading Mexico and Haiti without a congressional declaration of war, for lying about the sinking of the Lusitania and German submarine warfare to deceive Congress into declaring war against Germany in World War I, for deploying troops in Russia to oppose communism, protect U.S. economic interests, and to support White Russians against the Bolsheviks, and for locking up war opponents like presidential candidate Eugene Debs. The Constitution’s framers would have impeached President Calvin Coolidge for dispatching soldiers to Nicaragua against Cesar Sandino without a congressional declaration of war. President Herbert Hoover would have been impeached by the framers for continuing that unconstitutional, presidential, undeclared war. They would have impeached President Franklin D. Roosevelt for the illegal destroyers-for-bases deal with Great Britian, deploying troops to Iceland and Greenland in violation of federal statutes, seeking to pack the United States Supreme Court, illegal spying or prosecution of political opponents, for example, Andrew Mellon, lying over the USS Greer attack on Nazi submarines to provoke the nation to war, and racist concentration camps for loyal Japanese Americans justified including lying to the United States Supreme Court in Hirabayashi v. United States and Korematsu v. United States. The founders would have impeached President Harry Truman over his war crimes at Hiroshima and Nagasaki, his unconstitutional war against North Korea-China, and for his Loyalty Board to suppress political dissent. They would have impeached President Eisenhower over substituting executive agreements with Franco’s Spain in lieu of a defense treaty because a two-thirds vote in the Senate was a non-starter since Franco befriended Hitler during World War II. They would have also impeached Eisenhower for overthrowing Iran’s popularly elected Prime Minister Mohammed Mossadegh in 1953 and Guatemala’s Jacobo Arbenz in 1954, President John F. Kennedy would have been impeached by the founders over attempted assassinations, the Bay of Pigs fiasco without a declaration of war, the secret war in Laos, and his green light for the overthrow and assassination of South Vietnamese President Ngo Dinh Diem. President Lyndon Johnson would have been impeached by the founders for lying about the Gulf of Tonkin Resolution and commencing an extra-constitutional war against North Vietnam, invading the Dominican Republic without a congressional declaration of war, and private meetings in the White House with Justice Abe Fortas to discuss issues that might come before the Supreme Court. In addition to his multiple Watergate crimes, the founders would have impeached President Richard Nixon for continuing an unconstitutional war in Vietnam and lying to Congress about expanding the war to Cambodia, and for using the CIA to orchestrate the overthrow of Chile’s President Salvador Allende. President Jimmy Carter would have been impeached by the framers by declaring that he would unilaterally commence war if oil from the Persian Gulf were curtailed: “Let our position be absolutely clear: An attempt by any outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States of America, and such an assault will be repelled by any means necessary, including military force.” President Ronald Reagan would have been impeached by the founders for his unconstitutional war against Grenada and for failing to superintend his subordinates in seeking to circumvent the Boland Amendment through the arms-for-hostages deal with Iran and diverting the proceeds to the Contras in Nicaragua. President George H.W. Bush would have been impeached by the founders for unconstitutional wars in Panama and Kuwait. President Bill Clinton would have been impeached by the founders not only over perjury and obstruction of justice in Monicagate but for unconstitutional wars in Bosnia-Herzegovina, Serbia, and Somalia. President George W. Bush would have been impeached by the founders over unconstitutional wars in Afghanistan, Iraq, and Somalia, assassinations, torture, illegal surveillance, kidnapping, and indefinite detention without trial at Guantanamo Bay. President Barak Obama would have been impeached by the framers for continuing President Bush’s unconstitutional wars, starting a new unconstitutional war in Libya, drone assassinations, invoking state secrets to conceal government murders, kidnapping, or torture, unconstitutional surveillance including criminal charges against Ed Snowden for revealing government crimes, and resorting to executive orders or memoranda to effectuate changes in the immigration laws to circumvent Congress. President Donald Trump would have been impeached by the founders for continuing unconstitutional wars he inherited, defying hundreds of congressional subpoenas, diverting monies appropriated by Congress for different uses to build a wall with Mexico and pay unemployment compensation, bribery, insurrection, and wielding the pardon power to shield his political friends. President Joe Biden would have been impeached by the founders for continuing unconstitutional wars he inherited, becoming a co-belligerent with Ukraine against Russia without a declaration of war, becoming a combatant, co-combatant, or co-belligerent with Israel against Gaza, the West Bank, Lebanon, Yemen, Syria, and Iraq without congressional declarations of war, flouting six statutes requiring termination of military assistance to Israel for engaging in egregious violations of human rights or blocking the delivery of U.S. humanitarian aid, and continuing dragnet surveillance of Americans without warrants or probable cause to believe crime is afoot. None of this narrative is secret. Everything is in the public domain. Citizens are dutybound to know it like the back of their hands, the alphabet, and the Pledge of Allegiance. Let’s stop scapegoating. We citizens are the greatest threat to the United States. We live with the delusion that we can indulge constitutional illiteracy without paying the price of a lawless government irrespective of its partisan coloration. Abaham Lincoln spotted this threat almost two centuries ago in his Lyceum address: “At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.” We are Lincoln’s worst nightmare come true. What will be said of us because of our self-inflicted constitutional illiteracy is what Edward Gibbon said of Athenians upon their loss of freedom: “In the end, more than freedom, they wanted security. They wanted a comfortable life, and they lost it all – security, comfort, and freedom. When the Athenians finally wanted not to give to society but for society to give to them, when the freedom they wished for most was freedom from responsibility, then Athens ceased to be free and was never free again.” Since the end of the cold war in 1991, America’s Black communities have suffered incalculable economic and social damage. Through four administrations, Republicans and Democrats, seemingly incapable of agreeing on anything else, have agreed on war as the defining characteristic of American life. Each Party has abdicated its constitutional duty by driving us into endless undeclared wars. Presently, there are nine, few of which the President of the United States can identify on any map with which he is familiar. The staggering costs of these wars exceed $10 trillion—or 50% of our national debt. These imperial disasters have starved our communities, black and white, of the very capacity to survive, robbing them of infrastructure of survival--our schools, hospitals, roads, transportation systems, clean water, and sanitation systems.
And now, it is clear as never before, that our undeclared wars have cost us our will and capacity to prepare for and respond to the violent changes in our climate and environment. Mother nature does not discriminate based on race or economic status. Napa, Puerto Rico, Houston and the Gulf Coast prove the point. But it is the poor, the isolated the marginalized urban and rural, Black and white, communities that suffer the most from our unreadiness and unwillingness to prepare for the environmental catastrophes now upon us. This is a direct result of the waste of our resources abroad in the exercise of immoral war: unconstitutional wars that kill and maim our most sacrificial young people. Black leadership, particularly our politicians, has remained largely silent about America’s imperial hubris and our Black participation in it. And, It is perhaps that participation, as the apologists and advocates of unconstitutional war that has silenced us. But the Black patriots of the Revolution, of the Civil War, and of World Wars I and II did not join our military to subjugate other people. They did so to preserve and to honor our communities. Our politicians and our secular and religious leaders have forgotten that legacy. But Oberlin, on this corner Mt. Zion corner of Vernon Johns, Howard Thurman and Gardner Taylor, can remind them as few others can, that the pride of the uniform does not extinguish the immorality and illegality of the act. The moral clarity and bravery that caused Martin Luther King Jr. to proclaim 52 years ago, “America is the greatest purveyor of violence in the world,” has now eluded us. If the Black communities of the United States are to survive the climatic threats now impossible to ignore we must reclaim that most important legacy, visible in the humanity of that monument to Dr. King two blocks away. Dr. King’s charge from the pulpit of the Riverside Church was no mere description of our lawlessness, it is a continuing call to action to all Americans to live and demand rule of law and in so doing vindicate the moral and civic unity Americans imagined for themselves in 1787. Delbert Spurlock Comments at Mt Zion Oberlin, Ohio October 20, 2017 BY DELBERT SPURLOCK
No Americans have sacrificed more on the altar of our current undeclared wars than veterans and their families. Their suicide rate is now 20 a day, haunting testimony to their betrayal by our Congress and citizens who send them to war without a declaration that joins all Americans in the commitment to sacrifice for its success. It is testimony that indicts the national misuse of the All-Volunteer Force System — AVF — a perpetual gift to all American families that extinguishes an inherent obligation of citizenship and the anxieties of compulsory service. Our volunteer Army became a success when it became a community with the promise that, as President Reagan vowed, “No mother would ever willingly sacrifice her sons for territorial gain, for economic advantage, for ideology.” The AVF was designed not only to inspire volunteers and to enhance our military, but also to benefit society at large by the recognition that citizen-soldiers were enduring community assets. But these expectations have been selectively unfulfilled by political-military leadership for several decades. The result: a military increasingly divorced from the citizens it fights for abroad; and a broken generation at home. The ease of engaging in war because of the AVF has destroyed the integrity of our military structures. Logistics, the most justly celebrated sustaining structure of the American military, is now a contract function for companies flipped on Wall Street alongside Waste Management and Burger King. We have a military that cannot feed itself in the field or in garrison. We have an Army that cannot maintain or move its equipment and that has marginal capacity to protect itself or gather tactical intelligence. These “contracted out” structures have failed the volunteers for the past 14 years in Iraq and Afghanistan. They subjected them to the toxic burn pits and the foreign contract labor “chow lines” of war profiteers. America’s political leadership has forgotten the scourge of war, the value in its deterrence, and the requirements for the successful societal reintegration of those who sacrificed to fight them. We are now a nation willing to commit the honor and bodies of volunteers to undeclared perpetual imperial wars of occupation. We turn nations into uninhabitable wastelands and call it nation-building or humanitarian relief. The ethical foundations of military operations have been obliterated, our moral compass broken. Ethics concern the manner in which an institution conducts itself, how it is used, and what image it has of itself. The founders of the AVF understood the value and primacy of the rule of law, professionalism, and human life. To that era, meaning was derived from the pledges of the Atlantic Charter, the Geneva Conventions, the fundamental quest for fairness embodied in the Uniform Code of Military Justice, and an open and free press that permitted the heroism of Mauldins, Pyles, and Murrows. None of this can be discerned in the current era, symbolized by Abu Ghraib, waterboarding, and the bombing of hospitals and marriage celebrations. Our nation and its leaders have misused the societal gift of the All-Volunteer Force and have immorally exploited the dedication and willingness to serve of young citizens who are willing to make the sacrifice. We owe them, their families and their communities an accounting for the decisions to sacrifice them in the cause of undeclared, imperial wars. It is also time to reconsider the design, use and value of the AVF to our nation’s security. Delbert Spurlock was general counsel of the U.S. Army, from 1981-82; assistant secretary of the Army, manpower and reserve affairs from 1983-88; and U.S. deputy secretary of labor from 1991-93. http://www.miamiherald.com/opinion/op-ed/article140233038.html#storylink=cpy Bruce Fein
Constitutional Lawyer and Author Congress should enact a No Presidential Wars statute that defines “presidential wars;” declares them contrary to the Constitution’s Declare War Clause; and, makes presidential wars prospectively impeachable high crimes and misdemeanors justifying removal from office under Article II, section 4. This will make America great, prosperous, and invincible against aggression faster and surer than any alternative. The United States is currently engaged in nine presidential wars: Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, Pakistan, Al Qaeda, and ISIS. Every soldier involved in these engagements should be redeployed to the United States with enhanced pay for invincible self-defense. The fully allocated cost of fighting presidential wars since 9/11 approaches a staggering $10 trillion. War is the oldest scourge of mankind. It turns children into orphans, wives into widows, and makes fathers bury sons rather than sons bury fathers. It silences the law, crushes liberty, aggrandizes executive power, spirals debt, diverts genius from production to destruction, promotes secret government, precipitates blowback, and afflicts our own soldiers with PTSD generated suicides. Alexis de Tocqueville observed in Democracy in America, “All those who seek to destroy the liberties of a democratic nation ought to know that war is the surest and shortest means to accomplish it.” Thousands of years of history taught the Constitution’s authors that the executive would be predisposed towards war to enhance power, to excite patriotic support, to operate secret and unaccountable government, and to leave a legacy. In contrast, the legislative branch is a highly risk-averse talking shop which will only take the nation from peace to war in response to actual aggression against the United States. Gratuitous wars have nothing in them for Members of Congress. Their powers and stature are eclipsed by an omnipotent president. They win no fame or remembrance. Congress has declared war in only five conflicts since its birth 227 years ago, and only when Members were convinced the United States had been attacked. Everyone who participated in the drafting, debating, and ratifying the Constitution highly distrusted the presidency in matters of war and peace. They unanimously entrusted to Congress exclusive responsibility for taking the nation to war in Article I, section 8, clause 11 of the Constitution. The authors did not believe the power of the purse would be sufficient to prevent presidential wars. They knew once the president commits troops, Members of Congress would be forced to provide funding under the banner of patriotism. The universal sentiment was expressed by James Madison in a letter to Thomas Jefferson: “The constitution supposes, what the History of all Govts demonstrates, that the Ex. 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 Legisl.” Despite the clarity of the constitutional prohibition, presidents have chronically decided to take the nation from peace to war since at least President Harry Truman’s decision to fight the Korean War in 1950 without a congressional declaration. Fueled by a multi-trillion dollar military-industrial-counterterrorism complex, presidential wars have come to dominate the nation’s budget and agenda. The warfare state has given birth to the surveillance state, the bail-out state, and the welfare state. The federal government has ballooned into a $4.3 trillion Leviathan. Congress and the American people have generally ignored the lawlessness of presidential wars and the havoc they have wrought both at home and abroad. We are imitating all previous empires in our enthusiasm for self-ruination. Presidential wars have become de facto constitutional. This must change. Through a No Presidential Wars statute, Congress needs to establish rules defining and sanctioning presidential wars prospectively. The law should warn before it strikes. And nothing good can come from taking up arms against history. Presidential wars should be defined as wars in which the President decides to take the United States from a state of peace to a state of war. It should not include wars in which Congress has decided itself to take the nation from peace to war. Neither should it include cases in which the President responds with proportionate military force in national self-defense against actual or imminent aggression or a declaration of war against the United States by a foreign nation or non-state actor. But presidential wars should include cases in which the President unilaterally decides to make the United States a co-belligerent in an ongoing war by systematically or substantially supplying one of the warring parties with war materials, military troops, trainers or advisors, military intelligence, financial support or its equivalent. Presidential wars should further be defined to include cases where an incumbent continues an unconstitutional presidential war commenced by a predecessor. The “No Presidential Wars” statute should also declare that a violation will be deemed a high crime and misdemeanor under Article II, section 4, and will cause the President to be impeached by the House, convicted by the Senate, and removed from office. It would mark the Constitution’s finest hour, and save the Republic from destruction. Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq Original: Huffington Post 
In February of 1999, as the rhetoric of possible United States use of force against the Federal Republic of Yugoslavia began to reach a crescendo, Congressman Tom Campbell and thirty-eight other members of Congress sent the following letter to President Clinton:
February 19, 1999 Honorable William Jefferson Clinton President of the United States The White House Washington, D.C. Dear Mr. President: We have serious constitutional concerns about recent reports that you are planning military intervention in the Kosovo region of Yugoslavia, and again respectfully remind you that the Constitution requires you to obtain authority from Congress before taking military action against Yugoslavia. As we stated in our letters of August 4, and October 2, 1998, military intervention by U.S. forces into the war-torn region of Kosovo in order to stop attacks by Serbian forces against civilians and halt the fighting with the Kosovo Liberation Army in an area the United States recognizes as sovereign Yugoslav territory cannot be construed as "defensive" action within your inherent authority as Commander-in-Chief. Rather it would involve military actions against territory and air space which has not been the source of an attack on the United States. This action falls within the exclusive powers and responsibilities of Congress under Article I, Section 8, of the Constitution--the war powers clause. No provision of the United Nations Charter or the North Atlantic Treaty can override the requirement of United States domestic law as set forth in the Constitution. In fact, Congress conditioned U.S. participation in both the U.N. and NATO on the requirement that Congress retain its constitutional prerogatives. The Constitution compels you to obtain authority from Congress before taking military action against Yugoslavia. In earlier correspondence, dated January 15, 1999, your National Security Advisor cited previous uses of force in Bosnia and Somalia as examples of authority to conduct offensive military operations in this case. The examples are inapposite as none involve sending military forces into a foreign country's territory contrary to the will of the recognized government of that foreign country. Furthermore, past violations of constitutional duty form no justification for additional violations. Nor does consulting with a few Members of Congress satisfy the constitutional obligation to obtain the approval of Congress.(1) Bruce Fein
Constitutional Lawyer and Author The United States was born 240 years ago with a shield that proclaimed, “Peace, Independence, Liberty.” It marked an inflection point in the human narrative. For thousands of years, mankind had exalted warriors and nations who turned children into orphans, wives into widows, and had fathers bury sons rather than sons bury fathers in chronic wars for the sake of power, riches and the adolescent thrill of domination. Our forefathers, in contrast, risked their lives, their fortunes, and their sacred honor to give birth to a nation whose glory was liberty and whose march was the march of the mind. The ultimate goal of the United States would not be power, domination, or conquest; it would be a fair opportunity for citizens to develop their faculties and pursue their ambitions free from domestic or foreign predation. President Thomas Jefferson elaborated in his First Inaugural Address: “[P]eace, commerce, and honest friendship with all nations, entangling alliances with none.” Julius Caesar’s notorious, “I came, I saw, I conquered,” was sharply repudiated. Through the singular genius of James Madison, the United States generally honored the sacrifices of Lexington and Concord for more than a century. The sage father of the Constitution entrusted to Congress alone (Article I, section 8, clause 11) responsibility for crossing the Rubicon from peace to war—a euphemism for legalizing murder. The legislative personality, he understood, was highly risk-averse, and would accept responsibility for the scourge of war only in self-defense. Confirming Madison’s wisdom, Congress has declared war but five times in 227 years, and only in cases of actual or perceived foreign aggression against the United States. But for the last 70 years, we have crucified the Constitution on a cross of multi-trillion dollar gratuitous presidential wars that have crippled liberty; empowered the President to assassinate citizens at will based on secret evidence; impoverished the people; turned genius from production to destruction; and, awakened enemies who would otherwise self-destruct in internecine warfare. At present, we are engaged in nine (9) presidential wars in Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, Pakistan and against ISIS and Al-Qaeda everywhere on the planet. Their collateral damage has included making children orphans, wives widows and fathers dig graves for their sons. President Dwight D. Eisenhower’s worst nightmare of a multi-trillion dollar military-industrial-counterterrorism complex occupying all the corridors of power has come true. Mr. Madison did not foresee that his constitutional handiwork would not be self-correcting. He did not foresee a Congress controlled by craven, narcissistic, invertebrate, pygmies exhibiting a complacency in the face of constitutional peril indistinguishable from waltzing on the Titanic as the iceberg neared. Only enlightened citizens can save the Republic from self-ruination. It will include wars with China and Russia and a plunge into bankruptcy precipitated by an unsustainable multi-trillion dollar national debt. Citizens must first exercise the vote to exclude from Congress any candidate unpledged to impeach, convict, and remove from office any President who begins or continues war without a congressional declaration. They must also inculcate a cultural repudiation of war except in self-defense. To borrow from Abraham Lincoln: “Let opposition to war not in self-defense, be breathed by every American mother, to the lisping babe, that prattles on her lap—let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;—let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let is become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its alter.” We should not be starry-eyed. The probability of failure is as great as that faced by the unknown heroines who first denounced slavery and the subjugation of women thousands of years before their prohibition or amelioration. Although the heroines were instantly exterminated by slave owners or misogynists, they deserve votive offerings as saints. Where would we be now if they had not spoken truth to power? The human condition improves when men and women honor the motto: “If it’s the right thing to do, do it.” Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq More:Presidential Wars Declare War Clause War Only In Self-defense Original: Huffington Post Bruce Fein
Constitutional Lawyer and Author Contrary to conventional wisdom (which is invariably wrong), the United States Constitution is the nation’s strategy for greatness. The strategy entails invincible self-defense; peace, commerce, and honest friendship with all nations; and, entangling alliances with none. At present, that strategy means returning our troops stationed abroad back to the United States to defend we the people, not foreigners whose loyalties lie elsewhere. It means repositioning all of our air and naval forces to defend we the people, not foreigners whose loyalties lie elsewhere. It means devoting our cyberwarfare capabilities to defending we the people, not foreigners whose loyalties lie elsewhere. And it means renouncing all of our treaty commitments to defend other nations militarily without congressional declarations of war. Our national strategy of invincible self-defense; peace, commerce, and honest friendship with all nations; and, entangling alliances with none, finds expression not in the Constitution’s text, but in its dispersal of power among the three branches. Institutions possess distinct personalities that transcend the personalities of the occupants of the offices. These institutional personalities determine policies within a very narrow range. The Constitution as our national strategy follows inexorably from its assignment of the war power exclusively to Congress, i.e., its prohibition of presidential wars. Article I, section 8, clause 11 empowers only the legislative branch to declare war. The Constitution’s profound authors knew that Congress would be a “talking shop.” It would be highly risk-averse, like a dog that retreats to its kennel when danger appears. Members of Congress would have little to gain but much to lose politically by initiating war. No obelisk or monument had ever been constructed to honor a legislator’s vote for war. Legislative powers diminished during belligerency. And if the war ended in defeat or a truce because of the President’s ineptitude as commander in chief or otherwise, Members would not be able to evade political responsibility. The Constitution’s drafters knew to a virtual certainty that Congress would only declare war in response to actual or perceived aggression against the United States, i.e., only in self-defense. Indeed, during the drafting, debating, and ratification of the Constitution, no participant conceived that the war power would ever be exercised for preemptive, preventive, humanitarian, economic, democratizing or other non-self-defense objectives. History has vindicated the Constitution’s conception of the congressional personality. In 227 years, Congress has declared war in only five conflicts, and only in response to actual or perceived aggression against the United States: the War of 1812; the Mexican-American War; the Spanish-American War; World War I; and, World War II. The Declare War Clause required Congress to decide whether to cross the Rubicon from peace to war. Congress could not escape its responsibility by delegating the decision to the President. The June 18, 1812 Declaration of War is exemplary. It provided: “Be it enacted by the Senate and House of Representatives of the United States in Congress assembled, That war be and the same is hereby declared to exist between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories....” The Constitution’s national strategy of wars only in self-defense and declared by Congress is vastly superior to all the alternatives that have ever been conceived or attempted. War diverts invaluable genius and resources from production to killing, which is an economic deadweight. War crushes liberty and silences the law. War breeds secrecy, which fathers fraud, waste, abuse, and crime. War subordinates civilian supremacy to tenuous claims of military necessity. War makes killings legal that would customarily be punished as first-degree murder. War makes children orphans and wives widows. War causes courageous soldiers to be slaughtered and maimed. It causes taxes to be raised or money to be borrowed to finance the war machine. Abraham Lincoln elaborated: “The provision of the Constitution giving the war making power to Congress was dictated...by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.” Lincoln was echoing James Madison, father of the Constitution, who had lettered Thomas Jefferson: “The constitution supposes, what the History of all Govts demonstrates, that the Ex. 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 Legisl. But the Doctrines lately advanced strike at the root of all these provisions, and will deposit the peace of the Country in that Department which the Constitution distrusts as most ready without cause to renounce it.” Mr. Jefferson agreed in a letter to Mr. Madison: “We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.” James Wilson, delegate to the constitutional convention and future Associate Justice of the United States Supreme Court, similarly understood that depositing the war power with Congress would be the death knell to gratuitous wars. He informed the Pennsylvania Ratification Convention: “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.” The United States generally followed the Constitution’s national strategy for a century. We astonished the world with our vertical climb in riches and prosperity by devoting our energies and talents to making money in lieu of making war. We proved the prescience of Adam Smith’s instruction: “Little else is requisite to carry a state to the highest degree of opulence from the lowest barbarism, but peace, easy taxes, and a tolerable administration of justice: all the rest being brought about by the natural course of things.” But after a century, we lost our way. We were misled by the intellectual delusions and messianic ambitions of Woodrow Wilson and the rebarbative apotheosis of war and killing by Theodore Roosevelt. The former coveted war to transform the world into Camelot. The latter barked that,”[i]f there is not the war, you don’t get the great general; if there is not a great occasion, you don’t get a great statesman; if Lincoln had lived in a time of peace, no one would have known his name.” As President and commander in chief, Roosevelt warred against Filipinos fighting for self-determination in the aftermath of the Spanish-American war by employing waterboarding and perpetrating mass atrocities. The United States Senate Investigating Committee on the Philippines meticulously documented the grisly war tactics that flourished under President Roosevelt. We ignored the warning of Secretary of State John Quincy Adams on July 4, 1821, that we could become dictatress of the world, but if we did, our policy would degenerate from liberty to coercion and domination, and we would plunge from light to darkness. We have come full circle from fighting the empire ambitions of British King George III to embracing them. We have become the chosen people of the Old Testament bent on destroying modern counterparts of the Kenites, the Kenizzites, the Kadmonites, the Hittites, the Rephaims, the Amorites, the Canaanites, the Girgashites, the Jebusites, the Perizzites, the Ammonites, the Amalekites, and the Philistines. To recapture our former greatness and prosperity attained by a national strategy of invincible self-defense; peace, commerce, and honest friendship with all nations; and, entangling alliances with none, we need only to follow the Constitution’s entrustment of decisions on war or peace exclusively to Congress. The Constitution’s authors were intellectual and philosophical giants that have never been equaled. In comparison, today’s leaders are pygmies. Should we follow the giants or the pygmies? Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq Huffington Post Bruce Fein
Constitutional Lawyer and Author Limitless executive power has wounded the Constitution and the rule of law. The wounds may soon compound. In a November 20, 2016 interview on CBS’ “Face the Nation,” Vice President-elect Mike Pence declared that waterboarding, i.e., torture, assassinating family members of suspected terrorists, or any other tactic might be employed by President-elect Donald Trump to defeat “radical Islamic terrorism.” He refused to rule out any barbarity. During his presidential campaign, Mr. Trump applauded “torture” and vowed to “bring back a hell of a lot worse than waterboarding” to oppose international terrorists. He asserted that he would kill their family members. When confronted with the illegality of both tactics by Fox News’ Bret Bair, Mr. Trump changed the subject. The President-elect has seemingly embraced President Richard Nixon’s extra-constitutional conviction that, “[W]hen the President does it, that means it is not illegal.” Mr. Nixon forgot that King George III lost to General George Washington in the Revolutionary War, and that the President is not an elected King. He paid the price with Articles of Impeachment voted by the House Judiciary Committee and forced resignation in the face of certain conviction for high crimes and misdemeanors by the Senate. The foremost role of the Attorney General (akin to Horatius at the Bridge) is to protect the Constitution from presidential vandalizing. President-elect Trump has nominated Alabama Senator Jeff Sessions, which is subject to Senate confirmation under the Constitution’s Appointments Clause. The Senate Judiciary Committee and the Senate are saddled with the solemn responsibility of insuring that the nominee is qualified to prevent President-elect Trump from vandalizing the Constitution. Meticulous and fair public hearings on Mr. Sessions’ nomination are imperative. A multi-pronged litmus test should be applied. The nominee should be required to affirm that the Declare War Clause of Article I, section 8, clause 11 prohibits our nine ongoing presidential wars in Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, and Pakistan, and against Al Qaeda and ISIS everywhere in the world. The Declare War Clause meaning—like the meaning of the word “is”—is crystal clear. James Madison, father of the Constitution and Bill of Rights, Member of the Virginia Ratification Convention, chief author of The Federalist Papers, Member of Congress, twice Secretary of State, and twice President of the United States, is the definitive expositor of the Constitution. He elaborated in a letter to Thomas Jefferson the universal understanding of the Declare War Clause and its cornerstone importance: “The constitution supposes, what the History of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has, accordingly, with studied care, vested the question of war in the Legislature. But the doctrines lately advanced strike at the root of all these provisions, and will deposit the peace of the Country in that Department which the Constitution distrusts as most ready, without cause, to renounce it.” The nominee should also be required to affirm that constitutional due process categorically prohibits the President from playing prosecutor, judge, jury, and executioner to kill any American citizen he decrees is an imminent danger to national security or otherwise based on secret, unsubstantiated information. That God-like power is vastly more tyrannical than anything laid at the feet of King George III in the Declaration of Independence. The nominee should be required to affirm that the President may not conduct electronic surveillance against American citizens except as authorized by statute—a limitation imposed by the Foreign Intelligence Surveillance Act, 50 U.S.C. 1809 (a) (1). That means Executive Order 12333 cannot justify surveillance of American citizens for foreign intelligence purposes. The nominee should be required to affirm that the President may not circumvent the Treaty Clause of the Constitution with executive agreements like the Joint Comprehensive Plan of Action intended to restrain Iran’s nuclear ambitions. He should be required to affirm that an agreement or contract between two sovereigns constitutes a treaty requiring Senate ratification by a two-thirds majority. Accordingly, he should be required to affirm that the JCPOA is of no force or effect until and unless ratified by the Senate as a treaty. The nominee should be required to affirm that torture under any circumstances violates the Eighth Amendment, federal criminal law, and the Convention Against Torture. He should be further required to affirm that waterboarding or worse constitutes torture, and that he would prosecute those crimes. The nominee should be required to affirm that the intentional killing of family members of suspected terrorists constitutes a prosecutable war crime under the War Crimes Act. The nominee should be required to affirm that the President is constitutionally forbidden to circumvent the congressional power of the purse by soliciting funds from foreign governments to fight wars that Congress has not declared or funded as President George H.W. Bush did in conducting the 1991 Kuwait War. The nominee should be required to affirm that any presidential violation of the these constitutional or statutory limits on executive power would constitute an impeachable high crime and misdemeanor warranting conviction and removal from office under Article II, section 4. This multi-pronged litmus test asks only that the Attorney General honor his required oath to “support and defend the Constitution of the United States...without any mental reservation or purpose of evasion....” The Senate should never forget the warning of Supreme Court Justice Louis D. Brandeis in Olmstead v. United States (1928): “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” The constitutional litmus test I have proposed for the Senate regarding Mr. Sessions’ nomination would admittedly constitute a double standard. For several decades, both Democratic and Republican presidents have routinely flouted constitutional limits on executive power with the approval or tacit support of Democratic and Republican Attorneys General without provoking congressional resistance. But presidential lawlessness does not become lawful by repetition. We have fallen into a constitutional abyss through a combination of executive boldness and congressional cravenness over the course of 70 years. If we refuse to climb out to avoid a double standard our ruination is inescapable. In sum, it is not that we love Mr. Sessions less, but that we love the Constitution more that he should be subjected to the proposed multi-pronged litmus test for confirmation. Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq More:Attornery General Nominee Constitutional Oath Original: Huffington Post Bruce Fein
Constitutional Lawyer and Author Our safety and salvation lie in the Constitution and the rule of law. That is why the President’s sole oath is to “preserve, protect, and defend the Constitution of the United States.” Thus, President-elect Donald Trump must void President Barack Obama’s Joint Comprehensive Plan of Action (JCPOA) aiming to restrain Iran’s nuclear ambitions because it is an executive agreement that violates the Constitution’s Treaty Clause. The Constitution’s authors worried that the President would betray national interests for ulterior motives in concluding secret agreements with foreign nations. The example of King Charles II was fixed in their memories. The British Monarch unilaterally negotiated the Secret Treaty of Dover with French King Louis XIV in 1670. Among other things, the treaty provided that Charles II would receive a yearly pension from Louis; that additional sums would be forthcoming when Charles jettisoned Anglicanism for Roman Catholicism; that Louis would provide up to 6,000 French soldiers in the event Charles’ treason provoked an English rebellion; and, that Charles would ally with France in its war against the Dutch. Accordingly, Article II, section 2, clause 2 of the Constitution empowers the President, “by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” To provide treaty advice to the President, half of the eight United States delegates to negotiate the United Nations Charter were Members of Congress: Senators Tom Connally (D-Tex.) and Arthur Vandenberg (R-Mich.), and Representatives Sol Bloom (D-N.Y.) and Charles Eaton (R-N.J.). Presidents William McKinley, Warren Harding, and Herbert Hoover similarly included Senators as U.S. delegates to negotiate treaties. Alexander Hamilton elaborated the reasons for the Treaty Clause in Federalist 75: An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.” President Obama negotiated the JCPOA without congressional participation. Further, the agreement between the United States and Iran is a treaty by any plausible constitutional standard or tradition. Hamilton explained in Federalist 75 that treaty “objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.” The JCPOA fits an agreement between sovereign and sovereign like a glove. Moreover, agreements bearing on nuclear arms have traditionally been treaties. They include the Limited Test Ban Treaty, the Nuclear Non-Proliferation Treaty, the Intermediate Nuclear Force Treaty, the Anti-Ballistic Missile Treaty, the Comprehensive Test Ban Treaty, and the Strategic Arms Reduction Treaty. Even a paltry agreement with Britain over migratory birds was a treaty, i.e., the Migratory Bird Treaty of 1916. Secretary of State John Kerry did not dispute that the JCPOA is a treaty in testifying before the House Foreign Relations Committee. Instead, Mr. Kerry explained that the Obama administration would no longer comply with the Treaty Clause because the threshold of political consensus needed for ratification was too challenging. Rep. Reid Ribble (R-Wisc.) inquired: “Why is this [Iran deal] not considered a treaty?” Secretary Kerry responded: “Well Congressman, I spent quite a few years ago trying to get a lot of treaties through the United States Senate...And frankly, it’s become physically impossible. That’s why...Because you can’t pass a treaty anymore...And it’s become impossible to, you know, schedule, it’s become impossible to pass. And I sat there leading the charge on the Disabilities Treaty which fell to, basically, ideology and politics. So I think that’s the reason why.” Alexander Hamilton would have been appalled. The Treaty Clause is to prevent, not to facilitate presidential betrayals or follies. The Constitution’s framers would have impeached, convicted, and removed Mr. Kerry from office for his constitutional perfidy. But Congress has degenerated from a vertebrate to an invertebrate institution over the past several decades. Accordingly, Mr. Kerry escaped congressional rebuke. Congress meekly acquiesced in the JCPOA as an executive agreement. But the Constitution’s separation of powers is a structural bill of rights to protect the American people from tyranny. The Supreme Court has thus held that one branch may not voluntarily surrender its powers to another branch and jeopardize the liberties of the citizenry. Last March, Mr. Trump declared that his “Number-One priority” would be “to dismantle the disastrous deal with Iran.” That is not an option. It is a constitutional imperative until and unless the Senate ratifies the agreement with a two-thirds majority. And if the JCPOA precedent is not disowned by President Trump, it will lie around like a loaded weapon ready for any successor to use to justify an international global warming pact as a constitutionally valid executive agreement that might cripple the American economy. Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq More: Iran Nuclear Deal Executive Agreements Treaty Clause Trump Original: Huffington Post |
Archives
November 2024
Categories
All
|
||||||||
RSS Feed