August 29th, 2016
Constitutional Lawyer and Author
We should not be in the business of pledging to send our brave soldiers to risk that last full measure of devotion to defend Estonia, Latvia, or Lithuania from Russian aggression, or Croatia or Albania from Serbian attack. Their sole duty is to defend the citizens of the United States who pay their salaries and owe allegiance to the United States, which Estonians, Latvians, Lithuanians, Croatians, and Albanians do not. For that reason among others, the United States should invoke Article 13 of the North Atlantic Treaty Organization (NATO) to withdraw.
Our NATO membership contradicts the Constitution’s foreign policy of billions for invincible self-defense, but not one cent for Empire or entangling alliances. NATO was established in April 1949 not in self-defense, but to provide military protection to Europe (including the French colonial appendage in Algeria) and the world generally at the beckoning of the British Foreign Secretary Ernest Bevin. That Empire objective hearkened back to President Woodrow Wilson’s starry-eyed aim to make the world safe for democracy by employing United States military force under the League of Nations auspices to defend every border on the planet. President Harry Truman, in signing the NATO treaty, echoed Wilson: “By this treaty, we are not only seeking to establish freedom from aggression and from the use of force in the North Atlantic community, but we are also actively striving to promote and preserve peace throughout the world.” (Truman economized on the truth. Portugal, a founding member of NATO, was then governed by dictatorial Prime Minister Antonio Salazar.)
To reiterate, self-defense did not push us into NATO. In 1949, we were the most militarily and economically dominant nation on the globe. We enjoyed an atomic bomb monopoly, and Europe was militarily unified under the 1948 Brussels Treaty Organization. No invasion from any quarter was threatened—including from the Soviet Union. Even during the depths of World War II, neither the Wehrmacht nor the Imperia Japanese Army set foot on the continental United States. We joined NATO as part of a gratuitous, preoccupation with containing Soviet power no matter how irrelevant to protecting us from attack. It was no accident that our NATO membership was soon followed by President Truman’s unconstitutional Korean War, the overthrow of democratically elected Iranian Prime Minister Mohammed Mossadegh the overthrow of Guatemala’s President Jacobo Arbenz, executive agreements to defend Franco’s Spain, and the attempted assassination of Patrice Lumumba of the Democratic Republic of the Congo. These undertakings were calculated to check the Soviet Union.
Our NATO and post-NATO quest for Empire and global domination made a mockery of the bravery and sacrifices of Lexington and Concord in 1775. Our glory had previously been liberty, not world leadership whatever that means. Our march had previously been the march of the mind, not the march of the foot soldier. Our greatness had previously been a fair opportunity for every citizen to develop his faculties and to pursue his ambitions free from domestic or foreign predation. Our summum bonum had never previously been a multi-billion dollar military-industrial complex bestriding the world like a colossus chanting, “We are the chosen people.”
Suppose the Soviet Union had invaded Western Europe without NATO despite the BTO military alliance. That would not have disturbed the safety and security of the United States. Indeed, the invasion would have been a blunder which would have accelerated the disintegration of the Soviet Empire and weakened its ability to threaten us in the interim.. Conquests or occupations of hostile peoples weakens rather than strengthens the conqueror or the occupier, for example, Napoleon in Haiti or Spain, or the United States South Vietnam, Iraq or Afghanistan. .
The point may seem counterintuitive, and requires elaboration. Colonization, conquest or foreign occupation loses money for the national treasuries of the colonizer, conqueror, or occupier, although particular individuals or companies may be enriched by state-created monopolies or crony capitalism. The military costs of occupation and control of hostile populations dwarf any offsetting expropriation of property. Thus, post-World War II decolonization in Africa and Asia lifted economic albatrosses from Britain, France, and the Netherlands, among other nations. The fall of the Berlin Wall and the disintegration of the Soviet Union were precipitated substantially by the prohibitive costs of subsidizing and militarily occupying and controlling its Eastern and Central European satellites. The USSR was required to suppress a 1953 Uprising in East Germany, the 1956 Hungarian revolt, Prague Spring in 1968, the 1970-71 Uprising in Poland, and the Polish Solidarity Movement in 1981, among other manifestations of chronic foreign restiveness or resentment.
The costs of ruling over a hostile population are staggering. Russia, for instance, spent $30 billion from 2000-2010 to prop up its rule in the Muslim North Caucasus, including Chechnya Another $80 billion will have been forthcoming by 2025 for a population of only 9 million.
The Eastern and Central Europe and North Caucasus examples demonstrate that Soviet aggression against Western Europe after World War II would have weakened it and probably failed. In 1949, Western Europe was far stronger militarily than was the mujahideen that thwarted Soviet aggression in Afghanistan in 1979 or the North Vietnamese who defeated the United States in Vietnam. At that time, Europe had already united militarily under the BTO to defend itself. If the Soviet Red Army secured temporary victories, the military resources expended in the endeavors would nevertheless have lessened its ability to attack the United States in the same way that Operation Barbarossa in World War II lessened Hitler’s threat to Great Britain by squandering Third Reich military resources in fighting the Soviet Union.
Notwithstanding these truths, our overwhelming military victories in World War II fueled a psychology of Empire that found expression in NATO membership. The chief earmark of that psychology is world domination for its own sake—even when it promises self-ruination. NATO enabled the United States to dominate Western Europe. We were NATO’s torso, while the Europeans were NATO limbs. The Supreme Allied Commander in Europe has always been an American. At present, the United States pays 75 percent of NATO’s budget, and deploys 65,000 to 70,000 troops in Europe.
But domination for the sake of domination is treasonous to the Declaration of Independence and Constitution. The United States was an anti-imperialist creation. The exclusive purpose of government, according to the Declaration, is to secure unalienable rights to life, liberty, and the pursuit of happiness, not to race abroad in search of monsters to destroy. The Constitution repudiated the global projection of force or wars not in self-defense—no matter how benignly motivated—because the results would subordinate liberty and transparency to coercion and secrecy by concentrating limitless power in the executive. The Roman Republic had been destroyed by endowing dictators with limitless power to fight wars.
The Constitution’s war powers were entrusted to Congress, not to the President, to prevent the emergence of a warfare state underwritten by a military-industrial complex. James Madison explained 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.”
Abraham Lincoln echoed:
“The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, 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.”
Then Secretary of State John Quincy Adams made the case against wars not in self-defense no
matter how glorious the immediate objective in a July 4, 1821 Address to Congress:
“[The United States] well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom.
The fundamental maxims of her policy would insensibly change from liberty to force....
She might become the dictatress of the world. She would be no longer the ruler of her own spirit....”
NATO marked an unprecedented break in American history. Not only was it the first peacetime alliance ever, but it was the first time promoting and preserving peace everywhere in the world became a United States objective. NATO flouted President George Washington’s Farewell Address warning against entangling alliances or dividing the world between angles and devils. The treaty tied our fate to the vicissitudes of West European politics and played favorites among nations. But the Farewell Address admonished:
“[N]othing is more essential than that permanent, inveterate antipathies against particular nations, and passionate attachments for others, should be excluded; and, that in place of them, just and amicable feelings towards all should be cultivated. The nation which indulges towards another a habitual hatred or a habitual fondness is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and interest.”
President Washington also warned that any military engagements or alliances with
Europe would impair our safety and other national interests:
“Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities.”
Adhering to Washington, Madison, and John Quincy Adams, the United States prospered and spread across the continent for 70 years. We uniformly refrained from foreign entanglements. Among other things, we remained aloof from the Central and South American rebellions against Spain and Portugal, the Greek War of independence against the Ottoman Empire, and Hungary’s 1848 revolutionary ambitions against Russia. As regards the latter, Senator Henry Clay explained:
“Far better is it for ourselves, for Hungary, and for the cause of liberty, that, adhering to our wise, pacific system, and avoiding the distant wars of Europe, we should keep our lamp burning brightly on this western shore as a light to all nations, than to hazard its utter extinction amid the ruins of fallen or falling republics in Europe.”
The cornerstone of national security is the willingness of citizens to fight and die for their country in self-defense. We enjoy that patriotism in abundance. Moreover, we confront no existential or other threats that could arguably justify NATO or any other defense treaty. What Abraham Lincoln said in 1838 before the Young Men’s Lyceum of Springfield, Illinois is equally true today:
“At what point shall we expect the approach of danger? By what means shall we fortify against it?—Shall we expect some transatlantic military giant to step the Ocean, and crush us at a blow? Never!—All the armies of Europe, Asia and Africa combined; with a Bonaparte for a commander, could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.
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.”
NATO is more ill-conceived at present, having expanded to 28 members, than it was in 1949. Among other things, we are committed to defending the Baltic States, Hungary, the Czech Republic, the Slovak Republic, Poland, Romania, and Bulgaria from Russian aggression. The previous occupation or domination of these nations by the Soviet Union during the Cold War weakened it financially and militarily. Why should we seek to prevent Russia from repeating that blunder? We are also absurdly committed to defending Slovenia, Albania, Greece, and Croatia—none of which have relevance to our self-defense.
NATO advocates argue that the spread of democracy makes the United States safer; that we know how to spread democracy; and, that tyranny anywhere is a threat to our security. They substantially echo President George W. Bush’s counterfactual Second Inaugural gospel:
“Across the generations we have proclaimed the imperative of self-government, because no one is fit to be a master, and no one deserves to be a slave. Advancing these ideals is the mission that created our Nation. It is the honorable achievement of our fathers. Now it is the urgent requirement of our nation’s security, and the calling of our time.
So it is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world.”
The NATO-Bush doctrine is unconvincing. The United States was born and has flourished amidst tyrannies. They include the French Empire, the Romanoff Empire, the Ottoman Empire, the Chinese Empire, and the Austrian-Hungarian Empire. Today, tyranny in Belarus or Zimbabwe, among other nations, is no danger to the United States. Our peaceful co-existence with tyrannies has been the rule, not the exception.
Additionally, we can no more create democracies from cultures and institutions with no democratic DNA hostile than we can build a perpetual motion machine. We have failed spectacularly attempting the impossible in South Vietnam, Afghanistan, Iraq, Libya, Somalia, and Yemen despite a staggering investment of resources. South Sudan is conclusive proof of our impotence to give birth to democratic dispensations. We midwifed its 2011 independence from Sudan, but It quickly succumbed to a grisly ethnic civil war between President Salva Kiir and the Dinka against Rick Machar and the Nuer featuring tens of thousands killed and millions displaced. South Sudan was a failed state on arrival, and remains so today. Our efforts to collaborate with its leaders and people to steer a democratic course were predictably futile.
The evidence is mixed as to whether democracies are inherently less threatening to the United States than are authoritarian or tyrannical nations. Hamas was popularly elected in the Gaza Strip, but is listed as an international terrorist organization by the United States. Egypt’s former President Mohammad Morsi was a greater danger to United States interests than is his less democratically elected successor Abdel Fattah el-Sisi. The United States has refrained from clamor for free elections in Saudi Arabia for fear of the results, i.e., victory for Wahhabism. Tyranny by the majority is tyranny nonetheless. In any event, the evidence is far too inconclusive to assert that wars against non-democratic nations are, ipso facto, justifiable wars of self-defense.
In leaving NATO, the United States would dramatically lessen tensions or conflicts with Russia and strengthen our security against external aggression. Among other things, the stage would be set for a new treaty to reduce the nuclear arsenals of the two countries. Russia would probably claim a sphere of influence over its neighbors, but that would be unalarming. The United States has acted in the same way for more than two centuries, including the Monroe Doctrine, the Mexican-American War, the Spanish-American War, the Panama Canal, and military ventures in Cuba, Haiti, the Dominican Republic, Mexico, and Nicaragua. To maintain that all nations are equal, but that the United States is more equal than others is to encourage war.
To make the nation more secure in its safety, wealth, and liberty, NATO should be made a museum piece along with other artifacts of the American Empire.
Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq
Original: Huffington Post
5 Myths About The Constitution’s War Powers Propagated By The ‘New York Times’ And The ‘Washington Post’
Constitutional Lawyer and Author
The Constitution’s architects unanimously agreed on the allocation of war powers. They unanimously agreed that only Congress should be entrusted with decisions to initiate war under Article I, section 8, clause 11. (The President would retain authority to “repel sudden attacks”).
The architects made Congress the exclusive steward of the war power because legislators have nothing to gain and everything to lose by gratuitous belligerency. No war monument has ever been erected to immortalize a legislator; and, the powers of Congress recede during wartime.
The opposite is true of the executive branch, whose personality salutes Mars and scorns Minerva. James Madison, father of the Constitution, elaborated:
In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle.The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.
Future Chief Justice of the United States, John Jay, similarly remarked in Federalist 4:
[A]bsolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.
The reasons advanced by Madison, Jay, and others against presidential wars did not pivot on the state of weapons technology or speed of travel, but on eternals of human nature, including the incorrigibility of the executive branch in craving war for the sake of war with ulterior motives pernicious to liberty.
In serving as megaphones for an extra-constitutional American Empire and multi-trillion dollar permanent global presidential wars, the New York Times and the Washington Post propagate myths about the war powers worth more than two carrier battle groups to the Pentagon.
Myth 1: Article II of the Constitution empowers the President unilaterally to initiate war—including nuclear war—without a legislative mandate enacted by Congress.
Article I, section 8, clause 11 of the Constitution unambiguously entrusts to Congress—not the President—exclusive responsibility for deciding to take the nation from a state of peace to a state of war. Every participant in the drafting, debating, and ratifying of the Constitution shared that understanding, including George Washington, Alexander Hamilton, James Madison, father of the Constitution, future Justice of the Supreme Court James Wilson, United States Chief Justice John Marshall, Thomas Jefferson, and John Adams. James Madison expressed the national consensus in a letter to Jefferson: “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.” That consensus was neither disturbed nor violated for 163 years. Beginning in 1802, for instance, Congress enacted ten statutes expressly authorizing military action by Presidents Jefferson and Madison against the Barbary States. That consensus also shipwrecked President Woodrow Wilson’s League of Nations’ treaty, which would have obligated the United States to defend the boundaries of other nations without congressional declarations of war. To obtain Senate ratification of the United Nations Treaty, Article 43, paragraph 3 specifically requires a congressional declaration of war before the President may use our armed forces to implement a U.N. Security Council resolution. From Potsdam, President Harry Truman cabled Senator Kenneth McKellar: “When any such agreement or agreements are negotiated [to use the United States Armed Forces under Article 43 of the United Nations Treaty] it will be my purpose to ask Congress for appropriate legislation to approve them.”
In sum, there is no intellectually respectable support for the theory that the Constitution authorizes presidential wars.
Myth 2: Treaties ratified by the United States Senate can constitutionally obligate the United States to conduct war on behalf of foreign nations without a congressional declaration of war.
Treaties are subordinate to the United States Constitution, including Article I, section 8, clause 11. Justice Hugo Black elaborated in Reid v. Covert (1956):
“Article VI, the Supremacy Clause of the Constitution, declares:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . .
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution...to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.
Accordingly, Article V of the 1949 North Atlantic Treaty Organization (NATO) which purports to require to the United States to defend all 28 NATO members from attack, including Estonia, Latvia, and Lithuania, is unconstitutional. The House of Representatives is excluded from the treaty process, and its concurrence is necessary for a congressional declaration of war. James Wilson, future Justice of the United States Supreme Court, underscored the importance of that requirement to 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.”
Article V of NATO marked the first occasion in 163 years in which a treaty purported to require the United States to conduct war on behalf of other nations without congressional declarations.
Myth 3: Unconstitutional presidential wars have become constitutional by dint of longstanding practice beginning in 1950 with President Harry Truman’s war in Korea without a congressional declaration.
Constitutional transgressions are not excused because they have been repeated for long years. The United States Supreme Court held in Erie Railroad v. Tompkins (1936) that for a century since Swift v. Tyson (1842) federal courts had been unconstitutionally creating federal common law to govern lawsuits between citizens of different states. The Court similarly held unconstitutional the use of the legislative veto to invalidate executive action in INS v. Chadha (1983), notwithstanding hundreds of such provisions enacted during the previous 54 years with the consent of the President.
The Court explained in Myers v. United States (1926) that great weight is to be given to the practices and understandings of early administrations and Congresses populated by many who had participated in the 1787 constitutional convention. They were uniformly against presidential wars. President George Washington, who presided over the 1787 convention, voiced the standard view: “The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”
Myth 4: Presidential wars are constitutionally permissible because Congress repeatedly acquiesces.
It is true that presidential wars without congressional declarations have been chronic since 1950, including but not limited to: President Truman’s war in Korea; President Lyndon Johnson’s Vietnam War; the Secret War in Laos conducted by Presidents Johnson and Richard Nixon; President George H.W. Bush’s war in Panama; President William Clinton’s wars in Bosnia and Serbia; and, President Barack Obama’s wars against Libya and the Islamic State of Iraq and the Levant (ISIL) anywhere on the planet. And it is equally true that Congress has generally acquiesced in these usurpations because terrified of being held politically and morally accountable for matters of supreme significance to the nation and our armed forces. But the Supreme Court has held that the Constitution’s separation of powers does not permit one branch to surrender its powers to another branch, for instance, a line-item veto invalidated in Clinton v. New York (1998). Chief Justice John Roberts elaborated in Wellness International Network, Limited v. Sharif (2015): “[W]e have emphasized that the values of liberty and accountability protected by the separation of powers belong not to any branch of the Government but to the Nation as a whole. A branch’s consent to a diminution of its constitutional powers, therefore does not mitigate the harm or cure the wrong.”
Myth 5: The President is entitled to flout the Constitution’s allocation of war powers and conduct presidential wars because changes in technology and the obligation of the United States to exercise world leadership have made the Constitution obsolete in foreign affairs.
The Constitution’s authors were long-headed. They knew experience and unforeseeable changes in circumstances might dictate a need for constitutional alterations or adaptations. Thus, Article V was written to authorize amendments supported by two-thirds majorities in Congress and three-fourths of the state legislatures. The very first Congress proposed the Bill of Rights, which was ratified by the States. No amendment has ever been proposed, however, to disturb the Constitution’s assignment to Congress of exclusive responsibility for decisions to cross the Rubicon from peace to war.
Justice Black denied that the mushrooming United States role in international affairs since the Constitution was ratified in 1787, simpliciter, authorized the exercise of extra-constitutional powers in Reid v Covert:
If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there.
All Empires create myths to conceal or expiate lawlessness, cruelties, or double standards. Thus, the Roman Empire turned enemy territories into wilderness and called it peace. The American Empire turns the Constitution’s war powers into a jumble of political calculations with ulterior motives and calls it law. The more things change, the more they stay the same.
Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq
Original: Huffington Post
Constitutional Lawyer and Author
Democratic presidential nominee Hillary Clinton more threatens the Constitution’s separation of powers and celebration of liberty than does her vulgar Neanderthal opponent, Republican Party nominee Donald Trump.
Justice Louis D. Brandeis explained in Olmstead v .United States (1928): “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”
Mr. Trump is a would-be, evil-minded ruler. Among other things, he has embraced torture, the extermination of families of suspected terrorists, concentration camps for American Muslims and their demotions to second-class citizenship, punishment of Trump detractors, vigilante justice, warrantless military spying on American citizens, and bigotry towards Americans with Mexican heritage. But Trump’s notoriety has awakened a figurative Paul Revere against himself. If he is elected president, the media, Congress, the judiciary, and the public would be eagle-eyed watchdogs to frustrate Trump’s wish-list to further pulverize the Constitution.
Ms. Clinton is a woman of “zeal, well meaning but without understanding.” She would be more dangerous to liberty and the Constitution in the White House than Trump would be. The first woman President would provoke less scrutiny and media or political opposition to her counter-constitutional convictions and actions because she is less overtly feral than Trump and presumptively less ruthless or megalomaniacal because she is female.
During her acceptance speech in Philadelphia, the Democratic presidential nominee warned: “Remember: Our Founders fought a Revolution and wrote a Constitution so America would never be a nation where one person had all the power.”
True enough. But coming from Ms. Clinton, the statement was as risible as would have been Napoleon during his 1804 self-coronation as Emperor warning the audience against the French Bourbon dynasty because it lusted for too much power.
Clinton’s words and public actions for more than two decades as First Lady, United States Senator, Secretary of State, author of Hard Choices, and presidential candidate betray a conception of the presidency as an elected monarchy endowed with more unchecked authority than was exerted by King George III. It was that power that provoked the American Revolution which she purportedly celebrated.
Ms. Clinton champions multi-trillion dollar unconstitutional presidential wars or other offensive uses of the military without congressional declarations or authorizations required under Article I, section 8, clause 11. Examples include Bosnia, Haiti, Kosovo, Somalia, Libya, Afghanistan, Yemen, Iraq, Syria, Pakistan, and against Al Qaeda and the Islamic State of Iraq and the Levant (ISIL) everywhere on the planet. During her 2008 presidential candidacy, Ms. Clinton declared that if she were elected president she would unilaterally “obliterate” 80 million Iranians if Iran attacked Israel.
She salutes unconstitutional United States treaty commitments to fight wars on behalf of scores of other nations without required congressional declarations.
Speaking through Justice Hugo Black, the Supreme Court declared in Reid v. Covert (1956) that treaties cannot override constitutional prescriptions: “There is nothing in this language [of the Supremacy Clause] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result.” Justice Black added that if unforeseen developments in weapons technology or otherwise argued in favor of constitutional change, the remedy would be a constitutional amendment, not constitutional lawlessness: “If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes.”
The Constitution’s authors would have impeached Ms. Clinton as Secretary of State and removed her from office for complicity in high crimes and misdemeanors against the Constitution, which Lord Gladstone acclaimed as “the most wonderful work ever struck off at a given time by the brain and purpose of man.”
President George Washington, who presided over the constitutional convention, repudiated Clinton’s claim of presidential power to wage war without congressional authorization. He elaborated: “The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.” Every delegate present at the creation of the Constitution agreed.
Alexander Hamilton, who was a delegate to the constitutional convention, underscored in Federalist 69 that the Constitution had denied the President power of a monarch: “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.”
James Madison, renowned as the father of the Constitution and Bill of Rights, secretary of state, and twice President of the United States, explained 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.”
James Wilson, delegate to the constitutional convention and future Justice of the United States Supreme Court, emphasized to the Pennsylvania ratification convention that neither the President alone or in conjunction with treaties ratified only by the Senate could embroil the nation in war: “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 interest can draw us into war.”
United States Chief Justice John Marshall, who served as a delegate to the Virginia ratification convention, Member of Congress, and as secretary of state, lectured in Talbot v. Seeman (1801): “The whole powers of war being, by the constitution of the United States, vested in Congress, the acts of that body alone can be resorted to as guides to this inquiry.”
Nothing Ms. Clinton has ever written or spoken is worthy of a semicolon in the writings or speeches of these constitutional giants. They brought forth a Miracle at Philadelphia, in the words of Catherine Drinker Bowen. We know Clinton is a constitutional ignoramus from her own testimony and past lawyering. Among other things, her reading list excludes not only Aristotle, Plato, Thucydides, Pericles, Cicero, Plutarch, Marcus Aurelius, Dante, Machiavelli, Erasmus, Locke, Gibbon, Voltaire, Hume, and Rousseau, but also James Otis, Benjamin Franklin, Samuel Adams, John Adams, Adam Smith, the Federalist Papers, and George Washington’s Farewell Address.
Additionally, Ms. Clinton wrote a brief as a House Judiciary Committee lawyer arguing that President Richard Nixon should be denied legal counsel to oppose articles of impeachment. She ignored or concealed the then-recent precedent regarding Supreme Court Justice William O. Douglas, who was permitted a lawyer during the impeachment attempt against him in 1970. The Committee’s chief Republican counsel, Franklin Polk, recalled, “Of course the Republicans went nuts. But so did some of the Democrats—some of the most liberal Democrats.” Jerry Zeifman, general counsel and chief of staff to the Judiciary Committee and lifelong Democrat, called Ms. Clinton a “liar” and an “unethical, dishonest lawyer.” He fired Clinton from the staff when the Watergate probe concluded.
Ms. Clinton champions the use of executive agreements in lieu of treaties to circumvent the constitutional requirement of a two-thirds Senate majority for ratification. A recent example was the Joint Comprehensive Plan of Action to contain Iran’s nuclear ambitions. It was fashioned as an executive agreement because, as Secretary of State John Kerry told the House Judiciary Committee, “you can’t pass a treaty anymore.” In other words, if the President can’t get his way by complying with the Constitution, then the Constitution must be tortured to accommodate the President, i.e., to borrow from President Nixon to David Frost, “When the President does it, that means it is not illegal.”
In flagrant violation of constitutional due process, Ms. Clinton also supports limitless presidential power to play prosecutor, judge, jury, and executioner to kill American citizens anywhere on the planet not engaged in hostilities that the president decrees based on secret, unsubstantiated information threatens national security. In exercising this awesome power, according to Clinton, the president is not accountable to any other person, branch of government, or to the public. But Justice Black explained in Reid v. Covert:
“[W]e reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.”
Candidate Clinton supports presidential use of the military to spy on American citizens in the United States without warrants to gather foreign intelligence under Executive Order 12333 in violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act. She supports presidential authority to classify congressional documents and to prohibit their publication. She supports presidential signing statements tantamount to unconstitutional line-item vetoes according to the Supreme Court’s decision in Clinton v. New York. She supports presidential power to spend in violation of limits established in appropriations bills. She supports presidential invocations of state secrets to frustrate congressional oversight or judicial review of government assassinations, kidnappings, or torture. She supports presidential power to refuse to take care that the laws be faithfully executed to advance a political agenda not shared by Congress.
If elected president, Donald Trump might wish to better the instruction of Hillary Clinton’s past constitutional vandalisms and imperial convictions, but his chances of success would be remote. The media, Congress, and the public would be on high alert. A President Clinton, on the other hand, would confront little resistance to her constitutional transgressions. She would be our first female commander in chief, and thus detractors would risk stigmatization as misogynists. Further, she would have her lawlessness accompanied by disarming and dulcet string instruments rather than brass or percussion associated with Trump.
We have already witnessed this phenomenon. President Barack Obama took the constitutional abuses of President George W. Bush to new levels while the media, Congress, and the public slumbered. Mr. Obama was our first black president, he speaks eloquently, and his style is non-gladiatorial. Mr. Bush had none of this armor.
Two potential calamities for the United States are looming on the horizon: wars with China or Russia over spheres of influence in Asia and Europe thousands of miles away from our borders and irrelevant to the Constitution’s foreign policy of invincible self-defense.
The candidate most likely to embroil the United States in unconstitutional presidential wars against either or both is Hillary Clinton.
Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq
Original: Huffington Post