Losing the Republic

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Ideas matter. Ideas dictate the meaning of the Constitution. When white supremacy was celebrated, subjugation of blacks was indulged by the United States Supreme Court despite the equal protection creed of the Civil War Amendments.

As Justice Samuel Miller lectured in the Slaughterhouse Cases (1873): "No one can fail to be impressed with the one pervading purpose found in them all, and without which none of them would have been suggested. We mean the freedom of the slave race, the security and free establishment of that freedom, and the protection of the newly made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him." White bigotry proved more powerful than the clear intent of the Constitution.

President Bush's signature constitutional idea is that he is the law. The idea is taking hold in a climate of post-Sept. 11, 2001, fear. Under the banner of fighting international terrorism, Mr. Bush claims unchecked powers historically associated with despots: torture; kidnappings; secret imprisonments; indefinite detentions of suspected unlawful enemy combatants; violations of the Constitution and laws with impunity; and, the authority to employ the military at any time and place of his choosing. On the domestic front, Mr. Bush disputes the power of Congress to oversee the executive branch for lawlessness, abuses, or maladministration. He signs laws while asserting a right to disobey those provisions he pronounces to be unconstitutional.

With few exceptions, Congress, the media, and the public have slumbered as the Republic has been dismantled brick-by-brick. A restoration is possible, but only through an aroused and enlightened citizenry. There are no quick fixes.

The sinews of self-government, checks and balances, and protections against government abuses lie in the hearts of men and women. When these hallmarks are unable to command homage, no constitution, no law, no court can save the situation. In the words of Pogo, we have met the enemy of the Republic, and he is us.

These concerns are neither premature nor alarmist. James Madison, father of the Constitution and Bill of Rights, instructed: "We are right to take alarm at the first experiment upon our liberties," and elaborated, "I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations."

Supreme Court Justice Louis D. Brandeis chorused in Olmstead v. United States (1928): "The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well meaning but without understanding." Writing in "The Decline and Fall of the Roman Empire," Edward Gibbon warned: "The principles of a free constitution are irrevocably lost, when the legislative power is nominated by the executive."

Democracies, however, are not fastidious over form or procedural safeguards. They live in the present. Ordinary citizens demand immediate results. They know less and less about abuses of power and the Constitution and care less and less about posterity. The portent is unmistakable. As Thomas Jefferson underscored, no nation has ever been both free and ignorant.

Even ardent defenders of Atlas-like presidential powers should be shaken by the recent release of an unclassified March 14, 2003 Memorandum authored by then Deputy Assistant Attorney General John C. Yoo. It is the Bush administration's gospel on the president's commander-in-chief authorities.

The memorandum presumes without argument that Sept. 11 placed the United States on a permanent war footing, a condition James Madison decried as irreconcilable with freedom. According to the document, the war with al Qaeda and other terrorist groups will end only when their threat "is completely ended." But no threat can be reduced to zero. And no one has suggested a war-ending benchmark.

The memorandum also presumes without argument that the entire world a battlefield where the president is empowered to employ military force to kill, capture or torture suspected international terrorists or their friends. Accordingly, Mr. Bush could order the armed forces to carry out military operations against a suspected ally of al Qaeda residing in a home in San Francisco. If innocent civilians were killed in an ensuing rocket attack, their deaths would be chalked up as collateral damage.

The Memorandum maintains that, "The decision to deploy military force in the defense of U.S. interests is expressly placed under presidential authority by the Vesting Clause ... and by the commander-in-chief clause." In other words, the president may launch pre-emptive war against any state or nonstate actor by his simple assertion that U.S. interests require it. Venezuela or Iran could be invaded on the president's say-so alone to secure adequate oil and gas supplies.

But has the Bush administration forgotten its embrace of original intent in interpreting the Constitution? James Madison admonished: "The executive has no right, in any case, to decide the question whether there is or is not cause for declaring war." Founding Father and Supreme Court Justice James Wilson echoed: "It will not be in the power of a single man, or single body of men, to involve us in [war]."

Alexander Hamilton in Federalist 69 slighted the commander-in-chief clause as giving the president "nothing more than the supreme command and direction of the military and naval forces. ... While that of the British king extends to declaring of war and to the raising and regulation of fleets and armies."

The Memorandum's "Hail to the Chief" moment bugles that "the president alone" decides the conduct of war. Under the banner of defending U.S. interests, he is empowered to flout laws against torture, spying on Americans without judicial warrants, or geographical limitations on use of military force. The logical inference is that Congress is impotent to prevent the president from expanding the wars in Afghanistan and Iraq into Iran, Syria or Pakistan.

In sum, the president has proclaimed the White House an uncrowned kingship. House Speaker Nancy Pelosi has assured him impeachment is off the table. And Congress and the American people remain preoccupied with earmarks, steroids in athletics, and "American Idol."

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and Chairman of the American Freedom Agenda.