- The Washington Times - Tuesday, July 30, 2002

Fix your remembrance on Sept. 18, 1787. The day before, longheaded delegates to the Constitutional Convention in Philadelphia had given this nation an unprecedented birth of freedom. A written Constitution renounced the monarchies, privileges, and caste-like divides of the Old World. It embraced limited government enshrined by a separation of powers and checks and balances. In lieu of trusting angels, ambition was to counteract ambition to maintain an equilibrium of freedom.
The Founding Fathers also were masters of the human heart and human nature. They knew any constitutional parchment would be brittle if unwritten rules of fairness and restraint were not equally venerated and practiced.
Thus, that Sept. 18, as the Philadelphia sun was rising on the infant Constitution, a Mrs. Powell approached Dr. Benjamin Franklin, the eminence grise among the Convention delegates. She inquired, "Well Doctor, what have we got a republic or a monarchy?" "A republic," replied Franklin, "if you can keep it."
But aren't we, the people, in danger of losing it to an imperial presidency?
Consider the following, not in isolation but as an unmistakable pattern, like the encroachments of Roman emperors on the prerogatives of the Roman Senate.
President George Bush narrowly captures the electoral vote in 2000 with a controversial boost from the United States Supreme Court. He loses the popular vote to Al Gore. Control of the U.S. Senate shifts from Republican to Democrat. The House of Representatives remains Republican, but with a razor-thin majority. Esteemed President Thomas Jefferson had warned against sharp political breaks by exploiting slender majorities. The expectations and interests of losers must be reasonably accommodated to avoid unhealthy shocks to our constitutional system and destabilizing extremes. Moderation and self-restraint should be presidential touchstones, not a "take-no-prisoners" strategy of political warfare.
But has President Bush heeded Mr. Jefferson's time-honored advice? He has brandished unprecedented war-making, secrecy, and law-enforcement powers. He has regularly shipwrecked flagship environmental, energy, health and economic policies inherited from President William Jefferson Clinton.
Most alarming is President Bush's claim of authority to detain any United States citizen in military custody as an illegal combatant for a lifetime on his say-so alone: no right to test that designation in a court of law (with due regard for intelligence sources and methods); no right to question before an independent federal judiciary when, if ever, our war against international terrorism has sufficiently abated to terminate war powers. Moreover, President Bush's Napoleonic arrogation something neither George Washington, nor Abraham Lincoln, nor Franklin Roosevelt thought necessary to win their wars against foes far more formidable than Osama bin Laden is advanced without even suspending the writ of habeas corpus (subject to judicial review) as the Constitution permits during emergencies.
Immigration hearings have been ordered closed irrespective of danger to intelligence sources, methods, or national security. Ditto for the identifies of detainees held as material witnesses or suspects in terrorism investigations.
President Bush denies a right of congressional oversight or interrogation whatsoever of his national and domestic security advisers, such as Homeland Security Director Tom Ridge, National Security Adviser Condoleezza Rice, or political gurus Karl Rove and Andrew Card. The claim of secrecy reaches far beyond national security into routine matters of budgeting and meetings with erstwhile Enron tycoons. Mr. Bush asserts a right to block disclosures of presidential papers of his predecessors by dint of constitutional prerogative. He has relaxed internal checks against FBI dossiers on the First Amendment activities of citizens under the flag of counterterrorism.
On the domestic policy front, President Bush's hallmark has been sharp U-turns from his predecessor. Environmental standards for clean water, air, and oil and gas exploration have dipped. Endangered species protections have enervated. Wilderness and national forest preserves have been clipped.
The right of workers to withhold political dues from unions has strengthened. Right-to-life inflexibility has been championed in medical research, foreign assistance, and assisted suicide for the terminally ill sanctioned by state referenda in Oregon. Despite his oblations to federalism, the president is proposing a national damages cap on medical malpractice claims arising under state law.
No insinuation or criticism is intended against the right and duty of a president to forge policies that accord with the sentiments of his political base. Indeed, policy changes are what elections should be about. But statesmanship dictates gradualism, which means forgoing Austerlitz-like political triumphs in favor of victory on the installment plan. Human nature balks at jolts. Individuals and businesses legitimately rely upon reasonably stable government. Further, rashness by one party will be answered by rashness in the opposite direction by the other as soon as the reins of power change hands. Domestic tranquility shatters against such violent swings in government.
All three branches of government, of course, must bow to self-restraint and moderation to preserve our constitutional cathedral. Thus, the United States Senate deserves scolding for mulishly blocking many of President Bush's gold standard judicial nominees, such as John Roberts, Miguel Estrada, and Mike McConnell. But the president himself is most out of constitutional joint.
In the wake of a crushing 1936 electoral victory, President Roosevelt audaciously championed "court-packing" legislation to enfeeble the Supreme Court. The public and Congress instantly recognized the threat of executive tyranny. The legislation withered. FDR's popularity plunged. Democrats fared poorly in the 1938 midterm elections. Our constitutional balances were preserved.
Isn't now the time for another bravura performance to keep our sacred Republic of which Mr. Franklin spoke? All that has changed since Franklin Roosevelt with Mr. Bush's transgressions against our unwritten Constitution are the players and scenery. Yet Congress, like the Roman Senate, is yawning while the president captures its crown jewels of constitutional power.


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