The U.S.A. must act to restore the balance of power to its Constitutional system.
by Richard Hanway for The International Chronicles
The freedoms that Americans purchased at great personal peril are under threat in America today. The wise protections built as foundations for our Constitutional system are eroding through the inaction of our Legislature. Two hundred years of successful government are at risk if current abuses become accepted practices. The sacrifices of our revolutionary forebears to free themselves from the caprice of unchecked power will lose relevancy. We must act to restore the balance of power to protect our nation.
Colonists were primarily concerned with liberty. The genesis of the United States of America was a rebellion against an English King and Parliament denying economic, political and legal freedoms. King George III and Parliament needed the American colonies to repay a large debt incurred fighting the French and her Native American allies. The power of the English monarchy reached across the Atlantic in a series of acts to raise new taxes or compel Americans to buy English goods. To pay for the revolution Americans endured higher taxes both during and after the war. Taxation was not the issue. Taxation without representation was the issue. The occupation of American homes by English troops, prohibition of local trials of murderous English soldiers and denials of legal protections were issues. The colonialists burned with revolutionary fervor because they felt their rights were slowly being squeezed away by the English crown. The issue was liberty.
An interesting collection of leading Americans met in Philadelphia to discuss the thorny conflict with Britain. Landowners, lawyers and business leaders: men not associated with radical revolutions. They came together to send a missive to Parliament and the crown to express their dissatisfaction. Some came to demand independence, but many sincerely desired reconciliation with the English. Many doubted the possibility of a likely victory in a war with Great Britain, the superpower of the day.
The very notion of independence was intensely debated before Thomas Jefferson was picked to write the Declaration of Independence. As a landowner from Virginia, he was a good political choice to gain favor for breaking ties with Britain, as the southern colonies had enjoyed a less confrontational relationship than Massachusetts, and were less interested in independence. He rose to the challenge, creating a brilliant argument for separation with the stirring words:
“We hold these truths to be self-evident; that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Read past that second paragraph and the Declaration is a list of 27 grievances addressed to the crown. The Declaration was a clear message to Parliament and the King that abusing the freedoms of the colonials was intolerable. The English provoked these unlikely revolutionaries to reject their authority with the overflowing arrogance born from immense power.
John Hancock signed the document “big enough so the King could see it without his glasses,” to lighten a very tense occasion. Every man in the room knew signing that document was treason to the crown. They were publicly signing a letter of treason to the head of a superpower questioning the legitimacy of his crown. Courage was evidenced by every man who signed a certain death warrant if the English superpower had prevailed. As Hancock signed he said “Now we must all hang together,” prompting Benjamin Franklin’s famous quip “Yes, we must indeed all hang together, or most assuredly we will all hang separately.”
With the indispensable aid of the French blockading the British navy at the Battle of Yorktown, Americans won their freedom. (Don’t worry, we repaid that favor alongside our former English countrymen- They still speak French, ¿Non?) The victory created a new nation and preserved the signers of the Declaration for a new problem: Creating a government powerful enough to function while preserving the precious liberty they risked their lives to obtain.
The first experiment at national government was notable for its failures. The president under the Articles of Confederation was such an inconsequential figurehead that the first appointee, John Hancock, neglected to fill the post. The new states of America experimented with different forms of government. Pennsylvania created a pure democracy with a one-house Assembly lacking the restraints of an executive branch. Members created a tyranny of the majority notable for disenfranchising the Quaker minority and interfering with the courts. In Massachusetts government was organized with a governor elected by the people with veto power to oppose the legislature, and lifelong appointments for judges to free them from political concerns. Here the failure stemmed from an underlying weakness of the national government, and led to the creation of the U.S. Constitution.
A forgotten band of former soldiers and officers including Daniel Shay created a dire crisis in Massachusetts that exposed the spineless underbelly of the national government. In January of 1787, the rebels closed courts to fight foreclosures sparked by the high taxes needed to pay for the war. The Governor petitioned Congress for troops to restore order but the national system was so weak they could not muster money or men. Massachusetts had disbanded its own militia after the war, and the Governor was forced to raise private funds to quell the uprising. “Shay’s Rebellion” was a warning shot creating urgency in all thirteen states to form a stronger national government. Before the rebellion, representatives from New England failed to attend an important meeting in Annapolis, Maryland. The rebellion convinced representatives from every state except Rhode Island to attend the next convention in May of 1787.
The government formed by the Constitution has lasted longer any other system of government. It is a success born of painful failures and the abuses of tyranny, both at home and abroad. These examples proved that an entirely new structure of government was needed. The promises of English law had not been enough to stop a powerful King from trampling them. Shay’s Rebellion, the Pennsylvania Assembly, and the chaos in revolutionary France showed the danger of unchecked democracy. The challenge was to create a system that did not empower a president to rule like a king, but was strong enough to maintain order. Experience proved power had to be checked and distributed to prevent abuse, but not diluted so much it was ineffectual. James Madison framed the importance of providing a robust check on power like this: “A mere demarcation on parchment of the constitutional limits is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
The Constitution that emerged from considerable study and debate created a national government with a lower house elected by the people, and an upper house elected by state legislatures. Benjamin Franklin steered a “Great Compromise” that gave states with big populations proportional representation in the House, and small states equal representation in the Senate. The President was allowed to pick the judiciary, with the Senate’s consent. Protections against tyranny were structured in the balance of power between the three legs of government. The Congress could check presidential abuse in several ways. First, Congress was empowered to write laws collect taxes and coin monies. They could override executive vetoes and had the power to impeach a wayward president. The Senate was given additional oversight over presidential appointments and treaties. Congress also had the power to impeach and remove judges, and controls the number and jurisdiction of lower courts.
Presidential checks on Congress began with the power of the veto, but have swelled with the burgeoning executive bureaucracies in the twentieth century. A president influences the judiciary with new appointments to the court. It is a check on judicial power that can begin a modest change in the judiciary, like the rudder on a supertanker, to begin a new course without sacrificing judicial independence.
The Judiciary has an important role in preserving the framework of the Constitution. By declaring a law by Congress or an action by a president illegal, the courts prevent tyranny of the majority from slashing Constitutional rights and curtail the power of the executive branch by maintaining the Constitutional standards. The courts also decide whether the national government has jurisdiction to make and enforce laws. The Federal government is allowed powers enumerated by the Constitution, while all others are reserved for the states. Yet the courts have no mechanism to enforce their edicts except the goodwill of the other branches. They lack the army under executive control or the spending power of the legislative. This has proven deficient at times in our history when the President and Congress simply ignored court orders. Still, except in rare cases in our history, Judicial review successfully checks the power of the other branches.
The success of the framers vision is evident in the flexibility of the system to change with amendments and the potency of the check and balance system. A deficiency of the original document to codify essential liberties was address by the first ten amendments, or Bill of Rights. While ancient English protections such as the Writ of Habeas Corpus are built into the Constitution, delegates rightly demanded extra protections of liberty won at grave cost. Fifteen amendments have been added since, while Supreme Court rulings have updated the law to reflect the new amendments and modern interpretations of the intent of the framers. While amendments and review have kept the document relevant, the true success of the Constitution has always been the balance of Federal power between the three branches and the checks each branch has to prevent abuses by the other two.
The balance of power is now threatened by the actions of the last few presidents and the inaction of Congress. President Obama is the most powerful president in American history – ironically thanks to the efforts of a corps of conservative Congressmen who ignored their duty to their constituents and their country. While candidate Obama decried the abuses of the Bush Administration, President Obama favors many of the abuses of power of the “Imperial Presidency.” This is a description Arthur Schlesinger Jr. first coined to describe the Nixon years. Liberals feared Nixon for his view of Presidential transcendence over the law of the land. Conservatives would do well to remember the economic chaos Nixon caused with his economic price controls (taking the freedom out of the “free market”) of 1971 and 1973. Economic freedoms were liberties our forebears fought for. Without an imbalance of Constitutional power, they could never have been stripped away by the Executive branch.
President Bush had monitors among the Republicans in Congress trying to fulfill their Constitutional obligations. Jonathan Mahler exposed the behind the scenes efforts of Senator Warner to investigate abuses at Abu Ghraib in a November 9,2008 article in The New York Times Magazine (“After the Imperial Presidency”). Warner was confronted by junior senators of his own party and threatened with the loss of his chairmanship. It was no idle threat, as they carried a letter signed by all the members of the Senate Armed Services committee save Senators McCain, Graham and Collins. Mahler reports that Warner was convinced that Secretary Rumsfeld organized the event. Senators McCain, Warner and Graham sacrificed political capital to create a bill that forced the Administration to issue an Executive order that described interrogation techniques it considered legal in light of U.S. treaty requirements. Nine months later the Administration released an order barring only “willful and outrageous acts done for the purpose of humiliation or degrading the individual.”
Nine months had passed before the Emperor bothered to respond, and when he did he ignored the requirement to describe legal techniques, instead allowing any act as long as it was for the right purpose. Inevitably, all of these respected Senators failed to redress these challenges to Legislative authority. They simply did not have the political backing from their party.
These incidents revealed two weaknesses in Republican Party unity. First, party unity has trumped duty to constituents and country. Modern “mavericks” face fund-raising challenges that threaten re-election. Secondly party unity has been honed past a laudable strength to become an extreme weakness. Yet it is not the time to push back against the lockstep of think-tank sound bites and party unity. The Republican Party has a chance to redress the damage to the republic by curbing the excesses of the Imperial Presidency. To do this they may have to reach across the aisle past partisans like Nancy Pelosi and find common ground with Democrats concerned with the checks and balances of our Constitution – and our liberty.
Perhaps a first step is to challenge signing statements. While President Obama has reversed President Bush’s statements, he has refused to reject new ones. Signing statements in the past were benign instructions to Executive bureaucracies or questions about the Constitutionality of the law. Andrew Jackson’s 1830 signing statement concerning a road project from Detroit to Chicago refused the crossing of state lines.(Of course in the same year he ignored a ruling by the Supreme Court barring relocation of the five “civilized” tribes on a death march to Oklahoma- “Let (Chief) Justice Marshall enforce it” said Jackson) The Modern signing statements have grown to de facto line-item vetoes, which have been ruled unconstitutional by the courts. More worrisome, a signing statement, unlike a veto, cannot be overturned by Congress.
Congressional oversight is the second remedy to executive power. While wartime inevitably tilts the balance of power to the Executive Branch, the war on terror may well be an Orwellian endless-conflict. Congress must develop a backbone. Unfortunately, they have moved in the opposite direction, giving Presidents Bush and Obama the power of the purse with lax oversight of TARP funds. Congress should demand the total enforcement of the laws of the people. Article II section three of the Constitution clearly states the president “shall take care that the laws be faithfully executed.” Shall is an important word in Constitutional language, meaning must or will. (Choice is denoted by the word may, as in “a Majority of each shall constitute a Quorum to do business, but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members…) .
Lastly, timely executive decisions must be demanded by Congress. The slow deliberations of the courts have been cynically manipulated by the last few presidents, who realized an unconstitutional policy can enjoy a six year lifespan before a court decision. The Legislature has the means to force a quicker resolution.
The founders of the United States risked sending a treasonous Declaration of Independence to the head of a global superpower, denying its right to rule them. They listed the grievances to liberty and fought to an unlikely victory unmatched in history. They endured war and economic upheaval in order to create a more perfect union. They spent countless hours researching governance and building popular support for a new system of government firmed by strong bulwarks to tyranny. The system of “checks and balances” has worked so well we have forgotten the whiplash of tyranny.
I ask you to consider the importance of liberty. Take the time to write your Congressman or Senator and demand they assert their equal stake in American Government. It is common sense to lend a tiny sacrifice to the cause of Liberty now. It can prevent a bigger sacrifice later.
Richard Hanway is a Duke University-educated San Francisco intellectual.