Re: Presidential Government And Harriet Miers

October 20, 2005

[[[audio]]]

Re: Presidential Government And Harriet Miers.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

Thirty-five years ago this author wrote a book dealing with the constitutionality of the Indo-China war and with civil disobedience -- which was, of course, taking place extensively at the time. (The book was called, in a fit of literalism, Undeclared War and Civil Disobedience: The American System In Crisis.) The book has been out of print now for more years than I even know, but some relatives and friends still have copies.

Last weekend I was visiting relatives in Chicago, and they pulled out the book to show it to a newer member of the family, who had married into it. He thumbed through it and said it looked pretty good. I replied that it had been okay for its time and place, to which he responded that it looked quite relevant today. I could not honestly disagree. For the Indo-China war, like today’s wars in Iraq and against terrorism, involved the most important and enduring constitutional question and, with civil rights, one of the two most important and enduring political questions of the 55 year period since Truman took us unto Korea. They involve the question of the scope of executive power -- a question that may be with us for many years yet and that could end up destroying democracy as we have known it if the executive continues to become ever more powerful.

The already kingly executive of today, like the kingly executive of Johnson’s and Nixon’s times, pretends that ours is de facto an executive form of government. This executive view has recently been expressed in many areas. The executive has claimed nearly unfettered power to fight wars. Now, it was revealed by The New York Times in a page one article last Saturday, the Executive is fighting not only in Afghanistan and Iraq, but also is secretly engaging in combat with Syria -- just as it once engaged in secret wars in Laos and Cambodia -- as part of an attempt to change the regime there. The Executive has claimed presidential power to override any and all Congressional laws in the course of combating terror. It pushes the right of secrecy to the utmost, closing off prior presidential papers that otherwise would be available, refusing to provide important papers of Supreme Court nominees to the Senate, and regularly claiming that privilege shields its deliberations from the people, not to mention Congress. It claims the power to clap people in jail without rights and to hold various prisoners forever (as well as to torture them). We have, in short, an Executive run amok.

One would think, and like the Johnson and Nixon henchmen, the current Republican henchmen in the White House try to have us think, that ours is supposed to be a presidential government. Nothing could be further from the truth. The founders -- whom the hypocritical criminals in the White House and the DOD like to ignore, not praise, when ignoring rather praising suits their purposes -- were desperately against a presidential government. They had had enough of an executive government with George III. They deliberately established a legislative government, not an executive one. And their views in this regard were vigorously expressed with regard to power over war, where their decision was embodied in the Constitution’s declaration of war clause. Here is what Madison, perhaps the most important member of the Constitutional Convention, said with regard to war:

"Of all the enemies of public liberty, war is perhaps the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies. From these proceed debts and taxes. And armies, debts and taxes are the known instruments for bringing the many under the domination of the few . . . . No nation could preserve its freedom in the midst of continual warfare."

The founders’ reasons for giving Congress the power over war were stated by other great Americans of the nation’s earlier years. Here is what Abraham Lincoln said:

"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 to bring this oppression upon us."

The most elaborate explanation was that of the great early 19th Century Supreme Court Justice, Joseph Story:

"The power of declaring war is not only the highest sovereign prerogative; but it is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation. War, in its best estate, never fails to impose upon the people the most burthensome taxes, and personal sufferings. It is always injurious, and sometimes subversive of the great commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. It is sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow, wherever a successful commander will lead; and in a republic, whose institutions are essentially founded on the basis of peace, there is infinite danger that war will find it both imbecile in defense, and eager for contest. Indeed, the history of republics has but too fatally proved, that they are too ambitious of military fame and conquest, and too easily devoted to the views of demagogues, who flatter their pride, and betray their interests. It should therefore be difficult in a republic to declare war; but not to make peace. The representatives of the people are to lay the taxes to support a war, and therefore have a right to be consulted, as to its propriety and necessity. The executive is to carry it on, and therefore should be consulted, as to its time, and the ways and means of making it effective. The cooperation of all the branches of the legislative power ought, upon principle, to be required in this the highest act of legislation, as it is in all others. Indeed, there might be a propriety even in enforcing still greater restrictions, as by requiring a concurrence of two thirds of both houses . . . . This reasoning appears to have had great weight with the convention, and to have decided its choice. Its judgement has hitherto obtained the unqualified approbation of the country."

Those sentiments resonated during the Indo-China war and again today. Yet, as said, the criminal gang of Republican politicians and lawyers, abetted by certain generals, have attempted, often successfully, to make the Executive a law unto itself with regard to fighting, torture, holding people in jails, pseudo judicial proceedings, secrecy, and what have you: Bush, Rowe, Rice, Cheney, Libby, Addington, Gonzalez, Bybee, Yoo, Chertoff, Rumsfeld, Wolfowitz, Feith, Miller, Sanchez are some of the culprits, but not all.

Just as bad as this criminal executive gang is that the Congress itself has thus far taken no steps to stop them from destroying the Constitution. Instead a supine Congress has gone along with everything from passing the Patriot Act without reading it, to not contemporaneously challenging lies used to persuade the country to enter war, to approving nearly an uncabined authorization of war which pretty much allows the Executive to fight wars against anyone and everyone it chooses, wherever it chooses, for as long as it chooses, to allowing torture to be de rigeur.
* * * * *

This writer has been wondering for awhile whether he should be for or against the nomination of Harriet Miers. Not that this blogger’s view matters. It doesn’t. Just like most people’s views don’t matter in this country. So call the wondering an exercise in abstract intellectual interest, if you like. You’d be right to do so.

Nonetheless, it has seemed to me likely that Miers has to some extent been getting a bad rap. True, she has no as-yet-known experience with high falutin’ constitutional law. And true, she is obviously a Bush sycophant. But she did manage to rise to the top of a law firm in an era when the cards were greatly stacked against women. Someone who rises to the top in those inevitably shark infested waters has to have some smarts and ability. One should also remember that, in making a success on the private side, she managed to do something that Bush himself never had the brains or ability to do. (Maybe she should be President, not him?)

Yet, now it has also come out that Miers has been making speeches lauding executive power, calling for its increase, and lauding the secrecy which contributes to an ever more powerful Executive. These speeches, it seems to me, should turn people who care about our country against her - - unless she is willing to recant in front of the Senate Judiciary Committee, which she’ll never do. To recant, she would have to admit de facto that she said these things only because she was a henchwoman for Bush. Don’t hold your breath.

One is aware of the argument that what a person says as a presidential aide of one sort or another can differ from what he or she says or does as a Justice. If memory serves, Justice Jackson even made this point about himself in his concurring opinion in the Youngstown Sheet & Tube case. But again, don’t hold your breath waiting for this to happen again. And the stakes for democracy are too high. Given what the Cold War and its aftermath have wrought, the stakes could be democracy itself. How many times, after all, do you want there to be a Jay Bybee or a John Yoo or an Alberto Gonzalez telling the President that he can do any damn thing he wants, and as for the law, well, as Commodore Vanderbilt is said to have remarked, "The law? What do I care about the law? I got the power, hain’t I?"

If there is one point (other than abortion?) on which the Senate Judiciary Committee ought to hammer during the confirmation hearings, it is Miers’ view of executive power, what she has said about it, and -- what nobody seems yet to have discussed -- what if any role she played in expanding it so that the Bush administration and its ideas have come to be a threat to America.
* * * * *

One simply cannot resist a crack at the media, which is so heavily responsible for allowing the situation discussed above to arise. In a recent piece, Paul Krugman, the New York Times columnist who is not really a columnist but in reality is an academic economist, blamed the media for the rise of George Bush. Krugman pointed out that he himself said in November of 2000 that Bush "‘valued loyalty above expertise,’" "like[d] to surround himself with ‘obsequious courtiers’" and "‘prefer[s] . . . advisers whose personal fortunes are almost entirely bound up with his own,’" Now, said Krugman, "Lots of people are saying things like that these days." Yet back in 2000 the media made Bush President by making Gore out to be a jerk, while largely "portraying Mr. "Bush as an honest, likeable guy."

Why did he get it right, asked Krugman, while the media generally got it all wrong. The answer, he says, is that he made his judgments by observing Bush’s actions in a field he knows something about -- knows a lot about: economics. The rest of the media made their judgments on the basis of "‘up close and personal interviews,’" which the public likes, but which are notoriously unreliable because the ability to judge character from an interview here or there is pretty poor. Also, the media, says Krugman, engaged in careerism: "Those who wrote puff pieces about Mr. Bush and those around him have been rewarded with career-boosting access. Those who raised questions about his character found themselves under personal attack from the administration’s proxies," as Krugman said had occurred to him. So even though journalists always knew it, says Krugman, only now are we "hearing about his coldness and bad temper, about how aides are afraid to tell him bad news."

Let me freely translate what I think Krugman was saying, in part sotto voce. The media was both stupid and careerist in regard to Bush. It presented judgments based on highly unreliable "impressions," did not know you-know-what from shinola about substance, and, one would add, didn’t care about substance. Someone who knew and cared about substance, on the other hand, could discern the truth. All of this, by the way, not only strikes me as plausible and indeed most likely right in all respects, but also makes me think it would be a very good thing if more substantively expert non journalists, like Krugman, had columns, TV shows, and radio shows. It seems to me that in this country it quite often takes people who do not depend on advancement in the media for their livelihood and careers to tell the truth that journalists should but do not tell, should tell but do not tell because they are ignorant, careerist, and/or care only about the horse race aspect of politics, not the substance of issues.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.