Jewish World Review Jan. 12, 2006 / 12 Teves, 5766

Paul Greenberg

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Return of the anti-federalists | Th-e-y're Back! You may dimly remember them from your high-school American history class: the anti-federalists. That's the name given those leaders of the American Revolution who fought for independence, but then were unwilling to establish a new government strong enough to protect it.

And so, year by year, the infant republic under the old, impotent Articles of Confederation grew weaker and weaker.

It was unable to enforce its treaties with foreign powers or preserve order at home. The British held on to their frontier forts on American soil despite the peace treaty they had signed with these no longer very united states. After all, there was no longer an American army that could force them to leave, or for that matter an American government that could command respect. Shays' Rebellion in Massachusetts set an example for all those unhappy with laws they didn't want to obey. National tariffs could not be passed, or, if they were, could not be enforced. The specter of anarchy loomed.

The center wasn't holding, and for good reason: There was no real central government capable of forceful action — just an agglomeration of states that had begun to drift apart. The American experiment was ending before it had really begun. Historians would call these years of drift The Critical Period, and it was.

Then a few veterans of the Revolution gathered to address the crisis: Washington, Hamilton, Madison, John Jay . . . they would become the leaders of the federalist movement. They met, they planned and they enlisted others in their cause, which was to reinvigorate the American union and so save it. They set out not so much to reform the old, impotent Articles of Confederation but to replace them — with a new, federal government able to provide liberty and order. They understood that one without the other was meaningless.

Theirs was one of the most daring and in the end successful cabals in American history. These founders weren't out to restore the kind of monarchy that Americans had just overthrown, though they were accused of trying to do just that by their critics, but to reinvigorate the authority and power of a free government. (Today they might be called neo-conservatives.)

Perhaps the gravest defect of the Articles of Confederation was the lack of an executive power strong enough to keep the country secure — one of many weaknesses addressed by the historic Constitutional Convention of 1787.

When it came time to sell that new constitution to their fellow Americans through a series of newspaper articles, Alexander Hamilton would remind his countrymen, in Federalist Paper No. 70: "Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks . . . ."

The anti-federalists — among them distinguished patriots like Patrick Henry, George Mason and Richard Henry Lee — couldn't go along with this new constitution and the powerful new chief executive envisioned in Article II, Section 1: "The executive Power shall be vested in a President of the United States of America." Simple but sweeping words.

Taken together with the provision making the president commander-in-chief of the armed forces, the power of the chief executive to defend this country against foreign threats ought to be beyond question by now.

But of course it isn't. Constitutional questions are seldom settled permanently. In the current debate over whether Congress has the power to restrict the president's constitutional power to protect the nation, the old lines between federalists and anti-federalists are being drawn again.

Americans are being warned once again that an executive strong enough to protect us is also strong enough to invade our rights, including our right to privacy.

We're told that a special court established by Congress in 1978 to issue domestic search warrants under the Foreign Intelligence Surveillance Act supersedes the chief executive's constitutional power — and duty — to protect this country against threats from abroad. The president's hands must be tied to assure our rights. For the weakness of the executive is the strength of the people!

Yes, the anti-federalists are back and in good voice. Never mind that the very act establishing these FISA courts recognizes that the executive branch has the inherent authority to conduct electronic surveillance of enemy agents in wartime without a court order. And that no administration has ever agreed to give up that authority, which the courts have consistently upheld.

Indeed, the attorney general in the Carter administration, when this act was drafted and passed, noted that it was not intended to keep the president from "using his powers granted under the Constitution to carry out foreign policy and intelligence activities."

Yet we're told FISA trumps the Constitution. The question of whether an act of Congress can nullify a power granted by the Constitution is deeply interesting, as the great John Marshall observed in Marbury v. Madison, "but, happily, not of an intricacy proportioned to its interest." Of course a statute can't cancel out a constitutional provision, or the Constitution could be reduced to a nullity at the pleasure of the legislative branch.

We're told that, if international terrorists will just take the precaution of anchoring one end of their communications in this country, they should be allowed to carry on their nefarious business without fear of government snoops. Or at least the FBI and CIA should have to go through all kinds of legal and bureaucratic conniptions under FISA before daring to listen in — and they might not be allowed to monitor such communications even then.

Lest we forget, in the legal climate that prevailed before this country was shocked awake that fateful September 11th, the Justice Department had decided there was insufficient reason to inspect the laptop of one Zacarias Moussaoui, the alleged 20th hijacker in the September 11th attacks. His record of associating with terrorists was not considered sufficient "probable cause" to obtain a search warrant under FISA. So his computer files, which might have revealed the plot, remained unexamined.

And one of the most devastating attacks on American soil in this country's history proceeded as planned. The civil liberties of those thousands of Americans who would be killed September 11th were protected, all right — protected to death.

It seems the anti-federalists didn't disappear from American history after the Constitution was ratified; they still spring up periodically to warn that security is incompatible with liberty. And to portray a strong, independent executive branch as the real threat to our freedom. If today's anti-federalists prevail in this critical period, how long before we return to the sleepy America of September 10, 2001, and at what risk?

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