Nat Hentoff
A Founding Father on presidential powers
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The press was barred from the 1787 Constitutional Convention so that the contentious
delegates could speak freely. However, James Madison's notes on the debates are a
valuable source for our founding origins as a nation. And, in the Federalist Papers,
Madison — urging the new Americans to vote to ratify the proposed Constitution
— wrote on an issue now being fiercely debated again: the extent of a
president's powers. In this case, what George W. Bush claims are his "inherent"
constitutional powers in the war on terrorism. The time has come for Madison to
enter the present debate.
In the Federalist No. 47, Madison said plainly: "The accumulation of all powers,
legislative, executive, and judiciary, in the same hands, whether of one, a few, or
many, and whether hereditary, self-appointed, or elective, may justly be pronounced
the very definition of tyranny."
Madison went on — and this is what troubles me about the presence of John
Roberts and Samuel Alito on the Supreme Court — to say:
"Were the federal Constitution, therefore, really chargeable with the accumulation
of power, or with a mixture of powers, having a dangerous tendency to such an
accumulation, no further arguments would be necessary to inspire a universal
reprobation of (our) system. ... The preservation of liberty requires that the three
great departments of power should be separate and distinct." Roberts and Alito have
shown excessive deference to executive government powers.
On Dec. 16 — on C-SPAN's "Washington Journal" — Bruce Fein, former
associate deputy attorney general in President Reagan's administration, and a
continually challenging conservative constitutional scholar — explained why
this continuing debate on the sweeping powers of "the unitary executive" is the most
crucial of all controversies during the Bush presidency so far:
"We must protect the Constitution," Fein said, "for those yet to be born —
whether (the future) Congress or the White House is controlled by Republicans or
Democrats. We need an aggressive fight against terrorism, but we can do it without
compromising the Constitution ... If he (George W. Bush) insists he can do anything
(against the Bill of Rights) in the war against terrorism, then he is
indistinguishable from King George III."
That led me to look again at the Declaration of Independence's list of "repeated
injuries and usurpations" by King George III, headed by the charge: "He has refused
his Assent to laws, the most wholesome and necessary for the public good."
Some members of the White House press corps have tried to get — during the
infrequent presidential press conferences — direct and expanded answers from
Bush on what limits he himself recognizes to presidential powers in this war that
can go on past this generation. His customary, cursory answer is that he does not go
beyond the Constitution.
James Madison might demur.
We do not have an equivalent of the British House of Commons' "Questions for the
Prime Minister," but we could have the size and quality of the televised town
meetings Ted Koppel used to so skillfully and fairly moderate on "Nightline." He has
now moved to the Discovery Channel, but has taken on outside assignments as well.
Why couldn't a combination of broadcast and TV channels deputize Koppel to arrange a
prime time meeting at which Bush would be asked by a range of representative
Americans, where in the Constitution he finds such "inherent powers" as:
The authorization of the National Security Agency to bypass the Foreign Intelligence
Surveillance Court; allowing the CIA's "extraordinary renditions" sending terrorism
suspects to nations known for torturing prisoners, and also the CIA's secret prisons
around the world; permitting the FBI to use the National Security Letters, without
judicial supervision, to obtain a wide range of personal records of Americans in
violation of the very specific requirements of the Fourth Amendment; and more.
Also, does the president agree with the chief and most influential definer of his
"inherent" powers, John Yoo, who as a Justice Department attorney, advised the White
House on Sept. 25, 2001:
"The centralization of authority in the president alone is particularly crucial in
matters of national defense, war and foreign policy, where a unitary executive can
evaluate threats, consider policy choices, and mobilize national resources with a
speed and energy that is far superior to any other branch." This radical revision of
the Constitution is echoed to this day by this administration.
Yoo is back in his professorship at the University of California Law School at
Berkeley, but his presence is still very much felt in this presidency. At last, the
president should speak for himself to Americans regarding his own definition, in
practice, of the "unitary executive." And, going back to the founding of America,
how does he answer to James Madison's grave warning?
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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.
