Our Imperial Presidency

It appears that the presidential administration has begun laying the foundation for a possible invasion of Iran, accusing that country of aiding the insurgency in Iraq. While this news is ominous, it does provide an opportunity to reflect further on our unlawful government, particularly the Imperial Presidency.

One problem with the accusation against Iran is that all nations have the right to come to the “collective defense” of a nation under aggressive attack, which Iraq undoubtedly is. The United States predicated its invasion on the possibility of future danger, which comes nowhere near the level of urgency required for a preemptive attack under international law – if the mere possibility of danger could justify an attack, then the world would be even more violent than it already is (however difficult that may be to imagine). Given the aggressive nature of the war against Iraq, any nation (Iran included) may come to Iraq’s defense, a right commemorated in Article 51 of the UN Charter and invoked by the United States in circumstances far less dire. If the United States could “defend” El Salvador against Nicaragua, or “defend” Kuwait against Iraq itself, then surely Iran may “defend” Iraq against the United States.

But for our purposes, the paramount problem here is that the President of the United States routinely takes America to war without a congressional declaration of same as specified in Article I, Section 8 of the Constitution. Congress has not bothered to declare war since World War II, yet Harry Truman unilaterally took us to war in Korea without a peep from Congress, and subsequent presidents have received “authorization” to declare war on their own – an unconstitutional surrender and delegation of Congress’s unique power. Thus we have arrived at the state of affairs which the Founding Fathers rebelled against and desperately sought to avoid, wherein the executive alone decides whether there shall be war or peace.

As for the president’s role as “commander-in-chief,” Alexander Hamilton reminds us in Federalist Number 69 that this represents “only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union.” In other words, the president’s role as commander-in-chief does not presuppose a power to initiate war. The Founders understood that no man should wield such awesome authority, and George Washington – who refused offers to become America’s king – would surely refuse to occupy the modern presidency.

Enabling this obscene state of affairs is today’s popular notion of the president as the man who “runs the country,” a thoroughly ridiculous concept. All the president rightfully “runs” is one branch out of three in the federal government, which itself is only one government among fifty others (each of which has the “police power” that the federal government lacks). Unfortunately, America has regressed to the mean of human achievement, worshipping the cult of personality and pining for a single “leader” to solve every problem under the sun. Witness the endless stream of entertainment portraying the president as a modern Jesus, someone whose purpose is to redeem us of our sins and abolish our woes – think of movies such as Dave or The American President, and television programs such as The West Wing or Commander In Chief. Even when today’s comedians poke fun at the president, they do so on the presumption that the president should have all the power that he does – just that he should use it more “wisely.” Comedy springs from tragedy, and political comedians are expressing sadness that the latest occupant of the Oval Office has not lived up to his Christ-like mandate. And of course the news media follow the president’s every move and utterance with breathless anticipation, treating him as the one in whose hands all our fates reside.

I, for one, take responsibility for my own life. If I go to war, it will be because I have decided it is necessary to protect America, not because an amoral politician or an unconstitutional government tells me to. To the extent the rest of America slavishly marches over a cliff at one man’s say-so, I bid you a fair adieu.

Enumerated Powers . . . Anyone? Anyone?

I love the movie Ferris Bueller’s Day Off, especially the scene where the schoolteacher tries to explain political economy to a room full of listless, hedonistic teenagers. It’s actually a shame that most high schools don’t teach economics, but that’s a subject for another post. Despite the teacher’s best efforts to prompt his audience to engage in the subject matter – incessantly repeating “Anyone? Anyone?” – they simply don’t want to think about the forces that govern their destinies.

We find a similar phenomenon when it comes to the neglected concept of enumerated powers, whose observance would cut the federal behemoth down to size in an instant. Anyone bothering to wonder whether the government operates beyond its permissible scope should consider the Tenth Amendment, whose straightforward words go completely ignored on a daily basis:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.”

This amendment reflects the fact that the federal government received only enumerated powers with which to protect and foster the Union. Those powers are spelled out in the main body of the Constitution and concern specific matters such as foreign affairs and interstate commerce; they do not embody a presumptive power (i.e. - “police power”) to take any action that might conceivably serve the public interest, and with good reason: the “police power” is far too open-ended and dangerous to entrust to a national sovereign. Monopolies might be bad in the hands of business, but they are deadly in the hands of government. To avoid that hazard the Tenth Amendment reserves presumptive power to the several States, who must compete with one another and whose geographic reach is far smaller, thereby restraining abuse and encouraging experimentation.

In other words, the federal government and the State governments have fundamentally opposite characters: the former has national scope, but limited powers; the latter has local scope, but broad and presumptive powers. To put it even more simply, a federal action must be presumed illegitimate, unless the Constitution authorizes it; a State action must be presumed legitimate, unless the Constitution forbids it.

Alas, the twentieth century witnessed the murder of this ingenious system, and I say “murder” because it was not accidental. Black-robed sentinels on the Supreme Court “interpreted” the federal government’s powers over interstate commerce and public spending in such an expansive manner as to duplicate, and then subsume, the powers of the States. Of course this blatantly violates the Tenth Amendment, which clearly commands that the federal government may not exercise powers belonging to the States, no more than States may exercise powers belonging to the federal government. And note that while the federal government is perfectly happy to violate the Constitution when invading local matters such as public schooling and occupational safety, it steadfastly enforces the Constitution against the States when forbidding them to make policy on matters such as immigration. Such a contradictory reading of the Constitution violates traditional canons of legal construction, not to mention common sense.

End-running the amendment process in Article V of the Constitution, the federal government and its status-seeking enablers usurped the “police power” and began directly regulating us on a scale never before imagined, enacting thousands of criminal laws; micromanaging us with incomprehensible regulations (written by bureaucrats, not by Congress); and racking up tremendous budget deficits.

Ironically enough, it was the fear of what the States might perpetrate on their own that persuaded many Americans to allow this to happen, a remedy similar to committing suicide in order to avoid the common cold. The very phrase “States’ rights” has been so persistently maligned as to conjure up images of lynchings, cross-burnings, and similar evils in the public’s imagination, yet the States on their worst day could never match the federal government for violence, theft, or abuse. At least under the Constitution as written, we could “vote with our feet” out of an oppressive State, whereas the only way to escape federal abuse is to move abroad or even to renounce citizenship.

Oh, one more PR trick that the political establishment uses to protect its ill-gotten gains is to lavish praise on the Bill Of Rights, thereby promoting two very dangerous illusions: 1) the illusion that the federal government may do anything not specifically prohibited; and 2) the illusion that our rights are granted to us by other men. As usual in modern times, this is the exact opposite of the truth, for our rights are inherent and innumerable, whereas the powers of government are restricted and revocable. But the establishment has largely succeeded in this ploy because almost everybody – laymen, lawyers, and professors – is so immersed in his shallow pursuit of pleasure to notice that they have been reduced to pack animals, paying higher prices and taxes to eke out ever less of a free and meaningful existence. Until enough Americans acknowledge that the federal government is making up its own rules and operating unlawfully, our downward spiral as a society will continue apace, and no amount of voting, parades, fireworks, or flags will stop it.