Sunday, January 22


"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...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." -- Declaration of Independence

As Atrios would say, Indeed.

There is no room for interpretation here: the Revolutionary War was fought and the Constitution was written to free the colonists from the abuse of "absolute Despotism." The manner of securing such freedom was the system of separation of powers embodied in the Executive, Legislative, and Judicial branches of government and the checks and balances attendant on each of their roles.

Given this history, it is startling, even brazen, that some try to claim a "unitary executive" that cannot be challenged by Congress, at least in times of war. Challenging the executive in time of war is precisely the way that America was born. Madison himself could not have been more lucid on this point.

In 1795, he wrote, "Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. In war, the discretionary power of the Executive is extended; its influence is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people." A more prescient description of the allure of war - at least for the executive - could hardly be written.

The supreme irony - if not hypocrisy - of the theory of the "unitary executive" is that it is espoused by the very same people who purport that the Judiciary should be bound by an equally phantasmical theory of "original intent." Under this theory the Supreme Court should interpret the Constitution according to the intent of its authors, an intent only these latter-day "originalists" claim to be able to accurately divine.

But the Executive, on the other hand, should be freed entirely from such original intent, liberated to pursue a starkly post-modern vision of a virulently anti-democratic authoritarianism that would have been wholly repugnant to the very same founders. Either Madison and the founders were schizophrenic or the current "theorists" are duplicitous. They can't have it both ways.

The most dangerous of George Bush's formulations surrounding the issue of unwarranted wiretapping is that his own usurpations must continue so long as the country is at "war." Bush's "war on terror" is effectively endless because it is inherently self-catalyzing, spawning more terror than it is capable of eradicating.
Before Bush's invasion, Iraq was not a source of terrorism. Today, it is the world's pre-eminent trainer and exporter of terror. Major incidents of international terrorism have tripled since the invasion in 2003. Perhaps it is this auto-inflammatory dynamic that Dick Cheney referred to when he claimed we were facing a war, "that will not end in our lifetimes." Tellingly, Madison wrote, "No nation can preserve its freedom in the midst of continual warfare."

The confluence of these two startling facts, the claim for unlimited power based on war, and the endless nature of the war itself, poses grave threats to the American Constitutional order. And the threat is made all the more dire in the realization that the war had been planned since the first days of the Bush administration and that it was sold to the American people through a vigorous, sustained campaign of Executive deceit.

Shorn of all distractions, the "unitary executive" and Bush's claim to legitimacy in spying amount to this: that one man can lie the country into war and then, on the basis of that war, declare himself above the law - essentially suspending the Constitution. It is a legal prescription for the self-destruction of democratic government.

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