Facing Down a Constitutional Crisis

By Gary Hart and Joyce Appleby, History News Network. Posted March 29, 2006.

George W. Bush and his most trusted advisers, Richard B. Cheney and Donald H. Rumsfeld, entered office determined to restore the authority of the presidency. Five years and many decisions later, they've pushed the expansion of presidential power so far that we now confront a constitutional crisis.

Relying on legal opinions from Attorney General Alberto R. Gonzales and Professor John Yoo, then working in the White House, Bush has insisted that there can be no limits to the power of the commander-in-chief in time of war. More recently the president has claimed that laws relating to domestic spying and the torture of detainees do not apply to him. His interpretation has produced a devilish conundrum.

President Bush has given Commander-in-Chief Bush unlimited wartime authority. But the "war on terror" is more a metaphor than a fact. Terrorism is a method, not an ideology; terrorists are criminals, not warriors. No peace treaty can possibly bring an end to the fight against far-flung terrorists. The emergency powers of the president during this "war" can now extend indefinitely, at the pleasure of the president and at great threat to the liberties and rights guaranteed us under the Constitution.

When President Nixon covertly subverted checks and balances 30 years ago during the Vietnam War, Congress passed laws making clear that presidents were not to engage in unconstitutional behavior in the interest of "national security." Then Congress was reacting to violation of Fourth Amendment protections against searches and seizures without judicial warrants establishing "probable cause," attempts to assassinate foreign leaders and surveillance of American citizens.

Now the Iraq war is being used to justify similar abuses. The Foreign Intelligence Surveillance Act, providing constitutional means to carry out surveillance, and the Intelligence Identification Protection Act, protecting the identity of undercover intelligence agents, have both been violated by an administration seeking to restore "the legitimate authority of the presidency," as Cheney puts it.

The presidency possesses no power not granted to it under the Constitution. The powers the current administration seeks in its "war on terror" are not granted under the Constitution. Indeed, they are explicitly prohibited by acts of Congress.

The Founding Fathers, who always come to mind when the Constitution is in danger, anticipated just such a possibility. Writing in the Federalist Papers, James Madison defined tyranny as the concentration of powers in one branch of the government.

"The great security against a gradual concentration of the several powers in the same department," Madison wrote in Federalist 51, "consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others."

Warming to his subject, Madison continued, "Ambition must be made to counteract ambition;" the interest of the office holders must "be connected with the constitutional rights of the place."

Recognizing that he was making an appeal to interest over ideals, he concluded that it "may be a reflection of human nature, that such devices should be necessary to control the abuses of government." "But what," Madison asked, "is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."

Madison's solution to the concentration of powers that lead to tyranny relied upon either Congress or the Supreme Court to check the overreaching of a president. In our present crisis, Congress has been supine in the face of the president's grab for unconstitutional, unlimited power, and no case is working its way towards a Supreme Court judgment.

If Madison's reliance on the ambition of other office holders has failed us, we need to look elsewhere. Can what Thomas Jefferson called the "common sense and good judgment of the American people" help us now? In the past, they have been a critical last resort when our leaders endangered the constitutional checks and balances that have made us the world's oldest democracy. But first the public must wake up to this constitutional crisis.

Joyce Appleby is professor emerita of history at UCLA and co-director of the History New Service. Gary Hart is a former U.S. senator and Wirth Chair in the Graduate School of Public Affairs at the University of Colorado, Denver.

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