The Belgravia Dispatch: The 'Presidentialists' versus Original Intent

November 04, 2007

The 'Presidentialists' versus Original Intent

In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department. ... War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. ... It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.

-- James Madison.

This via Anthony Lewis, who writes:

There is a profound oddity in the position of the presidentialists like Yoo, Cheney and Addington. Legal conservatives like to say that the Constitution should be read according to its original intent. But if there is anything clear about the intentions of the framers, it is that they did not intend to create an executive with more prerogative power than George III had. Not even in time of war.

Don't miss this interesting snippet from Lewis' piece either:

In an interesting comparison with Franklin D. Roosevelt’s sweeping power in World War II, Goldsmith says Roosevelt relied on persuasion, bargaining, compromise. “The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense. This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise.” [my emphasis throughout]

And sadly, in the face of a largely supine and/or under-qualified legislature, the Cheney approach has 'worked' quite well indeed.To our grave and collective detriment.

Posted by Gregory at November 4, 2007 12:02 PM

Comments

"There is a profound oddity in the position of the presidentialists like Yoo, Cheney and Addington. Legal conservatives like to say ...."

what's the odd part here?
conservatives like to say all sorts of things.
conservatives say they're for small government and less spending.
they say they're for an independent judiciary.
they say they're for individual rights.
they say they're for states' rights.
they say anything they think will get them elected.

but now the conservatives have been in complete power for seven years, and they have shown the true face of conservatism.

unbridled contempt for law, unbridled lust for power.
that's what conservatives are, and have been, certainly since the nixon era.

the rest--originalism, federalism, limited government--is only rhetoric they trot out when the opposition is in power.

if our country and our constitution survives this coup, we are all going to have some hard work ahead of us in undoing the damage.

Posted by: kid bitzer at November 4, 2007 12:52 PM | Permalink to this comment

the entire pacificus-helvidius debate makes for fascinating reading. it also puts a stake through the heart of hamilton's reputation. madison convicts him of multiple flat dishonesties, from his own words. having previously admired hamilton a great deal, i was aghast to see his behaviour in this episode.

at one point, madison lays out the issue with admirable clarity.
the constitution is extremely laconic about the powers of the executive.
there are two ways to expand its brief hints into a charter for a branch of govt.:

1) on the first model, we take our hint from the title of the branch: it is meant to execute, i.e. to implement, all and only those laws passed by congress. this is why there is no extensive discussion in the constitution of the powers of the executive, parallel to the eighth section of article 1: by limiting the powers of the legislature, we have automatically limited the powers of the executive, because the executive, by its very nature, can have no powers that extend beyond those of the legislature.

2) on the second model, we take our hint from british history, and declare that the executive has all the powers of an absolute monarch.

the first is madison's method; the second is hamilton's.

Posted by: kid bitzer at November 4, 2007 01:12 PM | Permalink to this comment

I think it is time for me to reread Freeman's book "The Closing of the Western (read American)Mind: The Rise of Faith and the Fall of Reason".

Here is a blip of Freeman's reply to Amazon readers who reviewed his work:

334 of 346 people found the following review helpful:
4.0 out of 5 stars Yes, there was a Closing., March 24, 2004
By Charles Freeman (England)
This review is from: The Closing of the Western Mind: The Rise of Faith and the Fall of Reason (Hardcover)

I am grateful for the care with which Amazon readers have reviewed my book whether they have agreed with my argument or not. The reviews are worth a reply.
My thesis is that Christianity was heavily politicized by the late Roman empire, certainly to the extent that it would have been unrecognizable to Jesus. Note the linking of the church to the empire's success in war, opulent church building and an ever narrowing definition of what beliefs one had to hold to be saved. (Hand in hand with this went an elaboration of the horrors of hell, a radical and unhappy development which can only have discouraged freedom of thought.) My core argument is that one result of the combination of the forces of authority (the empire) and faith (the church) was a stifling of a sophisticated tradition of intellectual thought which had stretched back over nearly a thousand years and which relied strongly on the use of the reasoning mind."

My hunch...or fear, is that things are going to get much, much, worst before they get better, in America.

Posted by: jonst at November 4, 2007 01:18 PM | Permalink to this comment

I join the kid in being unsurprised at the conduct of conservative politicians and pundits -- no one can be shocked at how fake their reverence for tradition has turned out to be. The reaction from the judiciary has been a little more disappointing, I have to say. I guess I just expected more from them.

Posted by: CharleyCarp at November 4, 2007 05:22 PM | Permalink to this comment

"'My thesis is that Christianity was heavily politicized by the late Roman empire, certainly to the extent that it would have been unrecognizable to Jesus. Note the linking of the church to the empire's success in war, opulent church building and an ever narrowing definition of what beliefs one had to hold to be saved. (Hand in hand with this went an elaboration of the horrors of hell, a radical and unhappy development which can only have discouraged freedom of thought.) My core argument is that one result of the combination of the forces of authority (the empire) and faith (the church) was a stifling of a sophisticated tradition of intellectual thought which had stretched back over nearly a thousand years and which relied strongly on the use of the reasoning mind.'

My hunch...or fear, is that things are going to get much, much, worst before they get better, in America."

What does one have to do with the other?

His 'thesis' is so self-evident as to say... the sky is often blue.

What he writes about about the effect of Roman Catholicism on the Christian movement is of course largely true.

But guess what?

There appeared this guy, Martin Luther, who birthed the 'Protest'-ant Movement in reaction.....which is directly linked to today's Evangelical Movement.

You need to review several hundred years of Christian history.

Posted by: neill at November 4, 2007 11:26 PM | Permalink to this comment

I'll grant that Martin Luther created local tyranny, as an alternative to centralized tyranny, but he was even more full of hatred than those he challenged. Luther's commentaries on the Psalms are absurdly entertaining, as he is so full of hatred that he can barely maintain focus on any of the actual Psalm lines for more than a few sentences at a time, before he wanders off into hatred.

I'd argue that Martin Luther exhibited just a slightly altered form of the same desire for tyranny and despotism already prevalent in Europe, and had nothing to do with the democratic movement found later in the US and France.

In fact, Luther's hatred for the Jews, and his urging people to pillage them and drive them out mercilessly, was nothing but another symbolic gathering of existing anti-semitism in Europe. Those who say that Luther was the main source of Nazi anti-semitism too greatly exaggerate his role, and too much diminish the large current of anti-semitism that preceded him, and that imbued him from birth.

Posted by: Betrayed Loyalist at November 5, 2007 01:24 AM | Permalink to this comment

man! i've seen some thread-jacks before, but this is impressive!

Posted by: kid bitzer at November 5, 2007 01:49 AM | Permalink to this comment

"unbridled contempt for law, unbridled lust for power.
that's what conservatives are, and have been, certainly since the nixon era."

Kindly remove Reagan from your dishonor roll. His singular "lust for power," if you will, could only be confined to Iran-Contra. That he would awkwardly apologize to the nation for his mistakes therein, and soon fire his buddy Don Regan (who'd become Rasputin in the affair), says tons of Reagan's essential respect for the law.

And enough already with these beg-the-question type definitions of what conservatives are or arent. Said otherwise, Bush is as close to a Russell Kirk as he is to the man on the moon-especially as regards geopolitical adventurism and neo-Orwellian federalism.

Speaking of Kirk, I leave you with a line from a Heritage Foundation speech that, if extrapolated, expresses an earlier, and richer, vision of conservatism:

"Not seldom has it seemed," Kirk declared, "as if some eminent Neoconservatives mistook Tel Aviv for the capital of the United States."

Posted by: reshufflex at November 5, 2007 09:15 AM | Permalink to this comment

Neil

Study 'hundreds of years of Christian history. No no, Neil. Not that again, anything but that again!

Posted by: jonst at November 5, 2007 11:11 AM | Permalink to this comment

Ahh, uber-troll neill has showed up again! We hardly missed ya.

Posted by: anti-neill at November 5, 2007 11:58 AM | Permalink to this comment

To get back to the topic, and the relevent 225+ years of US history, Congress abdicated its right to control the deployment of the troops through a decaration of war fairly regularly since Teddy Roosevelt's day. The administration has certainly worked at expanidng executive power, but the fighting of undeclared wars is not something they have been especially bad about.

Think I'm exaggerating? Here's Teddy Roosevelt in 1905:

All that this country desires is to see the neighboring countries stable, orderly, and prosperous. Any country whose people conduct themselves well can count upon our hearty friendship. If a nation shows that it knows how to act with reasonable efficiency and decency in social and political matters, if it keeps order and pays its obligations, it need fear no interference from the United States. Chronic wrongdoing, or an impotence which results in a general loosening of the ties of civilized society, may in America, as elsewhere, ultimately require intervention by some civilized nation, and in the Western Hemisphere the adherence of the United States to the Monroe Doctrine may force the United States, however reluctantly, in flagrant cases of such wrongdoing or impotence, to the exercise of an international police power.

Posted by: Appalled Moderate at November 5, 2007 12:57 PM | Permalink to this comment

Friend of mine bought a new beagle. Named the pooch Addington. When I asked why, my friend responded:

"Well, the dog's ugly as sin, blindly loyal, comes whenever I call, and craps all over everything."

Now, if that doesn't describe the Cheney-Addington relationship, what does?

Posted by: Mark at November 5, 2007 01:04 PM | Permalink to this comment