Warning: This Post Is about Presidential Powers, Not Sex

Back to more familiar topics for this blog. I’ve linked to this before, but in the context of today’s revelations — well, today’s decision to not keep lying about what everybody already knew — regarding the NSA and various secret surveillance operations, now might be a good time a take a look at Senate Report 93-549, produced in 1973 by the Special Committee on the Termination of the National Emergency.

Back when Congress, for one brief shining moment, tried to do its job, the committee reviewed the modern history of the super-powerful executive branch and what the report called the “aura” of ongoing, overlapping national crisis in which extensive power came to dominate the concept of the presidency — most interestingly, given today’s situation, by having that power delegated by Congress via new legislation.

The thing is even clearly written (I’d only remove the first comma):

A review of the laws passed since the first state of national emergency was declared in 1933, reveals a consistent pattern of lawmaking. It is a pattern showing that the Congress, through its own actions, transferred awesome magnitudes of power to the executive ostensibly to meet the problems of governing effectively in times of great crisis. Since 1933, Congress has passed or recodified over 470 significant statutes delegating to the President powers that had been the prerogative and responsibility of the Congress since the beginning of the Republic. No charge can be sustained that the Executive branch has usurped powers belonging to the Legislative branch; on the contrary, the transfer of power has been in accord with due process of normal legislative procedures.

That’s the scariest part. We know about the illegal stuff. The key thing is the legal shifting of power from the representative to the executive. And that was 1973! So here’s something really painful:

It is fortunate that at this time that, when the fears and tensions of the cold war are giving way to relative peace and detente is now national policy, Congress can assess the nature, quality, and effect of what has become known as emergency powers legislation.

Forty years ago, they were looking back forty years, and they thought they were going to end the emergency.

Read the whole report.

What’s the Matter with Akhil Reed Amar?: Liberal History, Democracy, and the Constitution

[UPDATE: Two more posts developing these ideas are here and here.]

You won’t find a better-expressed, more compelling encapsulation of the precise reverse of how I see the founders and the U.S. Constitution than in this talk by the constitutional scholar and well-regarded author Akhil Amar, “Andrew Jackson and the Constitution.”

Is this yet another Tea Party rant against abuse of the “necessary and proper” clause and the hegemony of the welfare stare? No, no, no. For those who don’t know Amar and his benchmark work The Constitution: a Biography, this is liberal history in a nutshell, ideally expressed by one of our brightest academics, a consultant to “The West Wing” no less, mentioned by some as a future Supreme Court nominee. He’s doing yeoman work making the rounds in constitutional defense of the Health Care Act. And as a speaker he’s got his own kind of charisma. To me the talk is a fun crash course in exactly the wrong way to look at the founding, a quick summary of the story I’ll never be able to undermine the way I’d like to. Check it out!

In his talk, Amar runs deftly and powerfully through what I can’t see as anything but our dominant narrative about the Constitution: that the document was structurally, “in its DNA,” as Amar says, and possibly against the founders’ conscious intentions (an idea Amar types always toss off without exploring), the most democratic thing ever created to that point, with almost all of its later expansions into further democracy almost magically hardwired from day one, and thus a mighty pivot in world history, with only one horrible thing wrong with it: the adoption of African slavery via the infamous three-fifths clause. The Constitution was thus elementally Jacksonian, in two key respects: admirably democratic (since Amar, with so many others, takes it as given that the rise of the white working class and the development of small-scale capitalism associated with Jackson is fundamentally democratic, making the Jackson administration in a special sense the “real” founding); and horribly “slaveocratic” (as Jackson, unlike slaveowning founders like Jefferson, was unapologetically pro-slavery).

In this reading — say it with me — the founders’ Constitution “failed” (tragically, as it was so earthshakingly democratic), as did the systems of Jacksonian America, precisely because of the slaveocratic element, leading to a civil war that, had the founders only faced up to the slavery nightmare, pragmatically revising the three-fifths clause over time, we could have avoided. It was left at last to Lincoln to hit reset and begin to get the American balance right: democracy without slavery. Then the Civil Rights movement and the liberal triumphs of the twentieth century and there you have it. Thank you and good night!

Being mind-numbingly familiar isn’t what makes that narrative wrong.

Indefinite Detentions in the NDAA Don’t Exactly Betray George Washington’s Values

I haven’t been blogging, because I’m buried in finishing a book on founding-era taxes, public debt, tea parties, occupations, and other economic and financial struggles of that period, but an article entitled Betrayal of the Founders (sent to me this morning by Jerry Fresia because, I suspect, he knows what I’m going to say about it!) is so germane to the problems in founding history I’m exploring that I want to make hasty comment. The piece is on the “Counterpunch” site, the free online component to the dissenting political newsletter of the same name edited by Alexander Cockburn and Jeffrey St. Clair, and it’s by Ray McGovern, formerly a U.S. Army officer and CIA analyst, now on the Steering Group of Veteran Intelligence Professionals for Sanity.

McGovern criticizes President Obama’s signing the 2012 National Defense Authorization Act, which he describes, I think rightly, as

affirming that the president has the authority to use to detain any person “who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Under the law, the president also may lock up anyone who commits a “belligerent act” against the U.S. or its coalition allies “without trial, until the end of the hostilities.” The law embraces the notion that the U.S. military can be used even domestically to arrest an American citizen or anyone else who falls under such suspicion — and it is “suspicion” because a trial can be avoided indefinitely.

McGovern also trenchantly criticizes Obama’s reassuring us that we can take the act as more or less okay because Obama is committed to never using it to do anything wrong. The absurdity of that claim is so manifest, at least to me, and I think so damaging to the whole idea of the rule of law, that with McGovern, I wonder why there hasn’t been more coverage criticizing it. The Constitution isn’t clear on everything (originalists to the contrary), but it’s clear as a bell on habeas corpus. Liberals who excoriated Bush’s use of torture, detentions, signing statements, etc., have been strangely silent on Obama’s behavior here.

But McGovern fatally contradicts his own realism about Obama’s policies in this area with a completely unrealistic paean to none other than George Washington, presented by McGovern in typically glowing terms as our great and nearly godlike fighter for the individual liberties set out in the Bill of Rights.

I bring this up because this is what we always do: reach for “the founders”  to support an objection to current policies. And because in the case of Washington, that reach is a grope, at best, in the dark, and because McGovern uses his invocation of Washington as a call to what sounds like revolutionary action against Obama, I think it’s worth remembering Washington’s impatience with dissent and scorn for the civil rights of citizens he branded, without due process, enemies.

If we’re going to have a revolution on these issues — and I’m pretty sure we’re not — we won’t find any real inspiration for it in our founding president. He would have cracked our heads. And if we’re not going to have a revolution, but hope instead to take effective action against executive overreaching, we’d do better to stop living in fuzzy dream about the past.

Here’s some of McGovern on Washington:

Glenn Beck Does for “The Federalist” What He Did for “Common Sense”

It won’t surprise many who follow Glenn Beck to hear that his The Original Argument is one weird book. The premise: Those famous essays by John Jay, Alexander Hamilton, and James Madison, gathered in 1788 as The Federalist, are so critical to understanding the nature of the U.S. Constitution, and therefore to renewing our nation today, yet so hard to understand — so downright boring — that they cry out for handy summary and translation into modern English by none other than Glenn Beck.

And yet the main text doesn’t even come from Beck. He wrote an introduction and put his name on the front cover and his photo on the back, but in what is easily the most interesting part of the book, one Joshua Charles describes its real genesis, and I use that term advisedly: Charles discerns the hand of Providence in the affair. In 2009, as a piano performance major at the University of Kansas and a fan of Beck’s radio and TV shows, Charles began adapting the Federalist essays, unbidden, to modern English. So when he heard Beck himself say on the radio how badly the country needs just such a translation, the youngster’s jaw dropped. After going to genuinely amazing lengths to meet the man, Charles succeeded in pressing his early versions on Beck, and in what Charles justly calls a dream come true, master and the acolyte teamed up in thhe publishing project here under review.

Together they’ve identified seven “core themes” in the 85 Federalist essays, and they’ve selected 38 of the essays to publish in modern “translation,” re-ordering the essays by grouping them under each theme. Federalist essays 9, 10, and others, for example, come under the theme “A Republic, If You Can Keep It” (drawn from Franklin).  78 and 80 are grouped under “Truth, Justice, and the American Way” (drawn from Superman). Charles’s first-draft translations were refined via group effort, and “Glenn and his team,” Charles says, wrote easily scannable, one-page, cheat-sheet summaries for each of the essays, breaking them down by “The Message,“ “Original Quote,“ and “Relevance to Today.“ The team also wrote brief, generously sub-headed intros for each of the major themes.

Hence the oddball contents: a preface by Joshua Charles explaining all that; an introduction by Beck amping the Federalist essays’ importance to the founding and reminding us that reading the original essays can be “boring … okay, excruciatingly boring”; introductions to each of the seven themes; the 38 translations themselves, each with its one-sheet summary; and appendices presenting the Constitution as cross-referenced to the essays, the Articles of Confederation, and Jay’s Address to the People of New York. That’s the new Glenn Beck book.

Since in the original Federalist essays, obscurely defensive rhetorical flourishes proliferate, especially from Hamilton — “I am well aware that it would be disingenuous to resolve indiscriminately the oppositions of any set of men (merely because their situations might subject them to suspicions)”, etc., etc. — it’s fair enough to call them boring, and it’s undeniable that few people have read all or even 38 of them. While some of the more obscure numbers can be revealing in various historical and political contexts, it’s never been clear to me that reading or knowing the gist of more than a few major ones would be critical to any fundamental, active engagement with our country’s government. It’s a truism that Madison’s ideas about the purpose and mechanics of representation and republican separation of powers are benchmarks of historical literacy that Americans would do well to engage with, and many guides and annotated anthologies exist to serve that purpose.

“Translating” the essays manifestly doesn’t serve that purpose.

Ronald Reagan, Alzheimer’s Disease, and Political Memory

Like many others, I have a distinct memory of watching the Reagan-Mondale debates in 1984 and saying something to the effect of: “Whoa. Reagan’s actually losing it.” And in his video testimony in John Poindexter’s trial regarding the Iran-Contra arms-for-hostages affair, in 1990, it was evident that Reagan was in and out: putting on good show, not failing to remember many general facts but possibly not lying when he used what Nixon, in an earlier scandal, had advised his aides is always available to the guilty: “I don’t recall.”

To my eye today, the judge and the lawyers in the Poindexter trial were keenly aware of Reagan’s condition, especially as the witness tired late in the day. Reagan said, for example, that the first time he became aware of “a diversion” of proceeds came in that courtroom, that day, and he seems to have meant it. And when badgered by a prosecuting attorney, he had no evident grasp of either the purport or the content of testimony he’d made earlier the same day.

Given the ’84 debates — the last time most of us had seen Reagan speak off the cuff in any significant way — the decline of ’90 wasn’t surprising. Indeed it vindicated the creepy, unprovable, and strong impression from six years earlier, when Reagan was about to sail triumphantly into his second term as president.

What I have not been able to recall is anything specific about what I might have been responding to, in Reagan’s comments and manner during the ’84 debates, that gave me such a distinct impression that something was wrong. I only remember thinking and saying that he seemed out of it; the debates themselves are a blur. Which, when it comes to memory, I find interesting in itself.

In the past few days, therefore, with the centenary, and a book addressing Reagan’s Alzheimer’s by one of his sons, I’ve been time-traveling backward, trying to arrive at the age of 28, half the age I am now, when I was watching those debates on TV. One thing I find, which will make no sense to 28-year-olds (until they get to be 56): as I look at the videos, the Reagan presidency doesn’t seem long ago at all. Reagan had a huge impact on our lives in the ’80’s, and I watched him very closely at the time. It’s not that it all comes flooding back, it seems part and parcel of today. For me, his inflections and mannerisms remain deeply familiar and present-tense.

Familiar, not beloved. I voted against him — against the Republican platform, that is, which in 1980 had finally been seized definitively by the party’s right wing, had finally triumphed in casting taxation and social welfare as unqualified evils, and began its project to make the American rich richer, at the expense of everyone else, on the pretext that a rising tide lifts all boats. Till Reagan, the jury was out on how the country was going to go on those issues. Then the jury wasn’t out any more. I argued about it fairly bitterly with “Reagan Democrat” friends at the time.

And I’ve been amazed over the years how fully Reagan has been grudgingly reconstructed by liberals as one of our great presidents, in the sense that he was “transformative.” Why we’d want our chief executive to become a transformative historical and cultural force has always eluded me (and I think would have eluded the framers). Washington had to be, and so did both Lincoln and FDR: under pressure of awful necessity, they transformed both the country and, possibly just as significantly, the office. [UPDATE: And as Garry Wills has helped show us, at Gettysburg Lincoln transformed the realationship of the Declaration and the Constitution and reconstructed the founders of 1776 as dedicating a “nation” to a proposition that all men are created equal.]

But FDR also transformed expectations. Thanks to him, “performs transformations” counts as one of the skills supposedly critical to certain kinds of presidential candidate’s resumes (JFK played a role in creating that expectation too, mainly by being a certain kind of gorgeous and getting killed). The president was originally just supposed to execute the laws. Real transformations very rarely occur — rarely should occur — via a presidency.

Yet I observed Reagan at all times with a genuine, half-amused admiration, even awe. “I like Ronnie,” I would say, just to bug lefty friends. His second convention acceptance speech was Americana par excellence, a thing of beauty. Beauty is not truth, nor truth beauty, except in transcendent moments like the one conjured by Keats. But there were times when Reagan had the beauty thing nailed, and on that score, we did not see his like again until Obama, who clearly admires what Reagan could do with a public appearance (and who ran on the transformation magic trick). Cornball, mock-epic national poetry is not a requirement of the job either, as many presidents have made clear. But some happen to have the knack.

In other ways, of course, looking back at the 1984 debates makes 1984 seem very long ago indeed. Barbara Walters’s hair! Fred Barnes — so young! Blah! Blah! … Reagan, though, is timeless. He’d always been Ronald Reagan and always would be. I don’t like charisma, but there it is.

Anyway, it turns out that Reagan’s big moment of cognitive teetering in 1984 is widely considered to have occurred in his summation to the second debate.

The First Amendment and Liberal Prejudice against Religion

[UPDATE: This turned out to be the first in a trio of posts about misapprehensions and misappropriations of the Constitution, across the political spectrum. The second one, on the Second Amendment, is here. ]

Say “first amendment” to most people, and they’ll say “freedom of speech.” They’re right, of course, as far as it goes. But.

The failed Tea Party Senate candidate Christine O’Donnell drew some laughs a while back when she asked, she hoped rhetorically, where in the U.S. Constitution church and state are separated. Her opponent knew the answer and paraphrased the relevant part of the First Amendment aloud. Her laughing audience were law school students and faculty, so they knew the answer too.

But many otherwise well-informed people, who are sure that there is a constitutional separation of church and state, don’t know where in the Constitution to find it; or know that the First Amendment opens by disestablishing religion, and only then goes on to protect speech; or that the amendment is based on what was known during the founding period as the Virginia Statute for Religious Freedom (Jefferson, its author, listed it among his proudest accomplishments).

That ignorance raises some weird questions. One has to do with the inveterate scorn of educated liberals for the likes of O’Donnell. It’s far from clear that many who deem themselves intellectually superior to her could have responded to her challenge (it’s good that her opponent could). The challenge might seem a dopey one, but it would have left plenty of liberals sputtering. And since she is not well-educated, and those liberals generally are (in ways other than law and history), that’s bizarre and disturbing.

“These Tea Party people don’t know any history,” fume some I know, and while in some cases (like O’Donnell’s) that’s true, in others it’s not. A lot of them know American history because they just happen to like it. You could argue with their interpretations — but only if you knew something about it yourself!

I find that it’s liberals, and I mean the kind of liberals who can read Chaucer in Middle English, who really don’t know any American history.

Fantasy White House Press Corps

Obama’s Press Secretary: Bill?

Me: The other day the President told reporters that the courts of the 1960’s had perhaps been overly activist. Now we’re getting reports that the administration is exploring possible qualifications of the Miranda rule, in cases of people suspected of terrorism. Would it be fair to conclude that the Miranda rule is a good example of an area where the President feels the 1960’s courts were overly activist?

OPS: Well, the President has been very clear on —

Me: I mean it’s OK with me if he does think that. I JUST REALLY WANT TO KNOW WHAT HE THINKS!

OPS: That’s enough, Bill. Yes, Brian?

“Times” airs out Obama’s comments on activist judiciary

Yesterday I wrote about my perplexity over Obama’s comments on the history of federal judicial decisions. This morning’s New York Times — though not exactly playing the story up — unpacks some of the issues involved. Writing fast, I mentioned only hot-button items like abortion rights and affirmative action as products of those liberal courts; the Times zeroes in on matters at least as critical, from indigent suspects’ right to free lawyers, to Miranda, to fairer election districting, etc.

Obama confuses me regarding the history of “judicial activism”

Talking to reporters on Air Force One yesterday, President Obama pointed out, no doubt rightly, that conservative federal judges have been engaging in their own brand of activism. I heard the soundbite on “Morning Edition,” and here it is in print, from CBS:

In the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach [i.e., imposing judicial solutions to problems more properly addressed by legislatures]. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.

Once again I’m clueless about what the President may really think about a historical subject that he has made a point of bringing up.

G.E. Theater?

I remain troubled by President Obama’s decision to introduce, and thus to endorse and sell, the History Channel’s “America: the Story of Us,” whose first two of twelve hours aired on Sunday night. The President’s remarks were banal — descriptions of our country’s strength as resting with its people, etc. — and ended simply with his encouraging us to “enjoy the show.”  Nevertheless, the intro brought an unusual mix of excitement and gravitas to the proceedings. The President’s being part of the show made the venture seem a momentous, public-spirited event.

Obama thus lent himself — more importantly to me, lent his office — to a commercial production with a deeply interested narrative on the most elemental national matters, a production whose ends are not necessarily in any way in keeping with the purposes of that office. Just by showing up, and even more so by being fulsome, he gives a TV show an aura of national importance. Why do that?