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.

The Ballad of the Second Amendment – or — Gee, Thanks, Mr. Madison!

[UPDATE: Ideas sketched and stabbed at here now get boiled down in the next post, from AlterNet. Thanks to commenters, here and on Twitter, especially Bill Chapman, for helping me shape my thinking. (Not roping any of them into my ideas, however! Blogging as public note-taking? Mixed feelings about that, but …]

[UPDATE. The bottom line of this post:

1. I blame — yes, blame — James Madison.

2. But that’s not because I’m so deluded as to believe he was trying to protect an individual right to keep and bear arms!

3. And I’m not, literally, holding Madison responsible for problems he couldn’t have foreseen — I’m trying to turn up the volume — to eleven — on what I think we desperately need, in this dire moment: some grown-up perspective on the strange, bumpy, sometimes shabby, all-too-human, all-too-political processes by which our rights were first secured by our Constitution. Such perspective may be our only hope for improving matters that we actually do have the power to improve; it might help us stop “constitutionalizing” every political dispute we have. This connects with what Michael Moore was talking about on CNN the other night, and with some sort of weird madness, some immature love of fantasy, that sometimes seems hardwired into the American psyche. That’s what I talk about too.]

William F. Buckley and George Wallace

gone, gone with the wind?

Further strangeness in William F. Buckley’s career and its fabled connection to the right wing’s ascendency in the 1960’s: Buckley vs. Wallace.

What’s really impressive to me about Buckley is that he held his own, as a larger-than-life public elitist, within the right-wing insurgency that took over the Republican Party; indeed he helped lead it. That insurgency famously gained most of its ground by evincing not old-school country-estate elitism but extreme populism. The right began attacking Democratic Party inheritors of the New Deal, not wrongly, as privileged and patronizing; even more significantly, and at least as accurately, it ganged liberal Republicans like Nelson Rockefeller in with them. Yet Buckley, a self-created cartoon of privilege and condescension, and in his early adulthood a questing romantic for elite glories, managed to help lead the new-right populist charge.

“Liberal Republicans”: Many younger people today may presume these were oddball edge cases. That misperception shows the overwhelming success of the right-wing effort that began during the period we’re talking about. Both parties then had strong liberal-establishment elements, today often called “moderate” on the Republican side, as the right wing (then led by Robert Taft) was always so immoderate that the Republican Thomas Dewey warned against letting the right take over the party: if it ever did, he predicted, Republicans would lose every future election.

Dewey was wrong, of course, and Kevin Phillips, who got it right — he was an author of the populist “new conservative” strategy of the era — scorned William F. Buckley, calling him “Squire Willie.” It makes sense. What place could a newly populist right have for a Yale man whose hot-potato accent rivaled FDR’s and Rocky’s (Buckley’s was evidently put on), who made a career reveling in Bach, using big words, writing books about private sailing trips, and suggesting that uneducated people shouldn’t vote?

One of the more interesting moments in this conflict within the insurgent right came when Buckley interviewed George Wallace on Buckley’s TV interview show “Firing Line.” Although Buckley did the questioning, the program was marketed as a debate, moderated, supposedly, by one C. Dickerman Williams. (A story for another time, and maybe the only Gore Vidalish moment I’ll ever get: I expose the UES/Litchfield County line of my heritage by noting that this C.D. Williams moved in circles in which my maternal grandparents also moved — mainly liberal-establishment Republican ones! — when I was kid. I remember him well and was amused to discover him on “Firing Line” actively not moderating the Buckley-Wallace “debate.”) Despite the presence of a fake moderator, Buckley’s interview of Wallace is really an O’Reilly-like “this is my show” attack.

Since Wallace was poster-boy for racial segregation in the South, Buckley’s attack on him provides Buckley admirers with yet another basis for claiming that Buckley repudiated racism on behalf of conservatism. But again the realpolitik of the moment suggests more interesting readings to me.

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:

Amendments, mobs, God, rights, guns, Pilgrims, Adams, etc.

Responding here to a bunch of comments posted during recent months, since I don’t like burying and scattering the discussion:

Elites versus the crowd. Working backward and starting with lacithedog’s comment on my “New Deal 2.0” post. Laciethedog is reading Declaration and comments further on the “New Deal” post here. I appreciate the interest and support. And I have a concern about the idea that the founding fathers “incited the masses” and then found “the mob” hard to control. In both Declaration and that “New Deal” post, I do discuss tensions — indeed, outright enmity, at times — between the adherents of populist democracy and the adherents of republican liberty who banded together to defeat reconciliation with England in 1776. But I think I also show that I see the alliance as a matter of mutual manipulation, with ordinary people possessing plenty of initiative, intelligence, and what the historians call “agency,” and not of a mindless mob being incited and then imperfectly controlled by elites. Not sure if laciethedog is thinking of it quite that way, but the terminology gives me pause.

War on Christmas. Laciethedog also comments on my “war on Christmas” post. Point taken. Can’t agree that anything would have made either Adams literally a Tory — but even without a time machine, John Adams’s “Good God!” on reading the radically democratic PA Constitution of 1776 (and his predicting that PA would soon want George III back), and Samuel’s calling for the death penalty for the so-called Shays rebels, made many at the time think the Adamses and others had reverted to a kind of Tory authoritarianism. Neither Samuel’s nor John’s disgust with the populism they’d collaborated with in 1776 represents a reversion, however — which is really the well-taken point of laciethedog’s comment. While they differed in influences, emphases, and personal styles, both Adamses remained pretty consistent in their elite Whig republicanism throughout the period. Whigs were not democrats.

Socialist Pilgrims. Michael Pichowsky makes a thought-provoking comment regarding my post on the “Socialist Pilgrim” flap. But even given all of Pichowsky’s nuanced understanding of the Calvinist-socialist problem, I’m still unconvinced that it’s fair to see the very specific Plymouth experience as revealing some big truth about the virtues of free markets versus a centrally planned economy. Bradford does seem to have been reading the lesson pretty much that way, though.

Inalienable rights and God. My Constitution posts are leading me toward an article that would qualify as something other than a post, more like what I call a “work” in this post — whether I end up publishing it here, on another blog, or in a magazine. Interesting comments in this regard included Martin’s, of What Would the Founders Think?. Martin raises the issue of where the in- or un-alienable rights come from and says that Glenn Beck gets it right: from God. Liberal readers may be surprised to hear me say that, in this context, I agree:

And Another Thing …! More on Misconstruing the Constitution: The Second Amendment

This follows up yesterday’s post on widespread ignorance of where, exactly, the Constitution separates church and state, and what amendment Roe v. Wade argues abortion rights rely on, etc. — ignorance found most significantly to me among people who are sure that the Constitution does separate church and state and guaruntee abortion rights. [UPDATE: And it precedes a further post also on the same issue.]

I just heard from a well-regarded Constititional law guy at the Cato Institute who says studies show that Americans of all political stripes revere the Constitution, but few know what’s in it — especially if you don’t count the Bill of Rights. Which is good to know, since my evidence is all anecdotal!

I’ve also noticed, anecdotally, that a lot of the same people who don’t know that religious freedom is found in the First, or that Roe v. Wade cites the Fourteenth, have a surprisingly aggressive argument to prove that the Second really doesn’t, all appearances to the contrary, protect private gun ownership. This plays into my suspicion that we revere the Constitution — or, really, pay attention to it at all — only when we think we can show that it says what we would want it to say.

There is an argument that the Second doesn’t protect gun ownership. A lot of that argument relies, very very heavily, on the grammatically vague, awkwardly cast phrase about militias and freedom that precedes the main clause. Here’s someone arguing that the phrase is “absolute.” I know this term from the “ablative absolute” in my days struggling with Latin (or struggling against it). This writer says it sets up what I and many others have already identified as a loose relationship between the phrase and the main clause.

Right: since the phrase doesn’t modify anything in the main clause — the only modification occurs within phrase itself — we’re left to wonder what the hell it does do. Maybe everything. Maybe nothing. And that’s not helpful, James Madison.

Anyway, if you removed that (to me extragrammatical) thing, whatever it is, the main clause sounds clear as a bell: government can’t disarm the people. But I once read a long and characteristically brilliant Garry Wills piece in NYRB, a million years ago, that proved to me that the amendment doesn’t really protect private gun ownership. Proved it while I was reading it, that is — the second I put the essay down, I failed to hold onto the argument, and I was again confronted by that stark main clause, which sure sounds as if it protects private gun ownership. I mean doesn’t it? If an argument, right or wrong, is so Jesuitically subtle that nobody will be able to reproduce it on their own, just as a practical matter it’s not going to withstand assault from dumbasses (like me, in this case).

In any event, I’m not saying there’s no argument to show that the amendment doesn’t protect private gun ownership. There probably is. You can argue almost anything. I’m saying that it’s curious to find supposedly erudite constitutional/historical parsing of that amendment coming all of a sudden from people otherwise unable to paraphrase the amendments at all. Just saying. Seems sort of disingenuous. “The amendment’s referring to a militia ,” they explain helpfully. “Back when they used to drill , on the public square.” Gee, thanks.

I think all of really this means that, liberal or conservative, we don’t revere the Constitution. We just want to say “constitutional” and “unconstitutional” to preempt discussion of a matter at hand. And it never works. And it’s getting tedious.

Constitution shmonstitution! As I believe Sonny Bono once said in committee. (Really.)

One of many interesting things about the Second Amendment, often overlooked, which the military historian of the federal period Richard Kohn makes clear: The real use of that opening phrase (and probably, I’m thinking, why Madison put it in the deliberately vague “absolute”) was to imply that there wouldn’t be any need to establish a regular army in the United States. Or at least to suggest that any such institution would be kept small and provisional and not letting it ruin the militia system. To many Americans, militarism was historically known to justify war, and war to justify militarism, and both were used to swell executive power beyond bounds and diminish liberty.

So here’s an irony that might cut across current political divides: the Second Amendment, whatever it says, is precisely and assertively anti-militarist. [UPDATE: And in that sense was, as written and ratified, totally disingenuous.]

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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.

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.

John Yoo and the Whiskey Rebellion

I was interested to see John Yoo citing my book The Whiskey Rebellion in his recent Crisis and Command. Author of the notorious Bush-administration “torture memo,” and now a law professor at Berkeley, Yoo is using his book to defend Bush’s ruthless efforts to expand executive-branch power. Seeking precedent in earlier expansions, under conditions of national threat that Yoo takes to be similar to those posed by Islamic terrorism, he looks specifically to Jefferson, Jackson, Lincoln, FDR, and, of course, Washington.

Which brings him to The Whiskey Rebellion.