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.

Militarized Police, circa 1794: an AlterNet Post

Here’s an AlterNet piece exploring some of the historical ramifications of the militaristic stance of some police departments during the “Occupy” crackdowns:

Police, not military. The distinction may seem academic, even absurd, when police are bringing rifles, helmets, armor, and helicopters to evict unarmed protesters. But it’s an old and critical distinction in American law and ideology and in republican thought as a whole. The 17th-century English liberty writers, on whose ideas much of America’s founding ethos was based, believed that turning the armed might of the state, (necessary in waging war against foreign enemies), to domestic policing of local communities tends to concentrate power in top-down executive action and vitiate treasured things like judiciary process, individual liberty, representative government, and free speech. . . .

Read more.

Comments have been dispiriting (unlike comments on my previous AlterNet post, where a real dialogue took form). This batch involves a lot of  “Yeah, duh. This is a fascist state. Off the pig!” Nobody much seems interested in the Edmund Randolph-Alexander Hamilton debate during the Whiskey Rebellion, the fact that these struggles have been going on from day one, and we’ve never come down on one side or the other. Ah, well.

“Occupy Wall Street” Reading List

Yes, reading. Might help with attempting coherence, distinguishing between a grievance and a demand, stuff like that. Call me a patronizing elitist — you won’t get any argument from me! — but in a world where sincerity is equated with the inarticulate and cogency is supposedly only a telltale sign of privilege and hierarchy, these readings show that sounding authoritative does not equal selling out to authority.

The Putney Debates. 1647. Rank and file in Cromwell’s Army believed they deserved the vote. Cromwell disagreed. The “Levellers” lost — but this is one of the first articulate demands for disconnecting rights from property.

Letter from a Birmingham Jail. 1963. Martin Luther King, Jr., argues for the validity of taking direct action in the street, not just waiting for courts to catch up.

The Port Huron Statement. 1962. In a time not of recession but of immense prosperity, students who had benefited from that very prosperity questioned its basis and demanded a renewal of American political values, at home and around the world. Prescient or self-fulfilling or both? Anyway, at once passionate and crystal clear.

The Populist Party Platform. 1892. “We meet in the midst of a nation brought to the verge of moral, political, and material ruin. Corruption dominates the ballot-box, the Legislatures, the Congress, and touches even the ermine of the bench. The people are demoralized; most of the States have been compelled to isolate the voters at the polling places to prevent universal intimidation and bribery. The newspapers are largely subsidized or muzzled, public opinion silenced, business prostrated, homes covered with mortgages, labor impoverished, and the land concentrating in the hands of capitalists.”

Common Sense. 1776. Paine’s call not only for American independence but also, and more importantly — and this is the part routinely and deliberately ignored or marginalized by liberal “consensus” historians — for social equality, in a new kind of American republic.

That’s a start. . . .

The Founders vs. American Democracy

Here’s another comment that helps refine the discussion I’m interested in, this time posted on New Deal 2.0 in response to my final “Founding Finance” post there:

I am curious where Jefferson (and for that matter Madison, Adams, Washington, and the other main framers) spoke hesitantly about democracy, the people, and the state legislatures. Conservatives would be surprised and it would undermine their ‘rely only on the framers’ approach.

Secondly, it would be interesting to see what the regulators and radical democrats philosophy on private property. If the elite were concerned about the violation of natural rights against private property when it came to paper emissions, what was the radicals’ response? Did they have a philosophy when the constitution was being debated?
Posted by Brian | May 11th, 2011 at 5:31 pm

Paraphrasing my response posted there: Heavy questions, superficially and briefly addressed here. I see Jefferson on democracy as a tricky issue. Continue reading

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: Continue reading

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. Continue reading