Chapter One
Militarism and the Breakdown of Constitutional Government
Last week, filled with grief and sorrow for those killed and injured and with anger at those who had done this, I confronted the solemn responsibility of voting to authorize the country to go to war. Some believe this resolution was only symbolic, designed to show national resolve. But I could not ignore that it provided explicit authority, under the War Powers Resolution and the Constitution, to go to war. It was a blank check to the president to attack anyone involved in the September 11 events--anywhere, in any country, without regard to our nation's long-term foreign policy, economic and national security interests, and without time limit. In granting these overly broad powers, the Congress failed its responsibility to understand the dimensions of its declaration. I could not support such a grant of war-making authority to the president; I believe it would put more innocent lives at risk.
--Congresswoman Barbara Lee ([Democrat from California], the
only member of Congress to vote against the transfer of the war
power to the president for the invasion of Afghanistan),
San Francisco Chronicle, September 23, 2001
One of the oddest features of political life in the United States in the years since the terrorist attacks is how few people have thought or acted like Barbara Lee. The public expresses itself in opinion polls, which some students of politics scrutinize intently, but there is little passion in the society, certainly none proportionate to the threats facing our democratic republic. The United States today is like a cruise ship on the Niagara River upstream of the most spectacular falls in North America. A few people on board have begun to pick up a slight hiss in the background, to observe a faint haze of mist in the air or on their glasses, to note that the river current seems to be running slightly faster. But no one yet seems to have realized that it is almost too late to head for shore.
Like the Chinese, Ottoman, Hapsburg, imperial German, Nazi, imperial Japanese, British, French, Dutch, Portuguese, and Soviet empires in the last century, we are approaching the edge of a huge waterfall and are about to plunge over it.
If the American democratic system is no longer working as planned, if the constitutional checks and balances as well as other structures put in place by the founders to prevent tyranny are increasingly less operational, we have not completely lacked for witnesses of every stripe, domestic and foreign. General Tommy Franks, commander of the American assault on Baghdad, for instance, went so far as to predict that another serious terrorist attack on the United States would "begin to unravel the fabric of our Constitution," and under such circumstances, he was open to the idea that "the Constitution could be scrapped in favor of a military form of government."1 The historian Kevin Baker feared that we are no longer far from the day when, like the Roman Senate in 27 bc, our Congress will take its last meaningful vote and turn over power to a military dictator. "In the end, we'll beg for the coup," he wrote.2
On October 10, 2002, Senator Robert Byrd (Democrat from West Virginia) asked plaintively about the separation of powers, "Why are we being hounded into action on a resolution that turns over to President Bush the Congress's Constitutional power to declare war? . . . The judgment of history will not be kind to us if we take this step."3 Nonetheless, the following day, the resolution carried by a 77-23 vote in the Senate and 296-133 in the House of Representatives. The Berkshire Eagle editorialized, "The Senate, which was designed by the framers of the Constitution to act as a brake on the popular passions of the day, was little more than a speed bump under the White House steamroller."4 The libertarian writer Bill Winter conjectured that the problem was "the monarchization of America under Bush."5 Adam Young, a Canadian political commentator, wondered, "How did the chief magistrate of a confederated republic degrade into the global tyrant we experience today, part secular pope, part military despot, part pseudo-philosopher-king and full-time overbearing global gangster?"6 Indeed, that is the question for all of us.
Former British foreign secretary Robin Cook noted that "[a]ll the checks and balances that the founding fathers constructed to restrain presidential power are broken instruments." Cook observed the hubris and megalomania that flowed from this in John Bolton, then the number three official at the State Department (subsequently ambassador to the United Nations). When asked about possible incentives that might cause Iran to end its nuclear ambitions, Bolton replied, "I don't do carrots." Cook accurately predicted that members of the Bush administration "will . . . celebrate their [2004] election victory by putting [the Iraqi city of] Fallujah to the torch," as they did that very November.7
Marine general Anthony Zinni, General Franks's predecessor as Centcom commander in the Middle East, worried about the way the Pentagon was further expanding its powers at the expense of other agencies of government. "Why the hell," he asked, "would the Department of Defense be the organization in our government that deals with the reconstruction of Iraq? Doesn't make sense."8 One anonymous foreign service officer supplied an answer to Los Angeles Times reporter Sonni Efron, "I just wake up in the morning and tell myself, 'There's been a military coup,' and then it all makes sense."9 Even the president himself was a witness of sorts to the changes under way, baldly asserting at a White House press conference on April 13, 2004, that he was "the ultimate decision-maker for this country"--a notion that would have appalled the authors of the Constitution.10
I believe that George W. Bush and Dick Cheney have led the country into a perilous cul-de-sac, but they did not do it alone and removing them from office will not necessarily solve the problem. The crisis of government in the United States has been building at least since World War II. The emergence of the imperial presidency and the atrophying of the legislative and judicial branches have deep roots in the postwar military-industrial complex, in the way broad sectors of the public have accepted the military as our most effective public institution, and in aberrations in our electoral system. The interesting issue is not the damage done by Bush, Cheney, and their followers but how they were able to get away with it, given the barriers that exist in the Constitution to prevent just the sorts of misuses of power for which they have become notorious.
Historian Carol Berkin in her book A Brilliant Solution: Inventing the Constitution argues that the nation's "Founders--including George Washington, Benjamin Franklin, Gouverneur Morris of Pennsylvania and dozens of others--envisioned a supreme legislative branch as the heart and soul of America's central government. . . . America's modern presidency, with all its trappings, would be unimaginable to men like Madison, Washington, and Franklin. Of all those historic figures at the 1787 [Constitutional] Convention, perhaps only Alexander Hamilton would relish today's playing of 'Hail to the Chief.' "11
The intent of the founders was to prevent a recurrence of the tyranny they had endured under Britain's King George III. They bent all their ingenuity and practical experience to preventing tyrannies of one, of the few, of a majority, of the monied classes, or of any other group that might obtain and exercise unchecked power, often adopting institutional precedents from the Roman Republic. Inspired by the French political philosopher Montesquieu's discussion of the "separation of powers" in his On the Spirit of the Laws, published in 1748, the drafters of the American Constitution produced a sophisticated scheme to balance power in a republic. The most basic structure they chose was federalism, setting up the states as alternatives to and limitations on the power of the national government. Congress was given that quintessential parliamentary power--control of the budget--without which it would be merely an ornamental body like the "people's congresses" in communist-dominated countries. Congress was also charged with initiating all legislation, making the final decision to go to war, and if necessary getting rid of an unsatisfactory president by impeachment, something also achievable through periodic elections. To moderate the power of Congress somewhat, the Constitution divided it into two quite differently elected and apportioned houses, each capable of vetoing the other's decisions.
Both houses of Congress must ultimately pass all laws, and the president, who is entrusted with implementing them, is given a veto as well. The Congress, in turn, can override a presidential veto with a two-thirds vote, and even when Congress and the president agree on a law, the Supreme Court, exercising the function of interpreting the laws, can still declare it unconstitutional. The president and members of Congress must be re-elected or leave office, but judges serve for life, although Congress can impeach them. The president nominates the heads of the cabinet departments, who serve at his pleasure, as well as all judges, but the Senate must approve them.
Over time, this balance-of-power spirit came to influence other institutions of government that the Constitution did not mention, including the armed forces, where competition among the services--the army, navy, air force, and Marine Corps--dilutes somewhat the enormous coercive power entrusted to them.12 To prevent a tyranny of the majority, the Constitution authorizes fixed terms and fixed times for elections (borrowed from the Roman Republic) as a way to interfere with the monopolization of power by an individual, an oligarchy, or a political party.
Unfortunately, after more than two centuries (about the same length of time...
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