We live in a post-constitutional universe.
We have been reversing course since the American Revolution when George Washington turned aside a crown in favor of a Republic and Thomas Paine preached in Common Sense: “For so in absolute governments the King is the law, so in free countries the law ought to be king.”
The President of the United States is now crowned with vastly more unchecked power than the tyranny King George III exercised over our forefathers which provoked the American Revolution.
Our urgent task as citizens is to restore the Constitution by deliberative engagement against those who have mauled it by creating an American Empire driven by an extra-constitutional, lawless, imperial presidency.
The legal profession, officially licensed defenders of the Constitution, should play a lead role. According to John Adams, the seeds of the American Revolution were planted in 1761 when lawyer James Otis delivered an impassioned denunciation of British writs of assistance or general search warrants.
In the wake of 9/11, American Bar Association Presidents appointed three bipartisan, underappreciated task forces to report on (1) Treatment of Enemy Combatants; (2) Domestic Surveillance in the Fight Against Terrorism; and, (3) Presidential Signing Statements and the Separation of Powers Doctrines. These Task Force Reports, the latter two initiated by President Michael Greco, represented the ABA at its finest.
We approached the ABA leadership through letters encouraging a corresponding response to President Trump’s vandalizations of the Constitution. Nothing happened.
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Without, at that time, provoking outrage or cries for impeachment, President Donald J. Trump monarchically proclaimed on July 23, 2019: “Then I have Article 2, where I have the right to do anything I want as President.”
Mr. Trump was not joking. The authors drafted a twelve-count article of impeachment of President Trump reprinted in the Congressional Record (December 19, 2019, H12197). His proclamation and serial violations of the Constitution and laws culminated in the violent insurrection against the Capitol on January 6, 2021, earmarked by the chilling chant “Hang Mike Pence.” The Trump-inspired vandals aimed to prevent the Vice President from counting state-certified electoral votes according to the Twelfth Amendment and continue our 230-year tradition of peaceful transfers of presidential power.
Limitless powers of the presidency did not begin with Mr. Trump. Since the 9/11 terrorist abominations, every president has played prosecutor, judge, jury, and executioner to kill any person on the planet suspected of a national security risk, often based on secret, unsubstantiated conjecture, such as “signature strikes” admitted by the Obama administration. In exercising such kingly power in secret, the president is accountable to no one, not to Congress, not to the courts, and not to the American people. In Federalist 47, the Constitution’s father, James Madison, descried such a combination of powers as “the very definition of tyranny.”
The Constitution’s Declare War Clause, Article I, section 8, clause 11, endows Congress exclusively with authority to initiate war, leaving the president with power to respond to sudden attacks against the United States that have already broken the peace. Every participant in drafting, debating, and ratifying the Constitution agreed with President George Washington: “The Constitution vests the power of declaring War with Congress; therefore, no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”
The founders entrusted the war power to Congress because they believed the legislature has fewer ulterior, collective motives for destroying peace and is accessible to the people, whereas the Executive Branch aggrandizes power by concocting excuses for war in secrecy. It speaks volumes that Congress has declared war in but five conflicts and only in response to actual or perceived aggression against the United States in 230 years. The President, in contrast, has gratuitously employed the United States Armed Forces offensively hundreds of times without congressional authorization.
An inexhaustive list includes, Cuba, Panama, Haiti, the Dominican Republic, Nicaragua, Mexico, Russia, Korea, Vietnam, Cambodia, Laos, Iraq, Bosnia, Serbia, Afghanistan, Libya, Somalia, Yemen, Syria, Iraq, and Pakistan. Last February, President Joe Biden claimed Article II power to bomb a Syrian target to send a message to Iran without congressional authority. The United States has been mired in forever wars since 2001 without congressional declarations.
Neither the War Powers Resolution nor the 2001 and 2002 Authorizations to Use Military Force satisfy the constitutional standard. None of the three constrained limitless presidential power to initiate war. Harvard Law School Professor Jack Goldsmith recently wrote in The New York Times with a co-author (“Does Biden Really Want to End Forever Wars?”, March 22, 2021): “[Congress] should end its long acquiescence in presidential arrogation of war power by affirmatively prohibiting unilateral uses of force except in tightly defined circumstances of actual self-defense.”
Presidential usurpation of the Declare War Clause is stressed because in times of war the law falls silent. Alexis de Tocqueville instructed: “All those who seek to destroy the liberties of a democratic nation ought to know that war is the surest and shortest means to accomplish it.”
During our permanent warfare state, the Fourth Amendment’s protection of privacy has shriveled. The National Security Agency conducts dragnet warrantless surveillance against the entire United States population, i.e., the “not-yet-guilty” to borrow an Orwellian phrase from former NSA Director Michael Hayden. Alleged enemy combatants are imprisoned indefinitely at Guantanamo Bay without accusation or charge. Torture of suspected international terrorists in violation of criminal prohibitions and the Eighth Amendment goes unpunished. Treaties are concluded as executive agreements to evade the requirement of ratification by a two-thirds Senate majority. Congressional subpoenas or demands for executive branch testimony or documents are flouted with impunity, displacing transparency as the coin of the realm. Billions in military construction funds are diverted to build a wall with Mexico in violation of the Appropriations Clause and the Anti-Deficiency Act. The Hatch Act’s criminal prohibition of commandeering federal property or resources to influence the outcome of an election is honored in the breach.
The President regularly appoints principal officers of the United States, such as the national security advisor, White House Counsel, or Acting Cabinet officials without Senate confirmation to frustrate congressional oversight in violation of the Appointments Clause.
Congress has unconstitutionally delegated to the President limitless legislative power to operate government by executive decree under the National Emergencies Act, the International Emergency Economic Powers Act, the Trade Expansion Act of 1962, the Affordable Care Act, and many other comparable open-ended delegations, including limitless wavier authority enabling the President to exempt his or her supporters from the law.
We have become a government of secret laws, secret courts, secret surveillance, secret wars, secret evidence, secret prisons, and secret assassinations.
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The Constitution intended to create a liberty centered legal universe secured, among other things, by separation of powers—a structural Bill of Rights to protect the American people from tyranny. Its premise was that men are not angels, and that ambition must be pitted against ambition to prevent one person, one group, or a majority faction from oppressing rivals for power.
The Constitution’s glory was liberty and the march of the mind, not domination and the march of the foot soldier. Its ambition, at the outset for white men, was to provide each citizen an opportunity to march to his own drummer, develop his own faculties, and choose his own fulfillments. Failure would be dispatching the military abroad in search of monsters to destroy in imitation of the British Empire and its self-ruinous predecessors.
The Constitution was far from flawless. Slavery was tolerated and enforced. Native Americans were excluded or massacred. Women were disenfranchised, second-class citizens. Notwithstanding these glaring conditions, the Constitution embraced a philosophy of rights and enshrined procedures for change that gave birth to the Civil War Amendments, the Women’s franchise amendment, modern civil rights laws, civil liberties safeguarded by un-crabbed interpretations of the Bill of Rights, and citizenship and partial redress for Native Americans in the Indian Citizenship Act of 1924 and the Indian Claims Commission Act of 1946.
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Disregard of the Constitution and migration towards a monarchical presidency commenced with the ascendancy of Manifest Destiny as the nation’s watchword. It taught that God’s new chosen people, i.e., White Anglo-Saxon Protestants, were destined to conquer North American territories from sea to shining sea. An Empire requires a Caesar unchained by separation of powers, which begot chronic warfare and a limitless executive.
The Spanish-American War expanded our Empire ambitions from a continental to a global reach. Senator Albert J. Beveridge (R-Ind.) spoke in support of an American Empire and the bloody conquest of the Philippines, in words that continue a century later to echo in the corridors of power, schools, and popular opinion:
“[W]e will move forward to our work…with gratitude for a task worthy of our strength and thanksgiving to Almighty God that He has marked us as His chosen people, henceforth to lead in the regeneration of the world.”
President George W. Bush’s second inaugural, pledging to “end[ ] tyranny in our world” at the point of a bayonet, substantiated that an Empire cannot change its spots.
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The nonpartisan Constitution Restoration Project (CRP), drafted by one of us, provides model statutes, congressional resolutions, and rule changes to restore the liberty centered universe envisioned by the Constitution. We are collaborating with Representatives Jamie Raskin (D-MD), Lloyd Doggett (D-TEX) and John Larson (D-CT) to hold hearings on the CRP.
We would welcome the engagement of the Harvard Law School in this endeavor.
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Bruce Fein was associate deputy attorney general under President Reagan and author of American Empire Before The Fall.
Ralph Nader is a consumer advocate, author of Breaking Through Power: It’s Easier Than We Think, and founder of the Tort Law Museum in Winsted, CT.
Louis Fisher served for four decades at the Library of Congress as Senior Specialist in Separation of Powers, Visiting Professor at the William & Mary Law School, and author, among many books, of The Law of the Executive Branch: Presidential Power (2014).