“A Republic…If You Can Keep It”

Monterey County Herald, Sunday, July 9, 2006
By Leon E. Panetta
It is said that when Benjamin Franklin was leaving the Constitutional Convention, he was asked by an anxious lady what kind of government the delegates have “given us?”  His response was “A Republic, madam,…if you can keep it.”

Our forefathers had a remarkable ability to understand the strengths and weaknesses of human nature.  In designing a government of, by and for the people, they deliberately established a set of limits that would constrain the darker forces of our humanity that would dare to abuse power.

In Federalist Papers 51, James Madison defined tyranny as the concentration of powers in one branch of government.  “The interest of the man must be connected with the constitutional rights of the place.  It may be a reflection on human nature, that such devices should be necessary to control the abuses of government.  But what is government itself but the greatest of all reflections on human nature?  If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.”

The point was clear:  government must provide the proper checks and balances to prevent power from being concentrated in any one branch of government.  Madison and our forefathers wanted to ensure, based on their own experiences, that power would never again be concentrated in a king, a king parliament or a star-chamber court.

In the recent case of Hamdan versus Rumsfeld, the United States Supreme Court again upheld that basic principle in our Constitution.  A largely conservative court determined that the expansive powers claimed by the Administration since September 11 were not unlimited.  As former Justice Sandra Day O’Connor had concluded in a ruling two years ago:  the Congress had not given the executive branch a “blank check” in the war on terror.

But that is exactly the kind of broad power claimed by the White House since September 11.  According to an article in the recent New Yorker magazine, David Addington, the Vice President’s chief of staff and longtime legal adviser, shaped a “New Paradigm” legal strategy on the war on terror that challenges the very system of checks and balances that Madison had described as inherent in our constitution.  The argument was that the President, as Commander-in-Chief under Article II, has the authority to disregard all previously known legal boundaries if national security so demands.

Under this interpretation, statutes prohibiting torture, secret detentions, and warrantless surveillance have been set aside.  The President has gone even further, issuing signing statements on more than 750 new laws declaring that he has the power to set aside the laws when they conflict with his legal interpretation.

Bruce Fein, a Republican legal activist and former associate deputy attorney general in the Reagan Justice Department, said that Addington and other Presidential legal advisers had “staked out powers that are a universe beyond any other administration…The President had said that there are no restraints on his ability to collect intelligence, to open mail, to commit torture, to use electronic surveillance…His war powers allow him to declare anyone an illegal combatant…all of the world’s a battlefield…this is moving us toward an unlimited executive power.”

Using this broad interpretation of his power, the President had developed an ad hoc system of special military commissions to try detainees at Guantanamo without the full procedural and due process protections provided by standard military courts martial law; Congress was neither consulted nor asked to agree to this process.

In rejecting Bush’s military tribunals for terrorism suspects, the high court ruled that even a wartime Commander-in-Chief must govern within constitutional restraints.

Throughout history, these restraints have been tested most in time of war.  President John Adams passed the first Sedition Acts to prevent any criticism of the President facing increasing tensions abroad.  Lincoln infamously suspended habeas corpus rights during the Civil War.  Another set of sedition laws were passed during World War I.  Franklin Roosevelt interned more than a hundred thousand innocent Japanese-Americans during World War II.

All of these actions were justified as necessary to national security but are now viewed as a violation of those basic constitutional principles that guarantee freedom and justice for all in both war and peace. It was again Benjamin Franklin that has reminded us that those who “give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

Why is it important that this nation must never allow the principle of checks and balances to be surrendered under any circumstances?

First, because the reality is that power corrupts and absolute power corrupts absolutely.  When presidents take the view that they alone have the power to act in protecting the nation, the fate of America rests on their judgment of what is right.  While we elect presidents to exercise good judgment, the Constitution is clear that those judgments must be made within the restraints of the law.  That is the fine line between tyranny and democracy.  Tyrants always rule on the promise that they and they alone know what is in the best interest of their nation.  The last thing our forefathers wanted was to give any executive the unrestrained power of a monarch.

Second, the protections of the Constitution were established to apply to all presidents and all leaders, regardless of ideology or party.  A Republican congress may very well decide for the moment to ignore its responsibility to check a Republican administration but they surely would never stand firm for a Republican congress failing to check the powers of a Democratic president.  The question that every congress must ask is whether they would be comfortable with a president of the opposing party exercising the same expansive executive powers as claimed by President Bush.

Lastly, every federally elected leader in this country takes a solemn oath that they will “preserve, protect and defend the Constitution of the United States.”  Those are not just empty words.  They are a sacred promise to the people of America that the Constitution is the controlling document of our government.

Dick Cheney’s chief of staff may be a smart and persuasive lawyer but he is no student of history.  Reading the words of Madison and Hamilton in the Federalist Papers makes clear how rich in history our forefathers were in establishing the first nation to break from colonial power.  They understood the history of what people did with power going back to the Greek, Roman and Biblical times.  Our entire political heritage is based on not repeating the mistakes of the ages.

It is that understanding of history that helped shape our Constitution and our nation.  For those who fail to understand the lessons of the past or who are blinded to the limits of power, they will suffer the consequences of actions that are not tested or questioned by the other institutions of our democracy.

For the moment, the Supreme Court has acted to check the powers of the executive.  But it is no guarantee that this president or future presidents will not again seek unlimited power.  In the end, it is about whether those elected by the people really trust in the people.  If they distrust the institutions of our democracy, then they are doomed to make the same mistakes in the future.  But if good leaders trust in good government and the fact that all of us have a stake in protecting our security, then perhaps we will, in Franklin’s words, “keep” our Republic.

Leon Panetta is a former congressman and White House chief of staff whose column appears regularly in Commentary. Readers may write to him at the Panetta Institute, 100 Campus Center, Building 86E, CSU Monterey Bay, Seaside, CA 93955


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