- Only WE THE PEOPLE—not our mere representatives—can maintain a ‘Republican form of Government’. John Locke warned of the ever present threat of ‘tyranny’.
In the final analysis, only WE THE PEOPLE themselves can maintain “a Republican form of Government”. (footnote 1) “[A] Republican Form of Government”, after all signifies more than simply a representative government, more even than a constitutional government. Self-evidently, it prohibits every form of “tyranny”. As the founding Fathers learned from John Locke:
“Tyranny is the exercise of power beyond Right, which no Body can have a Right to. And this is making use of the Power any one has in his hands; not for the good of those, who are under it, but for his own private separate Advantage. When the Governour, however insulted, makes not the Law, but his Will, the Rule; and his Commands and Actions are not directed to the preservation of the Properties of the People, but the satisfaction of his own Ambition, Revenge, Covetousness, or any other irregular Passion. (footnote 2)
‘Tis a mistake to think this Fault is proper only to Monarchies; other Forms of Government are liable to it, as well as that. For where-ever the Power that is put in any hands for the Government of the People , and the Preservation of their Properties, is applied to other ends, and made use of to impoverish, harass, or subdue them to the Arbitrary and Irregular Commands of those that have it : There it presently becomes Tyranny, whether those that thus use it are one or many.” (footnote 3)
1.) U.S. Const. ar. IV, § 4
2.) Two Treatises of Government (London, England: Awnsham & Churchill, 1698), Book II, Chapter XVIII, § 199.
3.) Id., Book II, Chapter XVIII, § 201 (emphasis supplied). On Locke’s influence with the Founders, see e.g., Carl L. Becker, The Declaration of Independence: A Study in the History of Political Ideas (New York, New York: Vintage Books, 1942), at 27-30. For his part, Locke reflected a philosophical tradition that traces back to the Middle Ages. See e.g.,John C. Rager , The Political Philosophy of Saint Robert Bellarmine : An Examination of Saint Cardinal Bellarmine’s Defense of Popular Government and the Influence of His Political Theory Upon the Declaration of Independence (Spokane, Washington: Siluva, 1995 edition of the 1926 original).
- ‘the Militia of the several States’ are the legal authorities the Constitution explicitly assigns to keep watch at all times over all other ‘authorities’.
To those modern-day “gun controllers” who contend that American “civilians” should never be as well armed as “the authorities”—that is, the regular Armed Forces and para-militarized professional police departments or other armed governmental agencies—the short answer is that “the Militia of the several States” are as much legal “authorities” as any such establishment. Indeed, far more so, because the Militia are the only establishments to which the Constitution explicitly delegates the authority and responsibility to “execute the Laws of the Union”. Moreover, the Militia’s ultimate constitutional responsibility is to provide for “the security of a free State” (Second Amendment) domestically, by deterring rogue public officials from, and if necessary seeing them swiftly, surely, and severely punished for, misusing the law to break the law under color of the law. That is, the Militia are “the authorities” the Constitution explicitly assigns to keep watch at all times over all other “authorities”.
- Egregious violation of the Constitution with bipartisan support—Congress ‘permits the President to wage war’ in the manner of a German Führer or Italian Duce´.
A particularly egregious violation of the Constitution was when the inception of the military incursion into Iraq was being debated in the International Relations Committee of the House of Representatives in 2002. Representative Ron Paul, Republican of Texas, offered an amendment in the nature of a substitute for House Joint resolution No. 114, seeking an explicit declaration of war against Iraq in the form of the declaration of war Congress employed against Japan in 1941. (footnote 1) This, not because he favored such a course of action (in fact, he strongly opposed it on constitutional and policy grounds), but in order at least to focus Congressmen’s attention on their constitutional responsibilities, and to preserve Congress’s constitutional authority against encroachment against the President.
The Chairman of the Committee, Representative Henry Hyde, Republican of Illinois, rebuffed Representative Paul, however, asserting the Constitution’s express delegation to Congress of the power “[t]o declare War” (footnote 2) “was one of those things no longer relevant to a modern society”, and was “[i]nappropriate and anachronistic” as a prerequisite to an actual armed invasion of a sovereign foreign nation. (footnote 3) Not to be outdone, the Ranking Minority Member of the Committee, Representative Tom Lantos, Democrat of California, even dismissed Representative Paul’s amendment as “a frivolous proposal” (footnote 4)—making the rejection and the ridicule of the amendment, and the constitutional provision on which it rested, bipartisan. And this, even though no one on the Committee disagreed with Representative Edward Royce, Republican of California, that the Resolution “permits the President to wage war”. (footnote 5)
In the event Congress as a whole agreed with Representative Hyde and Lantos, because it issued no “declar [ ation of] War”, but instead—supinely acquiescing in President George W. Bush’s claim that the “Commander In Chief” (footnote 6) some species of “inherent authority” to launch as well as conduct such an operation—adopted the Joint Resolution, whereby:
“[t]he President is authorized to use the Armed Forces of the United States as he determines to be necessary in order to—
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions against Iraq. (footnote 7)
Having been a Chairman of the House Judiciary Committee, though, Representative Hyde ought to have known that, far from a hoary anachronism, the power of Congress “[t]o declare War” (Article I, Section 8, Clause 11) is one of the most important structural elements of the Constitution, and can be disregarded only at the Nation’s—and the public officials’ own peril. (footnote 8)
1.) Authorization for the Use of Military Force Against Iraq, Markup before the Committee on International Relations, House of Representatives, 107th Congress, 2d Session, on H.J. Res. 114, October 2 and October 3, 2002, Serial No. 107-116, at 122-125.
2.) U.S. Const. art I, § 8, cl. 11.
3.) Authorization for Use of Military Force Against Iraq, ante note 64, at 127, 128.
4.) Id. at 129
6.) See U.S. Const. art II, § 2, cl. 1
7.) H.J. Resolution No. 114, 16 October 2002, Pub. L.107-243, § 3 (a), 116 Stat. 1498, 1501.
8.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, Bookmasters Inc., Ashland, Ohio (2007), page 42.by Dr. Edwin Vieira, Jr., page 25-26.
- The President’s mere status as ‘Commander in Chief’ amounts to the thinnest residue of the power enjoyed by British Kings.
Under pre-constitutional Anglo-American imperial law, the King—not the Parliament—enjoyed the “sole prerogative of making war and peace”; acted “as the generalissimo , or the first in military command, within the kingdom”; and “exercised the sole power of raising and regulating fleets and armies”, and “the sole supreme government and command of the militia”. (footnote 1) But other than the office of “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States”, (footnote 2) the Constitution denies the President—the executive in the American Republic analogous to the King in the British Monarchy—all of this authority, and assigns it instead to Congress:
• “the [King’s] sole prerogative of making war and peace” became the Congressional power “[t]o declare War”; (footnote 3)
• “the [King’s] sole power of raising and regulating fleets and armies” became he Congressional powers “[t]o raise and support Armies”, (footnote 4) “[t]o provide and maintain a Navy”, (footnote 5) and “[t]o make Rules for the the Government and Regulation of the land and naval Forces”; (footnote 6)
• “the [King’s] sole supreme government *** of the militia” became the Congressional powers “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” (footnote 7) and “[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States”. (footnote 8)
1.) Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1 at 257, 262 (footnote omitted) (emphasis supplied).
2.) U.S. Const. art II, § 2, cl. 1.
3.) U.S. Const. art I, § 8, cl. 11. Thus [t]he Constitution *** invests the President, as Commander in Chief, with the power to wage war which Congress has declared. Ex parte Quirin, 317 U.S. 1, 26 (1942) (emphasis supplied).
4.) U.S. Const. art I, § 8, cl. 12.
5.) U.S. Const. art I, § 8, cl. 13
6.) U.S. Const. art I, § 8, cl. 14.
7.) U.S. Const. art I, § 8, cl. 15.
8.) U.S. Const. art I, § 8, cl. 16.
- If ’emergency’ did beget new unheard of governmental power as self-interested, power seeking politicians may define it, constitutionalism would not exist.
In the ancient Roman Republic, the Senate could appoint a temporary dictator, and invest him with novel and often sweeping powers, to deal with extraordinary conditions. And so on both sides of the wall behind the Speaker’s desk in the United States House of Representatives are prominently displayed Roman fasces; an ax within a bundle of sticks, symbolizing the plentitude of governmental power—a classical representation of Mao Tse-tung’s dictum that “‘“[p]olitical power grows out of the barrel of a gun’”. (footnote 1) The illusions of modern politicians aside, however, that historical allusion does not invest Congress (or even the General Government as a whole) with all the powers of a Roman Senate, let alone a license to arm the President with the authority of an ancient Roman dictator—or a latter day Duce.
The doctrine of “emergency powers” negates constitutionalism in general. By definition, a “constitution” is a charter of defined and therefore limited government. In contrast, the doctrine of “emergency powers” is an apology for undefined and therefore unlimited government. No so-called Constitution subject to the assertion of “emergency powers by public officials could possibly survive. By hypothesis, no such “constitution” would in any significant way limit those officials, who would relax or remove restrictions on their own initiative simply by saying that some situation had arisen that licensed them to overstep its boundaries. If, all of a sudden, an “emergency”—as self-interested, and power-hungry politicians and special interest groups might define it—could beget new, theretofore unheard-of powers, constitutionalism itself would disappear, ushering in a “government” limited only by it own rhetoric, with political hysteria the measure of “law”. Indeed, in any country populated by minimally rational citizens, such a suicidal “constitution” could never even come into existence. Only veritable political idiots, would propose or write, let alone ratify such a ridiculously self-contradictory, self-destructive document. (footnote 2)
The doctrine of “emergency powers” runs afoul of America’s Constitution in particular. Anyone who bothers to read the Constitution will see that it:
• delegates to the General Government as a whole—or to Congress, the President, or he Supreme Court separately—no “emergency powers” under that rubric;
• delegates neither powers that only an “emergency” can call into existence, nor powers that may be exercised only in an “emergency”;
• delegates no power eve to declare that an “emergency” exists; and
• does not even employ the word “emergency”, let alone define it as a legal principle relevant to any part of “the supreme Law of the Land”. (footnote 3)
• Thus, constitutionally speaking, “emergency” has neither place nor meaning, and therefore by itself cannot serve as the justification for or measure of any power whatsoever.
1.) Quotations From Chairman Mao Tse-tung (Peking, China: Foreign Languages Press, First Edition, 1966), at 61.
2.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, Bookmasters Inc., Ashland, Ohio (2007), page 42.by Dr. Edwin Vieira, Jr., page 11-12.
3.) U.S. Const. art VI, cl. 2.
- The Supreme Court has recognized that the existence of some situation that self-serving politicians label an ’emergency’ has no constitutional effect in and of itself.
The Supreme Court has recognized, as a fundamental constitutional principle, that:
“[e]mergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions upon power granted or reserved. The Constitution was adopted in a period of grave emergency. It grants no power to the Federal Government and its limitations of the power of the States were determined in light of emergency and they are not altered by emergency.” (footnote 1)
The existence of some situation that self-serving politicians label an “emergency” has no constitutional effect in and of itself. Neither a “grave national crisis” nor any other “[e]xtraordinary conditions” can “create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, *** but these powers *** are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different powers is necessary.” (footnote 2)
1.) Home Building & Loan Association v. Blaidsell, 290 U.S. 398, 425 (1934).
2.). A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 528-529 (1935) (footnote omitted) (emphasis supplied).