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Constitutional Power, Unlimited

Monday, July 17, 2006

Every day I receive via email the Founder's Quote Daily which contains historical quotations from the likes of Benjamin Franklin, George Washington, Alexander Hamilton, etc. They're usually one or two sentences long and pertain to our government and society. Today's was no exception.
Today's quote was taken from "The Federalist Papers No. 23" which was written by Alexander Hamilton using the nom de plume of Publius. For an explanation of this paper, let's turn to Wikipedia:
In the first 22 Federalist Papers, Publius argued for the importance of the Union and that the Articles of Confederation were insufficient to preserve the Union. Federalist No. 23 begins a series of fourteen articles arguing the basic thesis that an energetic federal government was necessary. Too-powerful governments were a major worry in America, which had declared independence from Britain partly due to a belief that the government in London inappropriately dominated the local governments in the colonies. Hamilton tried to allay popular fears that the new federal government would be no less abusive than the British government so recently rejected.
While large, intrusive, and all-to-powerful government is common today, it was a big worry to American's of 1787. They had just thrown off one government that was too oppressive. In replacing it, they instituted the Continental Congress, which many think went too far the other direction, i.e. not powerful enough. In an effort to fix it's shortcomings, each state sent representatives the Philadelphia with instructions to give as little power as possible to central government; no power would be best.
Failing to follow the State's simple instructions to fix the Articles of Confederation, the delegates emerged from Independence Hall with an entirely new constitution. One of the proponents for a large central government was Alexander Hamilton. In an effort to sell the newly-minted constitution to the states, he began to publish papers in newspapers debating the merits of the new constitution. This is, of course, where The Federalist Papers comes from. When you here arguments claiming "original intent," they are usually referencing this collection of papers.
Fast-forward to today. Recent events have raised the question of, "How much power does the Executive have?" This administration has worked tirelessly to gather to itself ever more power by claiming powers under the unitary executive theory. Again, let's turn to Wikipedia:
The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive use this language along with the Take Care Clause ("[The President] shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."
The theory goes on to state that only the President has control over his subordinates. They argue that Congress essentially exceeds it's constitutional authority by attempting to limit or control executive agencies or officers from Presidential control. There's more, but I think you get the basic premise that the Executive claims absolute and total authority of it's subordinates and anything less would be a usurpation of power.
So, imagine my surprise when I read today's Founder's Quote Daily:
"The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed."

~ Alexander Hamilton (Federalist No. 23, 17 December 1787)
My first thought was, "Oh boy, we're in trouble now." The language seems pretty clear. No constitutional restraint of power can be imposed on those charged with defending this country. My next thought: "Was the President correct when he declared that he was within his constitutional authority to order surveillance on Americans?" Looking at Hamilton's quote, I'd have to conclude that he probably was. How can this be?
Then a voice inside said, "Check the context!"
I cannot count the times I've discovered that when a reporter says so-and-so said this-and-such that, in fact, the reporter actually took the quote out of it's original context, totally changing it's meaning. So, let's look at what Hamilton was actually driving at when he wrote that sentence:
The authorities essential to the care of the common defense are these--to raise armies--to build and equip fleets--to prescribe rules for the government of both--to direct their operations--to provide for their support. These powers ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defense. (Emphasis in original.)
What is Hamilton talking about? Let's look at the subjects of "unshackled" restraint:
To raise armies,
To build and equip fleets,
To prescribe rules for the government of both
To direct their operations,
To provide for their support.
These are all powers assigned to Congress under Article 1, Section 8. Therefore, the quote claiming that "no constitutional shackles can wisely be imposed on the power" was pointed at the Legislative and not the Executive branch. In my opinion, this knocks a big whole in the unitary executive theory.
What's the lesson learned? Original intent... Always check it.
(Note: There's more to this, but my time has expired. I may pick this up again at a later date... We'll see.)


Blogger BD Taylor said...

Well, in truth, the probelm is that congress is weak-kneed, and many legislators are trying to take after a corrupt, non-getting-anything-done, broken, racist organization called the United Nations (or European Union.. hard to tel lthe difference). There is a constitutional right to privacy, but once that privacy crosses state lines, it can legally be regulated by Congress or the executive branch. When they go to court and bring charges, they must present evidence that there was something illegal done. If you are not breaking the law or planning to blow something up, then don't worry aboutit. Everyone seems to think that their conversations on phones or the internet are private. This not so. I guess you also feel that police and fbi should not trace and search for websites in order to find chil pornographers... there should be no need for a warrant for that, as well as there should be no need for warrants to tap phones in the fight against terrorism. I am all for a small government and no federal government in my local life (a true constittutionalist), but I do not feel that the president and executive branch are breakinga ny laws when fighting terrorism and tapping into calls. I am saying and doing nothing illegal and therofore am not worried. The phone is an interstate trade.. it therefore can be regulated and watched by the government. Yu odn't like that fact, then speak through telekenetic speech.

8:11 PM  
Blogger Don Bangert said...

Thanks for your comments, but I'll have to respectfully disagree with you. Firstly, you assert that "...[t]here is a constitutional right to privacy, but once that privacy crosses state lines, it can legally be regulated by Congress or the executive branch." Let's set you straight on your first mistake: The constitution does not grant you any rights. You have them prior to and exclusive of the constitution. The constitution is a restraint on government from violating your rights. Further, your claim that once my privacy crosses state lines it somehow comes under the purview of congress is ridiculous. If that were the case, the federal government could set up shop at state lines and inspect every single vehicle it wishes without giving any reason. I'd like to see them try that. I'll guarantee you that American's will explain to congress exactly where their constitutional boundaries can be found.

You continue by stating that Americans don't have a right to privacy in their phone conversations. This is just plain wrong. Even the government recognizes that phone conversations are private and can be witnessed by reading the FISA, which states:

"TITLE 50, ยง 1802(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

In other words, if there's a substantial likelihood that surveillance will acquire the contents of any communication that a United States person is a party too, a warrant is required. Put simply, this is government's acknowledgement that you have a right of privacy in your phone communications.

You next wonder how I feel about policing agencies searching out child porn promoters/users. I'll answer your query by saying that as long as those enforcing the laws act within their legal authority, I have no problem.

I think, after reading the rest of your comments, that what we have here is what I like to call a differing of moral dictates. You think it's all right for the President and his underlings to phone tap, etc. without warrants, while I believe that they need to follow the laws of the land. You claim to be a true constitutionalist, but quickly brush aside the very reason we have a constitution--to set limits on power--to make excuses for the president's action by stating that if I'm doing nothing wrong there's nothing to worry about. Would that justification for violating my right to privacy hold true if I were to tell you the same as I rummaged through your personal belongings? Heck, I'd even tell you that it was for your own protection if it would help.

To pry into my privacy without a warrant justifying the intrusion is a violation of my rights no matter how you dress it up.

10:30 PM  
Blogger Mark said...

Amen! Well said, Don.

4:10 PM  

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