Wednesday, December 19, 2007

The Power Elate

Many people who rail against Bushitler over his expanded presidential powers and privileges would find themselves comfortably on the other side of that debate if they were old enough to remember when Eisenhower claimed executive privilege to rebuff Congressional inquiries and demands for evidence. In that case, McCarthy was on the prowl, and the New York Times and the Washington Post applauded, editorially. In structurally identical cases today, they scold the Bush Administration.

They see this as the death of democracy. Where were they then? The form of a government is not an arbitrary thing, to be dispensed with when you can see a short-cut to a desired end. Whether the Constitution is the law of the land is not a question dependent on the purity of motives of those who want to break it or the righteousness of their goals.

Truman, Eisenhower, Kennedy, and Johnson all used executive power to bypass other branches and advance the cause of minority civil rights in America. The media establishment applauded. So do I. But unless you are willing to at least consider these constitutionally shaky actions in the light of a long-run threat to democracy and freedom, you're not serious about a balanced government.

Unless you can suspect that most of us have it all wrong in our rankings of Lincoln and Buchanan among "best and worst presidents," you're not really thinking about the Constitution. When South Carolina seceded in 1860, James Buchanan asked his attorney general, Jeremiah Black (an honest Pennsylvanian who later served Lincoln), to outline the constitutional position on the matter. Black concluded that, in effect, the secession was illegal, but the executive branch had been given no power to do anything about it.

Buchanan was scrupulously constitutional to the end. He denied the South's right to secede, especially if the pretext was nothing more than the election of a president who was likely to violate Southern rights. Yet Buchanan, and many other capable observers, did not find in the Constitution as it was then written the power of the federal government to attack a state. And Congress, not the president, had the authority to levy troops, alter the Constitution, and revamp the relationship between the federal government and the states.

Lincoln in essence ignored the Constitution, forced the union to hold together, defied the Supreme Court, kept Congress out of session, then let his allies write the necessary legal approvals after the fact. He suspended civil liberties, jailed thousands without charges, threw an untried army into meat-grinder battles under incompetent generals, offered to guarantee slavery if the South returned, then turned around and abolished it -- but only in the places where he had no power over it.

We may applaud the way it all turned out for America (the 600,000 dead and their wives and mothers and orphans aren't usually consulted when "greatest presidents" lists are compiled), but the damage to constitutional government was deep and lasting.

Imagine it's 18 or 20 years from now. The climate change debate continues. The level of alarm remains high around the world, and alarming data continues to be published. But many people in the U.S. remain skeptical and powerful industries lobby against sudden and radical policies.

A president in the Al Gore mold sits in the White House. But the Congress is dominated by Republicans and timid Democrats whose seats depend on lobbyists. A global treaty on climate change has been put into effect in most industrialized nations. But the Congress refuses to ratify it for the U.S.

Should the president use every creative trick in the book to work around the obtuse Congress and make the terms of the treaty binding on the U.S. by a piecemeal approach?

I suspect I already know the general drift of the answer I'd get from a great many people who nowadays damn the Bush White House as "fascist." Executive power in our times is what states' rights were 150 years ago -- a political weapon available to either faction, eagerly wielded when convenient, execrated as a threat to freedom and democracy when in the hands of the other side.

The few who still take it seriously in an absolute sense will never want for allies, but like the Florida Marlins it will be a entirely new team every few years.