No member of the Senate who takes seriously the oath they have sworn to defend the Constitution will vote to confirm judicial activist Samuel Alito’s nomination to serve on the U.S. Supreme Court.
To a greater extent than any nominee for the high court in recent memory, and very possibly in the long history of the country, Alito has placed himself clearly and unequivocally at odds with the original intent of the authors of the Constitution and the incontrovertible language of the document.
Alito is consistently on record as favoring steps by the White House to — in his words — ”increase the power of the executive to shape the law.” Twenty years ago, as a member of the Reagan administration, Alito was in the forefront of efforts to legitimize executive power grabs designed to allow presidents to take dramatic actions, sometimes in secret, without the advice and consent of Congress.
In a 1986 draft memo that advised Reagan and his aides on how to assure that their interpretations of official actions trumped those of the legislative branch, Alito acknowledged that his approach would put the White House at odds with the Congress. “The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction,” Alito argued. “In addition, and perhaps most important, Congress is likely to resent the fact that the president will get in the last word on questions of interpretation.”
The Reagan administration never fully embraced Alito’s proposals, but the Bush administration has. And Alito has been cheering the process of executive power enhancement on, telling the Federalist Society in an address five years ago that, “The president has not just some executive powers, but the executive power — the whole thing.”
The “whole-thing” approach adopted by George Bush and Dick Cheney has placed the current administration on a collision course with the Constitution. And it will be the Supreme Court that must sort through the wreckage.
With the high court widely expected to rule on multiple cases involving questions about presidential warmaking, the War Powers Act and domestic manifestations of the Bush administration’s so-called “war on terror,” the position of every justice on issues of executive authority becomes more significant. And potential changes in the court that might make it more deferrent to an executive branch that appears to be bent on eliminating all checks and balances — as the confirmation of Alito would surely do — are, necessarily, the most consequential of matters.
What is at issue here is not a grey area of the legal interpretation.
The authors of the Constitution were absolutely determined to prevent presidents from making war without the consent of Congress, and from abusing a state of war to curtail domestic liberties.
James Madison, the essential drafter of the Constitution who would go on to serve as the nation’s fourth president, expressed the concern of the founders when he wrote: “Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manner and of morals, engendered in both. No nation can preserve its freedom in the midst of continual warfare.”
Madison added that, “War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasuries are to be unlocked; and it is the executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venal love of fame, are all in conspiracy against the desire and duty of peace.”Madison’s view was confirmed by the Constitutional Convention of 1787, when delegates overwhelmingly approved a motion to deny presidents the power to “make war.” That resolution was introduced by Connecticut delegate Roger Sherman, another key player in the shaping of the document, who explained that, “The executive should be able to repel and not to commence war.”
George Mason, the Virginia delegate to the Constitutional Convention who is often remembered as “the Father of the Bill of Rights,” said at the time, “I am for clogging rather than facilitating war.”
John Marshall, a participant in the Virginia ratifying convention that approved the Constitution, would go on to serve as Chief Justice of the U.S. Supreme Court. In that capacity, he would be called upon to interpret the Constitution with regard to the exercise of war powers by the executive. Writing for a unanimous court in 1801, Marshall asserted that, “The whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body alone can be resorted to as our guides.”
Much has been done to undermine the system of checks and balances that the founders wrote into the Constitution to control against executive excess. But, as recently as 2004, the court reaffirmed the basic principle that the president must operate within strict constraints in a time of war. Ruling that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections, the court rebuked the Bush administration’s actions with an opinion that declared, “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
The author of that statement was Sandra Day O’Connor, the retiring justice who Alito has been nominated to replace.
Justice O’Connor, who could hardly be referred to as a strict constuctionist, was not merely expressing an opinion with her defense of checks and balances on the executive. She was affirming the Constitution, and she was doing so in a manner that respected the intentions of the founders — something Samuel Alito’s record suggests that he is entirely incapable of doing.
John Nichols’s new book, Against the Beast: A Documentary History of American Opposition to Empire (Nation Books) examines the long record of Congressional checks and balances upon presidential abuses in times of war. Howard Zinn says, “At exactly the when we need it most, John Nichols gives us a special gift–a collection of writings, speeches, poems and songs from thoughout American history–that reminds us that our revulsion to war and empire has a long and noble tradition in this country.” Frances Moore Lappe calls Against the Beast, “Brilliant! A perfect book for an empire in denial.” Against the Beast can be found at independent bookstores nationwide and can be obtained online by tapping the above reference or at www.amazon.com