COMMENTARY:

The Constitution Is At Stake

On April 20, 1795, James Madison, who had just helped shepherd through the Constitution and Bill of Rights, and would become President of the United States in the following decade, wrote:

"Of all the enemies to public 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 [President] 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 manners and morals, engendered by both.

"No nation," our fourth President and the Father of the Constitution concluded, "could preserve its freedom in the midst of continual warfare."

In the novel 1984 by George Orwell, the way a seemingly democratic president kept his nation in a continual state of repression was by having a continuous war.

Cynics suggest the lesson wasn't lost on Lyndon Johnson or Richard Nixon, who both, they say, extended the Vietnam war so it coincidentally ran over election cycles, knowing that a wartime President's party is more likely to be reelected and has more power than a President in peacetime.

And, as George W. Bush told his biographer in 1999:

"One of the keys to being seen as a great leader is to be seen as commander in chief. My father had all this political capital built up when he drove the Iraqis out of Kuwait and he wasted it. If I have a chance to invade, if I had that much capital, I'm not going to waste it. I'm going to get everything passed that I want to get passed and I'm going to have a successful presidency."

"You are now witnessing the beginning of a great epoch in history," he proclaimed, standing in front of the burned-out building, surrounded by national media. "This fire," he said, his voice trembling with emotion, "is the beginning." He used the occasion— "a sign from God," he called it—to declare an all-out war on terrorism and its ideological sponsors, a people, he said, who traced their origins to the Middle East and found motivation for their "evil" deeds in their religion.

Two weeks later, the first prison for terrorists was built in Oranianberg, holding the first suspected allies of the infamous terrorist.

Within four weeks of the terrorist attack, the nation's now-popular leader had pushed through legislation, in the name of combating terrorism and fighting the philosophy he said spawned it, that suspended constitutional guarantees of free speech, privacy, and habeas corpus. Police could now intercept mail and wiretap phones without warrants; suspected terrorists could be imprisoned without specific charges and without access to their lawyers; police could sneak into people's homes without warrants if the cases involved terrorism.

To get his patriotic "Decree on the Protection of People and State" passed over the objections of concerned legislators and civil libertarians, he agreed to put a 4-year sunset provision on it: if the national emergency provoked by the terrorist attack on the Reichstag building was over by then, the freedoms and rights would be returned to the people, and the police agencies would be re-restrained.

He then expanded his personal security service (the Stosstrupp) into a nationwide police force (the SchutzStaffel), answerable only to him, and thus with virtually unlimited powers of arrest and imprisonment.

Now George W. Bush is the most recent "leader" to claim vast and wide powers during time of war, that those powers trump the constitution, and that the war he has started will go on "for generations" to come.

To this end, has attached more than one hundred "presidential signing statements" to legislation passed by Congress, with the goal of inflating presidential power and inserting himself into the lawmaking process—a strategy developed in part by Samuel Alito himself.

And in the new reauthorization of the PATRIOT Act—a piece of legislation almost certain to eventually come before the Supreme Court—Section 3605 expands the Secret Service (SS) from a Presidential protection detail to a national police force with the power to designate anyplace where people are meeting in the USA as a SENS (Special Event of National Significance).

Once a SENS is established—anywhere, anytime, at the sole discretion of the SS (and it's not even necessary that the President or any other Executive Branch member be present)—the SS shall have the power to (quoting the new PATRIOT Act provisions) "carry firearms" and "make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony."

Samuel Alito not only would support such expansions of Presidential power on the Supreme Court, he was the author and/or principal proponent of several of the devices used today by Bush to secure such power (including the argument that the power of the Presidency is "unitary").

The vote this week about Samuel Alito was not a vote about Republicans versus Democrats. It was a vote about the future of democracy in the United States of America.

Do we accept Madison's vision of a nation in search of peace and with personal privacy intact, or do we embrace Samuel Alito's vision of questionable elections, spying on citizens to create an atmosphere of fear and uncertainty, repression of women's and minority rights, and war without end?

We must carefully note the positions our legislators took on this vote. Their oath of office is not to the President or even to "protect the people," but to the Constitution. And it is the Constitution—and the future of our democratic republic—that is at stake.