A recent column in The Economist magazine asking if America is dictator-proof got me to thinking if our constitutional guarantees are secure. Stated differently: Can the custodians of our constitutional norms be trusted to restrain a deliberate attempt to ignore, diminish or evade the Constitution? The short answer is: NO.
The history of what I will charitably call constitutional indifference is long and tortuous. It goes back to the earliest days of the republic when, in a period of eight years, Congress enacted and Presidents George Washington and John Adams signed into law legislation that directly defied restraints imposed upon the federal government.
And this constitutional indifference gave birth to the steady radical growth of government — usually in wartime and based on fears of foreign persons — at the expense of personal liberty.
In 1791, over a fierce and eloquent objection by then-Congressman James Madison — largely the author of the Constitution — Congress enacted a series of statutes that created the first National Bank of the United States. The bank’s purpose was to enable elites to enrich themselves by controlling the flow of cash.
Madison, in his famous Bank Speech, the best articulation of limited constitutional government by any Founding Father, argued that because the Constitution intentionally did not authorize Congress to establish a bank — it reserved banking regulation to the states — Congress was without the lawful authority to establish one. Congress enacted the legislation nevertheless.
In 1792, Congress enacted the Insurrection Act, also over Madison’s objections. That law enabled the president to declare an emergency and call upon the military to address the emergency. The definition of emergency has been and today remains the subjective choice of the president. This statute enabled the president to use federal troops to enforce federal and state laws, and to seize state militias from state governors and use them in presidentially declared emergencies for presidentially directed purposes.
And in 1798, again over Madison’s objections, and in utter defiance of the First Amendment’s command that “Congress shall make no law … abridging the freedom of speech,” Congress enacted the Alien and Sedition Acts, which criminalized public criticism of the government’s foreign policy and of the president personally.
These are the initial monstrous examples of constitutional indifference that set the government’s path on the vector of regular, consistent and systematic growth, ignoring the restraints that Madison had built into the Constitution. These early constitutional aberrations have established the precedent and the pattern in Congress for giving power to any president that will enable him or her to become an American Caesar.
Today there are around 135 of these largely unknown-to-the-public statutes that permit the president to close federal highways, confiscate bank accounts in federally insured banks and shut down the internet — all to address a self-willed emergency, all without due process, all in defiance of basic constitutional norms.
What is an emergency? The courts have defined it as a state of affairs whereby the courts cannot sit to address due process. By that definition, we have never had an emergency in our history, including during the War Between the States and immediately after 9/11 in New York City.
Yet, with the congressionally indifferent attitude that emergency somehow creates lawful power where none existed before the so-called emergency, presidents have from time to time become Caesar.
When President Abraham Lincoln declared speech critical of his war machine to be an emergency, he claimed he was thereby able to use federal troops to arrest more than 3,000 journalists and editors in the North and confine them without charges. By the time one of those cases reached the Supreme Court, after the war’s end and Lincoln’s death, the court ruled that the Constitution tolerates no emergency powers and its plain meaning applies in good times and in bad.
Nevertheless, constitutionally indifferent presidents have defined emergency to suit their political needs and violated constitutional norms.
President Woodrow Wilson declared the prevalence of anti-war speech during World War I to be an emergency, and thereby he claimed the emergency enabled him to arrest Princeton University students who recited the Declaration of Independence aloud outside draft offices in Trenton, New Jersey.
President Franklin D. Roosevelt declared the presence of Americans of Japanese ancestry in the western parts of the United States to be an emergency, and thereby he claimed the emergency enabled him to arrest without charge and incarcerate more than 120,000 Americans without trial until the end of World War II.
President George W. Bush claimed that 9/11 was an emergency that somehow authorized him to authorize the National Security Agency to spy on all Americans without suspicion, probable cause or search warrants.
President Barack Obama claimed that the presence of Moammar Gadhafi as the leader of Libya was an American emergency such that he needed to be removed from office without a congressional declaration of war, and so he had the CIA bomb Libya.
President Donald Trump declared the entry of undocumented immigrants into the United States at the Texas/Mexico border to be an emergency, and thereby he claimed this so-called emergency enabled him to begin construction of a border fence, in defiance of Congress, which had refused to fund it.
President Joe Biden declared the unfulfilled obligation of former students to repay their college loans to be an emergency; thereby permitting him to forgive the loans in defiance of the Supreme Court, which ruled that only Congress can do this.
And last month, U.S. Secretary of State Antony Blinken filed documents with Congress claiming that the Israeli war in Gaza was an American emergency of such magnitude that weapons and supplies needed to be sent to the Israeli government before Congress could authorize them, and so they were sent.
The national bank is still with us, today as the Federal Reserve. The Insurrection Act remains available today for all presidents to employ on a whim. And the Alien and Seditions Acts have been reborn under the guise of the Espionage Act of 1917 and the Antisemitism Awareness Act of 2024.
Why do we repose the Constitution for safe-keeping into the hands of those deliberately indifferent to it? Can anyone seriously argue that America is dictator-proof? Who or what will save us from those who’d crush our freedoms to enhance their own powers?
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2024 ANDREW P. NAPOLITANO
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