|
Bush's Constitutional Time Machine
America revisits 17th Century England in turmoil
By Bruce Tyler Wick
01/26/06 "ICH"
-- -- If a government were seeking to deprive a
people of their accustomed rights, thereby rendering them
insecure, fearful, anxious and docile; where would that
government most likely turn for examples, for concepts, for
strategy and tactics? Would it not be to that period, when the
rights in question, both individual and collective, were still
in agitation--contended for, but not yet established?
For Americans, that period--most of the 17th Century--occurred
before their national existence had begun, and happened in
another part of the world, across the Atlantic in Merry Olde
England.
Statecraft (then and now) partakes of so much deception that a
king or president can speak the truth occasionally and expect
NOT to be believed. So it was, when Charles I told his
parliament by message 12 May 1628, he would NEVER abandon the
power of arbitrary imprisonment:
"[E]ven though [Charles] had tried to 'satisfy all moderate
minds, and free them from all just fears and jealousies on this
matter; he found it 'still insisted upon" that 'in no case
whatsoever (though they should never so nearly concern matters
of state or government) we, or our Privy Council, have power to
commit any man without the cause shown.' The acceptance of this
proposition, he continued, 'would soon dissolve the foundation
and frame of our monarchy.' '[W]ithout overthrow of our
sovereignty,' he continued, 'we cannot suffer this power to be
impeached.'" [p. 265].
Though not abandoning his claim of power, Charles I offered not
to USE commitment without cause (1) against those who would not
lend money to the Crown; and (2) "in all causes criminal of
ordinary jurisdiction." [Id.]
Charles also made, or seemed to make, other concessions--which
appeared yield to the demand of "no commitment without cause
shown," while actually preserving the power and Charles' ability
to exercise it. For example, in a catch-all assurance, Charles
promises not to imprison without the cause shown for any other
reason, "which in our conscience does not concern the state, the
public good, and the safety of us and our people." [Id.]
So in the end, one is left with the "conscience of the king,"
who in the very same message to parliament has admitted
extorting money by imprisonment or threat thereof! [Id.]
Readers may be curious to know what arguments the Attorney
General could possibly have advanced in FAVOR of arbitrary
imprisonment. The answer, suggested by Charles himself, appears
to be "matters of state"--but as importantly, the TRUST that
subjects must necessarily afford their king in all matters
confided to him.
In a speech of Sir Edward Coke, which has come down to us, the
Attorney General had asserted (according to Coke), that because
the king was trusted in "greater things" than imprisonment, such
as wars, coining money, pardons, naturalization and the like; he
must have a trust in the lesser manner of imprisonment. [p.
249].
Coke denied the validity of this argument, telling the Lords in
conference, "The liberty of the person is more than all these;
it is the very sovereign of human blessings." Coke also rebutted
the Attorney General's argument on this point, by showing that
the king's prerogative to coin money and issue pardons could be,
and had been, limited by statute. By clear implication, then,
ALL of the king's prerogative powers were likewise subject to
statutory regulation. [Id.]
Earlier, in the House of Commons' own debates, while formulating
the Petition of Right; Coke elaborated what is still the most
profound defense of, and justification for, personal
liberty--that the king cannot legally possess any powers
incompatible with the free status of his subjects, and that free
status both logically and naturally entails freedom from
arbitrary imprisonment [p. 239]:
"[Arbitrary] commitments will destroy the endeavors of all men.
Who will endeavor to employ himself in any profession, either of
war, merchandize, or of ay liberal knowledge, if he be but a
tenant at will of his liberty? For no tenant at will will
support or improve anything, because he hath no certain estate;
Ergo, to make tenants at will of their liberties destroys all
industry and endeavors whatsoever." [p. 241].
Bush's 17th Century Playbook
With a modest streamlining of legal concepts, Mr. Bush's
playbook is Charles I's and that if his son James II, both of
whose reigns ended early, and in Charles' case, violently.
______________________________
Charles I's terminology:
"Sovereign Power" or "Sovereignty"
"Royal Prerogative"
"Intrinsical Prerogative"
"Prerogative Entrusted by God"
Bush's equivalent terms:
"Inherent Power(s)" of the President
"Plenary Power(s)" of the President
______________________________
Charles I's terminology:
"Reasons of State"
Bush's equivalent term:
"National Security"
_______________________________
Charles I's or James II's terminology:
"Royal Assent to Bills and Petitions"
"Suspending Laws"
Bush's equivalent term or device:
"Presidential Signing Statements"
____________________________
In his (otherwise) magnificent King Day 2006 address, former
vice-president Al Gore (who is not a lawyer) fell into the trap
of endorsing the notion of "inherent" presidential power:
"Moreover, there is in fact an inherent power that is conferred
by the Constitution to the President to take unilateral action
to protect the nation from a sudden and immediate threat, but it
is simply not possible to precisely define in legalistic terms
exactly when that power is appropriate and when it is not."
But the existence of that inherent power cannot be used to
justify a gross and excessive power grab, lasting for years,
that produces a serious imbalance in the relationship between
the executive and the other two branches of government."
Perhaps Mr. Gore meant only "implied power"; that is authority
which must necessarily be inferred from other authority,
expressly granted. For example, from the president's DUTY to
provide Congress "information on the state of the Union" and to
"recommend" "measures" for Congress' "consideration" [Art. I,
Sec. 3]; one may infer the power to gather such information, for
presentation to Congress or for use in formulating proposals to
one or both Houses.
Since constitutions are construed EXPANSIVELY, one would
probably also infer from the powers or duties just quoted, the
implied power to subpoena reluctant witnesses, in order to
supply the information such witnesses were unwilling to supply
voluntarily. In construing a constitution, such a broad
interpretation would not even be a stretch.
But by utilizing the same term, "inherent power," as the
president's lawyers; Mr. Gore brings with it all that term's
baggage--which is considerable.
"Inherent power" is authority which literally "inheres" in the
office, as essential and intrinsic to it. As Coke noted, when
confronted with the Lords' reservation to the king of an
"intrinsical prerogative"; "intrinsical" power means power,
which is absolute--"plenary" in today's terminology--power which
cannot be limited or regulated by statute or ANY authority
outside itself:
"'[Intrinsical] is a word we find not much in the law,' he said
and, in fact, 'it was no word of the law,' for it meant 'inward,
not according to the outward ordinary law.' To call prerogative
'instrinsical,' therefore, was to say that it was 'not bounded
by any law, or by any law qualified.' If the Commons were to
concede that the king had an 'instrinsical' prerogative, he
warned, then all their laws would be 'out.'" [p. 255].
So, if the president may be said to have "inherent power" to
imprison or to interrogate, then the president cannot be limited
in time, place or manner of imprisonment or interrogation. Only
the president's "conscience" would prevent him from imprisoning
for life, without charge or trial, or from interrogation by
torture. Put another way, "inherent" or "intrinsic" powers are
the tools of despots and of despotism. Even when not abused, or
not much abused, there is a roguish aspect to these "inherent
powers."
In Ohio, courts most commonly use their "inherent powers" to
force appropriations from the legislative bodies which fund
them. The courts claim, always, they are underfunded, and thus
cannot carry out their essential and constitutional functions,
without ordering additional funds to be made available to them.
But all recognize resort to the courts' supposed "inherent
power" to fund themselves is but a temporary expedient--for
urgent cases, only--and not a permanent arrangement. If funding
disputes continue over any length of time, they are usually
resolved by changes in personnel--either of the judges, the
legislators, or both.
Similarly, both Houses of Congress enjoy inherent contempt
powers, with which to defend themselves, their powers and
privileges, as legislative bodies. At one point, I've read, the
House of Representatives had a small jail in the Capitol, in
which to hold recalcitrant witnesses. Though both Houses
continued to exercise their inherent contempt powers, unaided by
any statute, into the 20th Century; those same powers have
fallen into disuse over the last one hundred years. Why? The
answer must be: such inherent powers are now regarded as
suspect, illegitimate, arbitrary and lacking in due process;
when used against citizens--UNLESS they are backed by statute.
Put another way, these inherent contempt powers are now regarded
as INSUFFICIENT in themselves.
Since the theology of many churches, even today, holds that
rulers derive their just powers from God (rather than consent of
the governed); Coke's objection is still apt, concerning
"intrinsical prerogatives" of the king being "entrusted by God."
To Coke, the "under God" formulation implied that acts done
under the prerogative were "done by the Law of God." This in
turn implied that no mere "human" law could "take away from such
acts; thereby allowing the king to imprison without showing
cause, even in the face of human enactments against such
commitments.
Coke doubtless realized what is painfully obvious today; namely,
leaders imbued with the sense of Divine Right or Divine Mission
are loathe to acknowledge ANY limits upon their power. The only
possible solution to this problem (and one which Coke helped to
bring about): a change in legal and political theory,
eliminating both the "Divine Right" of governors and their
divinely sanctioned "Crusades."
Reasons of State -vs.- National Security
"National security" is but another term for Charles I's "reasons
of state." Both are elastic concepts, justifying almost any
outrage against individual citizens or subjects. But even the
most despotic regimes have laws, which get in the way of what
their rulers want to do. The utility of a "national security" or
"reasons of state" claim: (1) secrecy; and (2) both concepts
create an "escape hatch," or all-purpose exception, to a
country's laws. In other words, by invoking "reasons of state"
or "national security," rulers can violate the law; while at the
same time, leave those laws in place, as a symbol of vanished
order, regularity and legitimacy.
The 'Pretended Power' of Suspending Laws
Suspending the operation of laws, before violating them, was an
innovation of one of Charles I's sons, James II, who succeeded
to the throne upon the death of his brother, Charles II. Yet,
while Charles II, outwardly at least, accepted the results of
the English Revolution and skillfully managed his parliaments;
the Catholic James II did not, and so was driven from the throne
in 1688.
The Bill of Rights (1689), which William and Mary accepted,
expressly addressed James II's claimed ability to suspend acts
of parliament:
"That the pretended power of suspending the laws or the
execution of laws by regal authority without consent of
Parliament is illegal;
That the pretended power of dispensing with laws or the
execution of laws by regal authority, as it hath been assumed
and exercised of late, is illegal."
To the extent Mr. Bush's "signing statements" attempt to
suspend, alter or dispense with acts of Congress; they are
likewise illegal.
The American Constitution, as is well known, did NOT initially
contain a Bill of Rights, as such. The first ten amendments to
our Constitution also failed to address the Stuart abuse of
suspending laws--
--perhaps because the device had been so thoroughly discredited
under James II, it was no longer being attempted, and therefore,
was not a threat; and,
--perhaps because the main body of the Constitution expressly
required the president to "take care that the laws be faithfully
executed." [Art. II, Sec. 3].
The framers of Ohio's Constitution (1802) were wiser, though,
evidently realizing past abuses must STILL and ALWAYS be guarded
against, lest they disappear from collective memory, only to be
revived by unscrupulous politicians at some future date.
Hence, Section 18 of Article I, Ohio's Bill of Rights:
"No power of suspending laws shall ever be exercised, except by
the General Assembly."
There, the prohibition remains, as it has since 1802, a reminder
and a sentinel, against the overturning of laws by executive
authority. But as has so often been pointed out, constitutional
provisions, however salutary, are not self-executing. Indeed, as
Charles Sumner once told the Senate, "The people are the
substance, the Constitution but their shadow."
SOURCE: Page references are to "Sir Edward Coke and 'The
Grievances of the Commonwealth,' 1621-1628," by Stephen D.
White, University of North Carolina Press, Chapel Hill, NC
(1979).
Bruce Tyler Wick is an Ohio attorney and registered
parliamentarian, celebrating 30 years in private practice. He
was apparently among the first to recognize--surely, the first
to argue --the UN Convention Against Torture (CAT), and all of
its remedies, apply to the US and all persons subject to its
jurisdiction. He can be reached at brucetylerwick@sbcglobal.net
Translate
this page
(In accordance with Title 17
U.S.C. Section 107, this material is distributed without profit to
those who have expressed a prior interest in receiving the
included information for research and educational purposes.
Information Clearing House has no affiliation whatsoever with the
originator of this article nor is Information Clearing House
endorsed or sponsored by the originator.) |
