Alito - It's the Constitution That's At Stake
By Thom Hartmann
-- -- Samuel Alito is a big booster of presidential power.
Other "constitutional scholars" have been less sanguine.
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
Reflecting on the ability of a president to use war as an excuse
to become a virtual dictator, Madison continued his letter:
"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."
Since Madison's warning, "continual warfare" has been used both
in fiction and in the real world.
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
Similarly, Adolf Hitler used the 1933 burning of the Reichstag
(Parliament) building by a deranged Dutchman to declare a "war on
terrorism," establish his legitimacy as a leader (even though he
hadn't won a majority in the previous election).
"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
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
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
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
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
And in the new reauthorization of the PATRIOT Act - a piece of
legislation almost certain to eventually come before the Supreme
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
principle 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 is not a vote about
Republicans versus Democrats. It's 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 Sam Alito's vision of
questionable elections, concentration camps, spying on citizens to
create an atmosphere of fear and uncertainty, repression of women's
and minority rights, and war without end?
As our legislators vote, we must carefully note their positions
on this issue. 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 here.
Thom Hartmann [thom (at) thomhartmann.com] is a Project
Censored Award-winning best-selling author and host of a
nationally syndicated daily progressive talk show syndicated by
Air America Radio.
www.thomhartmann.com His most recent book is "What Would
Jefferson Do?" and he's participating this week with other
progressive talk show hosts in a "filibuster for a filibuster"
radio marathon on The Young Turks Show.
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