I had to read this post over at CarpetBagger twice before I could believe what I saw. The white paper released by the administration yesterday was supposed to be a defense of its warrantless wiretapping program. The paper's argument relied in part on selective quotes from the Federalist Papers, and given the immense respect I have for those documents, that really got my attention.
Rather than deliver a personal rant on the idiocy of this maneuver, let me instead offer this extended tour through the words of the Federalists themselves. The administration chose to quote from 23, 41, and 70? Fine, let's start there. (Want the short version? Skip to the update at the end for the CliffNotes edition)
First, the claim of the Bush Administration:
| To carry out these responsibilities, the President must have authority to gather information necessary for the execution of his office. The Founders, after all, intended the federal Government to be clothed with all authority necessary to protect the Nation. See, e.g., The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (explaining that the federal Government will be "cloathed with all the powers requisite to the complete execution of its trust") |
They want Federalist No. 23? They got it. From the top:
| This inquiry will naturally divide itself into three branchesgthe objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head.
The principal purposes to be answered by union are thesegthe common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries. The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the MEANS ought to be proportioned to the END; the persons, from whose agency the attainment of any END is expected, ought to possess the MEANS by which it is to be attained. |
The federal government must have whatever powers it needs to fully defend society. Notice, however, that Hamilton explicitly states that this is a question separate from who should exercise those powers. Hamilton also makes it perfectly clear that everything must be carefully prescribed and proportioned. Given the Federalist's experience with King George's abuse of power, their position here shouldn't come as much of a surprise. Of course I don't see how this helps today's George, but I suppose we should continue...
| Whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacygthat is, in any matter essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL FORCES. |
This is clearly the part of the Federalist on which they are relying. Reasonable people, of course, could disagree with their reading of the text (as an aside, doesn't that shred the whole "get the original intent from the text" thing? If we can't agree on the meaning of one of the few documents we have that purports to explain the meaning of the constitution itself...), but rather than engage them there, I'll let the Federalists speak for themselves.
In Federalist 24 Hamilton continues the discussion of federal authority and national security with a consideration of standing armies. Keeping men under arms on a permanent basis was anathema to the Framers. The 2nd Amendment, with its protections of a well armed citizen soldier militia, is proof of that. As is the Third Amendment with its concern over the quartering of soldiers in the homes of private citizens. That's 2 of the first 10 amendments, so this was a VERY BIG DEAL, one central to questions of both liberty and security. So what precisely did they have to say about this vis a vis national security?
| A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature.
If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two yearsga precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity. |
Got that? In the one thing most central to the defense of national security, Hamilton made explicit the fact that it was the LEGISLATURE, not the EXECUTIVE, that had full authority. And moreover, that even legislative authority had been curtailed under the new constitution. In other words, in matters of national defense, federal authority was not only limited, it was primarily vested in the legislative branch.
Ah... but what about the threat of an imminent attack? Surely that changes thing, no?
No.
One of the major considerations outlined by Hamilton throughout this discussion of national security needs was the immanent and ongoing danger posed by Britain, Spain, and the Indian nations that surrounded these United States. After detailing the ways in which the individual states had often ineffectually dealt with the issue on their own, Hamilton looked to history to detail once again concerns over vesting power in the federal authority to raise an army. And then, this:
| In England, for a long time after the Norman Conquest, the authority of the monarch was almost unlimited. Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledged prerogative of the crown, Charles II. had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II. increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that ``the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law.' |
Excuse my rant for a moment here...
Please, go ahead. Go ahead and explain to me how that passage supports this administration's claim that the executive should have unfettered authority when it comes to national security. Explain to me how that means the executive should be able to override the wishes of congress. Go ahead. Try. I need a good laugh right now, really, I do!
Want more? Next paragraph:
| In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community.
From the same source, the people of America may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. The circumstances of a revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raise the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. The attempts of two of the States to restrict the authority of the legislature in the article of military establishments, are of the number of these instances. The principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies. Even in some of the States, where this error was not adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I call them unnecessary, because the reason which had introduced a similar provision into the English Bill of Rights is not applicable to any of the State constitutions. The power of raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else, than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should not be done without the consent of a body, which alone had the power of doing it. |
In the single most important and contentious national security issue of their day, the Framers vested authority in THE LEGISLATURE. And for the record, that part that was all caps was all Hamilton shouting, not me. His words, not mine. THE LEGISLATURE. Not THE EXECUTIVE.
This is their defense? This is the best they can do?
Ah... fair enough. It's just one of three arguments. Perhaps I should continue on to Federalist 41.
Once again let's start with the claims of the administration. This time they've decided to quoting Mr. Madison:
| "Security against foreign danger is one of the primitive objects of civil society . . . . The powers requisite for attaining it must be effectually confided to the federal councils." |
Ignore for a moment the implications of the fact that Madison said "federal councils"....
Quoting Hamilton in support of a strong executive makes some sense. But Madison? Those of you who know your history can probably stop right here. For those of you who need a refresher, it was Madison who was most concerned with devising structures and institutions that both separated and overlapped powers such that an abuse of authority could not long go unchecked. As he so eloquently said in Federalist No. 51:
| If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. |
More than any other single section of the Federalist Papers, this section encapsulates Madison's entire philosophy of government. Hope for the best but plan for the worst. It's the essence of the separation of powers doctrine and the constitution itself. And as he explained in No 41, the passage that, I'll remind you, they are quoting in their defense, Madison said this:
| ...cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. |
No authority is unlimited, because any power, no matter how necessary and important, is open to abuse. Even, as Madison continued to explain, where national defense is concerned. Which would explain, I suppose, the dishonest need for selectively quoting the Federalist.
First, for the record, the part the administration wants you to hear:
| Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils.
Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form. Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defense. But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in war? The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety. How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. |
If you stopped there - and if you hadn't read any of the previous 40 papers - you might think that an unlimited grant of authority. But if you continued reading, you would immediately discover paragraph after paragraph of limitations on this authority, including limiting the funding of the army to a two year term, a time limit tied directly and explicitly to the term of a member of congress. And true, this might all seem a bit esoteric but for two facts: Not only is this another instance of limitation, it is also an explanation that the limited authority belongs to the legislature, not the executive.
Got that? Federalist 41 is explicitly about legislative authority, not executive authority. Which would, if you thought about it for oh, I don't know, a millisecond, explain the whole "federal COUNCILS" reference!!!
This is their defense? Seriously? That the legislative branch has authority on issues of national security? I'm almost afraid to continue on to Federalist 70.
Thankfully for them, 70 is not only written by Hamilton, its also explicitly about executive authority. Not that this fact will help them much. First, the claim of the administration:
| Because of the structural advantages of the Executive Branch, the Founders also intended that the President would have the primary responsibility and necessary authority as Commander in Chief and Chief Executive to protect the Nation and to conduct the Nation's foreign affairs. See, e.g., The Federalist No. 70, at 471-72 (Alexander Hamilton); |
They've bungled things so badly to this point I'll be generous on this one. Here's an extended quote from Hamilton that would be right up their alley:
| Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.
There can be no need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention? The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. The ingredients which constitute safety in the republican sense are, first, a due dependence on the people, secondly, a due responsibility. Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. |
A solid and necessary defense of a strong executive, no doubt. From Hamilton we would expect no less. Only there's one problem here, and that problem is context. The debate about the "unitary executive"? It was held in relation to the idea of a plural executive, three individuals serving as president rather than one, and as a result has nothing whatsoever to do with the balance of power and authority between the president and the legislature. Or in other words, citing 70 for support on this issue MAKES NO SENSE.
It is Federalist 74, not 70, that I suspect they were looking for here, and you don't need to look any further than the title to see that: The Command of the Military and Naval Forces. Of course, if "bin Laden Determined to Attack Inside the US" didn't get their attention way back when...
Now, by way of conclusion I'd like to offer up two citations myself. And since I've already said enough I think I'll let the words speak for themselves:
| From Federalist 10
It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole. The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS. If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful. |
| From Federalist 51
TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places... But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions... |
UPDATE: Here's the short version...
They chose to quote from Federalist 23, 41, and 70. The problems with that are:
23 contains an extensive discussion about the very serious national security needs of the nation, including how the threat of annihilation means that the federal authority musth ave whatever authority is necessary to save the nation. The problem? Federalist 24 makes plain that it is the legislature, not the executive, that has that power. And in making the point Hamilton explicitly cites the abuses of one King George for support.
41: This is explicitly about legislative authority and only legislative authority. And its about limited legislative authority to boot.
70: This isn't even on topic. They meant 74, not 70, but even 74, when read in the context of 73 before it, cannot possibly be used in their defense.
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