Clearly, this represents a step backward rather than a step forward when it comes to avoiding another Iraq scenario. Just replay the events of the last six years, with the same cast of characters – but this time under the plan proposed by the Baker-Christopher Commission – to see what would happen. The same members of Congress who voted for a bullshit war because they were afraid of the consequences to their careers if they didn’t would be far more inclined to vote for the war three weeks after the invasion began. And they would then have had an even harder time later climbing down off the limb they’d perched themselves on than they already do now. Beautiful. That’s just what we need.
In a very profound way, though, all of this is moot anyhow. So, okay, the president has the commander-in-chief power which is broadly supported (even in Congress), and unlikely to ever be even remotely diminished. This country fought brutal and massive wars in Korea for three years, Vietnam for a dozen, and Iraq will be for easily seven before the earliest we’d possibly get out – all without a declaration of war or any serious question of the presidential prerogative to deploy forces without one. Get the picture? Likewise, however, the one power that Congress possesses in an equally undiluted and uncontested form is the power of the purse. Congress can shut down any expensive war it wants whenever it wants by using that power, as it did finally in the case of Vietnam. All that’s necessary is the will to do so. Purses can be used in many different ways, depending on one’s commitment to doing what is right and one’s courage to follow though on that path, even at the personal cost of career or likability amongst the Cro-Magnon set. Harry Reid’s purse seems to have little use other than for transporting around a bit of eyeliner, some lipstick and maybe a few sanitary napkins. In better hands, it would be used it to flatten George W. Bush and end his Mesopotamian nightmare, pronto.
Which really brings us, ultimately to the heart of questions like these. You can spend an entire lifetime, and fill an entire library wing, with treatises and legal commentaries on these grand constitutional questions regarding the distribution of power in a government such as ours. (Most democracies use a parliamentary system, where the issue is moot. There are no checks and balances because there are no separate branches to check or to balance.) At the end of the day, though, you’re ultimately left with words written on ink in parchment. It doesn’t even require a single struck match to destroy their power (indeed, if they have such power, burning the documents will have zero effect). All that is necessary is for good people to do nothing, while monsters like Bush and Cheney drive freight trains through the edifices of Constitutional law constructed over centuries.
And that is precisely what has happened. There will always be Bushes and Cheneys, and history shows there always has been. This was perhaps the single most profound insight the Founders brought to Philadelphia as they engaged in their experiment in political engineering. They sought to design a government that was powerful enough to hold together and to act when necessary – unlike the one provided for in the Articles of Confederation – yet also sufficiently limited so as to protect their liberties – unlike George III’s regime. The Constitution really is a pretty amazing achievement from that engineering perspective. In any case, this concern for finding the correct concentration of power is certainly the motivation for the otherwise fairly bizarre decision they made to divide the government and set the pieces of it against one another.
The Founders also sought to create a government of laws, not men. A great aspiration, to be sure, though inevitably flawed at the end of the day. (I wish, for starters that they had aspired to a government not of people – rather than not of men, but of course it would be 150 years before fully half the population began to get its legal rights.) But their more critical flaw, for purposes of this particular discussion, is the belief that you can somehow take people out of government and leave only laws in their place to govern.
Unfortunately, people are not only the subjects of those laws, but also the keepers, promulgators and implementers. Laws, principles, rules, codes – these are all ultimately what people make of them, not what’s written on paper. If George W. Bush says that it is legal to waterboard detainees at Guantánamo and nobody stops him, that is what’s going to happen. If the majority on the Supreme Court abandon all their vociferously articulated prior principles of states’ rights, judicial restraint and hostility to equal protection claims in order to justify crowning Bush president – and, again, no one objects too strenuously – then off to the White House he goes. And if Congress is supposed to be an equal partner in war-making decisions but hasn’t got the guts to do its job, well then, welcome to Baghdad, soldier.The whole matter was put rather succinctly by President Andrew Jackson once, when he was angered at a decision made by John Marshall’s Supreme Court holding that the state of Georgia could not impose its laws on Cherokee tribal lands. Jackson is quoted as saying "John Marshall has made his decision, now let him enforce it!", thereby shredding the notion of a government of laws in a mere eleven-word sentence.
The truth is that there is no such thing as a government without people. There is no main-frame somewhere which can dispassionately compute matters of law and policy. It’s up to us, at the end of the day.
Either we stick to our principles – especially in moments of duress – or we don’t.
No oceans of ink applied to mountains of parchment, and certainly no new scheme concocted by James Baker and Warren Christopher, could ever save America’s Congress, or its press, or its opposition party, or its people, from the historical stain which has attached to them forever by virtue of their abdication of responsibility when it came to Iraq.
We had, in October of 2002, and in March of 2003, and today, and on every date in-between, a government of laws. The principles and codes and Constitution were all there.
It’s just the people who were missing.
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