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Alito - It's the Constitution That's At Stake

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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 few."

Reflecting on the ability of a president to use war as an excuse to become a virtual dictator, Madison continued his letter:

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"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.

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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 successful presidency."

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.

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Two weeks later, the first prison for terrorists was built in Oranianberg, holding the first suspected allies of the infamous terrorist.

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 involved terrorism.

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 re-restrained.

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http://www.thomhartmann.com
Thom Hartmann is a Project Censored Award-winning New York Times best-selling author, and host of a nationally syndicated daily progressive talk program on the Air America Radio Network, live noon-3 PM ET. www.thomhartmann.com His most recent books are "The Last Hours of Ancient Sunlight," "Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights," "We The People," "What Would Jefferson Do?," "Screwed: The Undeclared War (more...)
 

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