Alito - It's the Constitution That's At Stake by Thom Hartmann
Published on Sunday, January 29, 2006 by CommonDreams.org
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:
"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 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.
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.
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 imprisonment.
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 himself.
And in the new reauthorization of the PATRIOT Act - a piece of legislation almost certain to eventually come before the
Supreme Court - 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.
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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.