The United States has adorned its president with extravagance that makes Roman emperors appear frugal by comparison. And such visible signs of the deification of our president are complemented by legal doctrines that echo Richard Nixon’s once discredited claim to David Frost: “When the president does it, that means it is not illegal.”
These extra-constitutional developments reflect the transformation of the United States from a republic, whose glory was liberty and whose rule of law was king, to an empire, whose glory is global dominion and whose president is law. The Constitution’s architects would be shocked to learn that contemporary presidents play prosecutor, judge, jury, and executioner to any person on the planet deemed a threat to national security on the basis of secret, untested evidence known only to the White House.
An empire demands a Caesar and blind obedience from its citizens. World leadership through the global projection of military force cannot be exercised with checks and balances and a separation of powers that arrests speed and invites debate. Napoleon lectured: “Nothing in war is more important than unity of command…. Better one bad general than two good ones.” And Lord Tennyson, saluting the British Empire, versified in The Charge of the Light Brigade:
“Forward, the Light Brigade!”
Was there a man dismayed?
Not though the soldier knew
Someone had blundered.
Theirs not to make reply,
Theirs not to reason why,
Theirs but to do and die.
Into the valley of Death
Rode the six hundred.
As justice requires the appearance of justice, a Caesar requires the appearance of a Caesar. Thus is the president protected by platoons of Secret Service agents. The White House, by closing previously open avenues through the heart of the capital and shielding the president from citizen detractors, has become a castle. The White House staff has expanded and aggrandized power at the expense of Cabinet officials confirmed with the advice and consent of the Senate.
Debate, encouraged by the separation of powers, is superfluous where support for empire is underwritten by the multi-trillion-dollar military-industrial-counterterrorism complex, as it is in the United States. The Republican and Democratic parties are unified behind at least seven ongoing unconstitutional presidential wars and climbing trillion-dollar national security budgets.
Our warfare state has given birth to subsidiary surveillance, crony capitalism, and a welfare state. Congress and the judicial branch have become largely sound and fury, signifying nothing. The Constitution’s separation of powers is atrophying.
The life of the law is not justice but genuflections to power. It manufactures doctrines that honor the power principle that the strong do what they can and the weak suffer what they must. When the configuration of power changes, the law adapts accordingly. The adaptations may not be instantaneous, but they are inexorable. This is not surprising. Judges are not born like Athena from the head of Zeus. They are selected through a political process that vets them for compatibility with the views of their political benefactors. Benjamin Cardozo observed in The Nature of the Judicial Process: “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”
The United States has become the largest and most actively garrisoned empire in history, built up by World War II and the 1991 disintegration of the Soviet Union. Our empire has, among other things, approximately 800 military bases in more than 70 countries, over 240,000 active duty and reserve troops in at least 172 countries and territories, de facto or de jure commitments to defend 70 countries, and presidential wars as belligerents or co-belligerents in Libya, Somalia, Yemen, Syria, Iraq, Pakistan, Afghanistan, and against al-Qaeda and the Islamic State of Iraq and Syria (ISIS). The president has by necessity become a Caesar irrespective of whether the occupant of the White House possesses recessive or dominant genes. The law has adapted accordingly, destroying the Constitution like a wrecking ball.
At present, the president with impunity initiates war in violation of the Declare War Clause; kills American citizens in violation of the Due Process Clause; engages in indiscriminate surveillance his own citizens in violation of the Fourth Amendment; substitutes executive agreements for treaties to circumvent the requirements of Senate ratifications by two-thirds majorities in violation of the Treaty Clause; substitutes executive orders for legislation in violation of Article I, section 1; issues presidential signing statements indistinguishable from line-item vetoes in violation of the Presentment Clause; wields vast standard-less delegations of legislative authority in violation of the Constitution’s separation of powers; brandishes a state secrets privilege to block judicial redress for unconstitutional executive action in violation of due process; refuses submission to congressional oversight in violation of the congressional power of inquiry; and declines to defend defensible duly enacted laws in violation of the Take Care Clause.
The Constitution will be reborn only if the American people reject their Empire in favor of a republic where individual liberty is the summum bonum. The odds of that happening are not good.
Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.