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Avoiding the Cicero Trap

Forget the next great statesman, we need to make the Constitution the battleground of our politics.

Cicero foolishly believed that he could salvage the Roman Republic from Julius Caesar’s dictatorship by inculcating Republican virtue in Octavian, his would-be successor. Following his defeat of Mark Anthony in the last Roman civil war, Octavian exercised, de facto, all of the dictatorial powers of Julius Caesar. Cicero’s tutorials proved trifles light as air. The Roman Senate became ornamental only, and the Republic became an Empire. Octavian changed his name to Caesar Augustus, and the Senate deified him.

The Republic was never restored. The Empire, earmarked by limitless executive power, began spiraling downward featuring the likes of Nero, Caligula, Tiberius, and Elagabalus. It collapsed in 410 A.D. with the sacking of Rome by the Visigoth King Alaric. More enlightened Emperors like Trajan, Hadrian, and Marcus Aurelius were at best speed bumps in the Empire’s road to self-ruination.

In sum, institutional personalities trump the personalities of the occupants. No Roman statesman could resist the hydraulic forces that give birth to an omnipotent executive, i.e., hormonal enthusiasm for perpetual war and limitless conquests.

Power for the sake of power is the greatest aphrodisiac. It is coveted by the philosophically empty human species more avidly than money or sex. It provides psychologically priceless self-esteem and self-identity without the demanding, unending labors of wisdom, deliberation, and justice. Thus, Pericles’ Funeral Oration celebrates raw power, simpliciter, as the hallmark of Athens’ greatness. Military museums are everywhere. Museums of diplomacy are nowhere. The armored knight, not the moral philosopher, moves across the pages of romance and poetry and excites the reverence of the multitudes. Warriors sit atop pedestals in the capitals of virtually every nation. Admiral Lord Nelson and the Duke of Wellington are more hallowed in Great Britain than Samuel Johnson or Adam Smith.  

The Cicero Trap—the delusion that real statesmanship is the key to national salvation in lieu of scrupulous adherence to a separation of powers and checks and balances—has snared professed reformers and revolutionaries from the beginning of time. It explains why the more things change, the more they stay the same.

The long-headed authors of the United States Constitution were a break in history. Informed by the lapidary intellect of James Madison—a living library—they understood that only by fragmenting power among rival institutions could liberty endure and justice flourish. Mr. Madison elaborated in Federalist 51 on the folly of the “real statesman” panacea for national salvation. He explained that a government dedicated to liberty must assume sinners rather than saints will dominate the corridors of power. Private interests must be made to converge with public good:

[T]he 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…Ambition must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place.

Madison flayed the “real statesmanship” nostrum:

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.

Madison discerned no real statesmanship exception to the Constitution’s separation of powers and checks and balances, a structural bill of rights indispensable to safeguarding liberty:

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.

Thomas Jefferson similarly declaimed against “real statesmanship” reformers in his Kentucky Resolutions:

In questions of power…let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

Madison understood that war is the greatest threat to liberty and the engine of oppression. War replaces a government of laws with a government of bullets. First-degree murder is legalized under the banner of fighting the enemy. The president plays prosecutor, judge, jury, and executioner to kill any person on the planet suspected of endangering national security based on secret, unsubstantiated evidence. Indefinite detentions without accusation or trial are indulged. Mass surveillance without probable cause is endorsed. Free speech and association are punished as treason. Xenophobia is spawned. Judicial opinions are redacted. Secrecy replaces transparency. Government spending and indebtedness spike. Private enterprise is hobbled. The collective genius of the nation is rechanneled from production to killing. The march of the mind is superseded by the march of the foot soldier—the sculpture of the thinker replaced by the sculpture of the warrior.

To prevent gratuitous wars—those unprovoked by an actual or imminent attack on the United States—the Constitution’s Declare War Clause entrusts exclusive responsibility to Congress for taking the nation from a state of peace to a state of war. Unlike the president, members of Congress gain nothing politically by launching quixotic or aggressive wars. They lose power. They must tax or borrow money to fund military adventurism. They do not anticipate an eponymous monument, obelisk, or even statue if a war is won. Madison’s understanding of the congressional temperament was masterful. In 228 years, Congress has not once voted to take the nation across the Rubicon from peace to war. It has only acknowledged on five occasions that a state of war had been thrust upon the United States: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. And even in those five cases, Congress responded to presidential prodding.

In contrast to Congress, the executive is irresistibly tempted to concoct excuses for needless wars to aggrandize power and to win fame and remembrance. Madison sermonized:

War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.

Madison explained that free states could remain free only by disarming the executive from influence over war:

[I]t has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.

The United States is at the precipice of ruination. We are there not because “real statesmen” have failed to surface like a Deus ex Machina. We are there because we have dishonored Madison’s wisdom and the Constitution’s separation of powers in favor of endless, gratuitous, presidential wars and limitless executive power. We have become a warfare state fueled by a multi-trillion-dollar military-industrial-counterterrorism complex that revels in crony capitalism, escalating conflict, unaudited defense budgets, and a spiraling national debt exceeding $20 trillion.

Since the 1950 Korean War, the United States has discarded the Declare War Clause in favor of presidential wars or other offensive uses of the military in Vietnam, the Dominican Republic, Laos, Cambodia, Kuwait, Granada, Panama, Nicaragua, Bosnia, Serbia, Somalia, Afghanistan, Iraq, Pakistan, Libya, Yemen, Syria, and against al Qaeda and ISIS. We are on the cusp of beginning a second generation that has never experienced a single day of peace. We are becoming more like Prussia every day: not a state with armed forces, but armed forces with a state.

Our salvation may be found in making the Constitution the battleground of our politics—especially unwavering adherence to its separation of powers and checks and balances in matters of war and peace.

The Constitution embodies more collective wisdom about human nature, the corruption of power, and the majesty of liberty and justice than any other government charter that has been conceived or tried. We must elude the Cicero Trap. Our plight is not the absence of a Sir Launcelot to rescue Guinevere. It is the withering of our constitutional institutions calculated to protect against limitless executive power and tyranny.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.



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