Eric Alterman: FISA and the Founders

[babylonsister]

http://www.americanprogress.org/issues/2007/08/alterman_fisa.html

Think Again: FISA and the Founders

By Eric Alterman

August 16, 2007



Congress’ rush to its August recess was not a pretty spectacle by any standard. Its passage of a new FISA law once again raises the rarely asked question of whether democracies can “do” foreign policy patiently and competently.

The circumstances may be new, but the problem is not. “For my part,” Alexis de Tocqueville wrote in Democracy in America, “I have no hesitation in saying that in the control of society’s foreign affairs that democratic governments do appear decidedly inferior to others.” De Tocqueville credited democratic societies with a sort of “practical everyday wisdom and understanding of the petty business of life which we call common sense.” But he found that while “democratic liberty applied to internal affairs brings blessings greater than the ills resulting from a democratic government’s mistakes,” this was not the case in relations between nations.

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The Founders enshrined their abhorrence of war in the Constitution by explicitly vesting Congress, rather than the president, with war-making powers. The reasons are obvious. As James Madison wrote Thomas Jefferson, “The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.”

Jefferson called this decision an “effectual check to the dog of war.” The Federalists did not dispute this argument. Even Alexander Hamilton, who consistently argued for a strong executive with a large standing army and war-making capability at his disposal, nevertheless agreed that “it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war.” Indeed, only one delegate to either the Philadelphia convention or any of the state ratifying conventions even suggested that presidents be constitutionally vested with the power to begin a war, and he subsequently disowned it. Patently, notes Constitutional scholar John Hart Ely, “the point was ... to ‘clog the road to combat’ by requiring the concurrence of a number of people of various points of view.”

Our current system allows the president to make war virtually unchecked. As the FISA debate once again demonstrated, all a president needs to do to override the clear strictures of the Constitution—however distrusted and unpopular—is threaten his opposition with the blame for a potential attack.

Our founders could not have anticipated much about the nature of the threats we face in the modern world. But they understood power and its tendency to corrupt those who collect too much of it. They did not trust themselves to exercise it wisely except in the context of long and difficult debate. Can you imagine, for a moment, what they would have said to Messrs. Bush and Gonzales?



Eric Alterman is a Senior Fellow of the Center for American Progress, a CUNY Distinguished Professor of English at Brooklyn College, and Professor of Journalism at the new CUNY Graduate School of Journalism. His weblog, “Altercation," appears at www.mediamatters.org/altercation, His seventh book, Why We're Liberals: A Political Handbook for Post-Bush America, will appear early next year.