Bind Them Down From Mischief by the Chains of the Constitution

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

After seven years of abusive executive of power, what we need most from a new administration is a promise that such abuse will end. It doesn’t look like we’re going to get it.

Candidates on Executive Power: A Full Spectrum

“… while all the Democrats condemned Bush's use of signing statements, Clinton, Edwards, and Obama each said that they would use them too - just less aggressively. Obama said the problem with Bush's signing statements is not the device itself, but rather that Bush has invoked legal theories that most constitutional scholars consider ‘dubious’ when reserving his alleged right to bypass certain laws.

‘No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush administration has gone much further than that,’ Obama said.”

No one doubts.

“Democrat Hillary Clinton says ‘in very rare instances,’ she might attach a so-called signing statement to a bill reserving a right to bypass ‘provisions that contradict the Constitution.’"

No one should be President of the United States who has the view of presidential power and the Constitution expressed by these democratic candidates. Period. The president is charged with seeing that the laws are faithfully executed, not with unilaterally determining whether or not they “contradict the Constitution,” and rewriting them to conform to a pet theory of executive power.

Those canny practical psychologists, the framers of the constitution, understood that the office holder is just a human being, and thus capable of mischief. The powers of the office must be circumscribed to limit the scope of that predictable mischief. We have allowed an office holder to dictate the powers of the office, with catastrophic results. The major democratic candidates for president say they, too, will not be bound by the chains of the constitution, so they must be bound down involuntarily.

The best way to do this is to begin impeachment hearings now. Whether such hearings lead to impeachment or not is less important than the fact that they will say to the present and future executive, 'we won’t permit lawless, unconstitutional behavior by a president. No office holder can unilaterally decide to ignore laws, to ignore treaties, to commit domestic and international crimes and consider themselves untouchable.'

The other option is to “wait and see.” While the democratic contenders for the next president haven’t said they will give up the power Bush has seized, they have said they will use it less frequently and/or “less aggressively.” Maybe the tools Bush has taken up will, by and large, go back into the toolbox and the behavior of the next president take on a more familiar and acceptable quality.

This is a vindication of the malignant political theory used to justify the assumption of tyrannical power by the executive. If another president inherits the powers Bush has taken up, these powers will received the imprimatur of precedent, and the course of the country will be unalterably set towards a darker future.

To let these powers persist unchecked is also a victory for neoconservatives: If they can’t be in power, let the illegal powers they have seized for the office of the president be waiting for them when they are.

And a democratic president with tyrannical powers who isn’t using them at the moment, or is only using them “less aggressively,” is no more compatible with democracy than a president like George Bush who is using them with zeal. No president should have the power of limitless executive detention without recourse to the courts, the power to ignore any law, to rewrite law, to be the sole interpreter of treaties, to torture.

Suppose one of these democrats is elected and executive overreaching, less aggressive and abusive though it may be, finally becomes intolerable to the public. This eventuality is also victory for neoconservatives: If public outrage finally demands rebuke and censure, let it be a democratic administration that is publicly slapped down, not the republican president who rightly earned this punishment. All the better to allow a new administration, pledged to “restore the dignity of the office of the president” to ride into office.

To wait and see, to allow illegal executive powers to persist and to rely upon the goodness of men to protect us from future abuse, is a fool’s errand. Bind them down from mischief, and do it now, or expect mischief.