The Constitution and National Security

Constitutional scholar Bruce Fein was on Bill Moyers’ Journal this week. In speaking of the Constitutional crisis in which we currently find ourselves, he referred to Federalist Paper No. 8. Written by Alexander Hamilton, James Madison and John Jay in 1787 to counter popular objections to forming a Constitutional government, the Federalist Papers are a treasure trove of wisdom and common sense regarding the building and maintaining of a healthy republic. The Founding Fathers understood the dangers and blessings inherent in such an undertaking because they knew their history. In Federalist No. 8 Hamilton makes the point that a Constitutional government is necessary to protect the citizenry from the tyranny of fear. How especially ironic and prophetic his words sound today. Let’s listen in…

…Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free….

…It is of the nature of war to increase the executive at the expense of the legislative authority….

…The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power….

It is for these reasons that Hamilton pled the case for a Constitutional Convention. Ironically, we stand today in peril of irreparably damaging that delicately balanced and finely tuned instrument because of the unchecked power of the Chief Executive and the government’s inability to enforce the rule of law in time of war. Where is our outrage? Has it been swallowed up by fear? Are we willing to lay aside our Constitution along with a substantial amount of our freedom and principles in exchange for a feeling of safety? It’s happened before: with the internment of Japanese-Americans in WWII, with the McCarthy era in the 1950s, and so on. In every case, with hindsight history has looked back on such episodes and condemned them as hysterical breaches of the rule of law that had tragic consequences for masses of individuals and that form an indelible stain on our national honor.

In time of war the Constitution and the rule of law should not be viewed as obstacles to be gotten around. Indeed, they form the very core of our national security.

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  1. And, I might add, the very thing that separates us from those who would seek to destroy us in the first place. It wasn’t merely two buildings that they were looking to bring down on 9/11, but our very way of life. They took 3,000 lives, and we offered up our values. Talk about a lose, lose proposition.

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