For the People, By the People: Republic Lost

Our rulers will become corrupt, our people careless. A single zealot may commence persecutor, and better men be his victims. ... It will not then be necessary to resort every moment to the people for support. They will be forgotten, therefore, and their rights disregarded. They will forget themselves, but in the sole faculty of making money, and will never think of uniting to effect a due respect for their rights. The shackles, therefore, which shall not be knocked off at the conclusion of this war, will remain on us long, will be made heavier and heavier, till our rights shall revive or expire in a convulsion. ~~ Thomas Jefferson

The deliberations of the Constitutional Convention of 1787 were held in strict secrecy. Consequently, anxious citizens gathered outside Independence Hall when the proceedings ended in order to learn what had been produced behind closed doors. The answer was provided immediately. A Mrs. Powel of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” With no hesitation whatsoever, Franklin responded, “A republic, if you can keep it.”

  Our Republic

To this day, many Americans misunderstand the separation of powers as simply a division of authority between three branches of government. In fact, it was intended as a protection not of institutional but of individual rights, by preventing any branch from assuming enough power to become tyrannical. No branch is supposed to have enough power to govern alone.

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The shift of power to the presidency certainly did not start with President Barack Obama. To the contrary, this trend has been gaining ground for decades. But it has accelerated under Obama, who has succeeded to a degree that would have made Richard Nixon blush. Indeed, Obama may be the president Nixon always wanted to be.

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Indeed, many of the unchecked powers claimed by Nixon became the basis for articles in his impeachment and led to his resignation on Aug. 9, 1974.

Four decades ago, Nixon was halted in his determined effort to create an imperial presidency with unilateral powers and privileges. But in 2013, Obama wields those very same powers openly and without serious opposition.

[The Constitutional framers] such as Madison would have been mortified by the scene from the most recent State of the Union address. Obama appeared before a joint session of Congress (and members of the Supreme Court) to announce that he intended to go it alone in achieving his policy goals, refusing to yield to the actions of Congress. One would have expected an outcry, or at least stony silence, from a branch that was being told it would be circumvented. Instead, there was rapturous applause that bordered on a collective expression of institutional self-loathing.

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When Congress recently refused to pass the DREAM Act to change immigration laws to protect potentially millions of deportable individuals, [Obama] simply ordered the very same measures on his own authority. The same unilateral measures were ordered in health care, drug enforcement, online gambling and other areas. The failure of Congress to consent to executive demands was followed by the same measures being ordered on the basis of Obama’s inherent authority. Under this approach, Congress is being reduced to an almost decorative element in governance – free to approve but not to block presidential demands.

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Even Congress’ power of the purse has become discretionary with the president. When Congress resisted demands of the president on health care, Obama simply shifted $454 million in funds from the purpose mandated by Congress to his own purpose. When he decided not to consult with Congress on the Libyan war, he simply spent roughly a billion dollars on a war neither declared nor funded by Congress.

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Every citizen has been warned that the president may kill them on his own authority without a charge, let alone a conviction. We have a secret court that approves thousands of secret searches every year and a federal court system that increasingly allows the use of secret evidence. We have a new Obama-era law, the National Defense Authorization Act, that allows for the indefinite detention of people by the government and, while exempted from mandatory detention, allows for such detention of citizens. We still have a detention center at Guantanamo Bay, established by George W. Bush, just over our border to avoid the jurisdiction of U.S. courts. It allows the president to choose who gets a real trial, who gets a legally dubious military tribunal, or who gets no trial at all. While seeking to close the facility, Obama has continued to assert the right to send people to military tribunals on his sole authority – thereby stripping them of core legal protections.

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The United States is now widely viewed as a hypocrite on the subject of human rights and civil liberties. This year, our nation fell to 46th in the world on press freedoms (behind the former Soviet republics of Lithuania and Latvia as well as Romania, Poland, Czechoslovakia, Ghana, South Africa and El Salvador), according to a recent study by Reporters Without Borders. Another study this year counts the United States as an “enemy of Internet freedom” with countries such as Iran, China and North Korea.

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It may be that it is not the presidency that has changed. We have changed. As a nation, we seem to have grown almost bored with rights like privacy and due process. We have been passive and pedestrian in watching the rise of an uber-presidency. We no longer view ourselves as directing our government, but as merely bystanders watching matters outside our control. Worse yet, we seem to have lost not just our identity but even our interest in governance.

  Jonathan Turley

We have changed, but the presidency has, too.

Also, to be fair, perhaps Congress should be reduced to a decorative element. They don’t seem to be much good for anything else.