'Challenging the executive in time of war is precisely the way that America was born'

"...This "Glorious Revolution" of 1689 was a peaceful, bloodless coup d'etat. For the first time in history the rights of an entire people were enshrined into a Constitution and a Bill of Rights-a framework of laws that define how a king may govern and how a government must relate to its citizens.

Over the course of this century, then, England made the first-time-in-the-history-of-the-world transition from an absolute monarchy based on the claim of the divine right of kings to a constitutional monarchy based on the twin ideals of the rule of law and the consent of the governed. It was a breathtakingly noble ascent to political maturity, the willingness of a people to govern themselves by laws rather than submit as cattle to the autocratic dictates of a single man.

It should come as no surprise that the two leading theorists of modern government emerged from this epochal conflict. Thomas Hobbes was appalled at the disorder of the country and wrote Leviathan, claiming that the highest duty of the King was to protect the security of the citizens. Hobbes, a firm believer in the divine right of kings, is the philosopher on whom George Bush relies to legitimize his peremptory actions.

John Locke, on the other hand, theorized that a government was made legitimate, not by divine right, but rather by the "consent of the governed". Locke believed that people had "natural rights" that could not be taken away and that among these were "life, liberty, and private property." Pointedly, it was Locke and not Hobbes who Thomas Jefferson was channeling (however imperfectly) when he wrote the Declaration of Independence in 1776.

The colonists, of course, were Englishmen. The American Revolutionary War occurred because a new King, George III, refused to honor these ideals, denying the protections of English law to his own citizens, the colonists. As Thomas Jefferson wrote in the Declaration of Independence, Americans had "suffered a long train of abuses and usurpations.designed to reduce them under absolute Despotism.

In the Declaration, Jefferson listed 27 specific offenses including, among others, the facts that the King had:

. Dissolved Representative Houses repeatedly.
. Obstructed the Administration of Justice
. Quartered large bodies of armed troops among us
. Imposed taxes without our consent
. Deprived us, in many cases, of the benefits of Trial by Jury

So grave were these violations, and so intransigent was the King in remedying them, that the colonists had no recourse but to go to war.

There is no room for interpretation here: the Revolutionary War was fought and the Constitution was written to free the colonists from the abuse of "absolute Despotism." The manner of securing such freedom was the system of separation of powers embodied in the Executive, Legislative, and Judicial branches of government and the checks and balances attendant on each of their roles.

Given this history, it is startling, even brazen, that some try to claim a "unitary executive" that cannot be challenged by Congress, at least in times of war. Challenging the executive in time of war is precisely the way that America was born. Madison himself could not have been more lucid on this point.

In 1795, he wrote, "Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. In war, the discretionary power of the Executive is extended; its influence is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people." A more prescient description of the allure of war - at least for the executive - could hardly be written.

The supreme irony - if not hypocrisy - of the theory of the "unitary executive" is that it is espoused by the very same people who purport that the Judiciary should be bound by an equally phantasmical theory of "original intent." Under this theory the Supreme Court should interpret the Constitution according to the intent of its authors, an intent only these latter-day "originalists" claim to be able to accurately divine.

But the Executive, on the other hand, should be freed entirely from such original intent, liberated to pursue a starkly post-modern vision of a virulently anti-democratic authoritarianism that would have been wholly repugnant to the very same founders. Either Madison and the founders were schizophrenic or the current "theorists" are duplicitous. They can't have it both ways..."

~ From: Should the President be King? Reflections from the Deep Origins of America by Robert Freeman ~