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Repudiation, Not Impeachment
Posted on May 31, 2007
By Scott Ritter
It would be interesting to have a national debate on the concept of a “unitary executive,” where the proponents would cite the “vesting clause” (Article II, Section 1) of the Constitution, which states, “The executive Power shall be vested in a President of the United States of America.” The advocates of a “unitary executive” combine the “vesting clause” with Article II, Section 3, Clause 4, the “take care” clause, which states that the president must “take care that the laws be faithfully executed” to make a case for a seamless hierarchy of power solely vested in the executive.
Stephen Calabrisi and Kevin Rhodes staked out this argument in their 1992 article, “The Structural Constitution: Unitary Executive, Plural Judiciary,” in the Harvard Law Review (Issue 105, 1992). The foundation of their argument is drawn from a backwards reading of the Constitution, which addresses the issue of “Mandatory Jurisdiction” as set forth in the “vesting clause,” not of the executive, but rather the judiciary, in Article III of the Constitution.
By establishing a link between the exclusive authority of the courts derived from the “vesting clause” of Article III, Calabrisi and Rhodes argue that a similar exclusive authority, this time for the executive, is derived from the “vesting clause” of Article II.
Of course, the Constitution was not written from back to front, and should neither be read nor interpreted from back to front. Missing from the entire dynamic of the underlying theory of the proponents of a “unitary executive” is the pressing reality of the Constitution itself, in particular the “vesting clause” of Article I, Section 1, which states that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Likewise, Calabrisi and Rhodes ignore Article I, Section 8, which enumerates the powers of Congress, and Article I, Section 8, Clause 18 (the “necessary and proper” clause), which states that Congress shall have all the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
The “necessary and proper” clause gained preeminence with the landmark case of “McCulloch v. Maryland,” decided by the Supreme Court in 1819. The decision by Chief Justice Marshall clearly established the principle that that the Constitution grants to Congress implied powers for implementing the Constitution’s express powers, in order to create a functional national government. Marshall noted that the “necessary and proper” clause “purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted.” Marshall went on:
That Chief Justice Marshall was speaking about the Congress of the United States when addressing the issue of the expansion of enumerated power should not be missed by those who seek to invalidate the theory and practice of a “unitary executive.”
The sad fact is, however, there are far too few Americans who are equipped and/or prepared to engage in a constitutional discussion, not to mention one of this magnitude. Having failed to read and comprehend this vital cornerstone of America, they are poorly positioned to come to its defense in this, the Constitution’s time of need. You cannot defend that which you remain ignorant of. Thomas Jefferson, in an 1802 letter to his friend and confidant, Joseph Priestly, noted that, “Though written constitutions may be violated in moments of passion or delusion, yet they furnish a text to which those who are watchful may again rally and recall the people. They fix, too, for the people the principles of their political creed.” Thus, an American people ignorant of their Constitution remain a people collectively void of principle or creed. Given the state of affairs that is the American body politic today, this is a harsh yet far too accurate indictment of the state of American citizenship.
Those who espouse the nobility of patriotism by extolling Article II, Section 4 of the Constitution, which addresses the issue of impeachment of the president and vice president, are all too mute about the remainder of that great document. Whether this silence is derived from negligence or ignorance, or a combination thereof, is not the point. What lies at the heart of this issue is that void of a solid foundation of “creed,” as Jefferson put it, to fall back on in times of constitutional crisis derived from the abuse of power and authority. The American people have only a bottomless pit as their support, and that is no support at all.
Impeach President Bush? Maybe, if due process dictates. Repudiate President Bush? Absolutely, especially if one aspires for an America that truly matches the visions and ideals set forth by the Founding Fathers.
Repudiate the notion of a “unitary executive.”
Repudiate presidential signing statements.
Repudiate executive violation of Article 6 of the Constitution, which binds municipal law in America with binding treaty obligations incurred when the Senate ratifies a treaty or agreement by a two-thirds majority or better.
Repudiate “faith-based initiatives” pushed by any branch of government.
Repudiate a weak Congress.
Repudiate weak senators or representatives, especially those with a track record of abrogating their constitutional mandate.
Repudiate ignorance, especially that of the American citizen who knows little or nothing about the Constitution which empowers him or her.
Repudiate consumerism, especially the virulent form it takes in the selfish framework of American-centric capitalism.
Repudiate pre-emptive wars of aggression.
Repudiate American Empire.
Instead, embrace the empowerment of education. Embrace active citizenship. Embrace the rule of law, as set forth by the Constitution. Do all of this and, in the end, if conditions and circumstance warrant, impeach President Bush and any of those in his administration so deserving.
Thomas Jefferson was prescient in his musings to another confidant, Moses Robinson, in 1801 when he wrote, “I sincerely wish ... we could see our government so secured as to depend less on the character of the person in whose hands it is trusted. Bad men will sometimes get in and with such an immense patronage may make great progress in corrupting the public mind and principles. This is a subject with which wisdom and patriotism should be occupied.”
That wise American patriots would be so occupied today is my wish and dream.
Scott Ritter was a Marine Corps intelligence officer from 1984 to 1991 and a United Nations weapons inspector in Iraq from 1991 to 1998. He is the author of numerous books. His latest is “Waging Peace: The Art of War for the Antiwar Movement” (Nation Books, April 2007).
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