It’s striking how often people who these days profess to be great admirers of America’s founders and strong proponents of the Constitution of the United States fail to consult the wise reasoning of the founders when they purport to address Constitutional issues. I thought of this as I read the transcripts of Rand Paul’s Mini-Me filibluster (okay, I admit it, that’s not really a typo), particularly his insistence that a President of the United States should announce to the world that he will never take a decision to take out a target on U.S. soil when ‘noncombatants’ will be killed. It’s pathetically easy to conceive of circumstances in which such a decision, however emotionally and morally difficult, would be required.
Moreover, there’s an obvious problem with telling ruthless opponents that in this or that situation you will not deploy the forces at your disposal. Once you have identified that gap in your deployment capabilities, they will undoubtedly structure their deployments to take advantage of it. That’s why Israel’s opponents in the Middle East often position their rocket launchers near schools and hospitals.
Unlike most of the elitist faction demagogues of our day, America’s founders were sincere in their belief that the first purpose of government is to secure unalienable rights. Therefore they were dispassionately realistic about what it takes to defend them. Alexander Hamilton (Federalist 26) spoke of the “happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights….” It was particularly with reference to measures that restrain “the means of providing for the national defense” that he applauded those who “have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety.” It’s important to note that Hamilton is making this point while discussing the powers of the legislative branch. It is even more applicable to the Chief Executive, who bears the whole responsibility for dealing with national security emergencies in which “the loss of a week, a day, an hour, may sometimes be fatal.”(Federalist 75)
Contrary to Rand Paul’s feckless rhetoric, the Constitution does not require that a President succumb to demands that this or that instrument of national defense be ruled absolutely out of bounds, without regard to exigent circumstances. Even if such a rule were established by law, the President’s pardoning power means that, for valid national security reasons, he is in a position to protect those he commands from the legal consequences of taking actions he deems necessary in order to deal with extraordinary emergencies. So no law or regulation is sufficient to constrain exigent executive actions. As they were wont to say in Hamilton’s day, “parchment provisions” cannot substitute for wise judgment and good character, or the courage to deal with challenging events.
Of course the Constitution has provisions that are intended to forestall or put an end to executive abuses if they occur. Of these, the power to impeach and remove the President is of course the most obvious. In the normal course of affairs, however the most critical (though not infallible) provision lies in the Constitutional process for appointing the high officials charged with supervising the various departments and agencies of the government. By giving the President sole responsibility for nominating such executive officers, but requiring the advice and consent of the U.S. Senate before they can be appointed and installed in office, the Constitution’s framers sought to assure that the President would have every reason to take the utmost care in making these appointments. Because of the ill-advised 17th Amendment to the Constitution, we are prone to forget that, as originally established, this was a provision whereby the State governments would be concerned in the appointments process, through the U.S. Senators elected to represent them. The State governments would therefore provide readymade rallying points for public suspicion and concern over Federal appointments that seemed dangerous to liberty and the rights of the people.
Tragically for the nation, today’s U.S. Senators seem quite careless of the critical responsibility they bear. Rand Paul made several statements during his filibuster speech that illustrate this fact:
It’s not really about John Brennan. It’s about a Constitutional principle, and we’re willing to delay this until the President can explicitly answer that noncombatants in America won’t be killed with drone strikes.
It goes beyond John Brennan. It goes beyond really the President. It goes to an issue that rises above, I think, all other issues that we consider here. I voted for three of the President’s nominations, not because I agreed with them politically. In fact, I disagreed with the vast majority. But I disagree with the President on a lot of political issues, but I voted for his nominations because I think the President does get some prerogative in deciding who his political appointees are. I’ve chosen to make a stand on this one, and not so much the person, but the principle of this.
And I really frankly give the President the benefit of the doubt. I don’t question his motives.
Given Barack Obama’s statements and actions, and John Brennan’s statements and actions it’s hard to fathom why Rand Paul would give either of them the benefit of the doubt when it comes to wielding the intrinsically abusable powers needed to safeguard our national security. Senator Paul reflects the elitist faction party line when he denigrates as “political issues” disagreements with statements, decisions and actions that are harmful to America’s strength; or that indicate a disposition to downplay or play along with hostile forces openly committed to such harm. If, in fact, he has confidence that Obama and appointees like Brennan have exercised exercise sound judgment in the use of the government’s national security powers, why does he seek publicized assurances intended to constrain their decision making in ways that run contrary to sound strategic practice, and that were understood to do so by the very people who supported the Constitution when it was ratified?
On the other hand, if he distrusts an Obama appointment enough to demand such ill-advised assurances, how is it consistent with his responsibility as a U.S. Senator to cast a vote that consents to trust the untrustworthy person with responsibility for intrinsically abusable national security powers? Hamilton is right to say that confidence must be placed somewhere, but this increases the need to make as sure as possible that it is not given to those who do not deserve it.
Others can wax enthusiastic about Rand Paul’s Mini-Me filibuster if they please, but I say that his approach to the challenge of safeguarding America’s security in a Constitutional fashion inverts the logic of the Constitution. As Hamilton’s thinking illustrates, the folks who supported the ratification of the Constitution understood that no constitution or law is self-implementing; that in practice everything depends on having in place people with the character, virtues and commitment to secure the unalienable rights and liberty of the people. There comes a point when constraining government is a matter of standing courageously against results that put the wrong people, in the wrong place, at the wrong time. Instead of hiding behind feckless rhetoric that runs counter to the realism of America’s founders, Rand Paul should have adamantly opposed the ominous nominations Obama made to head the Departments of State and Defense, as well as the CIA.
Of course, given Senator Paul’s record, he was hardly in a position to do so; for he has taken positions on national security and international affairs that are perilously similar, in spirit and consequence, to the positions characteristic of the Obama faction. He also articulates a view of the Constitution in this regard that has a lot in common with the arguments of the anti-Federalist opponents of the U.S. Constitution which its supporters, like Alexander Hamilton, rejected.
Like some other admirers of Ayn Rand Senator Paul’s views are more in line with a Constitution such as that of the Confederate States of America. In that document the member State governments of the Confederacy were free to allow or help to perpetrate violations of unalienable right at the behest of the people, or of elitist oligarchic elements, like those that sustained slavery in the 19th century, or those pushing for gay marriage and abortion now. In this respect Senator Paul has more in common with Obama and other socialist promoters of America’s moral degradation than with adherents of the American Declaration of Independence, the principled conservatives whom the GOP now slyly, adamantly, refuses to represent.
Caveat Elector- STOP,LOOK,LISTEN