Keep Calm and Read Federalist 70
Plus, Biden's poll numbers take a staggering hit post-debate.
One hesitates to prognosticate over President Joe Biden’s debate performance more than what has already been done. Not only did it exemplify the willingness of Washington Democrats to seek out and squeeze the levers of power at all costs, the willingness of Democrats writ large to continue to put power over the health and well-being of a man should horrify anyone with a soul.
Such a state reminds me of Dostoyevsky’s admonishment about whether one would accept a perfect society built upon the unexpiated tears of a child:
“Tell me honestly, I challenge you – answer me: imagine that you are charged with building the edifice of human destiny, whose ultimate aim is to bring people happiness, to give them peace and contentment at last, but that in order to achieve this it is essential and unavoidable to torture just one little speck of creation, that same little child beating her breast with her little fists, and imagine that this edifice has to be erected on her unexpiated tears. Would you agree to be the architect under those conditions? Tell me honestly!”
Profiting a man nothing to trade his soul for the whole world, Washington is not Wales by any stretch of the imagination. Nor is Biden’s long political career a thing to be pitied. Yet for those who have watched a loved one slip away through dementia, it is painful to watch a once ordered whole diminish, their thoughts separate, and their sense of integrity unravel.
All the more contempt then for those who continue to push Biden forward for mere political gain.
Of course, political opinions being what they are in the United States today, most Democrats would rather elect a living corpse than see a Republican in power — and none more odious to the tolerant left than Donald J. Trump.
Yet the polls are indicating that the American voter is simply unwilling to put Biden through that torture machine in order to become the architect of such conditions — one that would inevitably make Kamala Harris the first unelected president since Lyndon Baines Johnson Gerald Ford.
How bad was the debate performance? So bad that it has taken Maine, New Mexico, Virginia, New Hampshire and Wisconsin out of the margins of error and moved states such as Colorado and Minnesota into battleground territory:
Now if the Democrats believe they will lose the U.S. Senate if they hold onto Biden? They will drop Biden like a hot rock. However, if they believe that a Biden candidacy enables them to firewall an eventual Trump administration with a one-or-two seat majority in the U.S. Senate?
Why risk the boat?
That — I am afraid — is the calculus in Washington this week.
One More Reason Why the Federalist Papers Should Be Remedial Reading
Which brings us to the panic from the left regarding Trump v. United States this week.
Since the time of Thomas Jefferson, the president has been immune from taking what have been considered "extraconstitutional" powers.
Abraham Lincoln suspended the Maryland legislature and revoked habeas corpus because his oath to the office was to protect and defend the Constitution -- even if in its defense it constituted a breach of that same written document.
FDR pushed the boundaries with legislative assent only to have the judiciary constrain him (only to have FDR threaten to pack the court). During the Obama administration, extra-constitutional acts were debated at length as resistance to his legislative agenda was made manifest by House Republicans.
What is clear is that the President of the United States has broad powers granted to him not just by the US Constitution but by his oath of office in legal matters, not in illegal matters.
The whole cri de coeur over the "end of democracy!" and "we have a king now!" is numb in the head. Might as well take a lollipop away from a toddler to hear a comparably rooted argument.
Thank God we don't have a democracy; thank God we do have a republican form of governance. Madison and Montesquieu and Grotius and Cicero and Plato were right about checks and balances after all. Don't forget for a moment that the political left would love to have unchecked power and exercise this on the rest of us.
Which is precisely what this embarrassment of a case is really about. The Democrats could care less about the expressed powers of the executive branch. Rather, they are a lynch mob with a rope looking for a tree and an excuse — certainly not my definition of democracy, but most certainly how Democrats exemplified the concept through their long and tortured history in the American South.
Yet there’s good reason why the Founding Fathers put such sweeping powers into the hands of the executive branch. Alexander Hamilton was at pains to describe these reasons in Federalist 70:
Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.
Such are the reasons for a unitary and strong executive branch.
Responsibility is of two kinds to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment . . . the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.
So where is the check against such unlimited and authoritative power? Hamilton responds that — unlike the British monarchy where the prerogatives of the king are subject to no one — republican forms of government remain subject to the will of its citizens:
[I]n a republic, where every magistrate ought to be personally responsible for his behavior in office the reason which in the British Constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. In the monarchy of Great Britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. In the American republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself.
In short, Hamilton argues against a council rather than a president precisely because in a council — much like a Congress? — we have no one to blame, whereas in a president we know exactly who to blame.
And who to throw out.
Hamilton: We All Answer to Somebody
Yet there are limitations, specifically that the conditions for this use of executive power must be an emergency, must be recognized as such as an emergency, and must be ratified by the legislature (or confirmed by the judiciary).
In short, the presidency — while it has the authority and energy to act — must still have its extraconstitutional actions sanctioned by the legislature and confirmed by the judiciary, as George Mason’s James P. Pfiffner argued in a 2011 white paper:
The Constitution as it stands is able to handle the exigencies of national security emergencies as long as each branch recognizes its own limits and acts in good faith to restore the constitutional balance once the immediate emergency has passed. In such cases, as illustrated by Lincoln’s actions at the beginning of the Civil War, the president may be forced to act in ways that are contrary to the law. But such acts must be taken openly and with the recognition that they are extraordinary and that the normal constitutional and legal processes will be resumed after the passing of the immediate crisis
Yet one will note that the powers of the presidency are not the primary complaint of the Democratic agitators baying for the blood of former President Trump.
What matters most to them — at present — is whether or not they can prosecute the man and throw him in prison. The violation of process is an afterthought to the demos; they simply want the kratia to be applied. Justice Sotomayor doesn’t fear for democracy in the slightest degree. Rather, she wants to apply it — good and hard.
So much for Our Democracy (TM) in the hands of the political left. As Justice Clarence Thomas states in his concurring opinion:
In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the Court explains, the President’s immunity from prosecution for his official acts is the law. The Constitution provides for “an energetic executive,” because such an Executive is “essential to . . . the security of liberty.” Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty. In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee. (emphasis added)
Those who claim to be upholders of democracy (sic) while trampling upon the very laws they claim to uphold? If democracy — and we are a republic, not a democracy — is to be held in fear, it is most certainly because of her self-styled protectors.
Now that Biden’s poll numbers have dramatically sank and his mental acumen most certainly in doubt if not in open question, one wonders whether the Democrats will allow the process to play out to its natural conclusion before resorting to other extraconstitutional means of settling disputes.
Mostly peaceful, of course.
Shaun Kenney is the editor of The Republican Standard, former chairman of the Board of Supervisors for Fluvanna County, and a former executive director of the Republican Party of Virginia.