Congress and the Constitutional Coup D'Etat

Lawrence R. Velvel

Almost daily it becomes ever more clear that we are faced with an attempted constitutional coup d'etat, an attempted constitutional revolution. It is spurred on by the Yale flunk-out, Dick Cheney, and his personal minions. Its flanks are guarded against the threat of jail by once and sometimes still secret (and in reality indefensible) legal memos from intellectual Guy Fawkeses who graduated from law schools like Harvard and Yale but seem not to have learned the basis of our constitutional order there. Led by Cheney, protected on his flanks by Fawkesian legal outriders, the "profoundly mediocre man" who is President seeks to become all powerful in the name of protecting his subjects, the citizens of the United States.

To protect the subjects he invokes the Commander-in-Chief power, though this was placed in the Constitution for the exact opposite purpose of protecting us against military authority by making the military subordinate to the civilian, as Justice Jackson famously wrote in the Youngstown Sheet & Tube case of Korean war days. ("The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role." (Emphasis added.)) The profound mediocrity who is President invokes his revolutionary claim of constitutional power not for a time that is limited, as wars like the Civil War and World Wars I and II were certain at their inception to be limited in time, be that time two or three or four or five years. No, he invokes it for a war that he says is unlimited in time, a war that may not end in our lifetimes because terrorists -- as the Bible or some writing says of the poor -- you shall always have with you.

Protecting us against dangers by revolutionarily changing the constitutional system to one based on executive supremacy -- precisely the supremacy which the framers whom he and his henchmen love to cite waged a revolution to throw off -- the President says that if it is necessary to secretly kidnap people in Europe and ship them to Uzbekistan, where prisoners are boiled, or to Egypt or Syria or other places where they are tortured in other ways, he can order this even though there is a decade-old federal law under which it is criminal. He says that, if it is desirable for Americans themselves to torture real or supposed enemies to obtain information, he can order it though this too is a federal crime when done abroad, as has regularly occurred. When signing the recent bill containing the McCain prohibition against torture, he says that this is subject to his power as Commander-in-Chief. Translation: he can order torture, despite the McCain law, if he wants to. He attempts, when signing the law that contains the McCain bill, and when signing other laws too, to vastly alter 200 and more years of law and practice by seeking to have laws interpreted not in accordance with the intent of the Congress which enacted them, but in accordance with the often very different intent of the President who signed them. He says that, if it is desirable to run secret prisons in unidentified foreign locations, he can order it. He says that, if it is necessary to engage in electronic surveillance of American citizens within the United States (which, we now know, was begun by NASA even without his order), he can order it although there is a statute that was enacted to prevent this because of horror at its prior occurrences.

Do you doubt for one moment that, should he think it necessary to secretly pick up you or me or any one else, and to beat the crap out of us in jail to try to get information to protect our fellow subjects, he will order it? Do you doubt this for a moment in light of the already existing record, not to mention what we may not yet know about?

Editor's Note: This is the first half of an article Dean Velvel published on January 5, 2006. The second half attempted to advise members of the Senate Judiciary Committee about the questions they should put to Samuel Alito -- to what effect we now know.

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