The Tenther Grapevine
Ron Paul’s Senate-aspiring son takes some un-libertarian positions which causes controversy among the freedom movement.
“Foreign terrorists do not deserve the protections of our Constitution,” said Dr. Paul. “These thugs should stand before military tribunals and be kept off American soil. I will always fight to keep Kentucky safe and that starts with cracking down on our enemies.”
Seems like the self-described constitutionalist Rand should listen to his father, Ron, about the blatantly unconstitutional Military Commissions.
In the Name of Patriotism (Who are the Patriots?)
The Military Commissions Act is a particularly egregious piece of legislation and, if not repealed, will change America for the worse as the powers unconstitutionally granted to the Executive Branch are used and abused. This act grants excessive authority to use secretive military commissions outside of places where active hostilities are going on. The Military Commissions Act permits torture, arbitrary detention of American citizens as unlawful enemy combatants at the full discretion of the president and without the right of Habeas Corpus, and warrantless searches by the NSA (National Security Agency). It also gives to the president the power to imprison individuals based on secret testimony.
If you enjoyed this post:
Click Here to Get the Free Tenth Amendment Center Newsletter,
I doubt I'll ever stop repeating this, rhys - but, the Constitution doesn't apply to PEOPLE at all. It applies to the federal government (and in some cases, state governments)
After a few too many decades of government schooling, it appears that very few people actually know this, or even understand this when it's presented to them.
Isn't it sorta imperial to assume that the Constitution applies to foreign citizens? Like what? We own them and can declare, grant or deny their rights? That's funny coming from the TAC. The point of the 10th is to specify that the government can't do anything that wasn't enumerated. Granting domestic rights to international patriots is definitely not enumerated. Do you know who held the very first Military Tribunal? George Washington. (yes, before the constitution.)
What's more, the law that Ron Paul was writing about was not concerning the entire concept of tribunals. He was talking about one specific piece of legislation. You're mixing up apples and oranges.
Lastly, the constitution speaks of the People. This is meant as "We the People of The United States of America". This means, all rights protected by the constitution for the people are the People of The United States of America, and not the People of Afghanistan or anywhere else... even Canada.
This, in closing is what makes your view imperial in my mind. You contend the the People of the United States of America consist of all people of the planet Earth whom might ever have a dealing with the United States. I disagree.
The comment by hanyu is typical of the average American slander that has invade the majority of American politics.
Without presenting a factual argument how dare you present any kind of stance on the issue.
Rand Paul is exactly right if your not an American you do not fall under the protection of the Constitution. The Constitution has taken a back seat in our country for far too long and the youth of this country are on the verge of re-discovering it and it's intent!
Thanks Jeff for the research you have educated me and I thank you!!
One last comment before I turn-in for the night.
Those of you who persist on the path of arguing the President's power is limited when it comes to Commander in Chief during a declared war must certainly be thinking of something that is not in the Constitution. I have asked you for your authority, and all I get is "I am clearly wrong," "It would take too long to explain," "Then, we could do anything, willy-nilly," etc. - anything BUT authority.
While it has been maintained that my take is one of an expansionist view of the President's power and therefore, I suppose, anti-limited federal government, I see it the other way around. Your argument is one that follows the line of thinking that the Constitution is a "living, breathing document" which needs to be modified to meet the particular political current of the times.
Where is the Constitutional limit on his authority?
I saw the Hamdan case, and you might be able to use that as your argument. but I will note that case was apparently not decided on the Constitution, but on a treaty (the Geneva Convention Treaty) and on the "laws of war."
The law of war is a body of law concerning acceptable justifications to engage in war (jus ad bellum) and the limits to acceptable wartime conduct (jus in bello). The law of war is considered an aspect of public international law (the law of nations) and is distinguished from other bodies of law, such as the domestic law of a particular belligerent to a conflict, that may also provide legal limits to the conduct or justification of war.
http://en.wikipedia.org/wiki/Laws_of_war
The laws of war are not within the bounds of the Constitution at all. Neither is the Geneva Convention Treaty. So, again, I ask, how was the CONSTITUTION violated?
I don't know what happened to my attempted previous post where I called into question my position. Basically, it was as follows:
Okay. I doubt my previous position. I had to look since nobody else could find the authority, but in any event, how did you all miss Art. I, Section 8, clause 11? There, Congress is given the power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"
Now, I will retreat back to my position. Interestingly, Bouvier was a legal dictionary of the time, and "Capture" referred to property seized - not people.
CAPTURE, war. The taking of property by one belligerent from another.
2. To make a good capture of a ship, it must be subdued and taken by an enemy in open war, or by way of reprisals, or by a pirate, and with intent to deprive the owner of it.
3. Capture may be with intent to possess both ship and cargo, or only to seize the goods of the enemy, or contraband goods which are on board: The former is the capture of the ship in the proper sense of the word; the latter is only an arrest and detention, witbout any design to deprive the owner of it. Capture is deemed lawful, when made by a declared enemy, lawfully commissioned and according to the laws of war; and unlawful, when it is against the rules established by the law of nations. Marsh. Ins. B. 1, c. 12, s. 4.See, generally, Lee on Captures, passim; 1 Chitty's Com. Law, 377 to 512; 2 Woddes. 435 to 457; 2 Caines' C. Err 158; 7 Johns. R. 449; 3 Caines' R. 155; 11 Johns. R. 241; 13 Johns. R.161; 14 Johns. R. 227; 3 Wheat. 183; 4 Cranch, 436 Mass. 197; Bouv. Inst. Index, h. t.
http://www.constitution.org/bouv/bouvier_c.htm
Now, for those who think everyone in the hands of the U.S. gets a trial by jury in our conventional courts, this is most definitely not the case. Here is what the SCt said in Quirin, 317 U.S. 1 (1942):
"But the detention and trial of petitioners-ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger-are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted....
It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. For here Congress has authorized trial of offenses against the law of war before such commissions. We are concerned only with the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged.....
But petitioners insist that even if the offenses with which they are charged are offenses against the law of war, their trial is subject to the requirement of the Fifth Amendment that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, and that such trials must be by jury in a civil court...In the light of this long-continued and consistent interpretation we must conclude that Section 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts....We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury. "
http://www.law.umkc.edu/faculty/projects/ftrials/...
Okay, so that's the highest Court of the land on the Constitution.
It is clear that the Constitution does not require trying these folks in the courts before juries. The Court did not resolve the question as to whether the President or Congress has the authority to determine the method of trial, but in any event, somebody does, and whoever it is, has such authority.
Maybe Rand Paul is not so wrong. His first sentence is maybe a bit too loose, but he surely can be seen to be referring to there being no right to be afforded a trial by jury in our conventional courts.
Okay. I doubt my previous position. I had to look since nobody else could find the authority, but in any event, how did you all miss Art. I, Section 8, clause 11? There, Congress is given the power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"
(That's okay; I missed it, too ;-) ) I haven't found how this is construed, yet, but you will find the law interestingly does not provide the same rights to captured enemies that we citizens receive. This is according to our US Sct.
Here is what the US Sct had to say in In re Quirin, 317 US 1 (1942), about the Constitutional rights of persons who are alleged to have committed offenses against the law of war:
But petitioners insist that even if the offenses with which they are charged are offenses against the law of war, their trial is subject to the requirement of the Fifth Amendment that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, and that such trials must be by jury in a civil court...In the light of this long-continued and consistent interpretation we must conclude that Section 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts....We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury. http://www.law.umkc.edu/faculty/projects/ftrials/...
You will also see that in Hamdan v. Rumsfeld, habeus was extended only because the laws of war (other than our traditional Bill of Rights) were not properly followed. http://en.wikipedia.org/wiki/Hamdan_v._Rumsfeld
So, there you have it. I seemingly stand corrected, and you benefit from my research!
But, keep in mind, as our SCt points out..... Not all people who are captured are entitled to trials by jury in our courts. I think that was the crux of Rand Paul's position.
If anyone has good material to construe Congress' authority to "make Rules concerning Captures on Land and Water;" post away.
Jeff, I can't even begin to start with how many mistakes you make in your comments. I can't believe they keep replying toy ou!
"Jeff, I can't even begin to start with how many mistakes you make in your comments."
You can't begin, either?
"It a very novel idea that has only sprung in the last few years where people are beginning to believe that Constitutional protections are available to anyone anywhere. This is most definitely not true, and proponents of a single, world standard are trying to make the Constitution delve into areas where it never has."
So, according to Jeff, the U.S. federal government can invade foreign countries, capture people willy-nilly and endlessly detain them without trial and that wouldn't violate the U.S. Constitution? On the contrary, I'd say that those actions (all of which the feds have done repeatedly) most certainly violate the Constitution on numerous levels. Perhaps we're in need of another post in which I explain it in nauseating detail?
"Perhaps we're in need of another post in which I explain it in nauseating detail?"
Please do. You are wrong.
We can capture and detain any enemy any time, so long as Congress has declared war. It might provoke a war against us, but there is nothing Unconstitutional about it.
Where does it say the Constitution applies outside the Land? It does not. In fact, it specifically says the Constitution is the Supreme law of the Land - not the world. Even our founders knew what the proper jurisdiction of the federal government was. It was the United States - not the world. Do you really think the founding fathers crafted the Constitution to extend its jurisdiction throughout the world? If you really do, then please, nauseate us in the details of that.
Actually, jeff..to argue that anything can be done sans an explicit constitutional limitation is to deny the entire basis of the constitution....and turn the entire american system on its head.
Yours is the EXACT one that judge napolitano talks about when referring to how congress has noclue how the constitution works.
Now...if you could provide some kind of historical analysis showing that art ii, sect 2 authorized this kind of unlimited power that you refer to, then i'd listen. But you don't....and it's unlikely that such a position even exists in the founding debates. At least it doen't in my reading from that era...
BTW, what does your research tell you?
The US Constitution provides protections via the Bill of Rights to citizens and, to a lesser extent, to people present in the U.S.
Constitutional protections are not afforded to anybody anywhere in the world.
It a very novel idea that has only sprung in the last few years where people are beginning to believe that Constitutional protections are available to anyone anywhere. This is most definitely not true, and proponents of a single, world standard are trying to make the Constitution delve into areas where it never has.
That's why we have treaties with various nations as to how our respective captured will be treated - because a treaty was NECESSARY to effect this as the Constitution never guaranteed any rights whatsoever to these people.
I was no Bush fan at all, but his reputation (or legacy, whatever you prefer) is being unjustly maligned on this issue.
Jeff is a very good friend of TAC, and while some of his positions are pretty frustrating - like this one - I'm happy to spend time until it appears that the discussion is going in circles. Like now.
Patrick - interested in reading your follow up if you do one.
Jeff is a very good friend of TAC, and while some of his positions are pretty "frustrating."
Learning is not always an easy thing, and I once had a professor who said that what you learn will be better retained the more you have to struggle to learn it. So, don't be so frustrated. Today, you learned something. It challenges some core of your present belief, but that is a good thing.
It's not possible because you are asking me to show you some sort of "double explanation point." There is no limit in there. If there is a limit, why don't you point it out?
I've already explained, but you're looking at the constitution and its principles upside down. As long as you hold the belief that government can do anything as long as there's not a specific limit, you're far in the camp of Reid, Pelosi and - yes, Bush.
The short of it, on this one, you're seriously wrong. I recommend you reading Gutzman's book - it's an entire chapter and I'm not interested in covering that much depth here in comments!
Just what i'm telling you above. That for a power to be Constitutional - it has to be in the constitution.
Now, you may be right - I seriously doubt it - but if so, to find the authority that you're claiming, you have to get the original understanding and meaning of Article II, Section 2. I've read plenty on that, and don't see anything you're referring to - like I said - it'll be interesting to get Natelson's position.
If you want Gutzman's, read his book - "Who Killed the Constitution" In it, there's a chapter called "The Phony Case for Presidential War Power" Good readin'!!
I wouldn't mind reading the chapter, but I am not going to buy the book.
By the looks of the title of the chapter, it makes me think it is about the President having a claim to a "de facto" power to make war. I am not arguing that.
I am simply saying that the Commander in Chief has blanket authority to conduct a war once it is declared. Again, I ask, what can't he do? Name anything.
Can he not send bullets? Can he not blow things up? Can he not capture enemies? Can he not kill them? Can he not torture them?
Ah! "Torture." Now, that's the flame!
It doesn't say he can buy bullets, but we know he can. It doesn't say he can blow things up, but we know he can. It doesn't say he can kill, but we know he can. It doesn't say he can torture, so..... "he can't?" How so?
If he can't torture, then why have a number of treaties been entered with nations around the world, prohibiting the U.S., BY TREATY, not to torture? Wasn't there a bargained-for consideration for that treaty? In other words, why would torture have even been an issue in any treaty, if all the other nations had to do was say, "Why do we need a treaty? Your Constitution will not allow you to torture."?
Look. I don't much care for war. I don't much care for our Presidents. I don't much care for Congress. Everyone is dying to have a novel theory on how to put them in their boxes, but in all sincerity, there was never a box when it comes to the President's power to conduct a war which Congress declares. It's just one of those things I can easily get past and move on. The real turf is not over that issue. It is a non-issue. It is what it is, and the power has been granted.
Ron Paul is wrong. I think his policy of demilitarizing deserves serious consideration, but when it comes to the Constitution, if he maintains the President does not have authority to engage in detention without trial and torture policies, he is wrong.
I mean, come on. Look at all the people who were tortured in Japan after Truman dropped 2 atomic bombs on its cities. He had authority to do that. It was horrific, but war is war.
The problem is, as Americans, we have begun to become spoiled. We jump in and declare these insignificant wars that we go into with no intention of winning expeditiously. We have only to blame ourselves for that. It is a rotten policy. When we declare war, it should be for all the marbles.
With our spoiled attitudes, "war" these days is akin to trying to send the other side to "time-out." This Super-Nanny attitude has to stop. If we aren't in for all the marbles, we need to get the heck out and/or never go in the first place.
This business about trying to construe the Commander in Chief's wartime powers as limited has only come about because of these half-baked "wars" we declare. We need to stop that and get back to the proper understanding of what a war really is. It is ruthless, horrific, full of terror and nasty. Anything less is not war, but maybe "disliking a lot." Maybe we should recognize a new declaration - one where Congress just declares we "dislike them a lot and want to cause SOME damage and death." At least we wouldn't confuse that with "war" so easily.
If we are ever in a "serious" war again (like WWI or WWII), I can assure you nobody will ever seriously question the President's authority to do what must be done to win. We have just become complacent and begun arguing about principles which, IMO, aren't particularly relevant because we aren't serious about our wars anymore (for now).
When your existence is on the line, and your back is in the corner or on the ropes, believe me, then, you will know what it means to be in a war. It is then, and maybe only then for many Americans, when the complete latitude we give to our Commander in Chief becomes particularly understandable and desirable.
These half-baked wars in Iraq and Afghanistan are not real wars. Hate to say it, but it's true. And that is why we find ourselves engaged in such pendantic arguments.
Put us in a WWII situation, and you will quickly see people not giving a rat's patootie about whether we "over damage" or "over kill" and treat enemies "inhumanely."
I think the problem here is one of trying to formulate opinions on the politics of war in circumstances where the policy is intended to apply in a non-war. Obviously, I am poking fun at Congress for their recent "wars" because the whole process is a joke and no war was ever intended. So, now we get stuck politicizing a war that doesn't exist.
Jeff - again, i recommend reading Gutzman - and also Natelson's scholarly publication when it comes out too. The former covers far more than what you suggest, and goes into depth about things such as spying, Fisa - "vested authority" "Executive supremacy" and the like.
Actually, I just read the available excerpts of Gutzman's work. It appeared to be the vast bulk of it as I think only a small number of pages had been redacted. Gutzman's material does NOT cover this issue.
Gutzman's focus is on: (1) Whether the President is authorized to commit the military to non-war "skirmishes." and (2) warrantless surveillance in America.
Again, I am talking about actual war - not skirmishes that seem to be wars, which have not been formally declared. Also, I am not talking about warrantless wire-tapping in America.
Look at it this way: If we are fighting a real war in Timbuktu, can the president intercept communications IN TIMBUKTU without first getting a warrant? No question about it - he CAN!
Can the President torture captives IN TIMBUKTU? This provokes controversy and may be seen as unpopular. To do so might even cost the President an election. But he CAN.
War is war. There is nothing anywhere that checks the President's powers in this regard, when it comes to exercising his powers outside "the Land" as the Constitution is the Supreme law of the Land. When not in the Land, and engaging in the prosecution of a legitimately-declared war, the President's latitude is absolute - subject only to having funds cut-off by Congress and losing the next election.
In fact, I'd be a bit bolder and suggest that this latitude would be seen as complete even in our Land, if we were in the right circumstances. If we had our backs against the wall and were presently physically invaded by 300,000 Timbuktu soldiers, and we had already lost control of a handful of state capitols, I am quite confident none of us would be so quick to concern ourselves with the Constitutional rights of the Timbuktu army.
Wrong again Jeff - it's certainly covered - in the context of executive supremacy....the limits on executive power in "times of war" and as "commander and chief"
Maybe you should just send Professor Gutzman an email and ask his opinion on whether the Executive branch's power in war is unlimited - including torture, unlimited detention, sending troops into Houston, and the like.
If he writes back, please post it here in the comments. Other than that, you're too far off base on this issue in the face of proper constitutional positions for me to spend any further time on.
You always seem to run out of time when people are "seriously wrong." Bummer. LOL!
Michael, Jeff:
The founding fathers original intent is being ignored or stretched here, to make these arguments. When we examine the text of the Constitution, we must see it in light of the Principles that guided it's formation. I don't mean ignore the text, far from it, but understand that in light of the plain words of the Declaration of Independence, Jeff's arugments fall flat. He's arguing that the President is some superhuman 'King of the World' to make war, using extra-Constutional powers.
The founders, in the Declaration of Idependence, refrence 2 standards this discussion has yet to cover: "....the laws of Nature & of Nature's God..." those are the powers that are above the Constitution, that give it's legitimacy.
You see, they were Christian & Natural Law thinkers, not just secularist like is common today.
To help 'uncode' their words I quoted, they mean: "...the Laws of Nature...(Natural Law)....the Laws of Nature's God....(Biblical Law...gasp). Those were their two witnesses. They also were likely thinking of the "law of Nations" (law standards like the Common Law, which all civilized nations observed, generally).
If we have a soley 'horizontal view of Law & governance', the Jeff is quite correct, law can be somewhat arbitrary, the Presdient, being that he commands the largest military of the worlds major power (for now, 26 world empires have come & gone, remember).
But, if we have a horizontal (among men), AND a veritcal (from God to men) origin of our Constitution, then everything changes. That is why we MUST read the text of the Constitution with Original Intent, the Declaration & the worldview of the Founders in mind.
That worldview also included Just War doctrine, which was part of the "Law of Nations" that Christendom had developed over the last two millenia - and that America once subscribed to. It was what animated Jefferson & Washington to remark:
"America is the friend of Liberty everywhere, but the guarantor of ours alone" and "Friendly relations with all (nations), entangling alliances with none."
I think we've seen the massive growth of Civil government power, as we've lost the faith in God that once animated our people. This is why spiritual revival must preceed or accompany politcal revival.
Not only did Jefferson warn that we must 'bind men down with the chains of the constitution' (because they were not to be trusted with too much power).
John Adams warned that the Constitution, alone, without a spiritual & moral foundation, was inadequate:
"We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
Isn't this really our problem ? With out 'spiritual eyes' like the men who wrote it, we simply mis-interpret them ?
Thanks if you've read thus far, I didn't mean to write this much, but it seemed germaine to the issue at hand.
Michael, you've a fine Constitutional mind (I know, I teach a class on it...you're a 'star student', no doubt), but the benefit of the extensive teaching I've received from the most learned men on the origins of our nation in Constituional, Common & Biblical Law heritage, has in our age been denied to many.
Secularism has ruled the day. And it is failing, big time. It must. It is wholly inadequate to 'hold our nation together', which is one reason we're blowing apart, even blowing up half the world in an ungodly fear that seizes upon all who fight the God in heaven & his son Jesus Christ.
Until we repent, and in the same humble spirit our Founding Fathers (53 of the 55 signers were serious Christians; some 20 + had divinity degrees), labored, we will go astray.
I do applaud your efforts here. I feel certain that God's hand of Providence and a healthy fear of encroaching tyranny is raising up men all over the land (just go to www.LewRockwell.com for a great gathering of them.) in defiance of that tyranny.
BTW, I learned much of this from the course, Institute on the Constitution: A Study the Worldview of the Founders & Christianity, at www.IOTConline.com great resources there !
David Alan
Conservatives are idiots. They make these statements about how presidential power is unlimited regarding crap THEY support, then they complain when someone like Obama gets in and wants unlimited power for something the opposition wants.
Well, that's a practical position and belief - not a Constitutional position. The president's power over the military is NOT unlimited. It would have to say that for it to be true. (and focusing solely on Art 1 Sec 8 is distracting, because this isn't a discussion about whether or not Congress can dictate what the executive does - I'm not making that claim either)
Are you saying that, as commander of the military, the President can send troops in to....say....Houston...whenever he feels necessary during a time of war? Or, is there a caveat to your "unlimited" statement?
Not only CAN he send troops into Houston, he DID. At least I think. I am not much of a historian on the Civil War, but I'm quite sure if he missed Houston, we could easily point to any number of cities.
I think the power was definitely unlimited. He had no authority to declare war, but once war was declared, he could fight it vigorously, weakly, or any way he sees fit. subject only to Congressional control over the budget and the election process.
You keep asking me to show where it says the powers were unlimited. I can't, other than to show you there is no limit mentioned in the Constitution. How can I demonstrate further? It's not possible because you are asking me to show you some sort of "double explanation point." There is no limit in there. If there is a limit, why don't you point it out?
I have seen none, other than a case that held the President cannot seize private property during war - i.e. the steel industry seizure case. (Sawyer).
But really, we are not even talking about that. We are talking about what sort of interrogations, torture and punishment is the President authorized to carry out against captured enemies - and again, I say it is unlimited. If it was not, show me who has the power to control him, what the source of that power is, and how it has been successfully wielded to limit the President's discretion.
Do you have ANY authority? You allude to having some, but haven't played your hand.
Jeff, plain and simple, you have it backwards.
The Constitution is limiting on the power of the government because the feds cannot do anything that isn't delegated to it. So Washington is "limited" to that which has been "delegated" and nothing more.
That doesn't mean that they can do whatever they want unless there's a specific limitation. That's the Pelosi version of the Commerce Clause, for example - and pretty much the same thing you're arguing for here.
So the real question on this - and every single thing that the federal government does (no matter what branch) "where in the Constitution is this authority?"
The question stands.
So if you claim that power is unlimited to the president - (unlimited is not something to common when discussing power and what the founders created, mind you) the essential answer should come from "what's the original understanding of Article II, Section II?" (that's the clause you're referring to here).
FYI: I understand Professor Natelson is completing a research paper on the original understanding of this very clause - it'll be interesting to see how limited the power really is. From his early indications, it's far less than what either side of the political aisle expect it to be.
I already know what my research tells me - and that the power is still restricted by the rest of the Constitution - it'll be interesting to see Natelson's much more expansive view on the topic. Soon, I hope.
Well, on that we'll have to differ. We did not appoint our Commander in Chief so that he would be LIMITED on the battlefield. That's my take, pure and simple. Any point to the contrary is misguided.
I can see the urge to restrict powers of the Commander in Chief because we are sick and tired of Washington and want to see the federal government act within its limits. But, again, we THE PEOPLE appointed our Commander in Chief to have full authority. That's why you'll not see ANY limitation anywhere (like you see for Congress in Art I, Sec. 8).
We THE PEOPLE did not appoint our Commander in Chief to send him to the battlefield with limits. We provided for absolutely no Congressional oversight - ZIP, ZERO, NADA. No Congressman is going to tell the Commander in Chief which front to attack from, who to capture and how to question them. This was NOT a Congressional role, and limiting Congress to its Art I , Sec. 8 powers, you will find that any authority over the Commander in Chief is COMPLETELY lacking.
If he wants to bomb location "X", capture and detain and torture, and pillage and plunder, that is his sole prerogative - any treatise in the works notwithstanding.
Jeff:
In that case, of an out of control executive, who is a 'law unto himself',then congress needs to not just refuse to declare war, they need to offer no appropriations bill for a 'police action' or whatever color of law said "super" President is doing. Or impeach him. That is a 'check and balance'. My friend, you're arguing here for a man like the King George of Britain from whom we separated. Unwisely, I might add. With such unchecked power, what if he finds you & yours to be 'domestic terrorists'. Or maybe not him, but his successor who will likely inherit his 'aggravated powers'.
Again, Jefferson:
"In questions of power, LET US HEAR NO MORE OF TRUST IN MEN, but rather bind them down with the chains of the Constitution."
Only God Almighty, in heaven posseses unchecked, unbalanced power. Because He is perfectly good, no problem.
On earth, we limit it, amongst fallen, sinful men.
This is the distilled teaching of the Founders, the laws of Nations, Just War Doctrine & Natural & Biblical Law.
Warmonger empire builder doctrine, replacing Just War Doctrine is the last gasp of a dying empire -
May I humbly suggest you spend the next year reading up on www.LewRockwell.com or www.IOTConline.com for Libetarian Constitutional thought, by men who have studied the Founders Worldview in depth.
If the Founders were here, they'd read Lewrockwell - heck, they'd blog there !
Jeff - if you subscribe to the (false) theory that "protections" are given to us by the Constitution, then yes, you're absolutely correct.
But the Constitution is written to apply to government - and rules its behavior. The only way that the government can, for example, remove habeas corpus, is under the rules of the Constitution. And nowhere in there is there any reference to powers expanding or limiting based on where the person it's dealing with was born.
I know a lot of people would like to believe that there's "constitutional rights" or that the constitution only applies to the federal government in certain situations or on certain land masses, but that's a wholly false position. It certainly serves those in power quite well, too.
You're point is taken, but does not further any clarification on the issue. We speak loosely in terms of rights and protections and limits, but it doesn't really matter. A limit on the government is a protection of the people.
It's right here: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; "
It says "the Land," not the "World." I don't think any reasonable argument could be made to extend the meaning of land to places outside the United States.
"un-libertarian positions"
Gosh, you think maybe that's why he isn't running as a Libertarian?
It's called the UNITED STATES Constitution for a reason: it applies only to U.S. citizens and people within its jurisdiction.
Steve - you couldn't be more wrong.
The U.S. Constitution doesn't apply to you, it doesn't apply to me, it doesn't apply to any person at all.
It applies to the federal government.
Period.
I would like to encourage everybody to read this Divide and conquer: It's What The Establishment Wants as well as the various links I reference. Particularly.
Clarifying Rand's Position and
Rand Paul and Guantanamo: First debate with Trey Grayson
Bottom line is Rand Paul would be the most libertarian person in the US Senate -- not just on the margins -- but by a mile. It's possible to disagree with a person on 1 issue, and still support them. Especially when his opponents and everybody else in the US Senate is even worse on that particular issue -- as well as wrong on 90% of everything else.
With all due respect, Michael, you have not addressed the point I made. Reading your statement and taking it literally, it would be unconstitutional to imprison a felon and remove his or her rights as a citizen... the right to vote, the right to own firearms, and even (in the vast majority of cases) the right to a fair trial, because when they are "freed" they are under probation which carries very heavy restrictions that would be considered unconstitutional were they full citizens with all Constitutionally guaranteed rights.
The reality of out entire "justice system" contradicts what you have stated.
Really, all you did was post rhetoric. Please, if you are going to reply, at least make a real attempt to address the point I made.
Jane, you're overlooking something with your felon analogy. If someone is a felon, then that means they have already had a trial with all the necessary constitutional requirements. Detainees are not afforded that luxury and the sham tribunals are worse than show trials.
Seems like someone is making mountains out of molehills, or at best a straw-man argument. A military tribunal is not necessarily the same as something that falls under the Military Commissions Act. Prisoners of war are not traditionally tried under U.S. civilian law... nor should they be, since they are not citizens and do not possess the rights of citizens.
It is NOT common for civilian courts to try people accused of being war criminals. It seems that Mr. Krey is a bit mixed up about not just what Mr. Paul was saying, but also about how military enemies should be treated under the law.
Jane - could you point to the place in the Constitution that authorizes the federal government to determine what kind of trial (or lack thereof) a person can get based on their citizenship status?
I can't seem to find that clause.
Perhaps I am mistaken, but it was my understanding that the rights guaranteed by the Constitution applied to citizens. For example: convicted felons are deemed to have voluntarily given up their rights to citizenship (e.g., voting and possession of firearms), otherwise they could not Constitutionally be imprisoned.
Jane: This is a common misunderstanding - that somehow the Constitution "grants" rights to people.
The founders recognized that rights were from our very nature as humans - given to us by our Creator - and had nothing to do with location of birth. They recognized the government was a great threat to those rights - because given the opportunity, it would always exercise whatever powers it could get away with. (kind of like what we see today)
So, in order to protect against that reality, when they created the Constitution, their goal was to strictly limit the power of the new federal government. As Thomas Jefferson said - we must "bind the government down by the chains of the Constitution."
The 10th Amendment codified in law that the only things that the federal government is authorized to do is that which "we the people" delegated to it. And all that was delegated to it is what's listed in the Constitution.
Bottom line? For every single act that the federal government takes, you have to refer to the Constitution itself to find that authority. That's why I asked if you could point to the clause the authorizes the feds to make different rules on trials based on "war" or "citizenship" or anything else for that matter.
In reading my pocket Constitution - I can't find anything remotely similar to that...
That would be the part where the President is vested with the highest authority over our military as commander in chief. He executes that power as he sees fit as the highest commander. It is not subject to legislative oversight or judicial oversight. If there is some place that provides a limitation on his power, I'd like to see that.
In fact, where do we know this to be true? The most recent example was the tug of war between Bush and Congress on the handling of the war in Iraq in terms of whether to withdraw, set deadlines, etc. Congress' only authority to dictate the method of choice in handling the war was to go around Bush by withdrawing funding. Congress was not willing to go that far.
To limit the commander in chief's power over the behavior of our troops abroad would require an amendment to the Constitution.
Wait - where did you get that wording? "Highest authority" "as he sees fit" "not subject" And where did you get the idea that the president can do whatever he sees fit with the military as long as there's no specific limitation? that's a complete flip of the base principles of the constitution...where the government can only do what's delegated to it, not the other way around.
Point me to the article and clause of the constitution that specifies that kind of authority exists and I'll address it further, otherwise it's not worth the time.
And, as far as war - when you've got a Congress that abdicated it's authority and "gave" the president the power to, in effect, declare AND wage war, you've got a mess from top to bottom on that. there's no tug of war, whatsoever. we have a weak, and ineffective congress that repeatedly defers to the so-called "power" of the executive. Power that's much in line with what the founding generation rebelled against.
Art. II, Sec. 2: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;"
It says "Commander in Chief" and not "one of the Commanders in Chief." Show me where, as Commander in Chief, any of the President's powers are limited? It's not there. The Constitution was a document of limitation, as you say, and notably, you will not findy any limitations on this particular power.
Please show me somewhere - even if you contend the source is somewhere outside the Constitution - that says the President cannot do as he sees fit as Commander in Chief when it comes to military matters. It just plain doesn't exist.
Commander in Chief is THE highest authority, and yet, we so no limitation on that power - not even a "by the way, as Commander in Chief, the President cannot.... (you complete the sentence)." It's just not there.
Ask Gutzman or Natelson. I'll venture they would agree, but you never know....
Michael & Jeff:
Michael, thanks for your clarity on this matter & the great website overall, bravo !
I think this controversy takes us to the point of determining the 'original intent' of the Founders. The question at hand is, are the powers express or implied ?
If you see the Constitution as an Implied Powers document, you get Jeff's position that assumes the President to have those powers, simply because the text doesn't deny them to him.
Conversely, if you see the Constitution as an Express Powers Document, he has not the power if not specifically given to him.
I think, to me, with the clear wording of the 9th & 10th Amendment, the verdict is that the Constution is a 'Express powers' Document. The Founders (save Hamiliton) took a dim view of arbitrary power, and would not have approved such.
With the view Jeff subscribes to, George Washington was a fool for refusing to be crowned 'King of America', istead of retiring.
It's a side note, but did anyone notice that funding for a Navy had no limitation, but any land forces funding only lasts 2 years, so distrustful were the Founding Fathers about a 'standing Army', which they called the 'bane of Liberty'.
David Alan
I'm sorry that doesn't make sense to you - but without time and space to address every single point you're raising here - I can assure you that much of what the federal government does is not authorized by the Constitution.
Most of what you're talking about (how felons are dealt with, for example) is within state purview and is unrelated to the discussion at hand. The Constitution (except in some very small, specific areas) only applies to the federal government. And, this post from Mr. Krey is referring to actions of the Federal, not State, government.
If we're talking about what the FEDERAL government is and is not authorized to do - we must look to the powers delegated to it in the Constitution. And thus, my explanation above of how the federal government needs to operate - still stands.
If you need further clarification, let me know.
I don't know what you mean by "all points": I made one point only, though I have tried to justify it a couple of ways.
Upon reflection, I see that you are correct in that a large part of it, at least, is a state and not federal issue. But then I would like to ask: is citizenship itself then also a state, and not a federal issue? Just asking.
That's an interesting question - not sure if I have an answer for that...regarding what's "right" as opposed to what's done in practice.
What I do know, though, is in Article IV, Section 2 - there's reference to the "citizens of each state" At the same time, Article I, Section 2, refers to a "Citizen of the United States" And "citizen" is referenced a number of other times throughout the document. The important question on that - what was the common definition of the word "citizen" at the time of the founding? That's the only way we can really know what that word meant. Samuel Johnson's 1755 Dictionary of the English language is a pretty good place to start a reference if you're interested in doing some further research.
An interesting discussion, but getting off track from the article, in my opinion. If you have more questions, I'll check back sometime soon - or maybe Patrick will weigh in the next time he checks the site.
I think it is VERY relevant to the issue. Should wartime enemies or other non-citizens be afforded the same rights as citizens? That was the central question and still is.
Tenther Radio Archives
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Subscribe to entries
Subscribe to comments
All content © 2012 by Tenth Amendment Center Blog
[...] Rand Paul and Military Commissions [...]
[...] This post was mentioned on Twitter by TenthAmendmentCenter and A Distant Vision, Organic Loudoun. Organic Loudoun said: Rand Paul and Military Commissions | Tenth Amendment Center Blog: It is NOT common for civilian courts to try p.. http://bit.ly/717y4V [...]