Rossiter & the Flag

" Constitutional dictatorship comes into its own in a war of defense. Let a country be invaded by an enemy aggressor, and even anarchists rally 'round the flag and call for a sweeping increase of governmental power. "--Clinton Rossiter

I haven't heard Rally Around the Flag for many years, since PSC 101 as a matter of fact. Its one of those things you don't hear about anymore, especially today. With a military action going badly, we've left the 9/11 idea of rally around the flag behind and moved on to rally around the troops. I fully agree with the idea of rally around the troops, they're the ones out there, and they need our support because they're up to their ears in conflict. They rally around each other, and then rally around us. But what do we rally around? I think in times of conflict, especially in times of conflict gone awry, we rally around anything but the flag. I've always hated the connotation of that statement, because it alludes to what Rossiter says: give more power to government to save our tails. Does this mean the only way to be patriotic and loyal means you have to be a slave to the flag?

It seems the average person now thinks that the only way to show how much you hate a conflict is to demonstrate how much you hate America. Everyone from Michael Moore to Janine Garrafolo do everything they can to laugh in the popular media to laugh at this nation, and to dismiss and downplay it. Its not the nation or the flag, stupid, its the leaders. I think we often have so much freedom that we take it for granted, and then attempt to give it back in contempt. Until you genuinely lose that freedom, you don't realize how important it is. I say rally around the flag.... maybe not its leaders or its policymakers, but around the flag itself. If you can't separate the idea of country from political or media elitism, maybe its time you went back to PSC 101 and learned how to tell the difference..... or would you like to give back that right as well?

I think I finally understand Korematsu better.....

What struck me most in the case was Justice Jackson's dissent, in which he writes: "The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need." It is quite amusing to see how this type of action by the government flies in the face of Locke's Second Treatise of government, in which he warns that being governed by statutes and gray areas is to have no personal freedom at all, which also rings in the Constitution. It is exactly what the Federalist papers tried to reassure the citizens of New York about, that this document would prevent the president or anyone from acting like a King. Granted, it is a military exclusion/operations zone, but as the command in chief of the military, the president is bound by constitution to defend and protect the rights of his citizens and not relish the role of the Commander-In-Chief. Fast forward several years to the current date, in which we are not sure as citizens as to the extent of our Constitutional rights. We have CAP flights of surveillance over our major cities, and the military working with local law enforcement. Is the entire country now a military exclusion zone? What are our constitutional rights? It's that loaded weapon coming out again, as Justice Jackson so wisely warned us about over 60 years ago......

So much material, so much to write about

While reading through the novel known as our homework assignment, it was inevitable that I would take a trip down memory lane back to Constitutional Law, especially when it came down to the cases such as the Youngstown case, that would set some sort of groundwork in a sort of reasonability test. Well, sure as heck, there it was. The Youngstown case, and its workings. The reason I mention this is because it ties in so well with my thoughts on another area in this article.

Clinton Rossiter, in his 1948 work "Constitutional Dictatorship", writes "...the use of constitutional emergency powers may well become the rules and not the exception..." and that the destiny of the country "...will rest in the capacity of the Presidency as an institution of constitutional dictatorship." With the Korean War, its 25 years of "emergency" powers enactment, the seizing of the Steel Mills by President Truman (nee the Youngstown case flashback), we see history at its raw beginning, as is foretold by Mr. Rossiter. The Nicaraguan invasion, the first Gulf War, the bombing of the former Yugoslavia, and now the second gulf war are all proof that it is not necessarily the political affiliation, but the support an executive has for pushing his wartime agenda. One need not be reminded of Vietnam in there, as well.

To blame President Bush for his actions is in a certain sense, justified, but it is also to be ignorant of these past actions from both sides of the political spectrum. The executive branch is truly running high on the lack of the war powers acts passed in Congress, the "legal" competence is there, as well as precedence. The times that the Supreme Court has stepped in have provided a counter-measure against this type of executive rampancy, but then we have to ask the question: Is it the court's job to do so, or is this the failure of Congress to stand up to the executive? Or perhaps, may just perhaps, the executive has delegated the powers so well, that he has in essence circumvented any and all legal processes and has in fact entered into a period of unchecked emergency control. Only time will tell......

Schmitt & Sovereignty

I have to admit, I did enjoy reading Schmitt. What took me in the most was on page 11 "...it is always asked who is entitled to decide those actions for which the constitution makes no provision; that is, who is competent to act when the legal system fails to answer the question of competence." To say that this raises some good questions is a major understatement. What is considered sovereign competency? Is our current president legally competent? Refusals to go through courts to obtain warrants, false premises for attempting wars, domestic spying..... could we consider this to be legally competent behaviour?

Some can argue that by striking first, with a measure of congressional support, he was doing the right thing, and is therefore legally competent. Where is that spelled out anywhere in legal language? Is precedent considered to be legal language? We did invade Grenada and Nicaragua, and that established the type of precedent Bush has claimed for this action in the Middle East. Can we quantify those short actions as correct? Does there success spell out the provisions necessary to commit to future actions such as this, and do those specific actions allow for the circumvention of Congress? I can't say, this is uncharted water here. The legal system has failed to provide any answers to this, and certainly, this failure can and will most likely spell out a level of incompetence at a presidential level. Sadly, it happens to be a bit late. Competency is something we have not seen, nor will be able to see unless the rule of law spells it out for us, and then we can choose leaders and their aides more wisely to avoid this problem from occurring again.