Americans are witnessing a political vortex accelerating before their very eyes: an intensifying consolidation of power in the General Government, an increasing concentration of that power in the Executive Branch, and an expanding militarization of that Branch.)
Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.
He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
His latest book is: "How To Dethrone the Imperial Judiciary" ... and Constitutional "Homeland Security," Volume One, The Nation in Arms...)
He can be reached at:
13877 Napa Drive
Manassas, Virginia 20112.
OUTFLANKING THE KAKISTOCRACY:
PART 1 of 3
penchant of all too many Americans for indulging in socially destructive
rationalizations and delusions seems limitless. No sooner had the
Internet come alive with warnings about the implications—if not the
specific intent and inevitable consequences—of National Security Presidential
Directive 51 (including my own commentary, “The Kakistocracy Exposes
Its Hand”), than the naive bloggers and malign agents of influence
in the electronic Peanut Gallery began yawning, “So what?”
tell it, NSPD-51 is not really anything new—other Administrations
have floated various “continuity-of-government” plans. NSPD-51 itself
promises that the President will act in accordance with constitutional
standards. And, after all, what else can be done during what NSPD-51
calls a “[c]atastrophic emergency,” except to turn over control of
the General Government—and, by extension, of American society as a
whole—to a centralized, unitary leadership?
wrong again, and completely wrong.
True enough, former Administrations have devised “continuity” plans.
But those plans arose out of, reflected, and would have operated in
a political context radically different from what prevails today.
Now, Americans are witnessing a political vortex accelerating before
their very eyes: an intensifying consolidation of power in the General
Government, an increasing concentration of that power in the Executive
Branch, and an expanding militarization of that Branch.
manifest themselves not only in hyperbolic, if not utterly hysterical,
official propaganda and agitation saturated with references to an
endless global “war” with “Islamo-fascism,” but also in actual field
operations in which common criminals (so-called “terrorists”) are
verbally transmogrified into “enemy combatants,” so that they can
be denied elementary due process of law, held incommunicado indefinitely,
tortured, and tried before military juntas—setting perverse precedents
for applying such treatment to common Americans who run afoul of the
Worse yet, this agitprop overflows with appeals to an imagined
set of “inherent powers” of the President, and to his supposedly limitless
authority as “Commander in Chief” in time of “war.”
latter legalistic rationalizations amount only to nonsense thrice
First, under the Constitution, no Branch of the General
Government enjoys any “inherent powers,” but only such powers as the
Constitution delegates. And far from any facile assumption that any
power is “inherent,” “[t]he burden of establishing a delegation of
power is upon those making the claim.” Bute v. Illinois, 333
U.S. 640, 653 (1948).
Second, the President is not “Commander in Chief”
of the country as a whole, in the manner of some jack-booted Fuhrer
or opera buffa Duce. Instead, he is “Commander in Chief” only “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.” Article II, Section 2, Clause 1.
Moreover, even in that limited
capacity, he is subject to the supervening control of Congress, to
which the Constitution delegates the powers “[t]o make Rules for the
Government and Regulation of the land and naval forces,” and “[t]o
provide for governing such Part of the[ Militia] as may be employed
in the Service of the United States.” Article I, Section 8, Clauses
14 and 16. Third, “war” in no way adds to the President’s powers.
Besides enjoying complete authority to provide for governing the Army
and Navy at all times and “the Militia of the several States” when
“employed in the Service of the United States,” Congress alone has
the power “[t]o declare War”—and by necessary implication, to declare
that a “War” being prosecuted must cease, as well as to determine
what is “necessary and proper” in the conduct of any “War.”
I, Section 8, Clauses 11 and 18. And should the President refuse to
accede to Congress’s commands, Congress may remove him from office—including
the office of “Commander in Chief”—through impeachment and conviction.
Article I, Section 2, Clause 5; Article I, Section 3, Clauses 6 and
7; and Article II, Section 4.
course, the friends of das Fuhrerprinzip (the Leader Principle) are
wont to fall back on the notion that because, in a “[c]atastrophic
emergency,” the President can supposedly declare “martial law” or
suspend the writ of habeas corpus anyway, therefore in even the most
latitudinarian interpretation NSPD-51 amounts to no great accretion
to his powers. The situation is not as simple as these simpletons
Constitution does not provide an explicit power for any Branch of
the General Government to declare, recognize, or enforce “martial
law.” Indeed, the Constitution does not even use, let alone define,
the term “martial law.” No doubt, this studied absence reflects the
Founding Fathers’ familiarity and agreement with the warning of their
legal mentor, Sir William Blackstone, that the strictures of “martial
to be looked upon only as temporary excrescences bred out of the distemper
of the state, and not as any part of the permanent and perpetual laws
of the kingdom. For martial law, which is built upon no settled principles,
but is entirely arbitrary in it’s decisions, is in truth and
reality no law, but something indulged, rather than allowed as a law:
the necessity for order and discipline in an army is the only thing
which can give it countenance; and therefore it ought not to be permitted
in time of peace, when the courts are open for all persons to
receive justice according to the laws of the land.
on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American
Edition, 1771-1773), Volume 1, at 412.
Read Judge Andrew Napolitano's book, "Constitution
and most revealingly, when the Constitution does identify which “martial”
institutions are to exercise the power and duty “to execute the Laws
of the Union, suppress Insurrections, and repel Invasions,” it explicitly
empowers Congress “[t]o provide for calling forth the Militia,” and
“the Militia” only, for those purposes. Article I, Section 8, Clause
Nowhere does the Constitution assign those tasks in the first
instance to “the Army and Navy of the United States”—a lacuna that
could not possibly have been accidental. So, because the Constitution
requires the President to “take Care that the Laws be faithfully executed”
(Article II, Section 3), and provides for “calling forth the Militia
to execute the Laws of the Union” (as well as to “suppress Insurrections”
and “repel Invasions”), and designates the President as “Commander
in Chief of the Militia, when called into the actual Service
of the United States,” the conclusions are inescapable that: (i) “the
Militia of the several States” are to constitute the first line of
defense in any “[c]atastrophic emergency;” (ii) Congress, not the
President, is to define the circumstances under which the Militia
are to be “call[ed] forth;” and (iii) only if the Militia prove insufficient
to the task are “the Army and Navy of the United States” to be employed
(again, pursuant to ultimate Congressional, not Presidential, governance
and regulation). Given that “martial law” is (in Blackstone’s trenchant
phrase) “in truth and reality no law” at all; and given that “calling
forth the Militia” is an explicit part and parcel of the supreme law
of the land; and given that “the Militia of the several States,” properly
regulated, are to consist of all able-bodied Americans from 16 to
60 years of age—then “calling forth the Militia” would differ radically
from what most people imagine that declaring “martial law” would entail.
power to suspend the writ of habeas corpus would not amount to full-blown
“martial law,” either. To be sure, as Blackstone taught the Founders,
of the person, by secretly hurrying him to goal, where his sufferings
are unknown or forgotten, is a dangerous engine of arbitrary
And yet sometimes, when the state is in real danger, even
this may be a necessary measure. But the happiness of [the English]
constitution is, that it is not left to the executive power to determine
when the danger of the state is so great, as to render this measure
For the parliament only, or legislative power, whenever
it sees proper, can authorize the crown, by suspending the habeas
corpus act for a short and limited time, to imprison suspected persons
without giving any reason for so doing.
Volume 1, at 136.
Blackstone, the Constitution explicitly requires that “[t]he Privilege
of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it.”
Article I, Section 9, Clause 2. Moreover, this provision not only
recognizes “[t]he Privilege of the Writ of Habeas Corpus” as pre-existing
and therefore independent of the Constitution—by implication, locating
it among the Declaration of Independence’s “certain inalienable Rights,
among [which] are Liberty”—but also defines and narrowly
limits the circumstances under which the writ may be “suspended.”
Not just any conditions of “Rebellion or Invasion” will suffice, but
only those perforce of which “the public Safety may require it.”
Blackstone wrote with respect to the English constitution, so too
“the happiness of” America’s Constitution “is, that [suspension of
the writ] is not left to the executive power to determine.” Because
the Constitution does not include the authority to suspend the writ
of habeas corpus as an enumerated power of the Executive Branch, the
President cannot unilaterally assume that authority through some “directive”
such as NSPD-51, whether in the course of what he claims is a “[c]atastrophic
emergency” or otherwise.
Rather, because that authority appears in
Article I, the part of the Constitution that sets out the powers,
disabilities, and duties of the Legislative Branch, only Congress
can determine, through a statute, when it may be “necessary and proper”
to empower the President to take such action. See Article I, Section
8, Clause 18.
if and when Congress grants such authority, it must also define and
limit it, in keeping with constitutional requirements. Congress must
designate what constitutes “Cases of Rebellion or Invasion,” as those
concepts were understood in the late 1700s. And Congress must provide
for, or at a minimum allow, judicial review so that persons wrongfully
confined may still seek a writ of habeas corpus, requiring the President
to prove that any “suspen[sion]” thereof supposedly applicable to
them actually arose in the context of a true “Case[ ] of Rebellion
or Invasion,” and that “the public Safety require[d] it.”
if Congress does not provide or allow, or affirmatively attempts to
preclude, judicial review, then the Judiciary must intercede, because
“[t]he Privilege of the Writ of Habeas Corpus” is antecedent to the
Constitution, and can be temporarily “suspended” only in accordance
with constitutional standards.
circumscribed by these constitutional strictures, suspension of “[t]he
Privilege of the Writ of Habeas Corpus” by itself could never constitute
or entail “martial law.”
even if the courts were not open because of a “Rebellion or Invasion”,
the Militia could be employed for enforcing the suspension—for “suppress[ing]
Insurrection[s]” and “repelling Invasion[s]” are among the duties
for which the Militia may be “call[ed] forth”. And, if the courts
were open, suspension of “[t]he Privilege of the Writ of Habeas Corpus”
might be enforced even without employing the Militia, let alone the
Army or Navy.
much for the notion that NSPD-51 can be disregarded or excused on
the grounds that a constitutional Presidential dictatorship is already
possible under color of a declaration of “martial law” or a suspension
of the writ of habeas corpus.
Americans who do not know even in what century the Civil War was fought
(as to which millions of high-school and college students are ignorant)
may have a difficult time parsing the Constitution on these particulars.
Ominously, too, instead of exposing the errors behind, and denouncing
the implications of, the present rush towards Executive Branch “Decidership,”
influential voices in the self-styled “conservative” media seem interested
more in apologizing for, if not praising and promoting, these developments,
than in recommending and explaining the constitutionally correct contrary
course of action.
So, widespread public ignorance and intellectual
apathy, exacerbated by torrents of official propaganda and the chorus
of approval from the present Administration’s toad-eaters in the media,
make this arguably the most politically perilous period in American
NSPD-51 is not simply a continuation of this downward spiral of political
events into History’s toilet, but instead exacerbates the situation
significantly. And this, precisely because NSPD-51 is not in keeping
with constitutional standards or safeguards.
tells America that, from now on, “[e]nduring constitutional government
means a cooperative effort among the executive, legislative,
and judicial branches of the Federal Government, coordinated by the
President, as a matter of comity with respect to the legislative and
judicial branches and with proper respect for the constitutional separation
of powers among the branches, to preserve the constitutional framework
under which the Nation is governed and the capability of all three
branches of government to execute constitutional responsibilities
and provide for orderly succession, appropriate transition of leadership,
and interoperability of the National Essential Functions during a
catastrophic emergency” (paragraph 2(e)).