Tuesday, December 20, 2005

WaPo Abets the Noise Machine

Once again, the mainstream media is acting as a wall in the neoconservative echo chamber. The Washington Post has given column space to William Kristol, founder of the Project for the New American Century (PNAC) and key architect of the policy to invade Iraq.

In "Vital Presidential Power," Kristol, along with Gary Schmitt, another PNAC member, have written the kind of article one typically finds in Kristol's Weekly Standard. It's a compendium of glittering, misleading assertions supported by little if any factual information that supports the illusory notion of extraordinary presidential powers. Among the most outrageous example is this:
…the Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional.

Kristol and Schmitt support this bold declaration in typical neocon fashion; they don't bother to. They simply make these sorts of statements and assume that "enough of the people enough of the time" won't bother to challenge them.

In fact, the Constitution itself says nothing whatsoever about granting "extralegal" national security powers to the executive.

What's more, it's mighty darn hard to find anything indicating any framer went on record in favor of extralegal powers for anybody.

Just for fun, I went to Yale Law School'sThe Federalist Papers site and searched "extralegal."

No returns.

One on the strongest statements written on presidential war powers appears in Alexander Hamilton's "Federalist Paper No. 74: The Command of the Military and Naval Forces, and the Pardoning Power of the Executive _From the New York Packet."
THE President of the United States is to 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.'' The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.

But not even Hamilton, arguably one of the most aggressive proponents among the founding fathers for a strong executive, states that a President should have "extralegal" powers.

Where do you think Kristol and Schmitt got the idea that the Founders intended a President to have them.

Do you think they just made that up?


American's are hearing a lot of this "presidential powers" from neoconservative circles these days. Descriptions like "plenary" and "absolute" abound.

But I don't see words like that in the Constitution, or in any of the Federalist papers.


We discuss the issue of presidential war powers at length at the ePluribus Journal. Early on, I wrote that, "…The notion of sweeping presidential authority in time of war is almost entirely illusory."

If you haven't read the article, I encourage you to do so. You may come to different conclusions from mine, but I can promise you this: everything we used to support that argument was documented in the article itself, fact checked by both myself and a team of experienced fact checkers, and critiqued by an attorney familiar with constitutional law.

We may have gotten something completely wrong, but if we did, it wasn't for lack of extreme effort at keeping our ducks in a row; a level of effort you'll seldom if ever find at The Weekly Standard. From every article I've read in that periodical, I'm of the firm opinion that when it comes to journalistic integrity, The Weekly Standard has no standards at all. And with "Vital Presidential Power," Kristol and Schmitt have exported the Standard's lack of standards to the Washington Post, and the Post, supposedly a real newspaper, let them get away with it.



If anyone can find anything that supports Kristol and Schmitt's contention that the founding fathers intended the President to have extralegal powers, boy, please let me know and I'll have a plate of crow pie for lunch.

Mind you now, I'm not talking about something from case law, or another quote from another pundit.

I mean a direct quote from Madison, Jefferson, Jay, Hamilton, Adams etc. that anyone would reasonably agree supports what Kristol and Schmitt said.


  1. Kristol and Schmitt are insane. Here's a single sentence from Madison that sums his opinion on this sort of thing:

    "An ELECTIVE DESPOTISM was not the government we fought for;" From Fedealist 48.

    Madison would be hard pressed to accept the thesis of Kristol and Schmitt. After reviewing States constitutions, and the corresponding actions of State governments, he said:

    "The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands."

    This, of course, is precisely what we see now in the executive branch.

    Hamilton would have been against the argument as well. Here's what he says in the Federalist papers regarding the need for a Bill of Rights:

    "I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

    Hamilton's entire argument hinges around his belief that the Federal Government, including the executive, has no other powers than those set for specifically in the Constitution. The assertion that one branch of government has extra-legal powers not specified in the Constitution flies completely in the face of what Hamilton wrote.

    That leaves Jefferson. Well, here's what he wrote in a letter to Madison:

    ""The President is bound to stop at the limits prescribed by our Constitution and law to the authorities in his hands, [and this] would apply in an occasion of peace as well as war. One of the limits is that 'no money shall be drawn from the Treasury but in consequence of appropriations made by law,' and [if] no law [has] made any appropriation of money for any purpose similar to [one contemplated, it would lie,] of course, beyond his constitutional powers.""

    So what do you think he's say about extra-legal powers not granted in the Constitution? He'd be opposed to the idea.

    The most interesting thing about Jefferson, though (and this is an aside), is that he stressed the independence of the branches, to the point that he did not believe the Executive had to answer to the Judiciary (i.e. the Supreme Court wouldn't have an authority over the actions of the executive branch). That's another topic, however.

  2. Scott,

    Thanks for the fantastic input and info.

    Any way you can give me a steer as to where to find these quotes?

  3. The Hamilton and Madison stuff all came out of the Federalist Papers.

    The Jefferson information came from the Thomas Jefferson Digital Archive:



  4. By the way, Jeff, in case I gave the wrong impression, I don't think Jefferson wrote any of the Federalist papers. Did he? I'm fairly certain it was just Hamilton, Madison, and Jay.

  5. I think I may have given the wrong impression on that score too, Scott.

    No, if I understand correctly, the Federalist was written by Hamilton, Madison and Jay under the pen name "Publius." (Is that your take?)

    I mentioned Jefferson--who was decidedly NOT a federalist--as one of the founding fathers who Kristol and Schmitt facetiously referred to.

  6. And yeah, as I understand right now, Jefferson was not wild about the judiciary. My impression has been that his attitude largely came from Adams's midnight nominations and a whole bunch of other stuff that surrounded that episode.

    Was he anti-judiciary before then?

  7. Jeff:

    Yes, that's correct regarding the Federalist papers.

    I do not think anyone mentions, Hamilton, Madison, Jay, Jefferson, Adams, etc. would support the idea of extralegal authority for the Executive (i.e. powers not granted in the Constitution). The whole point of a written Constitution was to specify the powers government had. The document even says that powers not specifically given to the government do no belong to them.

  8. One counter to something that seems to be in the periphery of your post, though, Jeff. You can't blame the Post for running Kristol's columns. In my view, newspapers need to strive to run columns from all perspectives, including those who support the President and those who are adamantly against him. Calling everything an echo chamber just because they don't run 100% one-sided content (i.e. your side) doesn't make any more sense to me than the right-wing mantra we've been hearing about the liberal media for the last 15 years. Doesn't is behoove us as a nation to have all viewpoints put forth into the public debate?

  9. Gotta disagree with you there, Scott. Their contributors should be held to standards. If Kristol etal are going to say stuff like that, they should have to substantiate it.

    Statement of opinion is one thing. That doesn't justify purposeful misstatement of fact to support the opinion.

  10. Jeff:

    That's what political opinion is, in my view. There are people who agree with Kristol, though I think his assertions are patently false. Who gets to decide? A newspaper editorial board? Then a few decide what even makes it into the public discourse in the first place, and that's a lot more dangerous than having columns like Kristol's out there.

    I subscribe more or less to the marketplace of ideas analogy. You let people like Kristol and Coulter talk. You let people like Moore and Franken talk. You let moderates talk, you let people like Nader talk, and eventually, those ideas that more closely approximate the truth will survive.

    I'm not comfortable with the idea of a viewpoint being shut out of the public sphere just because you don't like it, or I don't like it, etc.

  11. Nah, manufacturing facts to support your position is not honest debate.

  12. That disregards entirely the substantive of my post.

  13. It's been 40 years since I read the Federalist papers (bad, Lurch! Bad!) but as I remember the circumstances, it was being argued (quote cohesively) that a powerful Executive of State was the LAST thing the author(s) were advocating. At that time they were working their way through the philosophical underpinnings of a political separation from such a ruler.

    They feard a strong political leader, and firmly believed in the primary meme of the Enlightenment: man is endowed with reason and intellect and has a duty to join together for the common good. They felt the general (but not specific) example of the English Commons was a prime example of how to defend the body politic from the depradations of a strong leader with unlimited powers.

  14. Scott,

    My opinion--if political opinion includes fabricating facts, then it's not legit opinion.

  15. Lurch,

    My Federalist reading is from relic days too.

    The tricky thing about what the "Founders" intended is that not all of them had the same opinions.

    Part of my reason for putting up a challenge is that I'd like to know if one of them actually mentioned "extralegal" powers.

    I sure can't find such a reference, but that sure doesn't mean one doesn't exist.

  16. Scott,

    Let me close my end of this discussion by saying that if everyone lies to support their ideas, you don't have a marketplace of ideas. You have a marketplace of lies.

    But even if one grants a place for lies in a marketplace of ideas, shouldn't the marketplace allow one to point out the lies?

    And doesn't the idea that newspapers should hold their contibutors to certain standards have a legitimate claim to the marketplace?