Posted on 02/13/2006 4:55:15 AM PST by seanmerc
Former President Jimmy Carter, who publicly rebuked President Bush's warrantless eavesdropping program this week during the funeral of Coretta Scott King and at a campaign event, used similar surveillance against suspected spies. "Under the Bush administration, there's been a disgraceful and illegal decision -- we're not going to the let the judges or the Congress or anyone else know that we're spying on the American people," Mr. Carter said Monday in Nevada when his son Jack announced his Senate campaign. "And no one knows how many innocent Americans have had their privacy violated under this secret act," he said. The next day at Mrs. King's high-profile funeral, Mr. Carter evoked a comparison to the Bush policy when referring to the "secret government wiretapping" of civil rights leader Martin Luther King. But in 1977, Mr. Carter and his attorney general, Griffin B. Bell, authorized warrantless electronic surveillance used in the conviction of two men for spying on behalf of Vietnam. The men, Truong Dinh Hung and Ronald Louis Humphrey, challenged their espionage convictions to the U.S. Court of Appeals for the 4th Circuit, which unanimously ruled that the warrantless searches did not violate the men's rights. In its opinion, the court said the executive branch has the "inherent authority" to wiretap enemies such as terror plotters and is excused from obtaining warrants when surveillance is "conducted 'primarily' for foreign intelligence reasons." That description, some Republicans say, perfectly fits the Bush administration's program to monitor calls from terror-linked people to the U.S. The Truong case, however, involved surveillance that began in 1977, before the enactment of the Foreign Intelligence Surveillance Act (FISA), which established a secret court for granting foreign intelligence warrants.
(Excerpt) Read more at washingtontimes.com ...
Perhaps, but nevertheless it IS a modification (v 1.02) of your unfounded "specific exclusivity" theory you promulgated in #88.
And yes, (for the fourth time) you were given that answer, but since you seem to be a glutton for punishment, here it is again...
Since the Constitution gives Congress the power to declare war, and as you would say, that is a traditional and historical "default" power of the office of Commander-in-Chief, and since the Constitution does not specifically state that the power of Commander-in-Chief belongs solely to the President, then according to your own ill-begotten "specific exclusivity" principle (v 1.02), Congress can now act as Commander-in-Chief and not just declare war, but also make war.
LOL, then who is the "mystery poster" quoted below? Sounds an awful like you talking about the "traditional and historical default powers of the office of Commander-in-Chief"!!!
|
I wasn't talking about declaring war.
That's what had your panties in bunch for the last half dozen posts? LOL, you're not only beating a dead horse, you're beating a none existent horse!!! No where have I ever said you were talking about "declaring war".
However, it WAS you who opened the door by introducing the subject of the "traditional and historical default powers" of the office of Commander-in-Chief, and one of those historical "default" powers is the power to declare war. Either all of those historical "default" powers come into play in testing your unfounded "specific exclusivity" theory (v 1.02), or none of them do, you can't have it both ways.
And as I've shown you numerous times, the moment we test your off-the-wall and imaginary "specific exclusivity" theory (v 1.02), against the power to declare war, your theory falls flat on its face.
Your only other choice (and it would be the wise one for you to take at this juncture) would be for you to retract your dead-on-arrival "specific exclusivity" theory (v 1.02), that completely unravels the doctrine of separation of powers, by proposing that a Constitutional grant of authority for one branch of government, can be exercised by any other branch, unless that grant explicitly stated it was to be an exclusive grant of power.
On the other hand, we could both politely pretend you never advanced your irrational "specific exclusivity" theory, and we could return many posts back from whence you began this shameful digression.
From looking over your prior posts, it appears that your core argument was that Congress had the power to infringe on the powers granted the President by the Constitution. All though in the ensuing debate you were beaten like a toy drum, maybe that's were you should try returning to. It certainly would have more honor than where you are now.
oh, but jimmuh learned better
Anyway, you've yet to back up this notion that the term "commander in chief" was ever understood to include the power of declaring war. A commander in chief is simply the top general and admiral in a given military hierarchy. Substantively, his powers are no greater than those of any other general or admiral - he's just higher on the chain than the rest of them, that's all.
George Washington, for example, was commander in chief of the Continental Army during the Revolutionary War. Was it he who declared war against the British Empire? Would he have had any kind of power to declare war against another country?
Sorry, I thought that it was self-evident. By historical tradition, a commander in chief is not the highest ranking general, or even a member of the military at all, he was the country's civilian head of state. And a commander in chief was far more than just the "chief commander", he was the king. While the actual title "commander-in-chief" wasn't used until King Charles I of England in 1639, nevertheless it was understood from antiquity that kings made and declared war. It wasn't until countries began maturing from monarchies into parliamentary monarchies and beyond, that control over the right to declare war began devolving from the king into the hands of others in the government. And interestingly, as that change occured, it was followed by another; the formality of actually declaring a war, began to fall into disfavor.
(This has to be a short answer, I've got family obligations to attend to.)
You're getting confused here. The king was more than just the chief commander (or commander in chief). Being king involved being commander in chief, but it involved a whole lot more as well. "Commander in chief" (essentially synonymous with Generalissimo), by itself, is and was just a military description, with a very narrow meaning, which is exactly why the founders chose it for the President.
Like I said, the term was used for George Washington during the Revolution, and it was not understood by anyone to include the power of declaring war and concluding peace, or any other substantive power that any general or admiral wouldn't have. He had to observe the laws of war and the law of nations at all times, and had no power to change any of them. Only those vested with the power to declare war had the power to change the law of nations with respect to the country we were declaring war against.
|
Actually the power of the British king extended quite a bit further than even that. That's because, as I said, he was the king, which is more than just the commander in chief. "Commander in chief", by itself, is just the top general and admiral, as Hamilton said. That's all that George Washington was during the Revolution. That's all that Phelim O'Neil was over the Irish regiments during the English Civil War. "King", like I said, means something considerably more.
Here, by the way, is another reference to how the phrase was understood in pre-revolutionary British history. The only difference between that position and the U.S. presidency is that that the former was just CinC of the Army, whereas the President is CinC of all the armed forces. It's just an increase in the quantity, not the quality, of authority. I don't think you'll find a single dictionary-type reference, either modern or from that earler time period, that defines the term as being anything other than the top military officer.
I'm glad you quoted from Hamilton's Federalist writings here, by the way, because it's in this essay (2nd paragraph) that he elucidates what you termed the "specific exclusivity theory". Although he's referring there to the non-exclusivity of congressional power with respect to the state governments, the unavoidable consequence of Hamilton's exposition is that these powers are not exclusive period, and that therefore if any other branch has powers which by default might include those powers of Congress, it may exercise those powers until such time as Congress sees fit to act.
I provided clear, unequivocal proof, from no less a source than Alexander Hamilton, writing in Federalist #69, that shows that by history and tradition, the plenary title of commander-in-chief did in deed encompass the "default" power to declare war. Yet your immediate reply to my post contained nary a comment addressing that. You had claimed that it was "not understood by anyone to include that power", care to comment?
TRIVIA:
Nor did I ever suggest anything to the contrary, but the key is that the king was, in fact, the commander-in-chief and as such, it was a civilian, not a military title and position.
Incorrect, as even your own link shows, O'Neil's title and position were at a level below the king's plenary position. O'Neil's correct and complete title was "Commander-in-Chief of the Irish forces in Ulster".
And that is also where your other link (the Wikipedia link) about the title of commander-in-chief fails, it only addresses the lesser forms of the title. To understand the plenary forms of the office and title, try Wikipedia's companion piece on Commander-in-Chief. It explains that, "below the national commander-in-chief are often appointed various regional commanders-in-chief", (like O'Neil), and that those, unlike the national commander-in-chief, were military in nature.
Hamilton says no such thing in his essay (Federalist #32). In paragraph two, that you reference, Hamilton is only re-stating the national supremacy clause against the backdrop of the enumerated powers doctrine. Your specific exclusivity theory, by your own words, is only applicable amongst the branches of the national government. But then your theory then takes those doctrines to irrational, never intended, new heights by pretending that there is no exclusivity unless a power is specifically stated to be exclusive. Your theory completely unravels the doctrine of separation of powers.
I thought I made it clear before, but perhaps it wasn't clear enough: I have no interest in trying to argue your straw man "specific exclusivity" theory. It's irrational, it has no foundation in law, the Constitution or in history. Since it's your invention, you can play with it, I care not to.
But enough of this trivia, please respond to the main point at the top of this post.
It's hardly unequivocal. Hamilton was only making a distinction between the powers of the king and the powers of the President. And "nominally the same" literally only means that his title has the same name with one title that the King has. His point was that this might lead to the initial impression that there's some kind of parallel between him and the King, but in reality, the term confers powers of a much lesser scope than the full spectrum of the King's powers.
but the key is that the king was, in fact, the commander-in-chief and as such, it was a civilian, not a military title and position.
It's military as far as it goes. Just like Hamilton said: "first general and admiral". Or as William Blackstone (English jurist who was highly influential to the legal thinking of the colonists) described the position: "generalissimo".
O'Neil's title and position were at a level below the king's plenary position.
Of course they were. As I just got through explaining to you, the difference between commander in chief of a particular force and commander in chief of an entire country's military is only in the quantity of power wielded, not the quantity. A commander in chief at a level higher than his would simply be higher on the chain of authority, but would have no other substantive power that's different from his (unless of course he had another title in addition to commander in chief, such as, for example, "KING").
And that is also where your other link (the Wikipedia link) about the title of commander-in-chief fails, it only addresses the lesser forms of the title. To understand the plenary forms of the office and title, try Wikipedia's companion piece on Commander-in-Chief. It explains that, "below the national commander-in-chief are often appointed various regional commanders-in-chief", (like O'Neil), and that those, unlike the national commander-in-chief, were military in nature.
And it also confirms very much the point I was making, which is that the term, by itself, has no broader substantive meaning when it's used higher in the chain-of-command versus when it's used lower.
You won't find a single reference, past or present, that says otherwise. If you happen to get down to a library someday, most public libraries have the unabridged multi-volume set of the Oxford English Dictionary, which gives not only the modern meanings of words, but also traces the evolution of their meaning over time. Look up "commander in chief" in there. You'll get the same results. In and of itself, it's simply a military ranking, not a political title.
But then your theory then takes those doctrines to irrational, never intended, new heights by pretending that there is no exclusivity unless a power is specifically stated to be exclusive.
Which "irrational" position also happens to be the one put forth by Hamilton in the second paragraph which I referenced, and which you obviously didn't read in its entirety.
"But as the plan of the Convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty which they before had and which were not by that act exclusively delegated to the United States." (emphasis in original)
If a delegation of power is not exclusive against the states unless stated to be so, then by any remotely logical rule of construction, it's not exclusive, period, unless stated to be so.
The quote I provided to you in #108 from Alexander Hamilton unambiguously states that the king of England was the commander-in-chief of Great Britain and that as such, his powers included the right to declare war.
Hamilton even went on to state in a footnote to that Federalist #69, saying "[the king's] prerogative, in this respect, is immemorial, and was only disputed, contrary to all reason and precedent".
You asked me to "back up this notion that the term 'commander in chief' was ever understood to include the power of declaring war", and for you to now label such clear proof as "hardly unequivocal" goes way beyond just being incorrect. Your replies have degenerated into disingenuous and quarrelsome niggling, and disputational nonsense. Either own up to your error or go away, I have no patience for an argument unbounded by honor.
That's more accurate as regards the "unabiguity" of what Hemilton said. You're trying to tie the two together to make an ironclad definition, despite the unambiguous mountain of evidence that the term "commander in chief" was understood to have only a military meaning, not a political one.
One more time, "[the king's] prerogative, in this respect, is immemorial, and was only disputed, contrary to all reason and precedent" --Alexander Hamilton
Knock off the BS arguments.
A writer in a Pennsylvania paper, under the signature of TAMONY, has asserted that the king of Great Britain oweshis prerogative as commander-in-chief to an annual mutiny bill. The truth is, on the contrary, that his prerogative, in this respect, is immenmorial, and was only disputed, "contrary to all reason and precedent," as Blackstone vol. i., page 262, expresses it, by the Long Parliament of Charles I. but by the statute the 13th of Charles II., chap. 6, it was declared to be in the king alone, for that the sole supreme government and command of the militia within his Majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, EVER WAS AND IS the undoubted right of his Majesty and his royal predecessors, kings and queens of England, and that both or either house of Parliament cannot nor ought to pretend to the same.Clearly, unambiguously, Hamilton is talking about the King's command of the national military forces, not about his powers of declaring war (which was never disputed).
I can prove this further, by quoting from Blackstone himself. On page 249 of Volume I of his Commentaries, he writes:
Upon the same principle the king has also the sole prerogative of making war and peace. For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power: and this right is given up not only by individuals, but even by the intire body of people, that are under the dominion of a sovereign.Then, a few pages later in the same volume, he has this to add:
The king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community: and the principle use of government is to direct that united strength in the best and most effectual manner, to answer the end proposed. Monarchical government is allowed to be the fittest of any for this purpose: it follows therefore, from the very end of it's institution, that in a monarchy the military power must be trusted in the hands of the prince.Now it could not be any more crystal clear that the power of declaring war and peace and the power of commanding armies and fleets are considered by Blackstone to be two very different powers.
Of course they're tied together!
Among the authorities the king of Great Britain held was to act in the capacity as commander-in-chief. The national commander-in-chief was the sole and supreme authority over all the armed forces, including the sole power to declare war. The king's authority "in this respect, is immemorial, and was only disputed, contrary to all reason and precedent", and such is codified under "statute the 13th of Charles II, chap. 6".
Thus the history and tradition of Great Britain was that the office of the national commander-in-chief was at all times coextensive with the power to declare war, one was identical to the other.
More disingenuous hubris, look where that footnote is linked to in Hamilton's essay, it is at the end of the sentence that states that the king had the power to declare war.
LOL, no you can't! Blackstone's Commentaries were written regarding English law and tradition, not American. But more important that, they were written long before the matter of separating the office of commander-in-chief from the power to declare war ever became an issue for the framers of our Constitution. And as such he would have had no idea that he needed to address the obvious, that in England, the office of CiC was coextensive with the power to declare war, and had been since time immemorial!
LOL, no where in either of the two Blackstone links you provided was there any mention whatsoever of the office of commander-in-chief. Yet you maintain that your imagined separation is "crystal clear"!
ROTFLMAO, not only do your Blackstone links place the power of the army in the king's hands, he places the power to declare war there to! And by what title does the king exercise such authority: why he does so as COMMANDER-IN-CHIEF!!!
One might indeed think that he would have been able to get away with not treating the two powers as separate, because they both appertained to the same person. And yet, he did so anyway, and that works even further against your position. They are clearly two very distinct powers.
LOL, no where in either of the two Blackstone links you provided was there any mention whatsoever of the office of commander-in-chief.
That's what "generalissimo" means, and before you start playing word games on the meaning of that, look at Hamilton's footnote, the part that you edited out. According to him, Blackstone said the King's power as CinC was disputed "contrary to all reason and precedent", and then made reference to the act of 13 Car. II Chapter 6. So what specifically was Blackstone referring to in this citation by Hamilton? Surprise surprise, it was the King's power as "generalissimo". Go here, and scroll down to page 254. Blackstone writes (the first paragraph of which is just a repeat of what I posted last time):
THE king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community: and the principal use of government is to direct that united strength in the best and most effectual manner, to answer the end proposed. Monarchical government is allowed to be the fittest of any for this purpose: it follows therefore, from the very end of it's institution, that in a monarchy the military power must be trusted in the hands of the prince.And again, NOBODY was disputing the King's power to declare war (which, as I pointed out in my last post, Blackstone had dealt with separately on page 249). No one would have been clueless enough to dispute that. A king wouldn't be a king without that power. What was disputed was his power of command over the military forces. That view had at least a somewhat plausible basis, given that in the olden days, military forces were often independenly controlled by lords and other nobles within their respective lands. A military force was considered to be almost (if not actually) part of a lord's estate. He rendered his service to the defense of the King when the King required it (that's what made him the King), but until relatively recently from Blackstone's perspective, these lords had de facto if not de jure independent command of their forces.IN this capacity therefore, of general of the kingdom, the king has the sole power of raising and regulating fleets and armies. Of the manner in which they are raised and regulated I shall speak more, when I come to consider the military state. We are now only to consider the prerogative of enlisting and of governing them: which indeed was disputed and claimed, contrary to all reason and precedent, by the long parliament of king Charles I; but, upon the restoration of his son, was solemnly declared by the statute 13 Car. II. c. 6. to be in the king alone: for that the sole supreme government and command of the militia within all his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty, and his royal predecessors, kings and queens of England; and that both or either house of parliament cannot, nor ought to, pretend to the same.
I have to confess, I'm stunned at the degree of sophistry you are willing to engage in just to avoid owning up to the simple truth that by historical tradition, the commander-in-chief of a nation possessed both the right to declare war, as well as the means and the power to make war.
To do perform these mental gymnastics, you've had to advance one specious claim after another. While I found your "generalissimo" argument to be the most humorous and entertaining, you've now been reduced to literally re-writing English history, by arguing the absurd: That the king, with all the riches of the nation as his command, had to go, hat in hand, before his nation's nobleman, and beg for an army to command.
"Pray, m'Lord, if it pleaseth thee, on Thursday next might I perhaps borrow a few of your soldiers? It appeareth the French are invading!" LOL, is this really what you want us to believe is your level of knowledge and understanding of English history about what the king had to do to raise and command an army?
Thanks to your precious ego that can't admit to a simple error, now we not only have to rewrite English history books, but we must also rewrite everything else, from Shakespeare numerous works: "We few, we happy few, we band of brothers (amalgamated servants of some nameless noble)...", down to children's nursery rhymes: "All the king's (lord's) horses and all the king's (lord's) men, couldn't put Humpty together again"!
And your irrational claim that the king not only lacked the "power of command over the military forces", but even lacked an army itself, would almost be humorous, were it not for the fact that you posted the very evidence that proves your own error...
|
I sit here patiently awaiting your next absurd claim.
Then you obviously didn't read it very closely. Hamilton, in his reference to the King's power as "commander in chief", made explicit reference to Blackstone's paragraphs about the King's power as "generalissimo". They are one and the same. There's no possible way you can entertain yourself out of that.
you've now been reduced to literally re-writing English history, by arguing the absurd: That the king, with all the riches of the nation as his command, had to go, hat in hand, before his nation's nobleman, and beg for an army to command.
It's only "rewriting" to someone who never knew much of anything about it to begin with. Have you ever heard of the term "feudalism"? It's the name for the whole economic and political system that existed in Europe throughout the Middle Ages. Absolute royal authority came later. Till then, kings were very much dependent on their noblemen. Noblemen had a reciprocal dependency on their kings as well (the kings had power to reward them with land and other privileges and status), so the kings generally didn't have to "beg" for service, but that doesn't mean they had effective direct command over their kingdoms' forces.
If you think this sounds like an unworkable mess, most kings back then would have agreed with you. As the Wikipedia article on feudalism notes: "By the end of the Middle Ages, the kings were seeking a way to become independent of willful nobles, especially for military support. The kings first hired mercenaries and later created standing national armies." And as Blackstone himself pointed out, in a passage on the subject of armies, "it was not till the reign of Henry VII, that the kings of England had so much as a guard about their persons."
And your irrational claim that the king not only lacked the "power of command over the military forces", but even lacked an army itself, would almost be humorous, were it not for the fact that you posted the very evidence that proves your own error...
The "evidence" was an act of Parliament coming down on one side of what at the time was a historical controversy. Maybe they were right, maybe they were wrong, but the salient point is, this is a completely separate matter from the King's power to declare war. That power was never a matter of controversy, and was totally separate from his power as commander in chief.
(by the way, do you understand the diffence between "de facto" and "de jure"?)
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.