Cheney pioneered the doctrine that the President's power in so-called "war time" extends to the detention of individuals without trial. Obama is
continuing to spew this nonsense.
Here is what Hamilton, the most pro-state and pro-militarism of our founding fathers, had to say about that idea:
"The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the
execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the
functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of
the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign
nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject,
but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither
to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the
Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly
for the participation of the whole or a portion of the legislative body in the office of making them." (Federalist 75)
The President's power in foreign affairs has nothing to do with being commander in chief. At no point do Hamilton or Madison claim that the
President's *primary* power falls under the title of commander in chief. Congress and not the President holds the war declaration power. It is in
his treaty making power that the President does have power in foreign affairs. Hamilton states this over and over again. Yet, here he limits the
power of the President to dealing with other sovereigns, not with power over individuals. Even here the power to make law is limited to Congress.
The idea that the Executive Branch can make a legal doctrine is an idea that even Hamilton would have considered despotic, and he was the most
pro-power of the founders. Even he would have drawn back from the Cheney-Obama imperial Presidency. The President's power over foreign affairs
applies in an a priori sense to nations and not to individuals! (I say "a priori" because the President proposes and the Senate disposes, unlike in
law making where Congress proposes and the President disposes) Only by going back to the law of England, which some Executive Branch lawyers like
John Yoo seem to desire, could such a doctrine as Cheney's be justified. Here you can find the power of the King to undo the Magna Carta if he feels
like. However, we fought a revolution to get away from that idea!
Interesting, but the Federalist Papers are of inestimable benefit to any researcher in to deep politics. Note something that Madison said in
"Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of
pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the
sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable
of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be
calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen, in fine, that
the minority of citizens may become a majority of persons, by the accession of alien residents, of a casual concourse of adventurers, or of those whom
the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of
the States, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may
emerge into the human character, and give a superiority of strength to any party with which they may associate themselves.
In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and
tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would
unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally
effectual could be established for the universal peace of mankind!"
Those who go gaga over Masonic conspiracies and world government plans would see Madison essentially proposing something like a world government. It
is hard to argue that the words here might possibly suggest that idea.
edit on 10-4-2012 by EarthEvolves because: insert