On Friday, President Donald J. Trump invoked the powers of commander-in-chief and declared a state of emergency. This legal step will allow him to allocate billions of dollars for the construction of a wall on the southern border, bypassing the obstruction of Democrats — and many Republicans — in Congress. Immediately, a discussion on the legality of the decision took over the public debate. Many self-identified conservatives soon pointed to the alleged breach of constitutional order related to this decision and the start of a dangerous In response, Speaker of the House Nancy Pelosi issued a threat that “if” and “when” a Democrat is elected back to the White House a state of emergency might be exercised for one of her party’s goals – gun control.
In the National Review, David French spoke for many anti-Trump critics when he wrote:
I do not dispute that Trump likely can declare a national emergency, in large part because Congress has placed few meaningful restraints on that power, but such declarations don’t allow him to do anything he wants; they mainly serve to unlock other statutes which grant him other powers.
And he proceeded:
We’ve grown sadly accustomed to presidents’ abusing poorly drafted statutes to stretch their power well beyond the Founders’ intent.
Setting aside French’s anti-Trump bias, he is making a profession of faith toward one of the most cherished legal philosophies among conservatives: constitutional originalism. This legal hermeneutics, championed by two late titans of U.S. constitutional law Antonin Scalia and Robert H. Bork, proposes that judicial interpretation must be given through the evaluation of the historical dimension of a legal norm. This means that the judge in applying the law to the concrete case must hold the perspective of the legislators who created this particular law. In other words, the law should be enforced according to its original intent and not the present will of the judge.
Underneath this originalist philosophy, there’s a consideration about the nature of a republic. In contrast to an empire or a kingdom that has its axis of political existence in the monarchy, the republic has a delicate structure of distribution and organization of power. Italian political theorist Norberto Bobbio wrote that the republican system as conceived in Europe had two fundamental characteristics: 1) the republic should be relatively small like a city-state, and 2) it should have a homogeneous population. These two fundamental characteristics had their raison d’être in the necessity of mutual loyalty among the citizens of the republic. On the one hand, a republic tends to instability unless it avoids territorial conquests and large population influxes. On the other hand, it will always have to struggle to not be absorbed by its more powerful neighbors.
Since power always tends toward concentration, the blend of internal and external tensions tends to push the republican experience to failure. Internally, elites will battle for political hegemony and once this hegemony has been conquered by one group, a new round of struggles will follow within this winner elite, until a single man is able to assert his supremacy over the others and become absolute ruler. On the external front, the republican regime will have two options; it can conquer new territories and people, increasing its military power, or succumb to a foreign power. Be that as it may, the political ties that existentially unite the people in a republic will be lost.
According to Bobbio, one of the ways that a republic tries to survive is to maintain its purity through fidelity to the primordial constitution. Just as in Lycurgus’ Sparta, the text that founds the political regime must never be altered. Any change would inevitably lead to the degeneration of the political order towards chaos or tyranny. It’s this idea about the wisdom of the Founding Fathers that characterizes the intellectual horizon of American constitutional originalism.
However, I do not believe this paradigm can be applied to the United States anymore. No matter what perspective one takes, the constitutional reality created by the Founders has perished. No one lives in the country created by George Washington, Thomas Jefferson or James Madison, but in now in a nation reconstructed in the image and likeness of the FDR’s New Deal and LBJ’s Great Society. The United States that was founded purposefully with a weak central government has given way in the last century to an assertive and intrusive federal government, controlled by a despotic bureaucratic elite that every two years gives the common American man the illusion of democracy at the ballot box
During all this time, the gravedigger of constitutional rights has been the Supreme Court, whether it had a conservative majority or not. Justices validated Woodrow Wilson’s dictatorial measures and the FDR’s concentration camps. Appointed by Richard Nixon, Harry Blackmun was the author of the infamous Roe v. Wade opinion, reading into the Constitution a right to privacy that does not exist. A conservative majority validated the domestic spying on American citizens by the government in the name of the war on terror and greatly expanded the state’s power to enforce eminent domain. Chief Justice John Roberts is an example of how the Constitution became irrelevant. According to Joan Biskupic’s The Chief, Roberts’s decision on the constitutionality of Obamacare in NFIB v. Sebelius was entirely motivated by political considerations. Although he believed the bill to be unconstitutional, Biskupic showed how Chief Justice Roberts preferred to create an extravagant interpretation and read in the law what was not written than to give subsidies to the left-wing narrative that conservatives control the Supreme Court.
Listen to the brief clip below from Ilya Shapiro, Cato Institute Senior Fellow in Constitutional Studies, who spoke at Acton in 2016 on judicial restraint, Chief Justice John Roberts and Obamacare, and the unchecked growth of the federal government.
The American constitutional system has been so mutilated by the unchecked growth of the federal government and its bureaucracy that trying to protect the rights established by the Magna Carta through conventional means is the same as trying to treat a knife wound with a Band-Aid.
One of the main fears of conservatives toward Trump’s decision to declare a state of emergency is that it will generate a dangerous precedent. What are they talking about? I have no idea. Liberals have been expanding and plotting to expand the government’s power through executive action to implement their policies since the New Deal. Before Trump made made his decision, Barack Obama promoted immigration reform unilaterally and in spite of Congress: the so-called DACA, which authorizes the government not to follow the law. Today, the United States is engaged in military conflicts directly or indirectly across half of the Middle East. When was the last time Congress passed a war declaration? It was during World War II. There are American troops now struggling in Syria, a sovereign nation, with no legislative act to support it.
Trump’s decision can only be understood in the greater context of the institutional crisis of a republic that finds itself wholly divorced from the constitutional order that created it. American society today is rooted in the desires of the elite that control both political parties and are determined, through illegal immigration, to gain power at the polls and implement a broad program of social engineering.
The ancient Romans understood that in times of crisis powers of exception should be given to the leaders to save the Republic. This is the theoretical nature of Trump’s declaration of emergency: to save the Republic.
A natural cycle has governed human societies since time immemorial: All regimes tend first toward decay and then to renewal. The American constitutional order was created by a Revolution; perhaps it is time for a new American revolution.
Homepage photo credit: President of the United States Donald Trump speaking at the 2018 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. Gage Skidmore. WikiCommons.