Like many Americans, I’ve heard it so many times in casual conversations that I can cite it verbatim: "I’m not sure Bush is doing everything the best way, but he is our commander in chief, and we need to stand behind him during this time of war."
I used to respond with the truthful reply that "He’s not MY commander in chief," but that only made me look like a terrorist-loving, communist, pacifist, Islamofascist pinko to whomever I was speaking. So I’ve modified my response: "He’s not your commander in chief, unless you are active-duty military. Are you currently in active-duty service?"
That response always gets a perplexed look, as citing the Constitution tends to do in this era of constitutional ignorance, and only rarely ends in a straight answer to my question. The constitutionally literate are always suspected of being tinfoil-hat-wearing loons these days – until I continue: "Article Two of the U.S. Constitution says that ‘the President shall be Commander in Chief of the Army and Navy of the United States.’ So if you are not in the military, the president isn’t your commander in chief, as far as the U.S. Constitution is concerned."
That’s usually enough to shake all but the most pigheaded neocon imperialists. Demonstrating that Bush is not "my commander in chief" removes the foundation for the belief that they are somehow personally liable for loyalty to the president. After that, the entire false edifice of the imperial presidency can be knocked down.
President Bush claims to be a commander in chief who can bring the United States to war, cancel the Sixth Amendment right to trial by jury, cancel the Eighth Amendment protection against torture, and eliminate Fourth Amendment protections against searches whenever he deems it necessary.
But Bush’s alleged commander-in-chief powers far exceed the Constitution’s actual commander in chief provision. George Bush claims to have more powers than British King George III ever demanded. Yet constitutionally speaking, the president is nothing more than the errand-boy of Congress.
The president has no powers to order the military to do anything, unless Congress first orders it. Only Congress has the power “to make rules for the regulation and government of the land and naval forces” under the Constitution. Only Congress can “declare war,” and only Congress can declare "enemy combatants" under its exclusive power to “make Rules concerning Captures on Land and Water.”
As commander in chief, Bush’s responsibility under the Constitution is to do what Congress tells him to do. Nothing more, nothing less.
We are not in a "time of war," as far as the Constitution is concerned, because Congress did not declare it. So President Bush cannot have "war powers." Whereas Congress has the exclusive power to declare war under the Constitution, presidents have historically "declared war" when they want to appear to be making progress on a public concern while not actually doing anything. (Witness the so-called "War on Drugs," "War on Poverty," and "War on Crime.")
Even if one were to adopt the expansive view of the Constitution’s commander-in-chief provision dishonestly claimed by the president and his lackeys, the powers Bush claims would be trumped by the Bill of Rights. The Bill of Rights is, after all, the first 10 amendments to the Constitution, and therefore changes all provisions of the Constitution that conflicted with them. If the commander-in-chief provision had actually empowered the president to spy on American citizens without warrant, deny Americans trial by jury, or authorize torture, the Fourth, Sixth, and Eighth Amendments would have nullified that power.
President Bush explained in his press conference last week that his infringement of Congress’ powers are irrelevant and that he would leave his constitutional violations mired in "debate" among lawyers:
"I would say that there has been a historical debate between the executive branch and the legislative branch as to who’s got what power. And I don’t view it as a contest with the legislative branch. Maybe they view it as a contest with the executive; I just don’t. I view it – I view the decisions I’ve made, particularly when it comes to national security, as necessary decisions to protect the American people. That’s how – that’s the lens on which I analyze things. … I’m going to leave that [debate] to the lawyers. I believe I’ve been hired by the people to do my job, and that’s to protect the people, and that’s what I’m going to do…."
Bush is essentially saying "Let senators debate, while I act." His words are an echo of several Roman consuls at the close of the Roman Republic, when the legislature became irrelevant and dictatorship arose under the empire.
James Madison wrote to Thomas Jefferson on Oct. 17, 1788, concluding: "Wherever the real power in a government lies, there is the danger of oppression." Today, the real power (as opposed to constitutionally legitimate power) in government lies in the person of President Bush.
James Madison was originally ambivalent about the Bill of Rights, arguing (correctly) that they were redundant to the Constitution’s principle of delegated powers. But Madison supported the idea of the Bill of Rights as a healthy redundancy. Significantly, Madison argued as he introduced them in Congress in 1789: "In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker." He was right. Congress has the power and the constitutional and moral obligation to reign in the runaway executive branch. All that is needed is for the people to infuse a backbone into Congress.
