The State of the Union February 2023
What James Madison, father of the Constitution would say
JAMES MADISON’S STATE OF THE UNION MESSAGE
February 2023
The state of the Union is perilous. The danger lies not in the stars or abroad but in ourselves. We have met the enemy, and they are us.
The Constitution is the nation’s birth certificate—"the most wonderful work ever struck off at a given time by the brain and purpose of man,” in the words of Lord Gladstone
Decades ago, since at least President Harry Truman’s unconstitutional war in Korea, we began entering a post-constitutional era propelled by the delusion that we were God’s new chosen people whose glory was world domination and control in lieu of liberty and the march of the mind.
If we neglect to restore the Constitution’s separation of powers and checks and balances that pit ambition against ambition from the tyranny of one-branch government, the Union is doomed to ruination like the Roman Empire.
If we idle, the Union will end primarily by chronic, permanent, pointless, unconstitutional presidential wars not declared by Congress fueled by a multi-trillion-dollar military-industrial-security state earmarked by magnifying national security fleas into elephants.
At present, the United States is bogged down in unconstitutional presidential wars as a belligerent or co-belligerent in Libya, Somalia, Yemen, Syria, Iraq, and Ukraine, after squandering $2 trillion over two decades in Afghanistan on a fool’s errand.
We are in perpetual war everywhere on the planet against two non-state actors: Al Qaeda and ISIS.
Additional presidential wars are in the queue because of gratuitous defense treaties with NATO, Japan, Australia, and South Korea. We face no existential threats. No other nation’s assistance is needed to deter aggression against us or to fortify our defenses. NATO is exemplary. Does anyone think the accession of Montenegro or North Macedonia to NATO bolstered our security against a foreign invasion? NATO was born in 1949 to deter the Soviet Union from attacking Western Europe, not the United States.
The national debt has spiked past a staggering $31 trillion triggering corresponding prohibitive carrying costs. But we have selfishly foisted the costs of war onto our posterity. Brown University estimates the spending since 9/11 alone at $8-9 trillion, not counting the unquantifiable opportunity costs of turning the nation’s collective genius from entrepreneurship and innovation to proficiency in killing and spying. The American Empire is no longer a viable enterprise if it ever were. The business model doesn’t compute.
A terrifying concomitant of presidential wars is presidential assassinations--authority to play prosecutor, judge, jury, and executioner to kill any person on the planet based on secret, unsubstantiated speculation that the target could become a national security threat. If there are greater violations of due process—the heartbeat of civilization—they do not readily come to mind.
The American Revolution was ignited by British invasions of privacy—the right to be let alone absent probable cause of wrongdoing determined by a neutral magistrate. Electrified by James Otis’ 1761 denunciation of British writs of assistance, i.e., general search warrants, John Adams maintained: “Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born. In 15 years, that is in 1776, he grew up to manhood, and declared himself free.”
In 1763, William Pitt the Elder’s address to the British Parliament thundered like a hammer on an anvil throughout the American colonies: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his forces dare not cross the threshold of the ruined tenement.”
The Fourth Amendment was ratified to secure citizen privacy and to repudiate British writs of assistance. The Amendment prohibits suspicionless, warrantless government searches. It also requires search or arrest warrants to be issued only by neutral magistrates based on probable cause of criminal wronging and particularly describing the place to be searched or the person or things to be seized.
Justice Louis D. Brandeis explained the Amendment’s philosophical predicates in Olmstead v. United States, 277 U.S. 438 (1928) (dissenting opinion):
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”
Justice Robert Jackson served as chief prosecutor before the International Military Tribunal in the trial of senior Nazi officials at Nuremberg. He knew firsthand how the Gestapo had cowed the German people into docility. He instructed in Brinegar v. United States, 338 U.S. 160 (1949) (dissenting opinion):
“[Fourth Amendment rights] are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates, and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.”
Unconstitutional presidential wars against terrorism gave birth to a lawless, warrantless surveillance state that targets everyone—including the vast universe of the “not-yet-guilty,” an Orwellian concept embraced by former CIA Director Michael Hayden. The cherished right to be let alone absent credible evidence of complicity in crime found by a neutral magistrate has been annihilated. The magnitude of the violations can only be guessed at because of government secrecy. But the fragments that have been disclosed through leaks, e.g., Edward Snowden, or genuine congressional oversight like the Church Committee suggest the violations are far beyond industrial scale.
I am thus proposing that the 118th Congress consider the following agenda:
1. A statute that declares the United States will remain neutral in all foreign conflicts unless Congress enacts a declaration of war or co-belligerency. The statute would prohibit the expenditure of any funds of the United States in violation of such neutrality.
2. A resolution that defines unconstitutional presidential wars as impeachable high crimes and misdemeanors.
3. A statute that prohibits presidential assassinations except as expressly authorized by Congress.
4. Statutes that revoke United States adherence to NATO and abolish United States defense treaties with Japan, South Korea, and Australia.
5. A statute that prohibits the deployment of the United States Armed Forces abroad without express statutory authority from Congress.
6. A statute that prohibits any surveillance of United States residents except pursuant to individualized warrants issued by a neutral magistrate based on probable cause to believe criminality is afoot coupled with private, strict liability causes of action against offending government officers to be redressed by compensatory and punitive damages.
The constitutional path back from our appalling post-constitutional shipwrecks will be challenging. But if we do nothing, the noble sacrifices, suffering, and struggles of our ancestors will have been in vain.
We dare not fail to try.