Thursday, September 07, 2017

The Schlesinger Moment*

Because the United States of America was once a backwater province of the British Empire, it must be remembered that, prior to the Declaration, the Colonies sought, in countless petitions, "the rights of Englishmen"; and therefore, even after independence, the work of a certain writer in the former mother country had significant influence on the other side of the pond.  William Blackstone's Commentaries on the Laws of England are cited and alluded to in The Federalist Papers, which are the commentaries on the Constitution.

I. Background

     On September 17, 1787, as Benjamin Franklin and James McHenry left on the final day of the Federal Convention, they were approached by Mrs. Powel of Philadelphia.

     "Well, Doctor, what have we got--a republic or a monarchy?"

     "A republic," Franklin replied, "if you can keep it."
II. Beginning
     WE THE PEOPLE of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

III. Tension

     A monarchy is one thing, a republic another.

   "...(T)he king of Great Britain is a perpetual and HEREDITARY prince.  The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable."  (The Federalist Papers, No. 69)

     Thus began Alexander Hamilton's comparison of the Chief Magistrate of the Union with the British monarch, and, as Blackstone shows, the contrast could not be more stark.

       ...(B)y law the person of the king is sacred, even though the measures pursued in his reign 
       be completely tyrannical and arbitrary....  For, as a king cannot misuse his power, without
       the advice of evil counsellors, and the assistance of wicked ministers, these men may be
       examined and punished.  The constitution has therefore provided, by means of indictments,
       and parliamentary impeachments, that no man shall dare to assist the crown in contradiction
       to the laws of the land.  But it is at the same time a maxim in those laws, that the king
       himself can do no wrong; since it would be a great weakness and absurdity in any system
       of positive law, to define any possible wrong, without any possible redress.  (Blackstone,   
       Volume I, 235 & 237; emphasis added)

     The person of one is "sacred and inviolable"; his ministers are held responsible; and there is more.

       BESIDES the attribute of sovereignty, the law also ascribes to the king, in his political
       capacity, absolute perfection.  The king can do wrong.  Which antient and fundamental
       maxim is not to be understood, as if every thing transacted by the government was of
       course just and lawful, but means only two things.  First, that whatever is exceptionable
       in the conduct of public affairs is not to be imputed to the king, nor is he answerable for
       it personally to his people: for this doctrine would totally destroy that constitutional
       independence of the crown, which is necessary for the balance of power, in our free
       and active, and therefore compounded, constitution.  And, secondly, it means that the
       prerogative of the crown extends not to do any injury: it is created for the benefit of
       the people, and therefore cannot be exerted to their prejudice.  (Blackstone, Volume I,
       238-239; emphasis added)

IV. Meaning
     "A republic, by which I mean a government in which the scheme of representation takes place...."  (The Federalist Papers, No. 10)  And then James Madison goes into more detail.

       ...(W)e may define a republic to be, or at least may bestow that name on, a government
       which derives all its powers directly or indirectly from the great body of the people, and
       is administered by persons holding their offices during pleasure, for a limited period, or
       during good behavior.  It is ESSENTIAL to such a government that it be derived from the
       great body of the society, not from an inconsiderable proportion, or a favored class of it;
       otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of
       their powers, might aspire to the rank of republicans, and claim for their government the
       honorable title of republic.  It is SUFFICIENT for such a government that the persons
       administering it be appointed, either directly or indirectly, by the people; and that they
       hold their appointments by either of the tenures just specified; otherwise every government
       in the United States, as well as every other popular government that has been or can be 
       well organized or well executed, would be degraded from the republican character.  
       (The Federalist Papers, No. 39; CAPITAL emphasis Madison's; italics added)

V. Executives
     Among other things, the Presidency was to be defined by these elements--"competent powers," "a due dependence on the people" and "a due responsibility."  (Alexander Hamilton, The Federalist Papers, No. 70)  All powers of the Chief Magistrate of the Union, who "would be an officer elected by the people for FOUR YEARS," are to be used for the benefit of the Republic.  (Alexander Hamilton, The Federalist Papers, No. 69)  The individual has no rights and privileges beyond those of any other citizen.  Executive privilege, for instance, pertains to the office.  The distinction between the individual and the institution is placed in sharp relief by the oath--"I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States"--for the only time "I" appears is in the oath to uphold the supreme law of the land; the "I" acts on behalf of the "WE."
     "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."  (Article II, Section 4)  The Chief and his Deputy and the Cabinet are responsible, for "in a republic...every magistrate ought to be personally responsible for his behavior in office."  (Alexander Hamilton, The Federalist Papers, No. 70; emphasis added)  That insures checks and balances or, in other words, "Ambition must be made to counteract ambition."  (James Madison, The Federalist Papers, No. 51)  In England, there is a different maxim "for the sake of the public peace."  (Alexander Hamilton, The Federalist Papers, No. 70)
     VI. Pardons
     The Framers carefully crafted power in respect to public service, not service to self.  That was a constant, which must be kept in mind as the focus turns to one of the competent powers.
     "The President...shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."  (Article II, Section 2, Clause 1)
     Hamilton examines its use in the most dangerous situation.
       The expediency of vesting the power of pardoning in the President has, if I mistake not,
       been only contested in relation to the crime of treason.  This, it has been urged, ought to
       have depended upon the assent of one, or both, of the branches of the legislative body....
       And this ought the rather to be the case, as the supposition of the connivance of the
       Chief Magistrate ought not to be entirely excluded.  But there are also strong objections
       to such a plan.  It is not to be doubted, that s single man of prudence and good sense is
       better fitted, in delicate conjunctures, to balance the motives which may plead for and
       against the remission of the punishment, than any numerous body whatever.  It deserves
       particular attention, that treason will often be connected with seditions which embrace
       a large proportion of the community....  But the principal argument for reposing the
       power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection
       or rebellion, there are often critical moments, when a well-timed offer of pardon to the
       insurgents or rebels may restore the tranquillity of the commonwealth....
     And Hamilton provides perspective on the decisionmaking process.
     "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed....  As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance."  (The Federalist Papers, No. 74; emphasis added)
     The gentleman from New York was thoughtful on the subject of "the complete power to pardon"--thoughts full of his aides, his family, and himself.  Why should any of them be "subject to indictment, trial, judgment, and punishment according to law"?  (Article I, Section 3, Clause 7)
     If the king can do no wrong, he has no need to pardon himself.  But Blackstone takes pains to explain the precise meaning of a phrase otherwise easily misrepresented or misunderstood.
       AFTER what has been premised in this chapter, I shall not (I trust) be considered as an
       advocate for arbitrary power, when I lay it down as a principle, that in the exertion of
       lawful prerogative, the king is and ought to be absolute; that is, so far absolute, that
       there is no legal authority that can either delay or resist him....  For otherwise the
       power of the crown would indeed be but a name and a shadow, insufficient for the
       ends of government, if, where its jurisdiction is clearly established and allowed, any
       man or body of men were permitted to disobey it, in the ordinary course of law: I say,
       in the ordinary course of law; for I do not now speak of those extraordinary recourses
       to first principles, which are necessary when the contracts or society are in danger of
       dissolution, and the law proves too weak a defence against the violence of fraud or
       oppression.  And yet the want of attending to this obvious distinction has occasioned
       these doctrines, of absolute power in the prince and of national resistance by the people,
       to be much misunderstood and perverted by the advocates for slavery on the one hand,
       and the demagogues of faction on the other.  (Blackstone, Volume I, 243; emphasis
     If the President of the United States can pardon himself, his person is more "sacred and inviolable" than that of the king because the Supreme Court has said that "a pardon...carries an imputation of guilt; acceptance a confession of it."  (Burdick v. United States, 236 US 94)  Thus, such a deed would mean the President can do no wrong with impunity; and the words of Chief Justice John Marshall would be meaningless:  "The Government of the United States has been emphatically termed a government of laws, not of men."  (Marbury v. Madison, 5 US 163)  But by his dissent in Olmstead v. United States, Justice Brandeis paid a decent respect to the opinions of mankind with a message for all who take the oath seriously:  "Our Government is the potent, the omnipresent teacher.  For good or for ill, it teaches the whole people by its example.  Crime is contagious.  If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."  (277 US 485)
     There are consequences when the king acts in "an unconstitutional manner."  Are there to be none when the President does the same?
       IN the exertion therefore of those prerogatives, which the law has given him, the king is
       irresistible and absolute, according to the forms of the constitution.  And yet, if the
       consequence of that exertion be manifestly to the grievance or dishonor of the kingdom,
       the parliament will call his advisers to a just and severe account.  For prerogative
       consisting (as Mr. Locke has well defined it) in the discretionary power of acting for the
       public good, where the positive laws are silent, if that discretionary power be abused to
       the public detriment, such prerogative is exerted in an unconstitutional manner.  Thus
       the king may make a treaty with a foreign state, which shall irrevocably bind the nation;
       and yet, when such treaties have been judged pernicious, impeachments have pursued
       those ministers, by whose agency or advice they were concluded.  (Blackstone, Volume I,
       244; emphasis added)
     Note the conditions under which a king grants pardons.
       IN criminal proceedings, or prosecutions for offences, it would still be a higher absurdity,
       if the king personally sate in judgment; because in regard to these he appears in another
       capacity, that of prosecutor.  All offences are either against the king's peace, or his crown
       and dignity; and are so laid in every indictment.  For, though in their consequences they
       generally seem (except in the case of treason and a very few others) to be rather offences
       against the kingdom than the king; yet, as the public, which is an invisible body, has
       delegated all its power and rights, with regard to the execution of the laws, to one visible
       magistrate, all affronts to that power, and breaches of those rights, are immediately
       offences against him, to whom they are so delegated by the public.  He is therefore the
       proper person to prosecute for all public offences and breaches of the peace, being the
       person injured in the eye of the law....  And hence also arises another branch of the
       prerogative, that of pardoning offences; for it is reasonable that he only who is injured
       should have the power of forgiving.  (Blackstone, Volume I, 258-259)
     Here, offenses are against the United States.  In England, offenses are against the king and, as the injured party, he grants pardons.  But as no one who has caused an injury can demand and expect to receive an apology, so the President, who affronts the United States, cannot pardon himself, although he may indulge in personal forgiveness.
     "Responsibility is of two kinds--to censure and to punishment.  The first is the more important of the two, especially in an elective office.  Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment."  (Alexander Hamilton, The Federalist Papers, No. 70; emphasis added)
     At high noon on the twentieth of January, the gentleman from New York stood in opposition to the emoluments clause and the take care clause as well.  (Article I, Section 9, Clause 8 & Article II, Section 3)  From the moment His Excellency said, "So help me God" he was in violation of the Constitution.  The man who was supposed to "take care that the laws be faithfully executed" chose to execute "the supreme law of the land."  (Article II, Section 3 & Article VI, Clause 2)
     High crimes and misdemeanors "are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."  (Article II, Section 4 & Alexander Hamilton, The Federalist Papers, No. 65)  But the oath was dismissed with a wave of his hand.  After all, how can one "preserve, protect and defend" the very thing he upends?  ALL OF THOSE ARE IMPEACHABLE OFFENSES.  Therefore the gentleman from New York
is in contempt of the Constitution.  Thus, there are already major violations regardless of the Russian investigation.  How can one then use the supreme law of the land as a shield?
     "Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself."  (Memorandum Opinion for the Deputy Attorney General, August 5, 1974; hereinafter, Pardon Memorandum)
     The phrase--a judge in his own cause--is not addressing a particular point, nor an actual position on the bench, but emphasizes a general principle.  The mist is lifted by the light of James Madison, Alexander Hamilton, and William Blackstone.  "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity."  (The Federalist Papers, No. 10; emphasis added)  Madison is discussing faction.  "No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias."  (The Federalist Papers, No. 80; emphasis added)  Hamilton is referring to the judiciary.  Blackstone makes another distinction, in the context of war and peace, stating that letters of marque and reprisal are necessary "else every private sufferer would be a judge in his own cause."  (Blackstone, Volume I, 251; emphasis added)
     "A different approach to the pardoning problem could be taken under Section 3 of the Twenty-fifth Amendment.  If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President.  Thereafter the President could either resign or resume the duties of his office."  (Pardon Memorandum; emphasis added)
     What that describes is the side-step and glide.  And the one who leads, if thought of as a matador, is the reason people root for the bull.  What comes from that animal's behind helps crops grow.  But what comes from the lips of the would-be Manolete is worthless.  In retrospect, what we witnessed was the running of the mouths.  A glaring exception would have the principle give way--declared invalid and slayed.  The image is a sight to behold--a horror, because, as Hamilton observes, "it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity."  (The Federalist Papers, No. 74)  The side-step and glide is not the style and stance of the classical matador.
     "...(N)o suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him.  For all jurisdiction implies superiority of power: authority to try would be vain and idle, without an authority to redress; and the sentence of a court would be contemptible, unless that court had power to command the execution of it..."  (Blackstone, Volume I, 235)
     Unlike the king, suits can be brought against the President, Vice President, and the Cabinet while in office and definitely after.
     "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law."  (Article I, Section 3, Clause 7)
     After citing the above, an interpretation is provided.
     "In our view, this clause does not require subsequent criminal proceedings; it merely provides that they would not constitute double jeopardy.  To read this clause as mandatory would, of course, preclude any kind of pardon."  (Pardon Memorandum; emphasis added)
     As Hamilton noted, men in power more often make themselves untrustworthy, which would be an impeachable but not a criminal offense.  Upon conviction, the ultimate remedy of impeachment is removal from office and disqualification; and for offenses that were not criminal, the individual would not be put twice in jeopardy of life or limb, having suffered only loss of position.  So, in the matter of trust, the clause does not come into play.  But as to criminal conduct, and because of historical evidence regarding the difference between a monarchy and a republic, the clause must be read to preclude any kind of pardon.
     Flagrant violations do not require proceedings to state what is in plain sight; and the gentleman from New York has been in violation of the emoluments clause, the take care clause, the oath, and, therefore, in contempt of the Constitution from the beginning.  To use a renowned scholar's phrase,  "the complete power to pardon," according to Article II, Section 2, Clause 1, applies "except in cases of impeachment."  Does that mean no pardons at all can be granted in the present circumstances, if the plain sight rule prevails?
     This question--Can a President pardon himself?--is worthy of a comedian.  But there is no punchline.  So why tolerate, and even elevate such an assertion to the level of consideration, and act as if a response is required?  The reason is that some take mere assertion and repetition seriously, almost as if they are magical and transmute the lead of lying into the gold of truth.  But the notion recently suggested in a tweet that the President can do no wrong, if not debunked and thoroughly rebutted would give rise to royalty.  And what could be more unconstitutional when the Fundamental Charter prohibits even the granting of titles of nobility?  (Article I, Section 9, Clause 8 & Section 10, Clause 1)
     At least Nixon did not say, "Well, when the President does it, that means it is not illegal" until after he left; and while in office, he refused to pardon his aides.  Again, the gentleman from New York makes him look good.
     Freedom of speech includes the right to listen.  The one is written, the other implied or, more accurately--inherent.  Because something is unstated or unseen is not to deny its existence.  Astronomers often find new planets and moons by fluctuations in starlight or perturbations in orbits.  In much the same way, historians determine the truth by studying the totality of an environment and its inhabitants.  Their fluctuations and perturbations are character and conditions that reveal patterns which help to determine what happened and why.
     American history is not a celebration of monarchy, nor an endorsement of despotism.  From the Declaration to Franklin's remarks after the Convention, and from The Federalist Papers to the Preamble, "the manifest tenor of the Constitution" cannot be misunderstood.  (Alexander Hamilton, The Federalist Papers, No. 78)  Arguments from authority carry no weight.  The Framers saw them as "chimerical."  And those we hear now are nothing but the insolence of orifice.
     "I believe no principle is more clearly laid down in the Constitution than that of responsibility," said James Madison on the floor of the first House of Representatives.  (Speech, June 16, 1787)  He spoke of the misuse of the removal power, and how its abuse by a President was an impeachable offense.  The same standard applies to all of the "competent powers."  So no precedent is necessary to reject the preposterous.
     Among the objections to King George III were these:
          He has obstructed the administration of justice by refusing to ascent to laws for
       establishing judiciary powers. 
          He has made Judges dependent on his will alone for the tenure of their offices, and the
       amount and payment of their salaries.
     The modus operandi of the King and the gentleman from New York may vary, but they are on the same tracks of "a long train of abuses and usurpations, pursuing invariably the same object...absolute despotism."  A different time, the same destination, and the same engineer with a different mask.
       A prince whose character is thus marked by every act that may define a tyrant is unfit to be
       the ruler of a free people.
     Some Anti-Federalists feared the Presidency was "the fetus of monarchy" which would grow into crown and royal robes.  But that can only come to pass if the power to grant reprieves and pardons is made synonymous with a get out of jail free card in Monopoly.
VII. Done
     The incongruity between a monarchy and a republic cannot be ignored.  For the one, there is no separation between the person and the position.  For the other, there is a distinction between the individual and the institution.  Here, the Chief Executive is not "a perpetual magistrate" whose removal and prosecution is to be avoided "for the sake of the public peace."  (Alexander Hamilton, The Federalist Papers, No. 70)  Instead, they are to be sought "in order to form a more perfect Union."
     President Jefferson did not deliver the State of the Union Address in person, although Washington and Adams had done so.  He thought that was "too kingly for the new republic."  Thus, once upon a time a President of the United States was circumspect in performing an undisputed constitutional duty.  How times have changed!
     FDR spoke of a "rendezvous with destiny."  But the Fake Deluded Resident has given us a rendezvous with the ridiculous.  Of course, Roosevelt knew he was President of the Republic, not King of the Realm.
     A monarchy is one thing, a republic another.  Nepotism is a feature of the former, merit the latter.  But even in a monarchy a man must stand for something, and yet in the American Republic we have gone from a man for all seasons to a man for all flimflams.  The gentleman from New York is, apparently, unaware that the age of whim is over, and, evidently, he has not heard that a king in the modern Western world is under a constitutional monarchy.  And finally, a republic exists to benefit the many, not favor the few.  Thus, the Preamble lays out markers by which WE THE PEOPLE measure progress toward a desired end--to "promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."
     In the First Treatise, John Locke cuts Sir Robert Filmer to pieces over divine right of kings.  The only comparable undressing was a result of the swordfight between Zorro and Sgt. Garcia.  But unlike the good sergeant, who was humbled in that legendary engagement, the gentleman from New York is between a dunce cap and a dungeon.
(c)2017 Marvin D. Jones.  All rights reserved.

*[The Schlesinger Moment arrives when one realizes that the oath transcends loyalty to any individual, institution, party, or policy and then acts accordingly.]

2)    [Franklin, McHenry, and Mrs. Powel]

3)    [The gentleman from New York as rex]

[emoluments clause]

5)     [Pardon Memorandum]   

6)    [Nixon's good qualities]  

7)    ["Uprising" Threat]

8)  Bookends: A Musical Tribute to the Gentleman from New York    [Prologue]    [Epilogue]

9)    [Zorro and Sgt. Garcia]


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