Sen. Leahy’s Truth Commission; Promises and Pitfalls

Post No. 9. The Sunday Evening Post, Nov. 22, 2009

By Neal Herrick

Sen. Leahy is to be commended. He is one of a few Members of Congress who have not been seduced by the foolish (but politically attractive) “Let’s move on” doctrine. I have already commented on this self-serving, short-sighted, and dangerous doctrine in Sunday Evening Post No. 7 – Learning How to Fight Corruption from American History. In this Post, I will discuss some of the positive aspects of Sen. Leahy’s proposal. Then I will point out some of its pitfalls and suggest ways of avoiding them. Finally, I will comment on the “peaceful revolution” that is needed to restore truth, honesty and responsiveness to our federal government.

The positive aspects of Sen. Leahy’s Truth Commission

The strength of Sen. Leahy’s proposed Commission is that it addresses the most serious aspect of the most serious problem facing our country today. The offenses allegedly committed by Bush and Cheney are the most serious offenses that can be committed by a civil officer of the US. The executive’s usurpation of congressional and/or judiciary powers (for example, issuing signing statements and conducting illegal invasions) leads to tyranny. The exceeding of constitutional powers (for example, permitting torture) brings into play illegal powers that do not exist in our legitimate culture. It is, therefore, the most insidious of all offenses. It erodes the moral core of our originally unique and even now wonderful country. By bringing attention to the probability that these offenses occurred and that we are now threatened by their consequences, the Leahy Commission is performing a much needed service.

The pitfalls of the proposed Leahy Commission

The weaknesses of the Leahy proposal are, first, that it is partisan and, second, that it will make its report to Congress. It is partisan in that it would investigate the “delusional” offenses of Bush-Cheney, but would fail to investigate the similar offenses that were probably committed by former presidents Carter, Reagan, Bush Sr., Clinton and George W. Bush (and that are now very likely being committed by President Obama. Mr. Carter initiated our shameful war against the people of Nicaragua in 1979, Mr. Reagan seems to have played a role in Iran-Contra, Bush Sr. conducted the first Gulf war, Mr. Clinton repeatedly called down air strikes and missiles on the inhabitants of other countries, George W. Bush invaded Iraq and must be held accountable for the torturing of human beings that occurred during his presidency. Mr.Obama has continued both the war in the Middle East and the practice of issuing “signing statements. Bush-Cheney have been, no doubt, the most egregious miscreants. To limit the investigation to them, however, would forestall any constructive result. It would force half the country to make a choice between endorsing corruption and betraying their party.

The second weakness of the proposed Commission is that, since it would issue its report to Congress, the likelihood that it would result in meaningful reform is virtually nil. It is not in the interests of individual Members of Congress to take back their lost war powers from the executive nor would they dare, as a general rule, to participate in calling a halt to the presidential usurpation of their legislative powers. Only we, the people, have both the motive and the power to reform our federal government.

The only remedy is a peaceful revolution

In short, the proposed Leahy Commission might help create a public awareness of the dangers of an executive that usurps the powers of Congress and creates new and terrifying powers with no basis in our law or culture. This would be a very good thing and I support Senator Leahy wholeheartedly. However, the only remedy for governmental corruption is revolution. To expect government to reform itself is a failure of reason. The framers understood that our civil officers would be motivated by self-interest and so should we. The genius of our Constitution lies in its attempt to make the interests of our civil officers congruent with the interests of the people. Madison famously explained that our civil officers would serve us well by fighting to protect their constitutional powers, thus “supplying . . . the defect of better motives” (Federalist Paper No. 50). Since actual reform would not serve the interests of our 2,000 or so civil officers, it is nonsensical to suppose that government can reform itself. Meaningful governmental reform can be accomplished only by the people. Since violent revolutions are likely to re-create corrupt governments, what is needed in America today is a peaceful revolution – that is, a major change achieved by lawful means.

We have the motive and we have the means to reform our lawless government

Madison foresaw the time when it might “become necessary to enlarge, diminish, or new model the powers of government,” the task should “recur” to the people (Federalist No. 49). It seems re4asonable to suppose that he and his fellow-framers crafted Article V to give this sentiment effect. Hamilton says in Federalist No.80 that “There ought always to be a constitutional method of giving efficacy to constitutional provisions” Article V provides a little-noticed and never-used method of giving efficacy to the people’s ultimate power alluded to so often by the framers. While all law-making power is given to Congress in a reasonably pure republican manner, Article V makes one exception. The people are given the power to make law that defies, nullifies, adds to or changes any statute passed by Congress and signed by the president.

Acting either through state constitutional conventions or through their state legislatures, we have the supreme power to decide how our country should be governed and to instruct the three branches accordingly. This power was given us with the explicit intent that it be used, when necessary, to “enlarge, diminish or new-model” the powers of government. The framers’ acknowledgment that diminishing or new-modeling the powers of government might become necessary was prescient. They understood that, however finely crafted, our government might “run amuck.”

The alternative to action is tyranny

The fact that we have never used the power given us by Article V to initiate an anti-corruption amendment is probably due to a variety of factors. First, we are largely unaware that we possess this power. Second, the approach of tyranny is incremental. We have difficulty knowing when things have reached the point where we must act in order for our country to survive. Third, Article V gives Congress the power to decide whether a particular amendment should be decided by state legislatures or by state constitutional conventions. The list of difficulties goes on and on. However, the inevitable long-term alternative to governmental reform is tyranny – the end of the America we love - an America in name only. If Senator Leahy’s Truth Commission helps us understand the nature and the seriousness of the threat posed by our lawless government, it will have performed a valuable service.