The Green Papers
The Green Papers

Just how far is too far-- even for the Commander in Chief himself?

by Richard E. Berg-Andersson Staff
Wed 3 May 2006

In Part ONE on the subject matter of this Commentary, I addressed the differences between a government's powers and a person's Rights and privileges (along with an uncomplicated method of discerning said differences) and then went on to point out that

a.) despite these differences, even Rights are not at all absolute (in other words: to here borrow the language of the U.S. Supreme Court in the Gitlow case from which I had quoted: "[i]t is a fundamental principle, long established, that... [Rights]... secured by the Constitution [do] not confer an absolute right to [exercise said Rights], without responsibility, [how]ever one may choose"): I noted that "a personal 'Right'... implies 'responsibility'; a personal 'privilege' implies an 'obligation' ."


b.) governmental powers are, likewise, not absolute: I noted that "a governmental 'power' implies the existence of a 'duty' " and that "[o]ne of these 'duties' of government is the duty to be 'reasonable' in the use of its powers" (in other words, a governmental policy [whether regulating- where not prohibiting- the exercise of a privilege or restrictive of a Right] must follow that which is generally known as the "Rational Basis" test [in which a policy must be, at the very least, "reasonable"], even though I also had to admit- to here quote my own words- that, yes, "we all argue about just how rational- or irrational- a given policy might, in fact, be!"-- for such is what we know, in Constitutionalist Democracy, as "politics"). I also pointed out that "unreasonableness is the very definition of the American concept of 'abuse of power' ."

It must be fairly noted that- to again borrow from Gitlow- "[t]he State cannot reasonably be required to measure the danger" [from the abuse of one's Rights] "in the nice balance of a jeweler's scale". Put another way: it is not all black vs. white and, indeed, it must be admitted that there is at least some "gray area" as to discerning when a Right may be restricted by government as compared to when a privilege might be regulated by that same government. I will try to clarify the differences.

The best analogy I can come up with regarding this question is the difference in "burden of proof" between Civil and Criminal Law:

In an American civil case (for instance, that in which a Plaintiff sues a Defendant for damages), the burden of proof is so-called "preponderance of the evidence": simply put, if the evidence presented by the Plaintiff is more believable than that presented by the Defendant (assuming, of course, that the Plaintiff also has Law on his/her side to begin with [that is, there is a reasonable legal argument to be made before the court on behalf of the Plaintiff]), then the Plaintiff should prevail; if, however, the Defendant's "proof" is the more telling, then the Plaintiff should not win his/her lawsuit. In other words: the more doubt the Defendant can cast in the mind of the judge (we're here assuming, for sake of the argument, that we are dealing with, say, Small Claims without the necessity of a jury) about the Plaintiff's claims, the weaker the Plaintiff's case and the better it is for the Defendant.

In American criminal cases, however, the burden of proof is much heavier- for here it is necessary for the prosecution to have shown "proof beyond a reasonable doubt" of a Defendant's guilt. Whereas, in a Civil suit, even the slightest doubt as to the Defendant's version of the facts can win the case for the Plaintiff: in a Criminal prosecution, doubt about a Defendant's innocence on the part of a jury hearing the trial has to be significantly more than merely slight in order for that jury to convict.

This "burden of proof" analogy relates directly to the concept of Rights vs. privileges because, in a Criminal prosecution, one is- indeed- directly dealing with the Rights of the Defendant-- to quote from the U.S. Constitution itself: No person shall... be deprived of life, liberty, or property, without due process of law [from the 5th Amendment to same] and No State shall... deprive any person of life, liberty, or property, without due process of law [from the 14th Amendment to same]; after all, "among" (implying that there are others) the "certain" (implying that any of these others are, nonetheless, limited in number) "unalienable Rights" enjoyed by persons "created equal" (at least under Law, where individuals are not necessarily equal in intelligence, athleticism and/or skillfulness) "are Life, Liberty and the pursuit of Happiness"-- or so says the Declaration of Independence! And what exactly is the punishment prescribed by law for criminal conduct? Forfeiture of life (for a Capital offense), liberty (in the form of imprisonment or, for far lesser crimes, being required to show up for "community service" at prescribed times not of the Defendant's choosing) or property (in, say, the form of a fine).

Note that, constitutionally speaking, the deprivation of Rights requires "due process of law" which the restriction or prohibition of a privilege does not necessarily require (the latter being far more subject to the vagaries of the political arguments of the day [though, of course, privileges might also be subjected to forfeiture via criminal Due Process (as when a traffic court judge orders a driver convicted of driving under influence of alcohol to give up his/her privilege to drive a car for a period of time, perhaps also pending completion of an alcohol rehabilitation regimen)-- in a sense, Rights can only be taken by the state via (usually criminal) Due Process while privileges might be taken away merely by majority vote of the legislature (or the majority of the voters participating in a Referendum) as well as Due Process (civil or criminal)])

Now, why is this difference between a person's Rights and his/her privileges (the descriptions of which fairly border on the arcane) even important?

Let's go back to my cigarette-smoking friends and acquaintances, to whom I referred in Part ONE :

Whatever they might think (or not) about the banning, by law, of smoking sections from restaurants and even bars- no matter how rational (or irrational) the policy might, indeed, be; no matter how well (or badly) this law might, in fact, be enforced- the plain, simple fact remains that not being able to smoke a cigarette while dining in a restaurant (or, for that matter, riding to/from work on a commuter train or sitting in one's cubicle at the office, etc.) is, at most, merely an inconvenience (however onerous such an inconvenience might, or might not, be to the individual reader of this piece [and regardless of whether the reader of this piece agrees, or disagrees, with all I have been writing- and yet will write- on this very subject]). There is no reasonable argument that having to go outside a building to "light up" per se endangers one's life (indeed, the supporters of such anti-smoking legislation argue laws such as these actually enhance Life); the regulation itself does not confiscate one's property (the restaurant, train or office building do not require you to throw away the pack of smokes one purchased, only moments ago, at the convenience store on the corner-- they merely demand that you do not use the contents of said cigarette pack on the premises) and one's liberty is but mildly compromised (one is not at all prevented from leaving the premises to have a smoke [though, yes, one is likely not allowed to jump up in the middle of a sales meeting and immediately run to the elevators simply because one might be having a "nicotine fit"-- it's equally true that you cannot leave a moving train in order to smoke-- again, the key word here is "inconvenience"]).

Contrast this with one smoking one's favorite blend of tobacco in one's own home when there is a sudden, unexpected knock on the door and, upon the occupant opening it, the jackbooted, helmeted, dark-visored "smoking police" come in and, arbitrarily as well as unceremoniously, haul the "offending" smoker out to, eventually (without benefit of Due Process), some godforsaken gulag, never to be heard from again! Clearly, there is a significant difference between the obvious violation of Liberty involved in this last (however farfetched) hypothetical and the mere inconvenience pointed out in the previous paragraph, for such is the difference between the necessary securing of Rights by government (its "duty") and the lawful regulation of privileges by that same government (its "power"). As with a Criminal prosecution versus Civil lawsuit, the "burden of proof", if you will, as regards the restriction of unalienable Rights is far greater than that relative to the regulation of mere privileges.

And, yet, how close are we (or not) to conveniently forgetting this distinction in our zeal to secure the Homeland (to use one of the many post-9/11/2001 "terms of art" which have cropped up in the now more than 4 1/2 years since that awful day) and further fight the War on Terror (another post-9/11 bit of political argot, replacing the far more grandiose, but hardly ever realized, "War on International Terrorism" that was supposed to have been the immediate global response to the 9-11 Attacks)?

We Americans have been told, consistently for some 55-plus months now, that "the World changed forever on 11 September 2001"...


For Humanity was just as violent and mean-spirited on Monday 10 September of that same year as it would still be on Wednesday 12 September, two days later. After all, suicide bombings regularly plagued Israel throughout the Summer prior to 9-11-- in addition, to take just one obvious example: a full month before the 9-11 Attacks, UNITA rebels fighting against the Angolan government detonated a land mine placed on railroad tracks just as a train passed over it, then attacked the train as survivors struggled to flee the wreckage (well keep in mind the dictum that "a Terrorist is another man's Freedom Fighter while a Freedom Fighter is another man's Terrorist")-- at least 250 people (roughly twice the number who would die in the Pentagon come 9-11) were killed. To so openly claim that the World changed utterly merely because the United States of America happened to be, as had hitherto rarely been the case, the scene of a horrendous act of Terrorism on that particular Tuesday 11 September is the very height of National Hubris!

Now, to be as clear as I can be, I do not say this in order to belittle or at all demean the tremendous loss of life, the terrible suffering of the injured, the massive destruction of structures or the harshest pain and grief felt by so many loved ones left behind as a direct result of what I have consistently, throughout many of my writings for 'The Green Papers' since, decried as "the horrifying events" (to quote from the first sentence of my very first post-9/11 Commentary, one titled 'TO WAR! TO WAR!'), of that day. But I did write the following in that very same Commentary (typed but a week after those Attacks)-- to wit:

The type of war the United States of America, with or without any coalition of allied Nation-States it can put together, will now have to wage against International Terrorism will, as a matter of course, have to ofttimes get rather nasty: this campaign cannot be fought, at all times and in all places, by Marquis of Queensbury-type rules found in somewhat dusty International Conventions datelined Geneva and the Hague. At the same time, we must- as much as is practicable- keep to the requirements of the justest of causes and, where we find we must- unfortunately- stray from the true path of the noblest of crusades, we had better make sure that any such less than desirable manner of achieving the Right makes the resultant small-'w' wrongs well worth the price of having to have committed them.

In other words, and to apply the essence of the above-quoted verbiage to the purposes of this very Commentary: if the leadership of this Nation is going to violate the very document that is, in the end, the only thing that makes the United States of America a nation (for, what the Crown is to Great Britain, the Federal Constitution is to America: no British Crown? then no United Kingdom [for, at present, there is really naught else to make Englishmen or Scots or the Welsh part of the same internationally-recognized independent Nation-State, as there is no ethnicity that comprehends a 'Britisher']-- likewise, no U.S. Constitution? then no U.S. [for many of the same reasons]), it had better have darn good "beyond a reasonable doubt" reasons for doing so. Problem is: far too many "doubts" on the part of the citizenry are, indeed, "reasonable"-- which also implies that the government might very well be acting unreasonably-- and, again, such "unreasonableness", in turn, implies "abuse of power" (as I myself have already pointed out).

And I don't want to at all hear about what FISA (the Foreign Intelligence Surveillance Act of 1978 [Public Law 95-511, 92 Stat. 1783]) allows the President of the United States or his various and sundry Executive Branch underlings and minions to do-- for if FISA, indeed, allows the Administration (any Administration!-- regardless of Party or ideology) to do what the current Bush Administration says it can do, then FISA itself is unconstitutional (as Congress cannot, by statute, delegate to another branch of the Federal Government power it itself does not constitutionally have; neither can Congress evade its duty to protect [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, as is declared inviolable by the 4th Amendment to the Federal Constitution). Even were the delegation of authority to the Executive Branch under FISA to be seen as even the least bit defensible (something I don't think it really can be), the President cannot evade his Oath of Office to "preserve, protect and defend the Constitution of the United States" (always keep in mind that, while every Federal officer- elective or appointive [including those who enlist in, or are inducted into, the military]- takes an oath to "defend" the Constitution [again, the very thing that makes the United States of America a Nation], only the President takes a higher oath to also "preserve and protect" it).

While the President, of course, must do- in order to fulfill his Oath of Office- whatever he can (constitutionally) to defend the Constitution, preserve the Nation and protect its residents by defending the Nation against potential terrorist attack and answering any actual terrorist attack (whether through judicious deployment of military assets and/or proper application of Due Process of Law, whichever might be most appropriate), he is also charged with doing so without unnecessarily abridging the Rights of the People (including that very Right held inviolable by the Constitution's own 4th Amendment). Indeed, it seems clear to me that the Framers of the Constitution expected the President to, in the course of his "tak[ing] Care that the Laws be faithfully executed" (as is required of him in Article II, Section 3 of the document), include within those "Laws" that very "Supreme Law" specifically defined in that document's Article VI as [t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States.

Put another way, even where Congress- by statute signed into Law by a predecessor (or passed again over a predecessor's veto)- permits a President to do that which is unreasonable (hence, unconstitutional), the President is expected to apply- "to the best of [his] Ability" (to quote from another portion of the Presidential Oath)- his own "Rational Basis" test and say "no, even with enabling legislation, I still can't do that which is unconstitutional" instead of, as has so often been the case with the current Chief Executive and his Administration, rather knee-jerkingly passing the onus back to Congress on grounds that, by law (though not necessarily constitutionally [the two are not always one and the same]), Congress allowed his Office to do it in the first place! Claiming that the words "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" (from the very beginning of Article II, Section 2 of the U.S. Constitution) gives the Executive Branch some rather vague, ill-defined power to run roughshod over the very Rights the entire Federal Government together has a duty to secure only further exacerbates the problem!

This very tension within the exercising of a President's "powers" (versus his/her own "duties") goes all the way back to the origins of the very philosophy behind Constitutionalist Democracy itself- that which proclaims the Rule of Law, not of Individuals (as we would couch it in contemporary, gender-neutral terms), which I will next touch upon in a future Part THREE.

Modified .