By Diane Alden
Not long ago liberal journalist Anthony Lewis asked, "Does Clinton want to be remembered as the one who sold out our civil liberties?" One could also pose the question, "do the Democrats in congress and some Republicans make this sell out possible?" Recently, Senator Don Nickles (R-OK) attempted to limit the executive branch from acting like the Caesar it has become. Clinton has used executive orders and various acts of congress in less than constitutional ways. By willy-nilly declaring huge tracts of land as monuments, in effect he has taken the land and its use away from the states and its citizens. He has given taken something which doesn't belong to him and handed it over to government in the name of a faceless, "public."
The Nickles' amendment went down to defeat by one vote. It would seem that Clinton, the Democrats and a couple of Republicans have lost their constitutional compass and are leading us on a treacherous path towards despotism and fascism.
Yet the members of the government at all levels swear under oath to uphold the Constitution. In recent years many of them including the president have not lived up to that oath. The Clinton administration in particular has shown total disrespect for the concepts in that venerable document. Time and time again it has failed to understand and protect the rule of law which flows from that document. However, over the years congress has done as much to damage the Constitution and the rule of law as has the executive branch. But there is a difference of degree. Bill Clinton has stepped up the process of destruction. Additionally, events have shown that one political party is more responsible for this diminution of the rule of law and the Constitution than the other.
In this regard the Democrats have been primarily responsible for horrendous growth in the power of the state and with it the subsequent growth of government. Since the New Deal Democrats have favored the growth of the state at the expense of individual liberty. The Republicans are a distant second. What some have called the party of the people has become the party of the out-of-control-state. The last eight years the Democratic Party and its members have thoughtlessly allowed themselves to be used by the Clinton administration which has subverted the constitution and the rule of law.
A Pattern of Behavior
On July 12th the Washington based Cato Institute hosted a conference called The Rule of Law in the Wake of Bill Clinton. Voluminous documentation prove the Clinton depredations on the rule of law and the Constitution. These issues were catalogued and discussed at length. To paraphrase Roger Pilon of Cato, Bill Clinton and his administration expanded the role of the federal government by expanding the role of Congress as they demanded programs and regulations in a flood of government hegemony over the states and individuals. Because of these efforts everything from the right to privacy and free speech to private property and states rights under the 10th Amendment has sustained serious damage if not irreparable damage. Clinton also expanded his role by subverting the executive branch and creating a kingship of executive over legislative. He has done this by using executive orders, regulatory regimes, and memoranda in order to go around them and get his own way. Pilon states, "he (Clinton) is utterly indifferent" to the Constitution. Yet only occasionally does congress attempt to limit the power of the Executive. This is what the Nickles amendment attempted to do.
While Franklin Roosevelt holds the all time high for executive orders, over 3,000 of them, Bill Clinton has expanded the use of them beyond the scope of constitutional intention. Dan Troy, legal scholar and former professor at the University of Notre Dame Law School maintained that it wasn't the number of such orders that was important but the legitimacy, quality, and accountability which made them disreputable.
One third of Clinton's executive orders cite no specific constitutional authority or even statutes pertaining to legitimizing executive orders or mandates and regulations. In other words it becomes the law because he says so and it has no constitutional basis.
Clinton along with clueless Democrats and some Republicans continue to ride roughshod over the rule of law in the name of some ephemeral public good.
The public good is always offered as the excuse but the result is that the public good as far as the Constitution is concerned continues to erode. Professor Lillian DeVier of the University of Virginia Law School stated, "there is a proliferation of law not bounded in principle." The rule of law should seek a condition where coercion is reduced as much as possible. In order to do this government must preserve and enlarge freedom and protect freedom from the violence of others. This is not happening under the Clinton administration and with the Democrats in Congress.
President of the ACLU Nadine Strossen claimed Bill Clinton had damaged civil liberties and the rule of law more than anyone in recent memory. Strossen like many of the participants wondered if the damage is repairable.
According to former Attorney General Griffin Bell if the next President is a Republican he will need to clean out the Justice Department from the top down. Pretty drastic statement for a Democrat who served under President Jimmy Carter.
Clinton's Monster Creation
Clinton, the Democrats and certain Republicans have a history of using prior acts of congress and stretching them beyond any intent that underlies these acts. For instance, The Antiquities Act of 1906 has been used by the Clinton administration to lay claim to 3,789,669 acres compared to none under Presidents Bush, Reagan and Nixon. President Carter designated 55,975,000 acres under the act. One might conclude that Democrats believe in amassing land for the central government totally unconcerned as to the wishes of the states. This leaves the states with a reduced tax base and less control over its sovereignty. This is also totally in denial of the constitution and its demand for limited powers for the federal government.
The Congressional record indicates that as votes come up on land or environmental or sovereignty issues very seldom does any democratic senator or congressman vote to block executive actions against the states. Rather they create more prohibitions on states rights and individual freedom. The various bills and acts and laws in many instances are on their face unconstitutional but that seldom deters them from passing them.
Western states are tremendously affected by these Clintonian land grabs. Yet, Western Democratic senators such as Reid and Bryan of Nevada, Baucus of Montana, Conrad, Dorgan and Daschle of the Dakotas and Kerrey of Nebraska consistently vote to take land out of the control of the states and transfer that land to the feudal federal land barony. It is pretty obvious that even when amassing such land will affect the tax base and sovereignty of their states they prefer to embrace the hegemony of the federal government rather than keep their states independent and sovereign.
It is no big news that by and large Democrats do not believe in limited government. They continue to vote against both the constitutional notion of limited government with enumerated powers and seem to be striving for a creature that begins to look a lot like an empire with Washington as its Rome.
Difference in Kind
In the matter of the Interior appropriations bill and the amendment proposed by Senator Nickles this attempt to reaffirm certain Constitutional principles came to nothing. The amendment would have influenced and strengthened the separation of powers and reaffirmed the 10th Amendment. It would have prevented Bill Clinton from acting like George III or rather more like a Napoleon. At least George was somewhat restrained by parliament while Napoleon acted on his own and told people about it afterward.
Nickles amendment undertook to restrict the President's authority, actually any president's authority to cavalierly remove land under the Antiquities Act or any other law and thus circumvent congress and erode the 10th Amendment. These actions by the Clinton administration and the Democrats show absolutely no concern for what those states and locales wanted. The people's party acts more like the people's parties in the former Soviet Union and China.
In a razor thin 50 - 49 vote the Democrats with the help of Republicans Richard Lugar of Indiana, Fitzgerald of Illinois and liberal Republican Chafee of Rhode Island defeated a necessary step which would have put the brakes on the lawless actions of the chief executive. Apparently these complicit Republicans have no qualms in joining Democrats in destroying and mutilating the Constitution, especially the 10th Amendment. Their vote did nothing to maintain the separation of powers prevent some future autocrat from having their way with the United States of America.
A Choice Not an Echo
Republicans were well represented at the Cato conference by Senator Fred Thompson of Tennessee. Thompson exhibited the difference of kind as well as degree. As a young lawyer working for the Watergate committee Thompson witnessed as numerous Republicans went against party interests and helped bring down the duly elected sitting president of their party, Richard Nixon. Honorable men such as Sam Erwin and Howard Baker are leagues above their counterparts in the dismal Democratic Party of today. During the Watergate investigation many Republicans condemned Nixon's illegal actions and asked him to step down for the good of the country and to avoid a Constitutional crisis. Some of them left public office in disgust over what Nixon had done. Thompson is at a loss to explain why no Democrats have left the corrupt Clinton administration or their party in similar repulsion.
He stated unequivocally that he wished he had been less naive, more partisan, and much more aggressive in his investigation of the Clinton administration campaign financial mess. If Thompson had it to do over again he would care less about being non-partisan or bipartisan and care more about getting the job done. Getting along with colleagues doesn't compare to ridding government of corruption and where possible reinstating the rule of law. He indicated he would not be so much in awe of democrats like John Glenn and far less concerned about being fair to Democrats on his committee. But then Fred Thompson is a fair man and he is also someone who can claim to have acted with honor in the past.
The Main Mutiny
Republicans as well as Democrats are somewhat to blame for the sorry state of the republic. They remind me of Captain Queeg in Herman Wouk's Pulitzer Prize winning novel "The Caine Mutiny." The main character is a neurotic, shell shocked, and insecure Navy Captain named Queeg. Queeg is a man who fixates on unimportant matters, stiff and by the book he exhibits cowardly behavior while under fire. Seemingly unready for command, Queeg allows good people to fend for themselves and shows little ability to connect with his fellows on all but a shallow and legalistic plane. Besides being ineffective, and not listening to good advice when offered, he lacks common sense and proportion, is worn down by life and is paranoid. He seems uncomfortable with command. However, he also has to endure the machinations of one of his officers; a writer named Lt. Tom Keefer who is not regular Navy but merely in the war for the duration. Keefer records everything Queeg does and says and uses it to destroy him, much like today's press corps acts towards Republicans. In the end, Keefer reveals to one and all what a dishonorable, self-serving, opportunistic and cowardly slug he is. Queeg retires more or less honorably with his reputation in tatters and out of a job. Queeg would have made a good Republican.
Shell shocked Republicans endured a great deal after Clinton won the face-off as he was primarily responsible for the government shutdown in 95. So they may have a good excuse to act in Queeg-like-fashion. Nevertheless, they offer pathetic leadership and only do the right thing every once in awhile. Occasionally saved from disaster and destruction when others have taken the helm.
Nonetheless, there is still the difference of degree and of kind between the Democrats and Republicans. Like Captain Queeg the Republicans have their weaknesses but they make a stab at doing their duty by the book and under fire. At least they have a sense of what their duties under the constitution are and that is something the Democrats seem to have lost.
Had he survived his stroke, Republican Paul Coverdell would have cast the tie vote on the Nickles amendment. I interviewed Senator Coverdell several years ago and I know him to be a gentleman. On occasion he would pop into various rural radio stations in Georgia and make small talk and field questions from callers. Invariably polite and decent regardless of whom you were or what he thought you could do for him, Paul Coverdell had a warm and self-deprecating sense of humor and a sense of decency which is often difficult to find among politicians. He always answered questions and more often than not gave straight answers. He was a conservative of conscience and voted in a way that enhanced the rule of law and honored his oath to the constitution. Georgians will miss him and so will everyone of good will. The United States is poorer for his loss.
But as far as I am concerned the following senators do not really believe in the Constitution or the rule of law as exhibited by their vote on the Nickles amendment. They are the usual suspects piling laws and regulations and expensive programs on the taxpayer. They pay heed to follies like radical environmentalism and trillion dollar phony-baloney give away programs. They ignore breaches of national security by treating them lightly and they hide their heads in the sand by not requiring accountability from the head of their party. All too often they are the ones who could have done the right thing but seldom if ever do. If any of them belong to you my advice is to throw the rascals out.
--- NAYs 50---
Akaka (HI) Baucus (MT) Bayh (IN) Biden (DE) Bingaman (NM) Boxer (CA) Breaux (LA) Bryan (NV) Chafee (RI) Cleland (GA) Conrad (ND) Daschle (SD) DeWine (OH) Dodd (CT) Dorgan (ND) Durbin (IL) Edwards (NC) Feingold (WI) Feinstein (CA) Fitzgerald (IL) Graham (FL) Harkin (IA) Hollings (SC) Inouye (HI) Jeffords (VT) Johnson (SD) Kennedy (MA) Kerrey (NE) Kerry (MA) Kohl (WI) Landrieu (LA) Lautenberg (NJ) Leahy (VT) Levin (MI) Lieberman (CT) Lincoln (AR) Lugar (IN) Mikulski (MD) Moynihan (NY) Murray (WA) Reed (RI) Reid (NV) Robb (VA) Rockefeller (WV) Roth (DE) Sarbanes (MD) Schumer (NY) Torricelli (NJ) Wellstone (MN) Wyden (OR)
Diane Alden is a senior writer with Enter Stage Right.
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