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How important is that? Well, James Madison, one of the architects of our constitution, said in
Federalist No. 47 that to have one person or group or branch of government with total control of
legislative, judicial and executive functions is “the very definition of tyranny.” Now, I would guess that
for most of you, like for myself, it’s not how we would define tyranny exactly; tyranny is more abusive,
oppressive, and so forth. But the idea here, as Obama had acknowledged, is not simply that this kind of
power could or might be abused. Might water run downhill? It always has been abused throughout history
and truly always will be.
Our founders, who were human and definitely had their shortcomings and were looking out for
their best interest, produced a document that was not perfect in a number of ways. It was meant to
preserve slavery since many of the delegates to the Constitutional Convention were slave owners; that’s
not a minor flaw. Thankfully, the Constitution could be amended. But they had some very good ideas, and
one of those ideas was the invention that the power of going to war—of waging war—was put solely in
the hands of Congress; see Article I, Section 8. The power to wage war was not to be shared with the
president, not subject to the consent of Congress. The Constitution says that Congress shall “declare war.”
It’s not just on a piece of paper; it’s also very clear from their discussions. They did not want one man,
the president, to have the capability, as did the king of England, to take the country to war, except in the
case of repelling sudden attacks before Congress could meet. When it came to being at war, Congress
should decide that, not because they were inherently wiser, but because they were many and they were
closer to the public. They didn’t want one man to have that power.
Actually, one man does have that power. We went to war in Libya, which Obama decided, and
for which I believe that he should have been impeached—fat chance of that happening because there’s not
the support for it. But he didn’t even bother to consult Congress. Previous presidents had at least gone
through the motions of consulting Congress. There was nothing—no consultation. His legal adviser at the
State Department was Harold Koh, who earlier had been a strong and effective critic of George W.
Bush’s unconstitutional actions. Koh had the moxie to say that it’s not a war because it’s just drones and
aircraft surveillance and attacks from the air in which no Americans are at risk because the Libyans don’t
have any aircraft capabilities. So as long as we’re not getting killed, we’re not conducting war. That’s an
absolutely shocking reversal of position. What they say in Washington is, “Where you stand depends on
where you sit.” So when Harold Koh moves from being dean of the Yale Law School to working for
Obama, that shocking reversal of positions is the kind of absurd thing that happens.
The allocation of war powers to Congress was a good idea, and the First Amendment was a good
idea, and the Fourth Amendment (which I didn’t spend much time thinking about until Snowden) turns
out to be a good idea. Actually, what Paul Revere was rebelling against was, in particular, general
warrants, or writs of assistance, that allowed the British to invade your property and search your person,
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