by Gore Vidal
Finally, halfway through the executives’ war in Vietnam, the sluggish venal Congress became alarmed—not to mention hurt—at the way they had been disregarded by Johnson Augustus. The Senate Committee on Foreign Relations began to ask such questions as, by what inherent right does a president make war whenever he chooses? On March 8, 1966, the president (through a State Department memorandum) explained the facts of life to Congress: “since the Constitution was adopted there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior Congressional authorization, starting with the ‘undeclared war’ with France (1798–1800)….” Congress surrendered as they had earlier when the inexorable Johnson used a murky happening in the Tonkin Bay to ensure their compliance to his war. It was not until many thousands of deaths later that Congress voted to stop funds for bombing the Indochinese.
How did the president break out of his cage? The bars were loosened by Lincoln, and the jimmy that he used was the presidential oath, as prescribed by the Constitution: “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.” Lincoln put the emphasis on the verb “defend” because he was faced with an armed insurrection. Later presidents, however, have zeroed in on the verb “execute”—as broad a verb, in this context, as any president on the loose could wish for. From this innocuous-seeming word have come the notions of inherent executive power and executive privilege, and that astonishing fact with which we have been obliged to live for half a century, the executive order.
Congress and Court can be bypassed by an executive order except on very odd occasions such as Truman’s unsuccessful seizure of the steel mills. When Wilson’s request to arm merchant American ships was filibustered to death by the Senate in 1917, Wilson issued an executive order, arming the ships. Later, still on his own, Wilson sent troops to Russia to support the czar; concluded the armistice of 1918; and introduced Jim Crow to Washington’s public places. In 1936 Franklin Roosevelt issued a secret executive order creating what was later to become, in World War II, the OSS, and then in peacetime (sic) the CIA. This vast enterprise has never been even moderately responsive to the Congress that obediently funds it. The CIA is now the strong secret arm of the president and no president is about to give it up.
For all practical purposes the Third Republic is now at an end. The president is a dictator who can only be replaced either in the quadrennial election by a clone or through his own incompetency, like Richard Nixon, whose neurosis it was to shoot himself publicly and repeatedly in, as they say, the foot. Had Nixon not been helicoptered out of the White House, men in white would have taken him away. The fact that we are living in an era of one-term presidents does not lessen, in any way, the formidable powers of the executive.
The true history of the executive order has yet to be written. As of December 31, 1975, the presidents had issued 11,893 executive orders. The Constitution makes no allowances for them. In fact, when an order wages war or spends money, it is unconstitutional. But precedents can always, tortuously, be found for the president to “execute his office.” In 1793, Washington proclaimed that the United States was neutral in the war between England and France, in contravention of the treaty of 1778 which obliged the United States to come to France’s aid. In 1905 the Senate declined to approve a treaty that Theodore Roosevelt wanted to make with Santo Domingo. Ever brisk and pugnacious, TR made an agreement on his own; and a year later the Senate ratified it. In 1940 Franklin Roosevelt gave England fifty destroyers that were not his to give. But three years earlier, the Supreme Court had validated the principle of the executive agreement (U.S. v. Belmont); as a result, the executive agreement and the executive order are now for the usurper president what judicial review has been for the usurper Court.
Law by presidential decree is an established fact. But, as Lundberg notes, it is odd that there has been no effective challenge by Congress to this usurpation of its powers by the executive. Lundberg quotes the late professor Edward S. Corwin of Princeton, a constitutional scholar who found troubling the whole notion of government by decree: “It would be more accordant,” wrote Corwin in Court Over Constitution,*2 “with American ideas of government by law to require, before a purely executive agreement to be applied in the field of private rights, that it be supplemented by a sanctioning act of Congress. And that Congress, which can repeal any treaty as ‘law of the land or authorization’ can do the same to executive agreements would seem to be obvious.” Obvious—but ignored by a Congress more concerned with the division of the contents of the pork barrel than with the defense of its own powers.
Between a president ruling by decrees, some secret and some not, and a Court making policy through its peculiar powers of judicial review, the Congress has ceased to be of much consequence. Although a number of efforts were made in the Congress during the Fifties to put the president back in his cage and to deflect the Court from its policymaking binges, nothing substantive was passed by a Congress which, according to Lundberg, “is no more anxious to restrict the president than it is to restrict the Supreme Court. Congress prefers to leave them both with a free hand, reserving the right at all times to blame them if such a tactic fits the mood of the electorate.” When Congress rejected Carter’s energy program, it was not blocking a president who might well have got around it with an executive order. Congress was simply ducking responsibility for a gasoline tax just as the president had ducked it by maliciously including them in the process. Actually, Congress does, from time to time, discipline presidents, but it tends to avoid collisions with the principle of the executive order when wielded by the lonely Oval One. So does the Supreme Court. Although the Court did stop President Truman from seizing the steel mills in the course of the Korean (by executive order) War, the Court did not challenge the principle of the executive order per se.
Since the main task of government is the collection of money through taxes and its distribution through appropriations, the blood of the Third Republic is the money-labor of a population which pays taxes to support an executive establishment of some ten million people if one includes the armed forces. This is quite a power base, as it includes the Pentagon and the CIA—forever at war, covertly or overtly, with monolithic communism. “Justice is the end of government,” wrote Madison (Federalist Paper No. 52). “It is the end of civil society. It ever has been and ever will be pursued until it is obtained, or until liberty be lost in the pursuit.” Time to start again the hard pursuit.
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It was the wisdom of Julius Caesar and his heir Octavian to keep intact the ancient institutions of the Roman republic while changing entirely the actual system of government. The new dynasty reigned as traditional consuls, not as kings. They visited regularly their peers in the Senate—in J.C.’s case once too often. This respect for familiar forms should be borne in mind when We the People attend the second constitutional convention. President, Senate, House of Representatives must be kept as familiar entities just as their actual functions must be entirely altered.
Thomas Jefferson thought that there should be a constitutional convention at least once a generation because “laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him as a boy, as a civilized society to remain ever under the regimen of their barbarous ancestors.” Jefferson would be amazed to see how the boy’s jacket of his day has now become the middle-aged man’s strait jacket of ours. The amended Constitution of today is roomier than it was, and takes into account the national paunch; but there is little freedom to
move the arms because, in Herder’s words, “The State is happiness for a group” and no state has ever, willingly, spread that happiness beyond the group which controls it. The so-called “iron law of oligarchy,” noted by James Madison, has always obtained in the United States.
Ten years ago Rexford Guy Tugwell, the old New Dealer, came up with Version XXXVII of a constitution that he had been working on for some years at the Center for the Study of Democratic Institutions at Santa Barbara. Tugwell promptly makes the mistake that Julius Caesar and family did not make. Tugwell changes names, adds new entities. Yet the old unwieldy tripartite system is not really challenged and the result is pretty conventional at heart because “I believe,” said Tugwell, explaining his new arrangements, “in the two-party system.” One wonders why.
The Framers wanted no political parties—or factions. It was their view that all right-minded men of property would think pretty much alike on matters pertaining to property. To an extent, this was—and is—true. Trilateral Commissions exist as shorthand symbols of this meeting of minds and purses. But men are hungry for political office. Lincoln felt that if the United States was ever destroyed it would be by the hordes of people who wanted to be office-holders and to live for nothing at government expense—a vice, he added dryly, “from which I myself am not free.”
By 1800 there were two political parties, each controlled by a faction of the regnant oligarchy. Today, despite close to two centuries of insurrections and foreign wars, of depressions and the usurpations by this or that branch of government of powers not accorded, there are still two political parties, each controlled by a faction of the regnant oligarchy. The fact that the country is so much larger than it was makes for an appearance of variety. But the substance of the two-party system or non-system is unchanged. Those with large amounts of property control the parties which control the state which takes through taxes the people’s money and gives a certain amount of it back in order to keep docile the populace while reserving a sizable part of tax revenue for the oligarchy’s use in the form of “purchases” for the defense department, which is the unnumbered, as it were, bank account of the rulers.
As Walter Dean Burnham puts it, “The state is primarily in business to promote capital accumulation and to maintain social harmony and legitimacy.” But expensive and pointless wars combined with an emphasis on the consumption of goods at the expense of capital creation has called into question the legitimacy of the oligarchy’s government. Even the dullest consumer has got the point that no matter how he casts his vote for president or for Congress, his interests will never be represented because the oligarchy serves only itself. It should be noted that this monomania can lead to anomalies. In order to buy domestic tranquillity, Treasury money in the form of transfer-payments to the plebes now accounts for some 79 percent of the budget—which cannot, by law, be cut back.
In the 1976 presidential election, 45.6 percent of those qualified to vote did not vote. According to Burnham, of those who did vote, 48.5 percent were blue-collar and service workers. Of those who did not vote, 75 percent were blue-collar and service workers. The pattern is plain. Nearly 70 percent of the entire electorate are blue-collar and service workers. Since only 20 percent of this class are unionized, natural interest requires that many of these workers belong together in one party. But as 49 percent of the electorate didn’t vote in 1980, the “two-party system” is more than ever meaningless and there is no chance of a labor party—or of any party other than that of the status quo.
The regnant minority is genuinely terrified of a new constitutional convention. They are happier with the way things are, with half the electorate permanently turned off and the other half mildly diverted by presidential elections in which, despite a semblance of activity, there is no serious choice. For the last two centuries the debate has been going on as to whether or not the people can be trusted to govern themselves. Like most debates, this one has been so formulated that significant alternative ideas are excluded at the start. “There are nations,” said Herzen, “but not states.” He saw the nation-state as, essentially, an evil—and so it has proved most of the time in most places during this epoch (now ending) of nation-states which can be said to have started, in its current irritable megalomaniacal form, with Bismarck in Germany and Lincoln in the United States.
James Madison’s oligarchy, by its very nature, cannot and will not share power. We are often reminded that some 25 percent of the population are comprised of (in Lundberg’s words) “the superannuated, the unskilled, the immature of all ages, the illiterate, the improvident propagators, the mentally below par or disordered” as well as “another 25 percent only somewhat better positioned and liable at any turn or whirligig of circumstances to find themselves in the lower category.” As Herzen, in an unhappy mood, wrote, “Who that respects the truth would ask the opinion of the first man he meets? Suppose Columbus or Copernicus had put to the vote the existence of America or the movement of the earth?” Or as a successful movie executive, in a happy mood, once put it: “When the American public walks, its knuckles graze the ground.”
The constant search for external enemies by the oligarchy is standard stuff. All dictators and ruling groups indulge in this sort of thing, reflecting Machiavelli’s wisdom that the surest way to maintain one’s power over the people is to keep them poor and on a wartime footing. We fought in Vietnam to contain China, which is now our Mao-less friend; today we must have a showdown with Russia, in order to….One has already forgotten the basis for the present quarrel. No. Arms race. That’s it. They are outstripping us in warheads, or something. On and on the propaganda grinds its dismal whine. Second to none. Better to die in Afghanistan than Laguna. We must not lose the will….
There are signs that the American people are beginning to tire of all of this. They are also angry at the way that their money is taken from them and wasted on armaments—although they have been sufficiently conned into thinking that armaments are as good as loafers on welfare and bureaucrats on the Treasury teat are bad. Even so, they believe that too much is being taken away from them; and that too little ever comes back.
Since Lundberg began his career as an economist, it is useful to quote him at length on how the oligarchy operates the economy—acting in strict accordance with the letter if not the spirit of the three constitutions.
The main decision that Congress and the President make that is of steady effect on the citizenry concerns appropriations—that is, how much is to be spent up to and beyond a half-trillion dollars and what for. The proceeds are supposed to come from taxes but here, in response to citizen sensitivity, the government tends to understate the cost. Because the government has taken to spending more than it takes in, the result is inflation—a steady rise in the prices of goods and services.
The difference between what it spends and what it takes in the government makes up by deviously operating the money-printing machine, so that the quantity of money in circulation exceeds the quantity of goods and services. Prices therefore tend to rise and money and money-values held by citizens decline in purchasing value….
All that the government has been doing in these respects is strictly constitutional. For the Constitution empowers it, first, to lay taxes without limit (Article I, Section 8, Paragraph 1). It is empowered in the very next paragraph to borrow money on the credit of the United States—that is, the taxpayers—also without limit….As to inflation, Paragraph 5 empowers the government, through Congress and the President, not only to coin money but to “regulate the value thereof.” In other words, under the Constitution a dollar is worth whatever Congress and the President determine it to be by their fiscal decisions, and for nearly three decades officials, Republican and Democratic alike, have decreed that it be worth less….
When Congress and president over-appropriate, the Treasury simply prints
…short-term notes and bonds and sends these over to the Federal Reserve Bank, the nation’
s central bank. In receipt of these securities, the Federal Reserve simply credits the Treasury with a deposit for the total amount. The Treasury draws checks against these deposits. And these checks are new money. Or the Treasury may simply offer the securities for sale in the open market, receiving therefore the checks of buyers.
Since there is no legal way to control either president or Congress under the current system, it is inevitable that there would be a movement for radical reform. The National Taxpayers Union was organized to force the federal government to maintain a balanced budget. In order to accomplish this, it will be necessary to change the Constitution. So the National Taxpayers Union has called for a new constitutional convention. To date, thirty state legislatures have said yes to that call. When thirty-four state legislatures ask for a new convention, there will be one. As Professor Gerald Gunther of Stanford Law School recently wrote:
The convention delegates would gather after popular elections—elections where the platforms and debates would be outside congressional control, where interest groups would seek to raise issues other than the budget, and where some successful candidates would no doubt respond to those pressures. Those convention delegates could claim to be legitimate representatives of the people. And they could make a plausible—and I believe correct—argument that a convention is entitled to set its own agenda….*3
Those who fear that Milton Friedman’s cheerful visage will be swiftly hewn from Dakota rock underestimate the passion of the majority not to be unemployed in a country where the gap between rich and poor is, after France, the greatest in the Western world. Since the welfare system is the price that the white majority pays in order to exclude the black minority from the general society, entirely new social arrangements will have to be made if that system is to be significantly altered.
