My nephew Bryan Spatz and I occasionally have an email discussion about national or international affairs. They often take interesting diversions from their starting point. The most recent discussion was no exception, as it started with Israel and diverged to the national security ‘debate’ between President Obama and former VP Dick Cheney. Bryan and I have these discussions because they are fun for us and they seem to be more fun when we disagree and challenge each other to support our positions. So, although we agree on a lot, we tend to debate issues rather than emphasize common ground. Of course, there are real political differences between us since I consider myself an independent moderate and while he is certainly independent I consider him generally to be to my ‘left’. But neither of us fit easily into a label (or party), although we both voted for Obama, and he is both intelligent and articulate in explaining his views. However, my purpose here is not to dissect our views, but rather to share how our debate led us to common ground in the name of Thomas Jefferson.
Bryan knows far more than me about today’s political thinking. During our exchanges he often sends links to articles, opinion pieces, and blog posts that I almost always find interesting, even when I disagree with the authors. On the other hand, I know more about American history than he does, especially the first 50 years (Jefferson died exactly 50 years after July 4, 1776) and the years between my birth in 1945 and Bryan’s birth in 1978. Hopefully, he learns some things from me, as I do from him.
So, we were merrily debating such things as…did Cheney (Bush was rarely mentioned) violate the law by torturing prisoners…was Cheney a war criminal…did the Bush administration violate American values… should there be a Truth Commission…were Reid and Pelosi blameless…was Obama doing enough to reverse the previous policies...has America lost its moral bearings...does the President take an ‘oath’ to protect America…what is the role of the Commander-in-Chief…etc., etc.
Then the unexpected occurred. Bryan asked what TJ would think/do. During the discussion of the Constitutional powers of the president he asked “if you have evidence that the Founders really wanted Presidents to not be bound by law or custom but to do whatever was necessary even beyond the confines of the law, I hope you will provide some good evidence of that.” He even asked what Washington, Jefferson, and Madison would think. Thank you, Bryan.
I had been thinking about just these topics since the President’s and Cheney’s speeches on national security. So I was ready. I’ll leave out my responses to the issues of oaths and Commander-in-Chief and go right to TJ. Here was my answer to Bryan (with some editing).
As for the founders, TJ’s purchase of Louisiana was not covered in the Constitution - like all human documents, not a perfect one - and he was concerned about that but made the deal anyways. He figured the Congress could overturn his action. Checks and balance. He has some interesting things to say that are in direct opposition to your ideas. They are hard to summarize, but I’ll quote a couple of things, just for fun.
“Self-preservation is paramount to all law…Should we have ever gained our revolution, if we had bound our hands by manacles of the law, not only in the beginning, but in any part of the revolutionary conflict?” He feared the laws of “a dictator, or martial law”. “The question you propose, Whether circumstances do not sometimes occur which make it a duty in officers of high trust to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written law is doubtless one of the high duties of a good citizen, but is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.” He goes on to clarify his view and ends by saying that the official is still answerable to “the controlling powers of the constitution” and “must throw himself on the justice of his country and the rectitude of his motives”.
Well, I didn’t think Bryan would agree that the president or any high government official has the right to override the laws of the land (as he believes Bush/Cheney did) but I was mistaken. Bryan said, “I should add, the Jefferson quotes are excellent and he appears to get this whole thing exactly right. This leaps off the page though: he ends by saying that the official is still answerable to ‘the controlling powers of the constitution’ and ‘must throw himself on the justice of his country and the rectitude of his motives’. Bryan wonders if that view would support a Truth Commission, to which my response was: I don’t believe in his time he would have been too eager to investigate the authorities, if he believed people thought they were doing what’s right. Historically new Presidents don’t try to criminalize the acts of their predecessors. By the way, TJ came to power during the Alien and Sedition Acts, which he ended but didn’t seek retribution even though he thought they were completely counter to American values. Obviously, he lived in an extremely morally ambiguous world (slavery).
That’s where we left it, at least as of now.
[ FOOTNOTE : For those who want more of the TJ quote, which I didn’t share with Bryan, here it is. September 20, 1810]
To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property & all those who are enjoying them with us; thus absurdly sacrificing the end to the means...The unwritten laws of necessity, of self-preservation, & of the public safety control the written laws…
The officer who is called to act on this superior ground, does indeed risk himself on the justice of the controlling powers of the constitution, and his station makes it his duty to incur that risk. But those controlling powers, and his fellow citizens generally, are bound to judge according to the circumstances under which he acted. They are not to transfer the information of this place or moment to the time & place of his action; but to put themselves in his situation...
From these examples & principles you may see what I think on the question proposed. They do not go to the case of persons charged with petty duties, where consequences are trifling, and time allowed for a legal course, nor to authorize them to take such cases out of the written law. In these, the example of overleaping the law is of greater evil than a strict adherence to its imperfect provisions. It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake. An officer is bound to obey orders; yet he would be a bad one who should do it in cases for which they were not intended, and which involved the most important consequences. The line of discrimination between cases may be difficult; but the good officer is bound to draw it at his own peril, & throw himself on the justice of his country and the rectitude of his motives.