Democratic presidential nominee Hillary Clinton more threatens the Constitution's separation of powers and celebration of liberty than does her vulgar Neanderthal opponent, Republican Party nominee Donald Trump.
Justice Louis D. Brandeis explained in Olmstead v .United States (1928): "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."
Mr. Trump is a would-be, evil-minded ruler. Among other things, he has embraced torture, the extermination of families of suspected terrorists, concentration camps for American Muslims and their demotions to second-class citizenship, punishment of Trump detractors, vigilante justice, warrantless military spying on American citizens, and bigotry towards Americans with Mexican heritage. But Trump's notoriety has awakened a figurative Paul Revere against himself. If he is elected president, the media, Congress, the judiciary, and the public would be eagle-eyed watchdogs to frustrate Trump's wish-list to further pulverize the Constitution.
Ms. Clinton is a woman of "zeal, well meaning but without understanding." She would be more dangerous to liberty and the Constitution in the White House than Trump would be. The first woman President would provoke less scrutiny and media or political opposition to her counter-constitutional convictions and actions because she is less overtly feral than Trump and presumptively less ruthless or megalomaniacal because she is female.
During her acceptance speech in Philadelphia, the Democratic presidential nominee warned: "Remember: Our Founders fought a Revolution and wrote a Constitution so America would never be a nation where one person had all the power."
True enough. But coming from Ms. Clinton, the statement was as risible as would have been Napoleon during his 1804 self-coronation as Emperor warning the audience against the French Bourbon dynasty because it lusted for too much power.
Clinton's words and public actions for more than two decades as First Lady, United States Senator, Secretary of State, author of Hard Choices, and presidential candidate betray a conception of the presidency as an elected monarchy endowed with more unchecked authority than was exerted by King George III. It was that power that provoked the American Revolution which she purportedly celebrated.
Ms. Clinton champions multi-trillion dollar unconstitutional presidential wars or other offensive uses of the military without congressional declarations or authorizations required under Article I, section 8, clause 11. Examples include Bosnia, Haiti, Kosovo, Somalia, Libya, Afghanistan, Yemen, Iraq, Syria, Pakistan, and against Al Qaeda and the Islamic State of Iraq and the Levant (ISIL) everywhere on the planet. During her 2008 presidential candidacy, Ms. Clinton declared that if she were elected president she would unilaterally "obliterate" 80 million Iranians if Iran attacked Israel.
She salutes unconstitutional United States treaty commitments to fight wars on behalf of scores of other nations without required congressional declarations.
Speaking through Justice Hugo Black, the Supreme Court declared in Reid v. Covert (1956) that treaties cannot override constitutional prescriptions: "There is nothing in this language [of the Supremacy Clause] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result." Justice Black added that if unforeseen developments in weapons technology or otherwise argued in favor of constitutional change, the remedy would be a constitutional amendment, not constitutional lawlessness: "If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes."
The Constitution's authors would have impeached Ms. Clinton as Secretary of State and removed her from office for complicity in high crimes and misdemeanors against the Constitution, which Lord Gladstone acclaimed as "the most wonderful work ever struck off at a given time by the brain and purpose of man."
President George Washington, who presided over the constitutional convention, repudiated Clinton's claim of presidential power to wage war without congressional authorization. He elaborated: "The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure." Every delegate present at the creation of the Constitution agreed.
Alexander Hamilton, who was a delegate to the constitutional convention, underscored in Federalist 69 that the Constitution had denied the President power of a monarch: "The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature."
James Madison, renowned as the father of the Constitution and Bill of Rights, secretary of state, and twice President of the United States, explained in a letter to Thomas Jefferson: ""The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl."
James Wilson, delegate to the constitutional convention and future Justice of the United States Supreme Court, emphasized to the Pennsylvania ratification convention that neither the President alone or in conjunction with treaties ratified only by the Senate could embroil the nation in war: "This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war."
United States Chief Justice John Marshall, who served as a delegate to the Virginia ratification convention, Member of Congress, and as secretary of state, lectured in Talbot v. Seeman (1801): "The whole powers of war being, by the constitution of the United States, vested in Congress, the acts of that body alone can be resorted to as guides to this inquiry."
Nothing Ms. Clinton has ever written or spoken is worthy of a semicolon in the writings or speeches of these constitutional giants. They brought forth a Miracle at Philadelphia, in the words of Catherine Drinker Bowen. We know Clinton is a constitutional ignoramus from her own testimony and past lawyering. Among other things, her reading list excludes not only Aristotle, Plato, Thucydides, Pericles, Cicero, Plutarch, Marcus Aurelius, Dante, Machiavelli, Erasmus, Locke, Gibbon, Voltaire, Hume, and Rousseau, but also James Otis, Benjamin Franklin, Samuel Adams, John Adams, Adam Smith, the Federalist Papers, and George Washington's Farewell Address.
Additionally, Ms. Clinton wrote a brief as a House Judiciary Committee lawyer arguing that President Richard Nixon should be denied legal counsel to oppose articles of impeachment. She ignored or concealed the then-recent precedent regarding Supreme Court Justice William O. Douglas, who was permitted a lawyer during the impeachment attempt against him in 1970. The Committee's chief Republican counsel, Franklin Polk, recalled, "Of course the Republicans went nuts. But so did some of the Democrats--some of the most liberal Democrats." Jerry Zeifman, general counsel and chief of staff to the Judiciary Committee and lifelong Democrat, called Ms. Clinton a "liar" and an "unethical, dishonest lawyer." He fired Clinton from the staff when the Watergate probe concluded.
Ms. Clinton champions the use of executive agreements in lieu of treaties to circumvent the constitutional requirement of a two-thirds Senate majority for ratification. A recent example was the Joint Comprehensive Plan of Action to contain Iran's nuclear ambitions. It was fashioned as an executive agreement because, as Secretary of State John Kerry told the House Judiciary Committee, "you can't pass a treaty anymore." In other words, if the President can't get his way by complying with the Constitution, then the Constitution must be tortured to accommodate the President, i.e., to borrow from President Nixon to David Frost, "When the President does it, that means it is not illegal."
In flagrant violation of constitutional due process, Ms. Clinton also supports limitless presidential power to play prosecutor, judge, jury, and executioner to kill American citizens anywhere on the planet not engaged in hostilities that the president decrees based on secret, unsubstantiated information threatens national security. In exercising this awesome power, according to Clinton, the president is not accountable to any other person, branch of government, or to the public. But Justice Black explained in Reid v. Covert:
"[W]e reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land."
Candidate Clinton supports presidential use of the military to spy on American citizens in the United States without warrants to gather foreign intelligence under Executive Order 12333 in violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act. She supports presidential authority to classify congressional documents and to prohibit their publication. She supports presidential signing statements tantamount to unconstitutional line-item vetoes according to the Supreme Court's decision in Clinton v. New York. She supports presidential power to spend in violation of limits established in appropriations bills. She supports presidential invocations of state secrets to frustrate congressional oversight or judicial review of government assassinations, kidnappings, or torture. She supports presidential power to refuse to take care that the laws be faithfully executed to advance a political agenda not shared by Congress.
If elected president, Donald Trump might wish to better the instruction of Hillary Clinton's past constitutional vandalisms and imperial convictions, but his chances of success would be remote. The media, Congress, and the public would be on high alert. A President Clinton, on the other hand, would confront little resistance to her constitutional transgressions. She would be our first female commander in chief, and thus detractors would risk stigmatization as misogynists. Further, she would have her lawlessness accompanied by disarming and dulcet string instruments rather than brass or percussion associated with Trump.
We have already witnessed this phenomenon. President Barack Obama took the constitutional abuses of President George W. Bush to new levels while the media, Congress, and the public slumbered. Mr. Obama was our first black president, he speaks eloquently, and his style is non-gladiatorial. Mr. Bush had none of this armor.
Two potential calamities for the United States are looming on the horizon: wars with China or Russia over spheres of influence in Asia and Europe thousands of miles away from our borders and irrelevant to the Constitution's foreign policy of invincible self-defense.
The candidate most likely to embroil the United States in unconstitutional presidential wars against either or both is Hillary Clinton.