Ashcroft’s (Un)Constitutional Benchmark by Thomas J. DiLorenzo

The April 2004 issue of The Atlantic magazine contains a puff piece on U.S. Attorney General John Ashcroft by Jeffrey Rosen, a law professor at George Washington University and "legal affairs editor" at The New Republic. One theme of the article is the conservative backlash against Ashcroft’s trashing of the Constitution through the "U.S. Patriot Act" and other "anti-terrorist" legislation he has had a hand in enforcing. Rosen quotes David Keene, head of the American Conservative Union and one of Ashcroft’s fiercest critics, as saying a great many conservatives are upset with the attorney general for "eviscerating the Constitution since September 11." Even former congressman Bob Barr of Georgia, a favorite of conservatives during the Clinton years, has joined with the ACLU in opposing the Bush administration’s "evisceration" of the Constitution.

The Unpatriotic Patriot Act

What these conservatives (and the ACLU) are complaining about is that the Patriot Act "poses a grave threat to Americans’ financial privacy and property rights," as James Bovard, author of the book Terrorism and Tyranny, wrote in Investors Business Daily on October 8, 2003. This Act, writes Bovard, makes it easy for the feds to spy on private financial records without a warrant, and banks are now required to gather information from their customers and make it available to the federal government. Citizens have no right to be told that their private financial records are no longer private.

The government claims "jurisdiction" over any bank that has ever had as much as a single dollar wired to it from a foreign bank. Millions of dollars have been confiscated by the "Justice" Department from foreign banks operating in the U.S., without any due process.

Any American citizen who leaves or enters the U.S. with more than $10,000 of their own money risks having his money confiscated and being sent to prison for as long as five years. According to Bovard, U.S. Customs has used this provision in the Patriot Act to confiscate the money of more than 600 travellers, very few of which had any plausible connection at all to terrorism. Most of Al Qaeda’s money comes from wealthy Saudi Arabians and others in the Middle East, but the U.S. government cracks down on American citizens instead.

The government’s financial spying and outright theft is bound to escalate: The Patriot Act redefines "financial institution" to include insurance companies, pawnbrokers, dealers in precious metals (beware, Burt Blumert!), casinos, travel agencies, and many other businesses.

FBI agents may now storm into a bookstore or library and demand records of books purchased or checked out – or merely asked about – as a new form of censorship. Foreign nationals may be held in custody indefinitely with no due process; the FBI can now wiretap millions of emails per second with its "DCS 1000 email wiretapping system"; another FBI software tool, "Magic Lantern," allows it to monitor all keystrokes on "targeted computers"; and the feds can order any and all financial records turned over to them without a court order. And this is just a short list. No wonder Ashcroft felt it necessary to embark on a 35-city tour to promote the Patriot Act, as Rosen notes in his Atlantic article. A very large propaganda effort indeed would be necessary to persuade Americans to give up their financial privacy and lose even more of their property rights.

The "U.S. Patriot Act" is a classic piece of Washington, D.C. propaganda. Politicians know that few of their colleagues will have the spine to ever vote against anything called "patriot act," "civil rights bill," "support the troops legislation," etc., even if such legislation has nothing at all to do with enhancing patriotism, civil rights, or support for the military. How telling that Ashcroft believed it was necessary to wage an unprecedented 35-city propaganda blitz to try to convince Americans that his new KGB-style spying apparatus was somehow "patriotic." If it really was patriotic then Americans – who are as patriotic as any people anywhere – would not have to be subjected to such a relentless propaganda campaign. They would gladly accept it.

The Founding Father of Constitutional Subversion

No American president subverted the Constitution more than Abraham Lincoln, who has been labeled by generations of historians as a "dictator" who effectively suspended the Constitution for the duration of his term. Lincoln apologists routinely make the Machiavellian argument that "the ends justify the means" in defending the "Lincoln dictatorship," as it is referred to in the literature. That is, all this was supposedly done "to save the union." In reality, of course, Lincoln’s war destroyed the voluntary union of the founding fathers by holding it together with a holocaust of 600,000 deaths and the destruction of a large part of the nation’s economy.

Rosen "had been told that Ashcroft’s hero is Abraham Lincoln," so he brought along with him the latest lame apology for the "Lincoln dictatorship," a book by Daniel Farber entitled Lincoln’s Constitution.

That’s an interesting title; most Americans are aware that the Constitution was worked out at a constitutional convention and then ratified by the citizens of the states; few are probably aware that Lincoln believed, as does Farber, apparently, that he had his own personal version of it. Farber’s "defense" of Lincoln is that "most" of what he did was "probably" constitutional (his words). Forty nine percent was clearly unconstitutional, and the rest was, well, "probably" kosher. Who knows?

Rosen writes that when he mentioned how Lincoln "acted in a legal vacuum," i.e. effectively declared himself dictator, "Ashcroft perked up" and wrote down the title of Farber’s book. The attorney general then announced that "the genius of Lincoln was preserving the unity of America." This statement is repeated endlessly by Lincoln idolaters, but it has to be one of the most absurd and ridiculous statements ever to come from a U.S. attorney general. Does anyone really believe that the average adult southerner in 1866 felt "unified" with the Republican Party, which was about to rule the South as a military dictatorship for the next decade and monopolize the federal government for the next fifty years? Lincoln did not persuade anyone that "national unity", i.e., unlimited subservience to the central government, was a worthy goal; his armies killed some 300,000 dissenters, which included one out of every four white males. An even greater number were maimed for life by the war. That was when the population of the southern states was about 10 million. Lincoln’s armies killed off three percent of the entire population. Standardizing for today’s nationwide population, that would be a holocaust of 9 million deaths. Millions of southern survivors would hate and detest Lincoln, his party, and the federal government for the rest of their lives. Such lack of "national unity" was expressed in a popular song written by either Harry Allen of the Washington Light Artillery of New Orleans in 1865 or by Confederate Major Innes Randolph entitled "Good ol’ Rebel." Some of the lyrics are: "Oh, I’m a good old Rebel, that’s just what I am; for this ‘fair land of Freedom’ I don’t give a damn. I’m glad I fit aginst it – I only wish we’d won . . . . I hates the nasty eagle, With all his brag and fuss; But the lyin’, theivein’ Yankees I hates ‘em wuss and wuss . . . . I hates the glorious Union tis drippin’ with our blood. I hates their striped banner, I fit it all I could . . . . Three hundred thousand Yankees is stiff in Southern dust; We got three hundred thousand Befo’ they conquered us. They died of Southern fever and Southern steel and shot; And I wish it was three million instead of what we got . . ."

This is not exactly the sweetness-and-light image of Lincolnian "national unity" that was first preposterously spread by the Republican Party propaganda apparatus shortly after the war and repeated endlessly by Lincoln apologists ever since.

The idea that "national unity," or unlimited submission to the dictates of the federal government is desirable was (and is) the clearest example of the repudiation of the Jeffersonian political tradition that the North’s victory represented. As Jefferson himself wrote in his famous 1798 Kentucky Resolve, in response to the first federal crackdown on free speech in the form of the Sedition Act, "Resolved, that the several States composing the United States of America are not united on the principle of unlimited submission to their general government . . . and whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force" (emphasis added). You’ll find no sappy sentimentalism about the glories of coerced "national unity" from that Republican.

Ashcroft next informed his interviewer that some in the North wanted to make the South "a subservient nation" but that Lincoln "refused." Well, not exactly. Lincoln’s plan for "reconstruction" was to try to find 10 percent of the Southern adult male population that would conspire with the Yankee government (not unlike the French collaborators with the Nazis during World War II) and set them up as puppet governors, mayors, and state legislators who would rule over the other 90 percent of the southern population. The real power, of course, would be in Washington, as in fact it was all during Reconstruction.

Next, Rosen and Ashcroft both swooned over Gore Vidal’s book Lincoln: A Novel. "I confessed that I loved it," says Rosen. "That’s a great book!" Ashcroft proclaimed. As the title indicates, the book is a work of fiction, a novel, and doesn’t pretend to be a work of historical accuracy. As stated in the inside cover of the 1984 hardback edition, "Lincoln is a brilliantly realized, vividly imagined work of fiction . . ." "Much" of the dialogue is actual, the reader is informed, but then again much is not. One difference between this book and most others on Lincoln is that at least this one admits that it is a work of fiction; so many others pose as true history while portraying Lincoln as a saint or the Second Coming of Christ whose every act and every statement is motivated by the purest and most angelic of intentions. If actual history doesn’t provide the state with sufficient heroes it can always count on an intellectual class that will fabricate them for it.

In his book Constitutional Dictatorship Clinton Rossiter, an editor of one of the volumes of The Federalist Papers, noted that "Dictatorship played a decisive role in the North’s successful effort to maintain the Union by force" and that "Lincoln’s amazing disregard for the Constitution was considered by nobody as legal." It is most disturbing, to say the least, that an American attorney general – or any American for that matter – would consider this kind of behavior to be that of a role model for contemporary politicians.

Generations of historians have labeled Lincoln a dictator and an enemy of the Constitution because of his actions, not his political rhetoric. The whole enterprise of defending Lincoln that has been the occupation of Harry Jaffa and his fellow Straussian neocons for decades is based almost exclusively on the latter: praising Lincoln’s political rhetoric, often "reinterpreting" it to twist Lincoln’s own words and portray them in the best possible light, while ignoring reality.

But the reality is that he launched a military invasion without the consent of Congress; blockaded Southern ports without first consulting Congress; unilaterally and illegally suspended the writ of habeas corpus and had the military imprison literally tens of thousands of Northern political dissenters; shut down over 300 opposition newspapers, as documented by James Randall, the last generation’s preeminent Lincoln scholar, in his book, Constitutional Problems Under Lincoln; censored telegraph communication; nationalized the railroads; allowed federal troops to interfere in Northern elections; illegally created the state of West Virginia (the Constitution requires a vote of both the state legislature and Congress); imprisoned some twenty duly elected members of the Maryland state legislature, the mayor of Baltimore, and Congressman Henry May in violation of the constitutional requirement that the federal government assure that the states have a republican form of government; imprisoned and then deported the most outspoken member of the Democratic Party opposition, Congressman Clement L. Vallandigham of Ohio; systematically disarmed the border states in violation of the Second Amendment; and confiscated private property.

When the Chief Justice of the U.S. Supreme Court, Roger B. Taney, issued the opinion that only Congress could legally suspend habeas corpus Lincoln issued an arrest warrant for Taney. This is documented in Frederick S. Calhoun, The Lawmen: United States Marshals and their Deputies, 1789–1989, a history of the federal marshall service written by the service’s chief historian; in Harold Hyman’s book, A More Perfect Union (p. 86, note 15); a book by former Baltimore Mayor George W. Brown entitled Baltimore and the Nineteenth of April, 1861: A Study of War; and The Memoirs of Benjamin Robbin Curtis. Curtis was the U.S. Supreme Court justice who represented Andrew Johnson at his impeachment trial in the senate and wrote the dissenting opinion in the Dred Scott decision. He calls Lincoln’s plan to arrest the chief justice a "great crime." Apparently, no federal marshall was found who had the nerve to arrest the 84-year-old chief justice.

The significance of the arrest warrant for Judge Taney is that it totally destroyed the constitutional separation of powers by intimidating the Supreme Court, just as arresting Vallandigham intimidated Congressional dissenters. It helped establish the executive branch as a supreme power or dictatorship. No such powers were even imagined by President James Madison, the "father of the Constitution," during the War of 1812. Yet these are the kinds of powers that Ashcroft seems to believe are appropriate. He agrees with leftist legal scholars such as George P. Fletcher of Columbia University, that "great social purposes" should enable those in government to ignore the Constitution in the name of "higher laws" that they themselves define for the rest of us. This of course is insurrectionary and traitorous and should be treated as such if anyone in government cared about constitutional liberty any more.

Farber’s book is wildly inaccurate but is nevertheless praised to the treetops by Jeffrey Rosen. For example, he writes in The Atlantic that Farber says Lincoln only "claimed the emergency power to suspend the writ [of habeas corpus] in areas of war or insurrection when Congress wasn’t able to act." This is wrong on both counts. Habeas corpus was suspended throughout the northern states where no war or insurrection existed. And there was nothing stopping Congress from meeting, which it eventually did, to rubber stamp all of Lincoln’s illegal and dictatorial acts once it was too late to do anything about them. (In 1866 the Supreme Court ruled in Ex Parte Merryman that all of this was unconstitutional; neither congress nor the president can legally suspend habeas corpus if the civil courts are still operating, which they were).

Northern dissenters were imprisoned by the thousands in places where there was no evidence at all of war or insurrection, only ordinary political criticism and dissent. As Dean Sprague wrote in Freedom Under Lincoln (pp. 178–179):