We have crossed the boundary that lies between Republic and Empire. If you ask when, the answer is that you cannot make a single stroke between day and night. The precise moment does not matter. There was no painted sign to say, “You now are entering Imperium.” Yet it was a very old road and the voice of history was saying: “Whether you know it or not, the act of crossing may be irreversible.” And now, not far ahead, is a sign that reads: “No U Turns.”
If you say there were no frightening omens, that is true. The political foundations did not quake; the graves of the Fathers did not fly open; the Constitution did not tear itself up. If you say people did not will it, that also is true. But if you say therefore it has not happened, then you have been so long bemused by words that your mind will not believe what the eye can see, even as in the jungle the terrified primitive, on meeting the lion, importunes magic by saying to himself, “He is not there.” That a republic may vanish is an elementary schoolbook fact.
The Roman Republic passed into the Roman Empire, and yet never could a Roman citizen have said, “That was yesterday.” Nor is the historian, with all the advantages of perspective, able to place that momentous event at any exact point on the dial of time. The Republic had a long unhappy twilight. It is agreed that the Empire began with Augustus Caesar. Several before him had played emperor and were destroyed.
The first who might have been called emperor in fact was Julius Caesar, who pretended not to want the crown and once publicly declined it. Whether he feared more the displeasure of the Roman populace or the daggers of the republicans is unknown. In his dreams he may have been seeing a bloodstained toga. His murder soon afterward was a desperate act of the dying republican tradition, and perfectly futile. His heir was Octavian, and it was a very bloody business, yet neither did Octavian call himself emperor.
On the contrary, he was most careful to observe the old legal forms. He restored the Senate. Later he made believe to restore the Republic, and caused coins to be struck in commemoration of that event. Having acquired by universal consent, as he afterward wrote, “complete dominion over everything, both by land and sea,” he made a long and artful speech to the Senate, and ended it by saying: “And now I give back the Republic into your keeping. The laws, the troops, the treasury, the provinces, are all restored to you. May you guard them worthily.”
The response of the Senate was to crown him with oak leaves, plant laurel trees at his gate and name him Augustus. After that he reigned for more than forty years and when he died the bones of the Republic were buried with him. “The personality of a monarch,” says Stobart,
had been thrust almost surreptitiously into the frame of a republican constitution…. The establishment of the Empire was such a delicate and equivocal act that it has been open to various interpretations ever since. Probably in the clever mind of Augustus it was intended to be equivocal from the first.
What Augustus Caesar did was to demonstrate a proposition found in Aristotle’s “Politics,” one that he must have known by heart, namely this:
People do not easily change, but love their own ancient customs; and it is by small degrees only that one thing takes the place of another; so that the ancient laws will remain, while the power will be in the hands of those who have brought about a revolution in the state.
Revolution within the form.
There is no comfort in history for those who put their faith in forms; who think there is safeguard in words inscribed on parchment, preserved in a glass case, reproduced in facsimile and hauled to and fro on a Freedom Train.
Let it be current history. How much does the younger half of this generation reflect upon the fact that in its own time a complete revolution has taken place in the relations between government and people? It may be doubted that one college student in a thousand could even state it clearly. The first article of our inherited tradition, implicit in American thought from the beginning until a few years ago, was this: Government is the responsibility of a self-governing people. That doctrine has been swept away; only the elders remember it.
Now, in the name of democracy, it is accepted as a political fact that people are the responsibility of government.The forms of republican government survive; the character of the state has changed. Formerly the people supported government and set limits to it and minded their own lives.
Now they pay for unlimited government, whether they want it or not, and the government minds their lives — looking to how they are fed and clothed and housed; how they provide for their old age; how the national income, which is the product of their own labor, shall be divided among them; how they shall buy and sell; how long and how hard and under what conditions they shall work, and how equity shall be maintained between the buyers of food who dwell in the cities and the producers of food who live on the soil. For the last named purpose it resorts to a system of subsidies, penalties and compulsions, and assumes with medieval wisdom to fix the just price.
This is the Welfare State. It rose suddenly within the form. It is legal because the Supreme Court says it is. The Supreme Court once said no and then changed its mind and said yes, because meanwhile the President who was the architect of the Welfare State had appointed to the Supreme Court bench men who believed in it.
The founders who wrote the Constitution could no more have imagined a Welfare State rising by sanction of its words than they could have imagined a monarchy; and yet the Constitution did not have to be changed. It had only to be reinterpreted in one clause — the clause that reads: “The Congress shall have power to lay and collect taxes, imposts and excises to pay its debts and provide for common defense and welfare of the United States.”
“We are under a Constitution,” said Chief Justice Hughes, “but the Constitution is what the judges say it is.”
The president names the members of the Supreme Court, with the advice and consent of the Senate. It follows that if the president and a majority of the Senate happen to want a Welfare State, or any other innovation, and if, happily for their design, death and old age create several vacancies on the bench so that they may pack the Court with like-minded men, the Constitution becomes, indeed, a rubberoid instrument.
The extent to which the original precepts and intentions of constitutional, representative, limited government, in the republican form, have been eroded away by argument and dialectic is a separate subject, long and ominous, and belongs to a treatise on political science.
The one fact now to be emphasized is that when the process of erosion has gone on until there is no saying what the supreme law of the land is at a given time, then the Constitution begins to be flouted by Executive will, with something like impunity. The instances may not be crucial at first and all the more dangerous for that reason. As one is condoned, another follows, and they become progressive.
To outsmart the Constitution and to circumvent its restraints became a popular exercise of the art of government in the Roosevelt regime. In defense of his attempt to pack the Supreme Court with social-minded judges after several of his New Deal laws had been declared unconstitutional, President Roosevelt wrote: “The reactionary members of the Court had apparently determined to remain on the bench for as long as life continued-for the sole purpose of blocking any program of reform.”
Among the millions who at the time applauded that statement of contempt there were very few, if there was indeed one, who would not have been frightened by a revelation of the logical sequel. They believed, as everyone else did, that there was one thing a President could never do. There was one sentence of the Constitution that could not fall, so long as the Republic lived.
The Constitution says: “The Congress shall have power to declare war.” That, therefore, was the one thing no president could do. By his own will he could not declare war. Only Congress could declare war, and Congress could be trusted never to do it but by will of the people — or so they believed. No man could make it for them. Even if you think that President Roosevelt got the country into World War II, that was not the same thing. For a declaration of war he went to Congress — after the Japanese had attacked Pearl Harbor. He may have wanted it, he may have planned it; and yet the Constitution forbade him to declare war and he dared not do it. Nine years later a much weaker president did.
President Truman, alone and without either the consent or knowledge of Congress, had declared war on the Korean aggressor, 7000 miles away, Congress condoned his usurpation of its exclusive constitutional power. More than that, his political supporters in Congress argued that in the modern case that sentence in the Constitution conferring upon Congress the sole power to declare war was obsolete.
Mark you, the words had not been erased; they still existed in form. Only they had become obsolete. And why obsolete? Because now war may begin suddenly, with bombs falling out of the sky, and we might perish while waiting for Congress to declare war.
The reasoning is puerile. The Korean war, which made the precedent, did not begin that way; secondly, Congress was in session at the time, so that the delay could not have been more than a few hours, provided Congress had been willing to declare war; and, thirdly, the president as commander-in-chief of the armed forces of the Republic may in a legal manner act defensively before a declaration of war has been made. It is bound to be made if the nation has been attacked.
Mr. Truman’s supporters argued that in the Korean instance his act was defensive and therefore within his powers as commander-in-chief. In that case, to make it constitutional, he was legally obliged to ask Congress for a declaration of war afterward. This he never did. For a week Congress relied upon the papers for news of the country’s entry into war; then the president called a few of its leaders to the White House and told them what he had done.
A year later Congress was still debating whether or not the country was at war, in a legal, constitutional sense. A few months later Mr. Truman sent American troops to Europe to join an international army, and did it not only without a law, without even consulting Congress, but challenged the power of Congress to stop him. Congress made all of the necessary sounds of anger and then poulticed its dignity with a resolution saying the president’s action was all right for that one time, since anyhow it had been taken, but that hereafter Congress would expect to be consulted.
At that time the Foreign Relations Committee of the Senate asked the State Department to set forth in writing what might be called the position of executive government. The State Department obligingly responded with a document entitled, “Powers of the President to Send Troops Outside of the United States — Prepared for the use of the joint committee made up of the Committee on Foreign Relations and the Committee on the Armed Forces of the Senate, February 28, 1951.”
This document, in the year circa 2950, will be a precious find for any historian who may be trying then to trace the departing footprints of the vanished American Republic. For the information of the United States Senate it said (Congressional Record, March 20, 1951, p. 2745):
“As this discussion of the respective powers of the President and Congress has made clear, constitutional doctrine has been largely moulded by practical necessities. Use of the Congressional power to declare war, for example, has fallen into abeyance because wars are no longer declared in advance.”
Caesar might have said it to the Roman Senate. If constitutional doctrine is moulded by necessity, what is a written Constitution for?
Thus an argument that seemed at first to rest upon puerile reasoning turned out to be deep and cunning. The immediate use of it was to defend the unconstitutional Korean precedent, namely, the resort to war as an act of the president’s own will. Yet it was not invented for that purpose alone. It stands as a forecast of executive intentions, a manifestation of the executive mind, mortal challenge to the parliamentary principle. The simple question is: Whose hand shall control the instrument of war? It is late to ask. It may be too late, for when the hand of the Republic begins to relax another hand is already putting itself forth.
This article was originally published as “The Decline of the American Republic” in The Freeman, February 25, 1952.