War expands the powers of the presidency and the executive branch. President Bush’s administration, for instance, has classified Yaser Esam Hamdi, an American captured in Afghanistan, as an “enemy combatant.” That means he will not have the usual legal protections afforded the accused in U.S. courts. The Justice Department argues that the courts cannot review this determination because the president has a broad power to make war.
This should concern all Americans. No less than the author of our Constitution, James Madison, reminds us why we should worry about an expansive presidency, especially in times of war. His words of warning echo down to us today as we face up to the fact that this will be a long battle against terror.
Madison was not a national‐security wimp. He once wrote to Thomas Jefferson that a vigorous federal government was essential to secure us “against external and internal danger.” He also knew that religious fanatics endangered life and liberty. He embraced religious tolerance early in life when he saw in his native Virginia the injustices done by some Christian zealots who sought to compel faith through force.
Yet Madison also understood that even a just war offers real dangers to liberty and republican government. In 1799, he wrote, “The testimony of all ages forces us to admit that war is among the most dangerous of all enemies to liberty.” Four years earlier, he stated, “No nation could preserve its freedom in the midst of continual warfare.”
War favored the executive branch, Madison concluded, thereby undoing the careful balancing of powers in the Constitution. How to deal with the dangers of war? It is, he wrote, “equally the duty and the characteristic of good citizens to keep a watchful, tho’ not censorious, eye over that branch of government which derives the greatest accession of power and importance” from war.
Some conservatives question the motivations of those who worry about the expansion of executive power. From a Madisonian perspective, that’s just wrong. The people who express their concerns are being good citizens in Madison’s republic by keeping a “watchful, tho’ not censorious, eye” on the executive.
Those who worry about liberty fulfill Madison’s hopes for America. The civil liberties at issue were not part of the original Constitution, and Madison himself initially opposed including a Bill of Rights. He changed his mind, in part because he believed including the first 10 Amendments would make sure they became “incorporated with the national sentiment” and thus would “counteract the impulses of interest and passion.” He saw that our fundamental law would not only constrain the government, but also form citizens whose virtues would ensure that the Constitution became more than words on parchment.
Madison’s hopes have become reality. Some nations would have sacrificed fundamental liberties after Sept. 11, and not a few have declared states of siege with far less provocation. We have avoided the sad fate of so many nations in no small measure because our political culture includes many who keep a “watchful, tho’ not censorious, eye” on our government. The Bill of Rights has indeed been “incorporated into the national sentiment.”
How should we balance liberty and security? Madison once famously remarked that if men were angels, no government would be necessary. The zealots of al‐Qaeda are not angels, and we need our government to protect us against “internal and external danger.”
But Americans need more than just security. We need a government that can control itself as it protects our lives, liberty and property. We need a government that lives up to the constitutional vision of James Madison.