Judging What is Necessary and Expedient

It was for our own good.  When Thomas Jefferson connived with his Cabinet to obtain lands around the Mississippi in order to control the port of New Orleans, the intent was to involve the citizenry for any purchase.  President Jefferson being, well, Jeffersonian, strove to increase participation in government, not act in a kingly fashion.  Given that the Constitution did not mention land acquisition, purchasing land would require an Amendment.  But, time was of the essence - Spain was weak and Napoleon was desperate and the time was right so he made the iron hot by striking.  In that moment a quest to operate one port on the Mississippi doubled the size of the country.

Although it was outside the authority of the federal government, President Jefferson reasoned the land grab away.  While a Constitutional Amendment would have been nice and a vote would have been helpful, but in the end,“[i]t is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; and saying to him when of age, I did this for your good.”

Andrew A. Lipscomb  and Albert E. Bergh, eds. The Writings of Thomas Jefferson (Washington, D.C.: Thomas Jefferson Memorial Association of the United States, 1903-04), 10:411.

Apparently we have come of age to accept that when our leaders act in contravention of the Constitution, we are to dispense gratefully with our governing document, even on issues of due process of law and notions of ordered liberty.  At least this is the circulating argument on the white paper on death by drone.  

As unlawful as it was, we could not imagine America without the expanse of the Louisiana Purchase: from the Dakotas to Texas, from Montana to Louisiana, from Minnesota to New Mexico, Iowa to Wyoming, Missouri to Colorado and everything in between.  Without this land, we would not have known Bleeding Kansas or the Kansas-Nebraska Act or the Missouri Compromise; we would not ever know that the wind comes sweeping down the plain in Oklahoma; we never could have sent the National Guard to integrate schools in Little Rock; we would never have had a Rocky Mountain high; and instead of jazz, we would have silence.

In order to be our guardian, Thomas Jefferson had to violate everything he claimed to believe: that the president should be a weak office, that the Constitution governed all federal business and that without exception the Constitution did not contain a provision for acquiring land...not to mention that title was a bit sketchy.  That is, if title were held by France in retrocession, Napoleon could not sell it to a third party; if it were held by Spain, he could not sell it at all and yet Jefferson agreed to the deal understanding that one of those two scenarios was true.  It was - to be sure - a bargain - three cents an acre for prime real estate with a busy port, arable land, navigable rivers, and strategic mountains.  But if it did more than just invite war with Spain, that $15 million venture would have been wasted and, worse, tantamount to treason.  No one is here suggesting a return policy; just questioning when a president can justify his big, broad, undeniably unconstitutional actions after they occur by claiming that they are in the public interest and we will thank him later.

And, when the president acts outside the confines of the Constitution for our own good, can that ever include the denigration of individual liberties Americans hold dear?  Regardless of emotions about Mr. Jefferson and the validity of the acquisition, it seems fair that doubling the land mass of the nation is easier to justify after the fact than, say, killing someone because a high ranking American official "believes" that the individual presents an imminent threat of violent attack against the United States...provided that "imminent" means something other than, well "imminent"...something closer to "eventual" or "possible."  It's not entirely clear what the term "violent attack" means either.

Mr. Jefferson, for all his ex-post-facto-clean-up-the-damage-that-the-amendment-was-unnecessary logic after the Louisiana Purchase, seriously exceeded his authority, but in so doing he did not appear to infringe upon individual liberties. 

During the Civil War, Lincoln and his Cabinet agonized over due process of law issuing the Lieber Code which essentially prohibited bounties for individuals and sought trials rather than execution for those taken captive.  Indeed, in the last 150 years since that edict issued, more wars have been fought, new rules have developed pertaining not just to one nation's armed forces, but internationally. There are rules in war and it behooves us, even in the most trying of times, to abide them lest we devolve into something incompatible with the second sentence of the Declaration of Independence.

As much as it gives some people solace to believe that the good guys with the guns are overpowering the bad guys with the guns, complicity is perilous.  Sacrificing American principles in the pursuit of individual targets is decidedly un-American.  Due process of law conceptualizes notice, an opportunity to be heard in one's defense, representation when the issue is complex or affects individual liberty, fair dealing, equal treatment under the law, some level of review, and a basic set of rules and procedures to follow - even in, perhaps especially in, times of war.  It is hard to equate this notion with unmanned aircraft seeking out and killing people who are hard to capture.  Then again, the rationale for failing to prosecute the bankers who destroyed the world economy in a violent crash of markets is that it is just too hard - presenting, it would seem, a kind of opportunity under this program.

Taking life - restricting liberty - depriving anyone of the rights that we proclaim for ourselves challenges the notion of what being an American means (even if the target is a terrorist or a banker).  When did our nation become willing to deny rights to others?  In one brilliant speech on the eve of America's entry into the second World War, Secretary of the Interior Harold Ickes explained that Americans will sacrifice property, ease and security in order to be free and to fight for others to be free as well.

Even as great strides toward human rights and dignity for all people advance in the United States, we are far from illustrating a perfect example of democracy or liberty or fairness; we now chafe with the idea of sacrifice and we bristle with inclusiveness.  We have much work to do at home.  Even with their superior knowledge of the dangers that lurk...everywhere...our nation's leaders do more damage to our own concept of liberty and set a terrible example for progress...anywhere... when they single out individuals and murder them.  Throughout America, states are questioning the appropriateness of capital punishment after trial and review even as our government dispenses with the pleasantries and kills people in our name.

The problems with the far reaches of the drone program combined with its video-game-like ease aside, executive orders related to assassination and other nefarious conduct is not new.  The Church Commission famously investigated  plots against leaders of several nations; the upshot was that the United States should not engage in assassinations.  Yet, we have so engaged, and much to our collective chagrin, we will continue to be so engaged.  As fewer and fewer people pay attention to the withering away of their own rights, the powers that be will keep their enemies list more and more secret, each homicide less and less publicized.   And, each one will be justified with the same rationalization, that it was for our own good.