New York Times columnist and blogger Ross Douthat recently used the term “constitutional decadence” to describe how the U.S. has fallen away from its original document on governance, as reflected most blatantly in President Obama’s dismissive attitude towards Congress.
Now, Alan Dershowitz, the Harvard constitutional scholar and liberal who supported President Obama, s notices an interesting verbal tic that indicates further slippage from our constitutional system with three robust, eo-equal branches of government:
Politicians should stop referring to the President of the United States as "the Commander-in-Chief," as he is often referred to. Most recently, Hillary Clinton, whom I admire, said the following about Republican senators who wrote an open letter to Iran:
"Either these senators were trying to be helpful to the Iranians or harmful to the Commander-in-Chief in the midst of high-stakes international diplomacy."
But the president is not the Commander-in-Chief for purposes of diplomatic negotiations. This characterization mistakenly implies that President Obama — or any president — is our Commander, and that his decisions should receive special deference.
This is a misreading of our constitution, which creates a presidency that is subject to the checks and balances of co-equal branches of the government.
The president is only the commander in chief of "the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." This provision was intended to assure civilian control over the military and to serve as a check on military power.
Dershowitz write that the blurring of this distinction is especially crucial significant when the president is engaged in high-stakes diplomatic negotiations, which some are asserting—erroneously—that he can do without Congress. According to our system of government, Dershowitz says the president, even negotiating with foreign powers, is subject to the checks and balances of the other two branches.
To be sure, when politicians call our president the "Commander-in-Chief," they are using that term rhetorically. But it is a dangerous rhetoric, because it suggests a concentration, rather than a division, of power. Military metaphors are as inappropriate in a democracy as is martial law, which does empower the executive to act as the commander of all people, but only in cases of extreme emergency.
If President Obama negotiates a bad and dangerous deal with Iran and then bypasses Congress to make it become a reality, these brazen acts will threaten the very existence of two things: Israel and our constitutional structure. This is a time to listen to liberal law professor Alan Dershowitz.
This is also a time to consider whether our constitutional system has been so battered in the last six years that the checks and balances envisioned by the founders may never be recovered.