August 01, 2012

Opening Statement: After 9/11 Preserving Liberty Through a Vigilant Judiciary

James Madison warned in the starkest terms about the dangers of executive power in times of war; his words have proved prescient.

Ron Marmer

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As our nation struggled to craft the Constitution, the challenge was to empower an effective central government while recognizing that government itself could be the most dangerous threat to freedom. On June 29, 1787, at the Constitutional Convention, James Madison warned in the starkest terms about the dangers of executive power in times of war: The “means of defense against foreign danger, have been always the instruments of tyranny at home.” Madison knew that in “time of actual war, great discretionary powers are constantly given to the Executive . . . .” And he admonished that the “Constant apprehension of war, has the same tendency . . . .” Those were lessons, Madison told the Convention, from the history of Rome and Europe.

In the Federalist Papers, Alexander Hamilton assured critics that a system of checks and balances provided a structural safeguard “by so contriving the interior structure of the government as that its several constituent parts . . . be the means of keeping each other in their proper places.” Observing that the “judiciary is beyond comparison the weakest of the three departments of power,” Hamilton was explicit that federal judges must have life tenure—“to hold their offices during good behavior”—to allow them to perform their proper role.

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