One of the longest-standing and regularly recurring of our national political debates — a debate that, if anything, is even more intense today — is what powers the president and the Congress have with regard to America’s involvement in wars with other nations (or, these days, with other entities such as non-aligned terrorist organizations).

Naturally, that debate began with our Founding Fathers, who, while creating the Constitution in 1787, were well aware that war powers had to be addressed in that document.  The question was, which governmental branch would receive them?

The case for giving them to the executive branch was simple.  In times of war, especially if America was suddenly attacked by a foreign power, it made no sense to put a deliberative body such as Congress in charge of America’s defense because — well — it was a deliberative body.  With the enemy at the gates, a rapid, forceful response was critical.  To have the hundreds of members of Congress deliberating, debating and finally, hopefully, coming to some consensus on how to respond was a recipe for disaster.  Only our one-man executive, in consultation with his military advisors, could quickly devise a military response and see it carried out.

But the case for giving the war powers to the legislative branch was also compelling.  War was a serious business, affecting the entire nation.   The Founders had studied Europe’s wars carefully and noted how disastrous it was when one man, usually a king, decided to plunge his nation into war for his own gain or glory (usually achieving neither).

And what was the closest thing to a king in America?  The head of the executive branch — the “Commander in Chief” — so allowing him to unilaterally plunge the nation into war was unthinkable, especially since, in a democratic republic such as America, it was critical that wars have popular support.  After all, it was “the people” who would fight those wars and who would pay the taxes to fund them.  Thus, through their elected representatives in Congress, they, not a single chief executive, should have the final say in whether or not to go to war.

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Memo to:  Senator Dianne Feinstein (D.-CA), principal author of legislation to ban assault weapons

From: James Madison (deceased), principal author of the Constitution and Bill of Rights

Re:  A constitutional problem with your legislation

Dear Sen. Feinstein:  It’s rare that I borrow Mr. Kauffmann’s space to weigh in from the grave on a political issue (have only done it twice before), but I have a problem with your legislation banning assault weapons, and my problem isn’t related to my Second Amendment.  I agree that there are reasonable restrictions on most of the amendments in the Bill of Rights, including the First Amendment (free speech notwithstanding, one can’t falsely yell “Fire!” in a crowded theatre), and the Second Amendment (felons can’t own guns; laws banning guns in schools and schoolyards easily pass the “reasonable restrictions” test).  Whether banning assault weapons qualifies as a “reasonable restriction” to gun ownership is certainly worthy of debate, but having died before even the six-shooter was invented, I leave that debate to you and your fellow citizens.

Rather, my problem with your legislation is my Fifth Amendment, specifically that amendment’s “takings clause,” which says that no American can be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Granted, your legislation “grandfathers” citizens who currently own assault weapons; that is, while acquiring such weapons in the future would be illegal, those who already own them can keep them.  But your legislation forbids those gun owners from reselling those weapons, which are their property, or even handing them down to their heirs, which is a transfer of property.  As a result, these gun owners are being denied the right to recover the value of the investment they made in purchasing that weapon — that property — thereby depriving them of that property without due process.  It is also, in effect, a “taking” of their private property for a “public use” (purpose), reducing gun violence, without just compensation.  Both violate the Fifth Amendment.

What puzzles me is that you of all people should know this since your last automatic weapons ban, in 1994, allowed the resale or transfer of grandfathered weapons, which I assume you allowed because it avoided this Fifth Amendment problem.

To be clear, I speak strictly from a constitutional viewpoint, but I worry that you are setting a dangerous precedent.  If you can ban the resale of guns for the “public purpose” of reducing gun violence, can’t you also ban the resale of, say, heavily polluting products — gas-guzzling cars, for example — to improve our environment?

Both worthy goals, certainly, but where does it end, especially since no end that is unconstitutional is justifiable.

“My gift of John Marshall to the people of the United States was the proudest act of my life.” – John Adams 

This week (Feb. 4) in 1801 John Marshall was sworn in as chief justice of the Supreme Court.  Marshall would serve in that position for 34 years, while writing the most important Supreme Court decision in American history, Marbury v. Madison, which gave the Supreme Court the power of “judicial review,” thereby making the court the ultimate authority over what was or wasn’t constitutional.  That gave the Supreme Court, which previously had been the “weak sister” among the three branches of government, the necessary authority to check the other branches and — as the Constitution intended — maintain the balance of power among those three branches,.   Thus is Marshal considered the greatest Supreme Court chief justice in American history.

Interestingly, his appointment was chiefly a political one.  In the election of 1800, President John Adams had lost his bid for re-election to Thomas Jefferson, whose Democratic-Republican Party also won control of Congress.  As a result, Adams, the leader of the Federalist Party, wanted to ensure that at least one branch of the government had a Federalist influence.  So he appointed Marshall, a loyal Federalist, to the court.  Adams knew that Supreme Court justices were appointed for life, and since Marshall was only 45 years old, his influence on the court would be a prolonged one.

Marbury v. Madison being the most famous example of that influence, and, ironically, had the case been argued today, Marshall would have had to recuse himself.  That is because, in addition to appointing Marshall to the highest court, just before leaving office Adams appointed dozens of other Federalist judges to the lower courts.  However, although Adams had signed those appointments, they weren’t considered valid until they had been “sealed” (stamped) and delivered by the secretary of state, who at the time was … John Marshall.  Unfortunately, Marshall was unable to stamp and deliver every appointment, so when Jefferson was sworn in as president (by Chief Justice Marshall) he promptly instructed his secretary of state, James Madison, to ignore those non-delivered appointments, one of which was William Marbury’s, who promptly sued for his judgeship.

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