President Bush’s Christmas Present

John C. Eastman

December 1, 2001

It may not have been intended as a Christmas present—our national security team certainly has more on its mind these days than trying to time major initiatives to coincide with particular religious holidays. But President George Walker Bush’s announcement on December 13 that the United States was going to exercise its right to withdraw from the cold-war era anti-ballistic missile treaty was a Christmas present (or at least a down payment on a Christmas present) of epic proportions. Better yet, if the President actually withdraws from the ABM Treaty once the requisite six-month notice period expires next June, and if Congress authorizes the necessary funds to develop and implement a national missile defense system, it will be a Christmas present that keeps on giving, not just to the American people of today but to our posterity as well.

Of course, there is a lot of time between now and June for the self-elected molders of public opinion to try to undermine the President’s resolve. The pseudo-Marxists in the media and the academy who believe deep down that America is not worth defending are apoplectic over the President’s decision. Indeed, the drumbeat of opposition began even before the President made his formal announcement. Four lines of attack are already evident, dropped into the public discourse by our nation’s &quot:elites”: like so many chunks of coal in the bottom of Charlie Brown’s Christmas stocking.

Three of the evident lines of attack are aimed squarely at public opinion. First, missile defense won’t work; second, it is destabilizing and therefore dangerous; and third, even if missile defense would work, the money would be better spent on domestic projects. None of the arguments have any merit, and I predict that in this time of heightened attention to the national government’s pre-eminent responsibility to provide for the common defense, the American people will see past these chunks of coal to the true worth of the Christmas present President Bush has proposed.

The first argument presumes that the entrepreneurial spirit of America is different now than it has been in the past, that the American people are no longer capable of accomplishing great things. Just imaging telling the Wright brothers that man would never fly, or the scientists at Los Alamos, New Mexico that they could never harness the power of the atom before scientists in Nazi Germany. Under such a view, President John F. Kennedy’s daring challenge in 1961 to land a man on the moon before decade’s end would have been met with howls of derision rather than the determined and ultimately successful effort of an entire nation that reached even to elementary school science classes. If the events of the past three months have shown us anything, it is that the &quot:Old Man Can’t is Dead&quot: spirit of America is still alive and well.

The second argument is much more subtle—just the kind of argument our self-ordained elites relish in making. But if the argument that defending our nation from missile attack actually increases the risk of such an attack ever had any merit when the only threat came from our cold-war superpower enemy, the Soviet Union, it clearly has no merit when rogue states or even individual terrorists have or are seeking to obtain missile delivery systems for their weapons of mass destruction. The elegantly simple common sense of the American people will undoubtedly see through this sophisticated subterfuge—indeed, most are shocked to learn that we do not already have a missile defense system in place.

The third argument is really a variation on an old political favorite: &quot:Vote to cut taxes, and your police and fire services will suffer.&quot: Here, &quot:vote to defend the nation against missile attack, and your pet domestic projects will be cut.&quot: A century and a half ago, President James Buchanan warned against just such appeals, vetoing an internal improvements bill because of the natural instinct to prefer immediate, local benefits to the long-term expenditures that are of truly national import. But the importance of the nation’s defense is now very visible to us, and the new generation of American citizens is already demonstrating a capacity to sacrifice for the common good that is beginning to rival that of the World War II &quot:greatest generation.&quot:

When the appeals to public opinion fail, however, the nation’s elite will turn to legalistic arguments made to like-minded judges rather than the public at large. Although the legal arguments have even less merit than the policy ones, they pose the greater threat to President Bush’s Christmas present precisely because they will be made in fora insulated from the common sense of American public opinion. Thus, President Bush will be said to have &quot:violated”: the ABM Treaty, even though the nation with which we entered into the Treaty no longer exists (and routinely violated the Treaty when it did exist), and even though Article XV of the Treaty specifically authorizes withdrawal on six months notice if either nation &quot:decides that extraordinary events related to the subject matter of this treaty have jeopardized its supreme interests.&quot:

He will be said to have violated his constitutional obligation &quot:to take care that the laws be faithfully executed&quot: because, under Article VI of the Constitution, treaties are the supreme law of the land, even though as President and Chief Executive the same Constitution assigns to him the sole responsibility to &quot:execute”: the laws, which of course includes the power, indeed the obligation, to determine when the Treaty provision allowing withdrawal should be &quot:executed.”:

Finally, he will be accused of undermining the separation of powers by failing to obtain Senate confirmation of his decision, even though the Constitution’s text and prevailing precedent (such as President Roosevelt’s decision to terminate the Treaty of Friendship with Japan in 1939) recognize that the Senate’s confirmation power extends only to the ratification of treaties, not to their termination. The Senate has no more constitutional role to play here than it has when the President chooses to remove from office a cabinet secretary who previously have been confirmed by the Senate. Indeed, given that the President has even greater powers in the foreign policy arena than domestically, it is quite likely that the Senate has even less of a role to play in this context.

The stakes here are exceedingly high. The American people seem intuitively to know that the best way to meet the constitutional obligation &quot:to provide for the common defense&quot: is actually to provide a defense against the threats that we face. For nearly thirty years, the ABM Treaty has prevented us from fulfilling that pre-eminent constitutional mandate. Let us this Christmas hope and pray that the judges who will hear the legal challenges to President Bush’s decision finally to turn that treaty into the final relic of the cold war not be misled by the arguments of clever lawyers bent on undermining that constitutional obligation. Then we will truly have a Christmas present worth celebrating, for generations to come.

Dr. Eastman is a professor of constitutional law at Chapman University School of Law, the Director of the Claremont Institute Center for Constitutional Jurisprudence, and an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University.

"First Principles" is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2001 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.