FISA and the Founders

Congress’ passage of a new FISA law once again raises the question of whether democracies can “do” foreign policy patiently and competently.

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Congress’ rush to its August recess was not a pretty spectacle by any standard. Its passage of a new FISA law once again raises the rarely asked question of whether democracies can “do” foreign policy patiently and competently.

The circumstances may be new, but the problem is not. “For my part,” Alexis de Tocqueville wrote in Democracy in America, “I have no hesitation in saying that in the control of society’s foreign affairs that democratic governments do appear decidedly inferior to others.” De Tocqueville credited democratic societies with a sort of “practical everyday wisdom and understanding of the petty business of life which we call common sense.” But he found that while “democratic liberty applied to internal affairs brings blessings greater than the ills resulting from a democratic government’s mistakes,” this was not the case in relations between nations.

Foreign policy, the Frenchman lamented, required none of the good qualities peculiar to democracy, but it did demand the cultivation of those sorely lacking. Democracies, he noted, found it “difficult to coordinate the details of a great undertaking and to fix on some plan and carry it through with determination.” Moreover, they had “little capacity for combining measures in secret and waiting patiently for the result.” De Tocqueville criticized the tendency of a democracy to “obey its feelings to satisfy a momentary passion.”[i]

Walter LaFeber, perhaps America’s pre-eminent diplomatic historian, calls this phenomenon “the Tocqueville problem in American history.” How, LaFeber wonders, can a “democratic republic, whose vitality rests on the pursuit of individual interests with a minimum of central governmental direction, create the necessary national consensus for the conduct of an effective, and necessarily long-term, foreign policy?”[ii] This problem, LaFeber notes, has not received much attention from historians and has barely registered in the concerns of those who define the terms of U.S. foreign policy, nor those in whose name it is made.

The federal government has eluded its FISA issues just as it did during the Cold War—by further tipping the balance of power away from Congress and toward the executive branch. And while this may be the easiest way to avoid the problem, both from a practical and a political standpoint, it is also explicitly contrary to the spirit of what our founders intended.

President George Washington, in his Farewell Address—the Magna Carta of early American foreign policy—counseled his countrymen to keep their society pure by remaining above the petty animosities of European politics and to value peace above almost any other goal. While he recommended “harmony” and “liberal intercourse” with all nations, Americans were never to “seek nor grant exclusive favors or preferences.” “There can be no greater error,” Washington insisted, “than to expect or calculate upon real favors from nation to nation.”[iii]

Washington’s almost visceral loathing of war was born of the experience of command. His hope that the United States “never unsheathe the sword except in self-defense” and his “devout” prayer “that we remain at peace to the end of time” were not mere pabulum, but the central theme of the Farewell Address.[iv]

The Founders enshrined their abhorrence of war in the Constitution by explicitly vesting Congress, rather than the president, with war-making powers. The reasons are obvious. As James Madison wrote Thomas Jefferson, “The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.”[v]

Jefferson called this decision an “effectual check to the dog of war.”[vi] The Federalists did not dispute this argument. Even Alexander Hamilton, who consistently argued for a strong executive with a large standing army and war-making capability at his disposal, nevertheless agreed that “it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war.”[vii] Indeed, only one delegate to either the Philadelphia convention or any of the state ratifying conventions even suggested that presidents be constitutionally vested with the power to begin a war, and he subsequently disowned it. Patently, notes Constitutional scholar John Hart Ely, “the point was … to ‘clog the road to combat’ by requiring the concurrence of a number of people of various points of view.”[viii]

Our current system allows the president to make war virtually unchecked. As the FISA debate once again demonstrated, all a president needs to do to override the clear strictures of the Constitution—however distrusted and unpopular—is threaten his opposition with the blame for a potential attack.

Our founders could not have anticipated much about the nature of the threats we face in the modern world. But they understood power and its tendency to corrupt those who collect too much of it. They did not trust themselves to exercise it wisely except in the context of long and difficult debate. Can you imagine, for a moment, what they would have said to Messrs. Bush and Gonzales?

Eric Alterman is a Senior Fellow of the Center for American Progress, a CUNY Distinguished Professor of English at Brooklyn College, and Professor of Journalism at the new CUNY Graduate School of Journalism. His weblog, “Altercation,” appears at, His seventh book, Why We’re Liberals: A Political Handbook for Post-Bush America, will appear early next year.

Research Assistance: Tim Fernholz

[i] Alexis De Tocqueville, Democracy in America (Garden City, NY: Doubleday and Co, 1969): 228-229.

[ii] Walter LaFeber, “Jefferson and American Foreign Policy,” Peter S. Onuf, Jeffersonian Legacies (Charlottesville: University of Virginia Press, 1993): 376-377.

[iii] George Washington, Farewell Address, 17 September 1796.

[iv] See Edward Pessen, Losing Our Souls (Chicago: Ivan R. Dee, 1995): 32.

[v] Letter from James Madison to Thomas Jefferson, April 2, 1798, in G. Hunt, ed., The Writings of James Madison, 1906: 312-2-313.

[vi] See Julian P. Boyd, ed., The Papers of Thomas Jefferson, 24 vols. (Princeton: Princeton University Press, 1958), 15:397.

[vii] See Alexander Hamilton, “The Examination, No.1” December 17, 1801 in Henry C. Syrett et. al., eds, The Papers of Alexander Hamilton, (New York: Columbia University Press, 1977): 25:455.

[viii] See John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (Princeton: Princeton University Press, 1993): 4.

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Eric Alterman

Senior Fellow

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