The Feinstein Issue

The cure for the evils of democracy is more democracy!

H. L. Mencken, Notes on Democracy, 1926

Sen. Dianne Feinstein took to the Senate floor this week to make the accusation that in effect the C.I.A. had been, and still is, acting in an unconstitutional manner, claiming that the agency had been spying on members of the senate committee which has been investigating the spy agency.

In true Washington D.C. fashion, the C.I.A. then immediately countered that staff members of the committee had acted illegally in the execution of their congressional oversight responsibilities.

This brought calls from all political circles of conduct bordering on a constitutional crisis.

Such commentaries might make for comical, pointless political theater, but completely miss the point.

There is nothing unconstitutional about one branch of government spying on another. This is so because there is nothing written within the framework of our governing document addressing such issues.

Many in the political class and their media sycophants attempted to decry such ambiguities within the Constitution as flaws of omission made by the framers and the founders of this nation. 

The truth of the matter of course is much different.

To wit:

The Constitution is so beautifully crafted as to specifically REMAIN nebulous on such situations. The construct of the checks and balances is never quite as clear as in these hyperbolically labeled ‘constitutional crises’.

Consider a possible resolution to the concerns and claims made by Senator Feinstein.

(It should be noted that in the absence of any hard data on the facts of her claim, the Madison Conservative is not addressing those issues at this time, but rather taking advantage of the situation to provide clarity on a bigger issue).

If Congress believes that the C.I.A. has been spying on it, all it need do is to pass legislation specifically prohibiting the agency, an arm of the Executive branch, from undertaking such actions on any other branch of government, i.e. the legislative and/or judicial.

The law is passed by both houses and is presented to the President for his signature. If he chooses to sign the bill, it becomes law. This would then provide criminal penalties should the C.I.A. begin to snoop anew.

Of course, the President could veto any such legislation, which would return it to the Congress. If both houses met the threshold of a two-thirds majority vote, they could overturn the veto, and the legislation could still become law.

In either event, the aggrieved party could petition the Supreme Court to rule on the constitutionality of any such law. Once the Court ruled on that specific delineation of legality, the issue would be settled.

In over two hundred years, no such case has ever been presented to the Court, so there can be no constitutional crisis on this matter. By definition, a constitutional crisis would only exist if the Constitution were to be specifically ignored on a described action of government.

What can happen is for the legislative branch to flex its constitutional muscle and let the Executive branch know that this government is an equal triumvirate.

It would make for fascinating study on the nature of a true democratic republic.

The Madison Conservative encourages the Congress to take such actions.

We owe the founders, framers, ourselves and our posterity no less than to preserve the structural integrity of the United States Constitution.