"Animosity is not a policy" is what Henry Cabot Lodge advised Woodrow Wilson when the latter excluded Senators from participating in the - eventually failed - post-World War I peace negotations. Today, even more powerfully, the Sentator might advise the President: "Stay-the-course is no substitute for your manifestly failed Flat Earth policies." And to his Speaker-colleagues in both chambers of Congress he might well throw a copy of the US Constitution and other useful texts, pointing to their authority and obligation to heed the voters' mid-term verdict, i.e. to "take such measures and give such directions as [they] may deem proper and effective in the circumstances."  (www.solami.com/a3a.htm#obligations). The following is an out-of-the-box approach to America's biggest foreign policy headache - in the traditions of one of its foremost statesmen.

The some 2500 mostly pro-Pelosi comments on the April 5 Washington Post editorial "Pratfall in Damascus: Nancy Pelosi's foolish shuttle diplomacy" are instructive. So is the commentary "Illegal Diplomacy" by Robert F. Turner which the Wall Street Journal published a day later (.../diplomacy.htm). With its so far only 5 published reader reactions, this vindicative edpage piece seems to have escaped the attention of the Journal's usually alert audience. For Turner's reasoning flies in the face of basic export business needs, i.e. freedom for proactive, enterprising and Foggy Bottom-independent forays into foreign markets and spheres controlling them. Not to speak of the ever more pressing need for a fresh and more imaginative reading of the basic law for bringing the Iraq adventure to an end before even bigger damage is done to the Union. Indeed, the US Constitution necessarily offers more than the cumbersome impeachment road if any given White House crew has lost its moorings and orientation and shows more interest in hiding its shortcomings than in keeping the US from sinking even further into the quagmire. In other words, when those charged under the Constitution with the awesome US executive powers no longer meet the minimum standards naturally presupposed by the Founding Fathers.

The Founding Fathers'
idea of genuinely and reliably safeguarding the legitimate interests of all Citizens in all foreseeable circumstances by way of equitably shared and balanced powers has a much deeper - and much more resourceful - root than that which Dr.Turner took into consideration. On June 15, 1215, an enlightened King of England (enlightened at swordpoint that is) had set his hand under the Magna Carta, saying "We will not appoint justices, ... sheriffs, or bailiffs, except of such as know the law of the kingdom and are of a mind to keep it well." (art.45). Thus inspired, on August 1, 1291, some Elders of some valleys in the midst of the European continent set out to draw the line against any and all foreign interference in their fellow citizens' affairs. "In the name of God, the Almighty", they conluded a Federal Pact, providing notably "After joint consultations, we have also unanimously agreed, set and ordered that the People of the above-named valleys [Uri, Schyz and Unterwalden] will, under no circumstances, receive or accept a judge who is not one of us [i.e. a resident Citizen], or who has bought his judgeship with money or any kind of favor on any way" (art.4). Built around the concept of self-governing and mutually supporting communities of Sovereign Citizens, Switzerland evolved into a nation whose core characteristic was formally recognized in 1815 by the powers that be in these terms: "The neutrality and inviolability of Switzerland and its independence from all foreign influences are in the true interests of the politics of Europe as a whole."

Interestingly, while the US Constitution has relied on a system of intra-institutional balances of powers, modern Switzerland's Constitution of 1848 has adopted many features of the US Constitution while maintaining the concept of Sovereign Citizens as key balancing factor on the communal, cantonal and federal level. Even more intriguingly, the ill-considered, hugely self-damaging and thus never applied Logan Act of 1799 explicitly makes it a crime for any US citizen to commence or carry on "any correspondence or intercourse with any foreign government or any officer or agent thereof". On the other side, the Swiss Penal Code (art.267) threatens with fine or prison only Swiss officials who, either intentionally or by negligence or incompetence, damaged Swiss interests in the course of official dealings with a foreign government. This Swiss peculiarity has given rise to a long, deeply enrooted and universally appreciated tradition of discrete Swiss Good Offices which from time to time have been carried out by Swiss lawmakers and private citizens not because but even in spite of official Swiss actions. Some such cases involve US interests concerning the USSR, Yugoslavia, Iraq, Iran, etc.

With the US system of constitutional intra-institutional balances apparently somewhat out of sync with current and foreseeable needs, lawmakers are naturally expected to be imaginative in seeking prompt and effective redress in order to avert damages to citizens and the ship of state. Exploratory personal and direct contacts by elected representatives of the people with foreign dignatories, such as those recently carried out by the House Speaker Nancy Pelosi, are thus not only lawful but urgently called-for. In the above light, apparent constitutional restraints in dealing with foreign powers may in fact and in law not be what they appear to be. Even if the Supreme Court, in United States v. Curtiss-Wright (299 U.S. 304 (1936)), referred to an "exclusive power of the President as the sole organ of the federal government in the field of international relations", the US Constitution nowhere specifies such an exclusivity.

Moreover, and particularly in cases of State relations with foreign powers, neither the President nor any federal entity aside of Congress, has any explicit constitutional prerogative*). For Art.1 Section 9 of the Constitution explicitly provides: "No State shall, without the Consent of Congress, ... enter into any Agreement or Compact ... with a foreign Power". What's more, the 10th Amendment specifies unambiguously: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

What, then, in consultation with the leadership of Congress, should prevent the enlightened leadership of a State like California, from entering into negotiations with the Iraqi and/or any neighboring government for, e.g. exploring promising but so far stubbornly sidelined alternatives for getting out of the Iraq mess, even for relocating troops standing under California's jurisdicion? As Henry Cabot Lodge might have said: "Hitting the wall and sitting by is neither in the American tradition nor a responsible option." And what he did say might be pondered with benefit not least by the current decision-makers all over the land: "Beware how you trifle with your marvelous inheritance, this great land of ordered liberty, for if we stumble and fall freedom and civilization everywhere will go down in ruin."
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*)  see also: "Negotiating Federalism: State Bargaining and the Dormant Treaty Power", by Edward T. Swaine (Assist. Professor, University of Pennsylvania, Dep. of Legal Studies, Wharton School), 49 Duke L. J. 1127