Posted on 12/04/2001 9:28:08 PM PST by betty boop
Lately, a whole lot of people around here seem to be exercised over the issue of whether the Constitution applies to "citizens only," or to the more generic category, "people." Must have been something President Bush or Attorney General Ashcroft said….
Well, I offered the result of my humble attempt at rational analysis, with the amusing result (hey, even I find it funny) of being screamed at and chastised, in 36-point type, for my dim-witted ignorance; and was in so many words accused of being a dunderhead, a horse's patoot, a "dunce." (Hey, maybe it's all true. :^) )
But I wasn't the only one to receive what passes for "civil treatment" in the now-typical style of FR discourse. An unfortunate colleague was taken to task for reaching conclusions similar to mine. He was accused of being a "cretin with an IQ of dog slobber," someone so dim he couldn't even "tell what planet [he] was on." Then the unkindest cut of all: "It wouldn't be fair to hold you to the same standards I would somebody half as smart as Al Gore."
Oh, pul-eeze. Can't we find a more dignified way to disagree with one another?
By the way, the folks advancing these judgments are of the party maintaining that unalienable human rights pertain to persons, not to citizens as such. What these seemingly crazed individuals fail to appreciate, however, is that I do not disagree with this conclusion. And neither, I suspect, does my much-abused colleague.
Still, there is the appearance of a preponderant majority of opinion on this question at FR, judging from the replies I've seen; and their collective finding contradicts the finding of the tiny dissenting opinion seemingly represented only by my colleague and me.
Now if majority opinion were all that's needed to establish truth, then we could all just go home now and get a good night's sleep. (If this "test of truth" satisfies you, dear reader, stop reading immediately and find something better to do with your life and time, because you're wasting both here.)
But I wouldn't be able to sleep at all, under such conditions. The idea that truth rests on majoritarian opinion is the very foundation of popular or mass democracy.
BUT -- our Founders gave us a republic. When the lady asked Benjamin Franklin what the Framers had wrought - in secret council - during that sweltering summer in Philadelphia, he replied: "A republic…if you can keep it." It seems to me there is no way you can keep a republic if your standard of truth is the Public Opinion Poll.
So may we return to the merits of the case, and let each person make his own judgment as he or she will?
One of my correspondents takes what I understand as a "negative reading" of the Bill of Rights ("BoR"). I don't disagree with him on this point: Clearly, the BoR operates as a constraint on the federal government, prohibiting it to interfere in certain areas of personal autonomy (which in the view of this writer, are certain divinely-constituted inalienable rights vested in all human persons qua persons, be they citizens of the United States or not) -- without due process of law.
I'm afraid we can't just dispense with the latter, this idea of "due process," just wish it away -- because it's fundamental to the concept of ordered liberty - which is what a constitutional republic is all about.
If I might digress for just a moment: This whole idea of God-given (or "innate" or "natural") human rights that governments are prohibited to violate is the distinctive, uniquely American contribution to the theory of just political order -- which is a very ancient problem.
This is an understanding wholly unprecedented in human history, in that Americans have actually tried to realize the theory in actual practice. This "theory" extends the idea of innate human liberty and personal sovereignty to all persons, everywhere. And the Americans have the sheer temerity to make precisely this insight the very foundation of their rule of law.
BUT - that is not the same thing as saying that the U.S. Constitution applies to anyone, living anywhere. It has been consciously, deliberately constituted by a specific people, for the benefit of a specific people. It is definitely not the same philosophy that has been adumbrated and "officialized" by the United Nations: Compare the U.S. Constitution with the U.N. Declaration of Human Rights. Then judge for yourself: Which of these rival conceptions most pertains to the way real human beings actually live their lives: In families, communities, states/provinces, and sovereign nations?
Or do people really live, after all, according to the U.N. stereotype: according to some "universal pattern" as conceived and sanctioned by some self-selected "expert class" in pursuit of high positions of (global) power and authority in a "blessed" institution - even if it means that the entire idea of national (not to mention personal) sovereignty must be crushed under the boot in order that their aims may be achieved?
No wonder dictators and would-be dictators alike loathe us - and are now trying to defeat us: They detest the unique American idea that American diplomats carry and defend before "the council of nations." I bet the U.N. especially hates that, as a challenge and rebuke to its own putative "authority"….
But this is the legacy we Americans historically have been trying, in times of peace, and doubly in times of war (when America is fatally threatened), to hand down to our children and successors. That is what the "American Experiment" (contra the French debacle in a similar attempt a couple hundred years ago) is all about. It must trouble the likes of Taliban, PRC, et al., to no end that Americans continue to resonate to precisely that understanding….)
But, given this most basic of uniquely American understandings, my friend in "the opposition," by arguing that the federal government is so stripped of power and authority by the BoR with respect to persons (be they citizens or non-citizens) that it is prohibited from exercising its constitutional authority, nay, its duty, to prosecute its own delegated powers in wartime, for the sake of the defense of the very people it represents, is a piece of reasoning I just don't get. Some very wise justice of the Supreme Court once said: "The Constitution is not a suicide pact." (Been trying to track down my source here, to no avail so far. Still searching….)
Then another person weighed in, and said that the Supreme Court held that during times of war, belligerents can be "disposed of by the Executive branch with no recourse to the Judicial branch…. The distinction is NOT between 'citizen' and 'non-citizen,' but between 'belligerents' and 'civilians.'" Then he noted that, before the Executive is allowed to do anything on its own authority (i.e., without recourse to the courts), Congress must first declare war.
To which I would reply: So true, my friend.
But exactly when did you expect that Tom Daschle, Harry Reid, Charles Schumer, Hillary Clinton, Barbara Boxer, Dianne Feinstein, Ted Kennedy, John Kerry, Chris Dodd, Evan Bayh, Jon Edwards, not to mention the What's-Her-Name senator from Missouri who got the job because her husband died in a plane crash (vastly aided by simply staggering voter fraud in the process) et al., would agree to "do the right thing for America" so to make such a declaration? (These people think their own sacred political futures depend on not playing along with Dubya. War to them is a mere inconvenience, not a reason to get really exercised. As long as "Plan A" still goes forward full-steam, they don't care about the little "inconveniences" that get in the way -- like full-scale, declared war on American soil with upwards of almost 5,000 civilians dead -- so far.)
A formal congressional declaration of war - that is, congressional acknowledgment of the mere state of facts in which the American people now finds itself and must LIVE through, now and for the foreseeable future -- seems to me to be the very least anyone can reasonably expect, nay, DEMAND, from their elected public officials.
If this crowd doesn't get it, then I think we Americans ought to fire the whole gang, and hire a whole new bunch - and in doing so (hopefully) manage to clarify the real, objective situation that United States now faces against implacable foes, foreign and domestic. Constitutionally speaking. (But don't hold your breath waiting for the answer, kids: These vermin give every indication of determination to stick around for the foreseeable future - and then some… They will be "our masters" YET. [If only in their dreams…].)
I just hope that the people who think they're upholding and defending the Constitution (even a constitution castrated by the radical individualists out there) acquire some "survival skills" sometime soon. And start acting like they really understand what is at stake in this war - a war implacably waged, without remorse, against "non-combatants" -- according to the taxonomy of my "friend in the opposition."
But it's late, and "beddy-bye time" for me right about now. I hope to hear from folks who have something to say on this subject soon. Thus to continue this discussion along lines relevant to all my correspondents, pro and con. (This is, after all, a public discussion, not a "tutorial.") Meanwhile, all my best to all - bb.
I HATE having to trust a public official. ANY public official. But what's the alternative? I do think, however, that the president and the people around him are people of good character and dedication to the nation. That makes the bitter pill just a tad easier to swallow....
Interesting insight into the "corrupt president syndrome" and the damage it does to the nation. My husband loves to remind people that it's Democrats that start wars; and Republicans that finish them. Check our history: He's mainly right.
Thanks for writing, Hugh. All my best -- bb.
Which is terribly frustrating, in that I had a whole evening open to hosting this thread, and there ain't nobody here....
So, I thought maybe you guys might have an insight or two into the problem under discussion....
If you have the time and inclination, you have my thanks; and my best to each and all, bb.
By the way I do despise having to trust a government official as well as you do, but I would have rather lived under a benevolent dictatorship than to have had Bill Clinton be my president (only for those 8 years).
"If angels were to govern men, neither external nor internal controls on government would be necessary"- Federalist 51
I just hope Bush is as close to being an angel as possible. So far, he has spotless integrity. He's transferred his "don't mess with Texas" spirit to the national level. Thank goodness we've got him. None of them (where's Cheney these days :)??? are men I wouldn't enter into a contract with or do business with in a heartbeat. None of them are in it for the personal gain. They're selfless. We really are lucky - I just about swoon when I think how close Gore came to stealing the election.
I see where you said the Bill of Rights really is a protection against Congress: I would add that it also was adopted and incorporated via ratification by the States into their constitutions in accordance with Article VI, the supremacy clause. So to me, the Bill of Rights also protects we the people of the United States from the potential tyranny of the other 50 Legislatures in this country besides Congress.
And on the secondary question of the superiority/inferiority of citizens vis-a-vis non-citizens, I am sort of baffled by the dispute. It goes without saying that citizenship brings with it benefits and privileges, not the least of which is the ballot. If a non-citizen legally residing in the U.S. is charged with a crime on U.S. soil, he or she is entitled to due process with all the constitutional protection that implies. But upon receiving a guilty verdict, that party is subject to penalties which cannot be imposed on a citizen, e.g., deportation. If the individual is residing in the U.S. illegally, he or she may be deported forthwith without due process.
120 posted on 12/7/01 2:18 PM Pacific by betty boop
"Bob Barr just said on Sam and Cokie's show that the Bill of Rights is part of the Constitution, and the Constitution covers "persons", not just citizens, and "the Bill of Rights applies to all persons on our soil."
“That's about the most liberal thing I've ever heard. Doesn't he realize that the Bill of Rights and the Constitution clearly identifies who is covered by the words "WE THE PEOPLE OF THE UNITED STATES", and that not everyone on this soil is "OF THE UNITED STATES"?
Posted by H.Akston
Two questions Hugh....
1) You disagree with Bob Barr when he says that the Bill of Rights is part of the Constitution? They are called “amendments”, what exactly do you think they “amend”?
2) You disagree with Bob Barr when he says that the Bill of Rights applies to all people legally on US soil. Now betty, agrees with Barr, and according to your statement ” I think what we're seeing is a pause- to consider just how futile it is to bash your head against rocks of reason and wisdom like us, Betty” You seem to agree with betty...do you even remember what you said that began this whole mess?
One last thing...Buckley specifically avoided using the word “rights”...he said privileges, and duties. With citizenship, come privileges, and duties...rights are everyone's from birth.
I left the thread because all your responses had come down to insults.
1. At least you put a question mark at the end of that first sentence. That's a breakthrough in politeness for you.
I made a conjunctive sentence, with the word And. I disagreed with the second part, not the first.
2. Betty has been reasonable. You have been even worse than insulting - by bearing false witness against what I said, with your clintonesquely demagogic rant about "rights for sale" etc.
Betty specifically narrowed her statement to apply to legal residents. Barr (and you) did not.
It's a very liberal thing to do, to say "show up here and get a free lawyer under the 6th Amendment", and that's an inescapable implication of what Barr said. He's old enough to know better. You may not be.
Now - you're for military tribunals today (at least yesterday you were). Do you mean on US soil? Everyone here on US Soil has a 6th Amendment right to a public trial, according to you and Barr.
"One last thing...Buckley specifically avoided using the word “rights”...he said privileges, and duties. With citizenship, come privileges, and duties..rights are everyone's from birth."
As for WFB's use of the word "privileges" as being "superior" for "citizens" as opposed to rights - he has avoided creating the loop for slippery minds like yours to slip through and accuse him of advocating superior rights, and of being in treasonous disagreement with Thomas Jefferson.
What do you think Buckley meant by that statement?
I could talk about how the 14th Amendment elevates the concept of "equal" "privileges" to that of a right, and 'splain to you how "superior" privileges are not "equal", but that leaves you a loop to slip through since the 14th Amendment doesn't bind the Federal Government. This is by design, so that the centralizers can do things like affirmative action. But I digress.
It's a privilege to have those birthrights protected by my country's Judicial system. The privilege of protection is not guaranteed to everyone who happens to be on US soil. Some people are not allowed to be deported. Our privilege of protection is "superior". Some people can be deported and tried under a different set of rights, so their privilege of the protection of our rights is inferior. That's perfectly consistent with what Buckley said. Since this country can legally choose to not give some people (either by deporting them or trying them in a miltary tribunal, or perhaps even some other way) the privilege of protection of their unalienable rights, they are not "covered" by the Bill of Rights, leading us once again to the inescapable conclusion, that
Barr is wrong.
So True. And since they can be deported, they don't have a 9th Amendment right to stay here, unlike citizens. So they're not "covered by the Bill of Rights", even though they're on US soil.
I think this all distills down to a fatal flaw in the constitution-where only the legislative branch does NOT have armed enforcers. The executive and judicial branches have masses of troops with guns, that's the real bottom line. Congress is a paper tiger for all practical purposes. No one really wants to say it outloud, but that is one of the primary reasons the impeachment deal was such a sham. Mr prez was NOT ever going to jail, all of them are smart enough to have realized that, and they really didn't want to be wasted-I mean, killed, hurt, threatened, locked up-whatever- if he concocted some scam and started issuing orders. Not all the troops and fed leos would have followed his orders, but he would have plenty who would have, more than enough, blind order following is instilled from day one on that deal, especially if there was a concoted story or reason for it to occur, then really a 'crack down". In other words he wasn't going to jail, for any reason, any ruling, any edict, nothing, it wasn't going to occur, ever that was the real bottom line, IMO, all the other stuff was busywork discussions and high drama. He would have used his "powers" as have evolved in the executive branch of immediate and violent force to prevent this from happening, he knew it, congress knew it, and most people deep in their hearts knew it. They-congress- then focused intently in public on the mildest of all possible charges they could have picked, to save their hides, literally and in the extreme sense, and ran that "impeachment" kiddies theater.
Some would then say "well, congress could de-fund" the executive branch if they really disagreed to this or that.. To that I would say back that,triple phooie and neener neener, "orders would be given" by the executive branch and the point would be moot. The money would show up, or get printed up, or the fed reserve would go along with it, or whatever. There's niceties of "debate", and then the historically accurate and real world method of just 'doing it" and doing it violently. This is overwhelmingly supported by the planet's history in general. Men are men, large groups of men who are "in power" will use any amount of force to stay there-whether they deserve to or not by any printed up laws or petitons or actions by the people they are ruling over. They will sure give it a whack anyway. Or in the absence of money/funding by congress, the "emergency powers acts" amd executive orders are in place now and have color of law, in effect whereby the executive could just seize any and all materiel they needed,upto and including persons, you and me and thee and thou. Definetly including humans. It's out there, bet it's been linked-to here. It does no good to ignore them, they DO exist. they WILL be used at some point. There are NO accidents in politics. Reality can morph, but the underlying reasons for actions are never accidental.
This has been discussed in FEMA powers before I'm sure here, I would wager. The new PATRIOT act goes much further than that, and has been in the planning stages for a long time, only waiting really for a domestic major "crisis" to happen, then WHOOSH, it got ramrodded through, with the reports the congress didn't even have a full copy of the bill before the vote. This to me-if true-is most telling and dangerous and goes to show where this is headed, where it came from, and frankly, it reeks like roadkill to me.
I admit I am beyond suspicious when it comes to motives, this is obvious, no way would I pretend otherwise. I've stated the reason before, it is very simple, "fool me once, shame on you, fool me 1,839 times, shame on me" for "believing" the outward pronouncements.
Yes, we are at some sort of war status-but that status has been with us for decades now. Just go back and look at EO's, pick some at random, most stem from some "emegency war powers act' noise. And even as heinous as the 9-11 attacks were, I do not think it's so "bad" as we need to suspend rights or the BOR technicalities in order to deal with this or fight this. Frankly, I can see many ways to fight this so called 'war", even more effectively that what is going on now, and with full english language definitions of the BOR and constitution completely intact, and I know I have outlined them before on several other threads. And so have a lot of other people,too, many times, but when they do, once again someone will show up and say "you are only complaining, what's your solutions?", ignoring what was just posted. Talk about statis agendas and agitptop, there ya go. Call up as down, black as white, repeat it enough times, it becomes the 'truth" somehow.
"We are at war with eastasia, we have always been at war with eastasia"
As to the 'Supremes", well, they are political appointees, subject to frailties. Take the miller decision which destroyed the second amendment. They claimed that short barrel shotguns were not a "militia arm". Well, that's absurd, it's a crock, it's a lie, it's a falsehood, it's technically an impechable offense to have ruled they weren't in my opinion. That decision was null and void from it's utterance, back aqgain according to our constitution, because it just WAS an 100% falsehood. "Trenchguns" were used in world war 1, BEFORE the miller decision. Ditto for full automatics. They are clearly "militia arms", and as such the full second amendment applied to them, those liars and dishonorable traitors said they weren't.
It gets down to a fundamental principle we have had as "law" since before the constitution was written and signed, that's one reason why I put in the declaration of independence into this thread. It predates this debate, and is the main document we should take into consideration, IMO. I sincerely WISH in great grand pappys day people had openly revolted over that decison, and kicked butt until common sense and the english language reigned "supreme" over "newspeak". Also over seizing gold, the real "coined money". It didn't happen, and a 'bad" precedent was codified into "showlaw", and it was accomplished by criminal cartels masquerading as 'the government" back then. I'll call them traitors to their dead faces.. The "excuse" promulgated in the press and by other sorts of manipulations used by the criminal cartel back then was gangsters using those weapons, gangsters-organised crime syndicates- being in large part brought about from two major reasons, the organised conspiracy of theft and transfer of wealth which was the so called "great depression", and on the prohibition amendment. They also really feared at the time that their scams would be revolted against, and it was an attempt to pre-mitigate threats against that. This is just too obvious to me .
Many other threads for another day, but in a nutshell, that was their "9-11" excuse they used back then for dissolving the second. It's quoted so much it's become trite, but to me it isn't, it's the hegelian dialectic in action, 3-D in color and in your face.
It's happening right now, in spades. some see it, some don't. Yep, real acts occurred on 9-11, I maintain along with that they were allowed to happen, and that they are being taken advantage of, and it's SCARY to see it happening.
. In the original documents, The supreme court was written with a lower case 's", this was done on purpose, they were very careful in their grammar and use of the english language as it was written and understood back then. The "supremes" have shown over and over that they are acting as lawmakers and defacto arms of the executive branch, partners in crime as it where, not "law interpreters". Sometimes they do, but mostly they in effect "make law".
And merely ignoring cases can be construed as making law as well. They frequently don't hear high profile and profound cases, in effect, "not doing their duty", and allowing a status quo of common english language usage and understood words to be perverted into what I would call "show law" or "theater law", similar to what we revile about in the old soviet union for example. If you disagreed with "the state" there, it meant you simply must be mentally unstable, and by being mentally unstable you therefore could be arrested, incarcerated, brainwashed, forced to work at slave laborr, or just outright executed. Our variant on that is if you don't 100% support all the provisions of the new and not improved in the slightest "war on terrorism" you are by default and pronouncement by our chief executive a "terrorist".
Why this don't scare the socks off more people is beyond me. I mean, there it is, plain talk, not blacks laws legalese, plain old practical talk of what "is" going on.
My predictions are right now most people-your 8 out of 10-will "support" this or that action, but within a short time frame,might be a few months to a few years, but no longer than that, they will regret the bulk of these actions from the precedents continually set. They will REALLY regret it. No one regrets taking out osama, but there's a lot more to this picture than "osama" and planes crashing ionto some buildings, a lot more, a WHOLE lot more.
As illegal asset forfeiture is now the norm, so will a host of other 'badthings' become "more of the norm."
It's also extremely important to differentiate between legitimate criticism of the conduct of the executive branch, and to not confuse it with somehow 'supporting" the mad jihaders. I've seen that bald faced lie and libel promoted on this site constantly now since 9-11. I've seen posts where people are told to shutup and 'support" ANYTHING that happens or MIGHT happen, as long as it's called "anti terrorism". This is EXACTLY like the dims promoting some drivel and saying it's "for the children". There is no difference really, either blind support, or that makes you an automatic terrorist, and the way this patriot act is written, it has holes in it pretty large, this "terrorist" label can-and I predict will be used against a lot more people than the mad jihaders. Just give it some time. The bad part is, by that time it will be mostly "too late' to do anything about it. That is my opinion, I will not state it as fact, but that's the conclusions I have come to watching this 'government" thingee over the years and given the overwhelming preponderance of evidence between what they say and what they do and what happens. They take stretching the envelope to a level never even imagined by the envelope makers guilds. In fact, any government envelope must be made from india rubber, it be scribed somewhere.
Your 'official enough' war is not sufficient for me, because even with 80% approval the president has not persuaded congress to declare war. Further, I do not even see him trying to have war declared, while planning to utilize war powers.
The congress has a role. Bypassing this role really buggs me. If it is important enough for the president to have war powers, then it should be easy enough to follow proper procedure, and have war declared by congress.
The use of term "official enough" is the center of our difference in thinking. In my view, this matter is binary; we are either at war or not at war. Middle ground on this issue, leads to dissention and questions about the limits of authority, as we are having. Declaring war would end much of the dissention, IMO.
I think you objectively wrong in this assessment. The BoR applies to all branches of federal government, although some clauses are directed to specific branches.
Can the executive branch legally quarter troops in your house without your consent?
Is the judicial branch not constrained by the 8th amendment, which reads, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.?"
Regards, PS
Sorry to post and run yesterday.
PPS
Is this one of those issues that has no room for persuasion?
zog: Based on historical standards for judging such things, during the former president’s tenure in office, the United States was operating under a full-fledged tyranny. With, I might add, the approval of a majority of the people. Americans are that dumb, apparently.
Well, maybe not dumb; but certainly ignorant concerning the Constitution and the law it establishes. Which probably explains why we live under a perpetual state of emergency and could not remove a treasonous criminal from the highest office of the public trust in the land. Either ignorant, or maybe “the average person” just doesn’t care enough about liberty to take any trouble over its preservation.
The Constitution is not some kind of “magic wand” operating “out there” on automatic pilot, establishing and maintaining a just civil order without any intervention from human beings – meanwhile protecting the people from sociopathological predators like Toon, who was all too glad to screw around with it for reasons of personal gain. In the last analysis, if the people don’t make the Constitution work, it doesn’t. We have the right to call our elected officers to account for their transgressions against the rule of law. Or we can vote them out of office. But we don’t -- out of ignorance, or apathy, or greed, or some combination of the above.
So we get horrors like “executive orders” – the grossest form of executive usurpation against an exclusive privilege of Congress – the legislative or law-making power. The EOs of many different presidents by now – especially egregious examples of which were promulgated by the Toon – had little or nothing to do with the functioning of executive departments, which is the legitimate purpose of an E.O., and everything to do with consolidating irresponsible and unaccountable power in a tyrant. A tyrant, moreover, who plays by the rules of Mob, Inc., and who, at the end of the day left the American people grievously vulnerable to mortal attack by our enemies, not all of whose identities, conceivably, are presently known to us.
zog, you have painted a chilling picture of what the people have allowed to occur in the order of our constitutional republic. As to details, it is accurate. And the conclusion you draw is supported by all the evidence. That the Constitution, for all intents and purposes, has been effectively suspended. Thus America has “knee-jerk reverted” to the “standard model” of governance that has generally prevailed throughout all of human history -- the rule of men, not of laws. (The uniquely American vision of what constitutes just public order being the only exception to this rule.)
Still, what is the predictive power of your scenario? Is past our future fate? Can there be no intervening change in the relevant sociopolitical dynamics that can avert past necessarily becoming future?
I have no answers to such questions. But reflecting on them, I am mindful of the way Plato thought about them. He suggested, in the end, there can be no political order that is any better than the people who make it up. If a wild, power-lusting, unprincipled, disorderly tyrant is the ruler, then that’s probably because the people themselves are wild, power-lusting, unprincipled, and disorderly. Good government can only be realized by good people – “ruler” and “ruled” alike.
So here we get to the problems of moral order. This is not a “popular subject” these days. Still, it seems ineluctable to me that there cannot be a restoration of constitutional order absent a restoration of republican virtue. For in the final analysis, the order of the Constitution rests solely on virtue -- and vigilence.
So maybe that nightmare future of yours may yet come true, zog. I fervently hope and pray America may still avoid this fate. Thank you so much for writing a truly excellent piece. All my best -- bb.
p.s.: zog, the Miller decision was and is a bad joke. The Fifth Circuit just effectively trashed it, at least within its own jurisdiction. Emerson looks to be going to SCOTUS on appeal. Ashcroft refuses to allow access to the federal database on gun purchasers to see if federal “detainees” ever bought firearms. Every utterance to come out of the Bush Administration on the subject of 2A has been uniformly in agreement with the proposition that 2A refers to a personal right of self- and common defense.
Which is merely to suggest there are changes in the wind these days. Bush said he came to office to restore decency and good order to government. You never know, but he just might have meant it. – bb.
Triple, when I said that the war was “official enough,” I meant (of course) that nearly 5,000 dead Americans is prima facie evidence that we are, in fact, at war. Now we see this interplay between the Executive and the Legislative powers in regard to the fact, which does not seem to have issued in a clear result: a formal war declaration by the House.
I’ve been wondering why that is. Why doesn’t the president insist? I don’t know; but analyzing the problem, here’s what I come up with.
First, Congress has “granted” that the president has full war powers under the current circumstances. (I.e., under the War Powers Act -- a creature of Congress.) SCOTUS concurred. It looks to me like this is tantamount to saying that the president holds his war powers by virtue of a grant of Congress, not by virtue of Article II. Personally, I think this really “muddies up the waters” of the constitutional separation of powers. The powers of Article II are not grants by means of the powers vested in Article I.
But Bush has all he needs to act in all the ways he has been acting lately, with full congressional assent. Practically speaking, he doesn’t need anything more. Congress could always “change its mind,” I suppose, and revoke his war powers. But that would represent, not only a constitutional crisis, but also a potentially devastating blow against the security and well-being of the American people. So that’s unlikely.
From Bush’s point of view, cooperation with Congress in going along with this gag makes him look like he’s really trying to stay in touch, to collaborate with “the people’s house” and the Senate. I don’t know whether he’s being “humble” or Machiavellian here. (I suspect the latter, “Texas-style.”)
In the last analysis, Bush does not want to tell Congress a single thing he absolutely doesn’t have to; because Congress runs its mouth. Dims and Pubblies alike are incapable of keeping secrets vital to the successful prosecution of the war and to the protection of the national interest. As far as Bush is concerned, Congress is “out of the loop.”
But for him to appear to take his authority from an express congressional act (not from the Constitution itself, which is his prerogative BTW) might serve to placate the members of both bodies, who increasingly seem to want to involve themselves in the conduct of the war in ways that exceed, to my mind, their constitutional warrant. Which is the last thing Bush wants.
And if Congress, at some future point, were to complain about “not being consulted,” Bush could run to the cover of Article II in a heartbeat. But for now, he’s got what he wants and needs….
All of which might seem like so much hair-splitting; but there’s a reason for everything the Framers wrote into the Constitution. The way its various parts relate to and interact with each other in a balancing, stabilizing, living tension extended over time is one of its least appreciated virtues. (JMHO, FWIW I think the Constitution is working pretty well right now – as the Framers designed it to work.)
In my view, this matter is binary; we are either at war or not at war. Middle ground on this issue, leads to dissention and questions about the limits of authority, as we are having. Declaring war would end much of the dissention, IMO.
Yep, it’s plainly binary, Triple. WE ARE AT WAR is the only rational conclusion to draw from an investigation of all the evidence. The fact that Congress so far has not seen its way clear to make an unambiguous, formal declaration in light of these facts probably derives from their supposition that, proceeding under the present rules, they think they have some control over Bush. If they think that, they may be overestimating the strength of the cards in their hands.
But Congress is hardly powerless. Since Congress, by constitutional grant, exclusively controls the public purse strings, they have the tools to frustrate the resolve of the Bush Administration through the appropriations process. Which, it so happens, is precisely what Congress is doing right now…. Stay tuned, my friend. Thanks for writing, T. All my best – bb.
Amen, BluesDuke: If the federal government had been discharging its duties and responsibilities under the Constitution, instead of spending most of its time figuring out how to discharge as many of the duties and responsibilities of you, me, and everybody else as much as possible – which is not a power granted to the feds at all -- we’d certainly be in a whole lot better shape than we find ourselves right about now.
It seems to me there are few remedies against a determined madman, before-the-fact. You can only deal with him after he does his damage. (He “didn’t exist” before then; yet, he may think his very existence can be made manifest only in the perpetration of his crime…which he may view as a kind of “self-validation.”) So I don’t think 9-11 was necessarily “preventable”; that is, on principle.
Life involves risk. There is no such thing as “absolute safety.” Which is probably a good thing, in terms of the great scheme of things. For without challenges, people and societies and political orders stagnate, and eventually pass out of the historical scene. Viability depends on vitality, on spirit, in the last analysis. Or so it seems to me.
If the people feel they have “lost” their Constitution, they have only themselves to blame. And then they need to figure out how to “take it back.” Thank you for writing, BluesDuke. Best – bb.
Triple: I disagree, based on my reading of the Constitution. The analysis goes like this:
(1) The only power granted to the federal government by the Constitution that has any effect on the liberties of persons is the legislative power – the ability to make new law.
(2) The legislative power is the exclusive privilege of Congress: Neither the Executive nor the Judiciary has any warrant to engage in law-making. If they do so engage, they are acting outside the scope of their constitutional authority. (And therefore, undermining the very basis of our rule of law and the public order it supports.)
(3) The Bill of Rights begins with the words, “Congress shall make no law….” It does not say government shall make no law – for the Framers were sticklers for clarity, and thus would not use a more general term to describe a concept when a more specific, particular term was available.
(4) Therefore, the BoR prohibition is specifically targeted to Congress – not just in the First Amendment (in which context the language first appears), but also throughout the entire Bill. In just the same way as “the people” – meaning the plurality of individual persons – retains stable meaning throughout the document. Much to the grief of organizations like Handgun Control, Inc. and its successors, who think the idea of “the rights of the people” really means the “the rights of state governments” in 2A.
(5) The Framers knew exactly what they were doing, and were in total command of the language necessary to articulate what they were doing. Simply put: The Constitution says exactly what it means, and means exactly what it says.
Anyhoot, Triple, that’s how I “do the math” on this one. As to the question you raise regarding persuasion: In the end, you get your choice -- persuasion, or sheer, naked force. Only one of these choices has anything to do with the dignity and sanctity of the human person. (So vive la persuasion….) Thank you for writing. All my best – bb.
So either we are a Nation of Law or in a state of anarchy and rebellion, because it's all right to fudge a little by not following the Constitutional limitations of power, and the seperation of the 3 branches.
Our unalienable rights are not to be interfered with but only to be expanded upon by Amendments to further limit government usurpation. Any Amendment that gives our servants more power to interfere in our lives is unconstitutional from its conception and should never have been put on a ballot, let alone be voted upon. Just because the majority are too dumb down and willing to forgo their rights does not make this action Lawful or Constitutional.
Your Pal
Don
The BoR is a means, the unalienable rights are the end. We the People...have a right to regulate the means so as to secure the ends.
You need to get a rabies shot! I'm sure you'll feel better after you hug a terrorist today. After that, please enroll in a basic course in logic.
If the Bill of Rights--the first ten amendments to the Constitution, has no need of interpretation--why does the Constitution create the U.S. Supreme Court and give it judicial power to interpret the Constitution? Unfortunately for your argument, but fortunately for you as a citizen and for our Republic, the Supreme Court has interpreted the Constitution differently than you have. They have memorialized their interpretations--you ought to read them some time.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.