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On September 17, 1787, thirty-nine brave men gathered in Philadelphia and signed our Constitution into being. The National Constitution Center in Philadelphia is holding a number of events to celebrate the 222nd birthday of this historic document. With its ingenious invention of three co-equal branches, our Constitution brought the concept of checks and balances into play in an attempt to keep government within the bounds intended and to protect the rights of all citizens.
Senator Robert Byrd (D-WV) who, at 91, has been alive for nearly half the time the Constitution has existed, played a central role in establishing September 17 as Constitution Day. Here he is in 2004, just after the bill creating the day was enacted, reciting the Preamble to the Constitution:
But how long can this historic document last? The Presidency of George W. Bush created grave danger for it. With the ascendancy of the concept of the unitary executive, Bush’s presidency is viewed by many as a time when the Executive Branch arrogated much more power into itself than is prescribed by the Constitution. While trying to obtain extension of the Patriot Act, which stripped many Constitutional protections in the wake of 9/11, Bush was even famously reported to have said, "Stop throwing the Constitution in my face! It’s just a goddamned piece of paper!"
With the election of Barack Obama in 2008, many felt that a Constitutional scholar would be the perfect person to bring about the change needed in restoring balance to the branches of government and bringing back rights which had been lost. Sadly, these changes simply have not occurred. Just this week, we have learned that Obama now wants to extend some of the worst features of the Patriot Act.
Similarly, Obama has taken further steps along the path of establishing what Glenn Greenwald would term a "culture of impunity" within the United States. What began with Nancy Pelosi in 2006 taking impeachment "off the table" despite ample evidence of widespread criminal activity in the Bush Administration has now been expanded by Obama into a desire not to "criminalize policy differences" to the extent that those who crafted our country’s descent into torture likely will not be prosecuted. Those at the highest levels of our government no longer face the threat of impeachment or criminal prosecution for crimes committed while in office, creating a class of people immune from the laws that apply to others.
This sad state of affairs puts me in mind of the lyrics of The Who’s great classic, Won’t Get Fooled Again:
Smile and grin at the change all around, indeed. Happy Constitution Day.
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The words of that song were just so prescient in describing our situation now. Although the YouTube is not a music video, the lyrics do come up on screen as each line is sung.
Guess I’m feeling cynical. I thought the Constitution died Jan. 20, 2000. RIP.
Nice post, Jim. thanks. I do miss our Constitution.
And to you, Jim.
Preservation of the document is one thing – that preservation project seems well in hand.
Preservation of the concept of those checks and balances, and limits, in the name of self-government and freedom from state-imposed tyranny, is another matter entirely.
Alexander Hamilton eloquently proclaimed, in 1775:
Ensuring that those rights would be recognized and respected, rather than thwarted and abused, by the government of the new nation, was as timeless an objective in 1787 as it is today in 2009.
Alexander Hamilton didn’t single out the “sacred rights” of New World Christians and Jews, to the exclusion of Old World Muslims and Others. Hamilton spoke of the sacred rights of mankind as a whole. By that measure, our present-day Congresses and presidents have catastrophically failed to deliver on our nation’s founding promise.
Precisely. Thanks.
powwow, since you’re here and you posted on the detention rules for Bagram over at UT, and since I don’t comment there anymore, I thought I’d bend your ear a bit on that document. It is heartbreaking that it perpetuates so many of the flaws of the CSRTs and the Military Commissions, but, like Pandora’s box, after it was open and all the evils flew out, there was one ray of hope perched on the inside of the lid.
(page 4, mid-page)
The boldfaced last sentence essentially rules out what Dick Cheney was trying to create at Guantánamo (and why the majority of the prisoners were there and at all of the tens of prisons in Afghanistan), and rules out the Scott Macintosh (from your previously cited Brandon Mayfield tapes) interpretation of a defendant or prisoner as a resource for information. It also rules out holding intelligence sources for the ‘duration of conflict’. Certainly there is a lot wrong with even this paragraph, not least that it makes clear a contention I have made for a while now, that the purpose of continuing with Operation Enduring Freedom is solely for justification and feeding of this horrible prison system in Afghanistan and elsewhere.
But there is hope that people who are not actual belligerents, as required by the Geneva Conventions, will not be held just because they might eventually ‘know something’.
Thanks for inserting that ray of hope, here, ondelette. [I’m sorry you’ve stopped posting at UT, although I sympathize with your reasons. It actually took me somewhat aback to hear that someone (other than bystander, who kindly spoke up) noticed the comment you reference, given the sea of petty venom that I inadvertently waded into in that thread - pages of vented spleen (an exchange of insults, in part, about whether Glenn Must Do More) spewed by the same tiny band of characters who eventually succeeded in driving you off.]
I have the distinct impression that there is a rather intense and momentous, though superficially collegial, struggle ongoing between high-level actors in the Obama DOJ and DOD on these detention and Military Commission issues (separate and apart from the specious political pressures brought to bear by Emanuel, et al). On one side would be people like David Barron (standing in for Dawn Johnsen in OLC), Marty Lederman, and David Kris, and possibly AG Holder. On the other, people like Jeh Johnson, and his boss, Bob Gates, and perhaps Greg Craig – with a fair number of Bush administration holdovers on both sides. Caught in the middle somewhere are the task forces charged with untangling the chaos that unchecked power has wrought. Yes, publicly the two sides act as partners, but watching Kris and Johnson together in Congressional hearings I see a marked contrast, with Johnson more often in the lead. Barron, of course, issued the regrettably-secret OLC opinion which – according to leaked reports – will finally force the Executive Branch/military to bar involuntary detainee statements in military commission proceedings. A bar that, thus far, Kris and Johnson have been unable to convince Carl Levin and the Senate to adopt in their scarcely-debated, ill-considered changes to the 2006 Military Commissions Act.
Which is a long way of saying that I think the David Kris side is more likely than not to be a positive influence in these debates, when he and they can hold sway. The very important sentence you highlighted may be one of their significant victories. But I get the sense that it’s a bit like walking a tightrope for them to prevail in the current media and political environment to which Obama carefully hews.
However, speaking of heartbreaking – it’s really lamentable to see a DOJ brief defending the profound injustices and failures of due process of the Bush/Cheney/Congressional military commissions system filed in a federal appeals court over David Kris’s name, as happened Wednesday, in the court-ordered response to the Navy JAG court challenge I wrote about here. Some of the best people Obama selected for his administration were those appointed to the DOJ, and now they’re spending their time defending the indefensible – the still-festering abuses of power of the Bush administration – in front of Congress and the courts. What a waste.
On a brighter note, in honor of the 17th of September and its Constitution-signing 222nd anniversary as highlighted by Jim’s diary, two recent posts of note unexpectedly discovered at Volokh.com:
One from Eugene Volokh questioning whether the Constitutional bar on Bills of Attainder (which Mary has rightly raised, in a more profound context, regarding the non-UCMJ segregated system for non-citizens the 2006 Military Commissions Act implemented) should apply to the Senate’s prohibition on funding for ACORN (via an amendment approved Monday, offered by Johanns of Nebraska, on the Transportation/HUD Appropriations Bill):
[I think a case could be made that this is singling out for a form of legislative punishment a group not judicially convicted of any wrongdoing. Glenn has a new post up addressing the absurdity of the Johanns amendment - perhaps this related issue has been mentioned in the comments there.]
And another that describes a new National Constitution Center poll, whose results demonstrate that the American people are, with an admirably undaunted spirit, staunchly behind their Constitution and its precepts, despite every effort in Washington, D.C., and in the profit-before-nation mass media, to ignore, misrepresent, belittle and deride the Constitution’s core principles:
The poll certainly is a point of hope. I just heard a caller today on Thom Hartmann’s show suggest that many teachers are now leaving out any lessons on civics since No Child Left Behind does not test on civics. When a whole generation of adults accumulates that has not been exposed to civics education, I fear that 75% number who don’t want the President to have more power at the expense of the other branches could drop precipitously.
Thanks for the other very helpful areas of information you shared with us, as well.
My solution at UT has been to refrain from taking part in a thread unless I happen to be able to get there in the first few pages before the food fights start.
Thanks again, pow wow. In my fantasy world, you and ondelette share a back and forth blog somewhere so that your joint expertise happens where I can go to seek it out, rather than the serendipity of stumbling upon it here … just ’cause I wanted to come back and look.
In my fantasty world, bystander, you add the skeptical voice of economics to that back-and-forth conversation between bystander and ondelette, while Jim White just keeps on drilling down into the data or the cases.
You really sparked some great comments, Jim! Thanks…
Thanks for the pointers to the arguments against the MCA and the filing of the appeal in the Khadr case. My own personal belief is that, in the same way that Boumediene found that a CSRT was not a valid habeas venue because it could not order the prisoner to be freed, the military commissions are not a valid judicial review before a regularly constituted court, nor a valid war crimes tribunal, because they cannot afford the justice required by the Geneva Conventions, spec. Article 75 of the 1st Additional Protocol.
There are two things Congress needs to do, and a lot of things the Justice department needs to do. Congress needs to repeal the MCA of 2006, and they need to declare an end to the sham that the AUMF of September 18th, 2001 is still valid. The Justice Department then needs to appoint special prosecutor(s) with sufficient breadth of jurisdiction and powers to go after all the perpetrators of this lapse of sanity in U.S. history.
Right now, all the talk is about withdrawing from Afghanistan. While I do not agree that the peacekeeping/nation building mission should be aborted, I do think it needs to re-focus on civilian tasks. The Operation Enduring Freedom, however, is just an excuse for an illegal detention system for enforced disappearance and incommunicado detention (those include creating a place “beyond the law” under the U.N. Declaration of 1992). It should be terminated and the AUMF with it. Otherwise, it is only a matter of time before Afghanistan themselves brings the U.S. into the ICC (they acceded to the Rome Statute in 2003). If Pakistan tries Musharraf, they can likewise bring suit for torture in the ICC by declaring that they are willing to have the perpetrators within their own country be prosecuted (cf. the Palestinian petition to the ICC after the January war in Gaza).
Personally, I would like to see the nation right itself, taking, for instance, your advice on recapturing legislative authority in the Congress, make a clean breast of all torture and unlawful detention claims, and make another stab at leading the world in human rights. I don’t know how to convince “The Village”, but the poll you cite shows that the American people might be in favor of ‘clearing their good name.’
Thanks powwow.
You know, we have members of the military dying to defend that goddamned piece of paper. We owe them something better than extensions of the Patriot Act. What was that oath Obama took again? Oh, yeah.
It’s very hard not to wonder why he bothered. Maybe Obama should take it again. They say, third time’s a charm.
Indeed. In the early stages of thinking about the post, I wanted to include the oath but then that thought escaped me once I was writing. Thanks for bringing it into the discussion.
Truly, an excellent post, Jim!
I’m trying to think how best to Tweet it to the president or post it on Facebook so that at least his aides (if not his wife!) will see it.
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I meant to add something about that word “indeed,” and how glad I will be when we no longer have so many reasons founded in disappointment to make us keep using it.
I’m far more disappointed with Obama than Dubya. I got what I expected with Junior although with The Dick, I couldn’t imagine the full extent of the constitutional attack he pulled off. With Barack, he’s consistently choosing politics over principle and our constitution and he clearly knows what he is doing, unfortunately.
Thank you, Jim. It is a great post.
So is the general opinion of Americans that their constitution is any good? or is it just something nobody thinks about? That nobody can be allowed to think about? Because it seems to me that the US constitution is one of the most anti-democratic forms of democratic government around and a lot of that is because it’s very old and hard to change which locked you into this 18th century mind set. And the 18th century was not a very liberal time.
When you say things like this,
Is that because you’re taught to say that and never really think about it, or do you believe that is actually true? You’ve got a very corrupt government — is it fair to say that if the checks and balances were supposed to prevent corruption then they have failed? My reading of the historic record is that the system was not designed to prevent corruption at all, but was instead designed to prevent the “excess” of democracy (or populism) at which it has succeeded.
Do Americans ever get taught about other systems? Or other systems that were suggested at the time? or how a lot of people thought the new constitution sucked? In short before going on about how it’s the greatest constitution evaaaaar do you know enough to make any sort of judgment?
My impression has always been that it’s treated like health care. You know. “We’re number one! We’re number one!” Best health care system in the world.
“Do Americans ever get taught about other systems? Or other systems that were suggested at the time? or how a lot of people thought the new constitution sucked? In short before going on about how it’s the greatest constitution evaaaaar do you know enough to make any sort of judgment?” ——–not until entrance into some universities is the answer to the first question posed.
on questions 2 and 3, some is taught in high school.
Perhaps a more ‘on point’ question would be is “how many American’s have a sense of what the processes were that caused the Constitution to be drawn up?”
Most people in their daily lives don’t think about the rights they have or even know about them. And then there are the surveys showing that slim majorities don’t believe in the tenet of free speech.
And you can argue about whether ‘co-equal branches of government’ is ,in fact , an accurate description but the three branches of government acting as checks and balances on each other WAS an new invention in governance.
“is it fair to say that if the checks and balances were supposed to prevent corruption then they have failed? ” ; yes, to a significant degree but not completely or absolutely….yet.
“In short before going on about how it’s the greatest constitution evaaaaar do you know enough to make any sort of judgment?” ; well,obviously you think you do but you sure as hell don’t know what Jim knows or doesn’t know and because you seek to chastise rather than explore, you probably never will.
Our politics, our politicains, and OUR CONGRESS, have been just overlooking the Constitution for years. The Supreme Court, thinks like preachers do when they inturpret the Bible, that their beliefs in what it says is the true meaning of what is said in it. They don’t go by the words in it but what they think those people meant to say. We lost the toss, and have given away what the Founders wanted for us. They wanted us to have a Government of the People by the People and for the people. This meant we would have representative Government. We would send people there to represent us for a short, and then they would come home. We let the politicains convince us they must be there for longer times to be effective. What they wanted is great jobs for as long as they could hold on to them. They wanted the money, power and respect they got from holding office, and the licence to staell they got by that office. HAD THEY CONTINUED TO BE OUR REPRESENTATIVES, this might not have been so bad, but they became our deciders. They no longer represent us, as is becoming apparent with the healthcare mess that’s going on. They decide what they want to give us, and we get what they decide. This is not representative Government, it is not Democracy, and it is not a Government that works. It is one that will ruin this Country, Our Constitution, and us, if we continue to allow it.
Jim, Great idea to post this article, its very nicely done. As a progressive, it is deeply painful to see a former constitutional lawyer like President Obama, ignore his American history and his formal legal training. But likely we will survive with or without him.
There have been so many serious challenges against the constitution throughout history, we sometimes forget the absolute terror that our forefathers lived through trying to cope with dozens of assaults that to them were just as serious as the present day assaults are to us.
Immediately after the Russian revolution in 1917, people were scared to death that the anarchists that were then sweeping across Europe, would soon come to America. This hysteria produced the Espionage act of 1917, which made it a serious crime to write critically of the government or political figures, advocate against conscription, or offer dissent of any kind. This law eventually came to the door of Mother Earth magazine, who had a file of many subscribers that the government seized and started investigating. Eventually, this move resulted in more abusive laws like the Sedition Act of 1918, and the anarchist exclusion act. The then Attorney general of the United States, Alexander Palmer, was a target of anarchists and was able to avoid assassination twice, he reacted violently to these attempts and created what we now call the Palmer raids. Over the course of a couple years, he herded thousands people like cattle, tortured them, and extradited suspected enemies by the thousands. Much like today, he was helped by a public that lived in fear, and a press that was more interested in the latest Harold Lloyd film.
A couple years passed, and he was helped by a young Herbert Hoover, who was very happy to collect files on hundreds of thousands Americans. Fortunately, in the meantime, the public perception changed, and the courts began to put their foot down. The American purge came to an end shortly after June 1920.
The history books are filled with other tales like this, and while we live in times that move many times faster, and weapons that are much more dangerous, we do have a proclivity, and a willingness to prevail in defense of the right thing.
Happy Constitution day to all!
I think you might be confusing Herbert Hoover with J. Edgar Hoover — the warped mind who was instumental in fashioning the FBI.
J. Edgar had a lifelong obsession with communists and anyone else who wasn’t EXACTLY of the same thinking as he was — on every issue. He was a huge fan of military authority, having been captain of his high school ROTC(!) and designed the newly created FBI along those lines, sans uniforms.
Dick Cheney and Hoover both regarded the Constitution as a nuisance to be easily discarded whenever it was inconvenient to their goals.
Than you for the correction, you are quite right.
The reichwing has no use for the Constitution — they see it as a liberal document written by atheists, and therefore, something to be ridiculed and trashed . . . except for the second amendment . . . and the tenth . . . and anything else that is favorable to their agenda — then, they’re all for it!!
And, I just love it when fascists like Tom Coburn say things like, “Show me in the Constitution where it says the government should run healthcare,” as he did recently in a townhall meeting . . . the same line of attack the religious freaks use in interpreting the bible — if it’s not spelled out in precise literal terms, it doesn’t exist . . .
Riiiight . . . guess that’s what happened back in the 19th century, when a very conservative Supreme Court ruled that corporations had the same rights as individuals — even tho the term “corporation” doesn’t appear anywhere in the Constitution . . .
Facts are such “inconvenient” things when you’re trying to manipulate public opinion, as the corporate aristocracy does.
Thanks, folks for more good comments.
Given the political circumstances they faced, the Framers did a good job, but far from perfect. For instance, the ‘three fifths’ language in the third paragraph of Section 2 of Article I represents a compromise that indelibly stains the document.
As we lambast the our curerent politicians for their sordid compromising, we need to remember they are not so different than those that have gone before them.
You never know where these constitutional issues are going to come up…
I like something light to read on the train because my commute is too short for real concentration. Right now, I’m reading Julia Child’s memoir about her life in France with her husband, after WWII.
It’s chock full of all kinds of interesting things… including a number of references to McCarthy, and how alarmed they are, first in Paris, and then in Marseilles, about his doings, including their worries about the impact it may have on them and the diplomatic work that Paul Childs was doing then. McCarthy did not stop at these shores in his attempt to purge American ranks of commies.
Also, interesting was Julia’s descriptions of her relationship with her father, a die-hard Republican, while she and her husband were Democrats. She writes about how difficult it was to discuss anything political with her father and stepmother, as well as the feeling of not being fully accepted, due to their political differences.
It could have been written today. Perhaps, it’s the “post-war” environment, even though we are not really “post-war” right now, despite so many people going on as if we were.
I find it ironic that many of the issues that inform ‘us’(those on the left, or even center as it may have come to be, seeing that the country as a whole has shifted so far to the right that the center is now the Left) and our perspective on the state of the Union and of the Constitution – i.e. that it is under attack – put us in a similar position to those on the extreme Right who are in paroxysms of anger over the loss of their country to a government out of control.
My Inner Liberal says that there ought to be a way to combine the energy of both groups to effect change, because that’s the way ‘we’ think. The depressive realist in me says that since the Right’s anger is founded predominantly in ignorance and bias fed them from above, there isn’t a snowball’s chance in Hell that will ever happen. My father told me once, “you can’t change people’s minds”. That is quite apparent.
JimWhite, keep up the great work. I had great hopes for our country and our Constitution with the election of President Obama, but observing the government’s actions under Obama’s leadership, my optimism is waning.
Thanks for the Who video, I think it’s pretty accurate for this Constitution day, unfortunately…
Thank you once again Jim, wonderful post, wonderful reminder
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and
220+ Years Later, It’s Time to Publish the Constitution Annotated Online in XML
Well said.
In reference to this quote from the post:
I think you hit on the key word, “class.” IMO this is simply another example of the classism that has regrettably become a part of our culture. The ruling class will not sully one of their own by even considering, let alone allowing, accountability for actions, criminal though they are. The aristocrats will not be subject to the laws that apply to the common folk – with a few minor exceptions for particularly egregious behavior which has also harmed some of their own, e.g., Madoff.