Wednesday, September 17, 2008

Roasting an old chestnut

On September 17th, 1787, some 221 years ago today, a bunch of guys got together to sign their names to a little ditty that started something like this:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Yeah, spelling and punctuation was kind of quaint back then, but the rest of the thing holds up pretty well. . . or at least did for about 214 years or so. It was ‘round about then that the current vice president decided that he could form an even more perfect union—a union of his self-serving and paranoid worldview with virtually every aspect of American power and governance.

From drafting an “energy policy” all by his lonesome to manufacturing intelligence and lying the country into a war for oil, from kidnapping people abroad and disappearing them to torturing citizens in the basement of the White House, from abandoning the Geneva Conventions to abrogating the Fourth Amendment, Dick Cheney, with the blessings of his incurious regent patron, unitarily set about to edit away about two-thirds of the United States Constitution.

Well, not quite. As much as the biggest proponent of the unitary executive “theory” would like to think he did it alone, he couldn’t have really made his solo performance hum as well as he has without the cooperation of a furtive and feckless legislature. That the leadership of Congress changed hands two years ago has been of little consequence when it comes to these grand matters, and so, with Cheney due to relinquish his official control in just four short months, the 221-year-old Constitution is in more peril today than ever.

That point might seem odd to some—surely the menace has been two terms of rapacious Republican rule, and with that soon over, so, too, the threat, no?

No. For after eight years of complicity and codification, the current imbalance of power runs the risk of being passed on to another executive with little done to restore the equilibrium between the branches that is required by the Constitution, and nothing done to punish those that disregarded those constraints. That the next administration might be a Democratic one is of little consolation. Perhaps Barack Obama, who was, as we are oft reminded, a teacher of Constitutional law, will govern with a greater respect for the checks and balances envisioned by the founders, but his behavior in the recent battle over FISA revisions proves that such deference cannot be assumed. And without action by the Congress to reveal the Bush Administration’s transgressions, explain them to a distracted America, and hold responsible Cheney, Bush, and their minions, a restoration of the balance of power is most certainly not assured.

For without explanation of how harmful this has been to our Union, there will be little incentive for the next president to behave more in line with the provisions of Articles I, II, III, and, for that matter, IV and V, too, and without penalties assessed against those currently in violation, there will be no disincentive to behaving in much the same way. As has been noted before, there are few that would voluntarily choose to give up some of their power. A belief that this power might be used for good instead of evil makes that prognosis all the more certain. . . and grim.

America’s greatest strength these 221 Constitutionally governed years has been the openness that comes with a deliberative democracy. The push, pull, and pace may often be infuriating, but the informed debate is what keeps a country honest. It allows for a confident dissent and the contributions of a diverse population. It should, in theory, prevent wars of ego and choice, and guard against crony capitalism, selective prosecution, environmental exploitation, and a host of initiatives that benefit the friends of the current executive at the expense of the national interest.

In theory. The history of the US Constitution is littered with its failures, for sure, but those failures tend toward its misapplications or instances where it is not applied at all. Which brings to mind Article II, section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

If there were ever a day to revisit those words, it would be today; if there were ever a time to honor them, it would be now.

To that end, there are some in Congress who are trying—Democratic Representatives Dennis Kucinich and Robert Wexler come to mind. And, today, Wisconsin Senator Russ Feingold (D), as Chair of the Senate Judiciary’s Constitution Subcommittee, will host a celebrity roast, of sorts, in honor of the star document’s birthday. Titled “Restoring the Rule of Law.” Feingold introduced these hearings yesterday:

“Tomorrow, September 17, is the 221st anniversary of the day in 1787 when 39 members of the Constitutional Convention signed the Constitution in Philadelphia," said Feingold in opening the hearings this morning. "It is a sad fact as we approach that anniversary that for the past seven and a half years, and especially since 9/11, the Bush Administration has treated the Constitution and the rule of law with a disrespect never before seen in the history of this country."

Calling the Bush-Cheney shredding of our national creed "a shameful legacy that will haunt our country for years to come," Feingold addressed the difficulty that a new Congress will have in rectifying this administration's actions as the public and even Washington become numb to what Bush has made standard practice since September 11.

Feingold, to my mind, sells short the disrespect that the Bush-Cheney Administration had for the Constitution before 9/11/01, but the Senator fully recognizes the difficulties that lie ahead, especially considering how little support his and likeminded efforts have received from his own party’s leadership. Given that sorry state of affairs, and given the noise of the presidential election and the needs of a failing economy, I am not expecting much to come of Feingold’s hearings.

And that is a shame (and I mean that in the most condemnatory tone), for it will be harder to make the aggressive, long term changes to our financial markets, or our economy writ large, our energy policy, our national infrastructure, or our foreign policy, without the structures and strictures put in place 221 years ago. Not that it will be easy with them, but without the balance that has modernized and energized this Republic for two centuries, the rule of law is reduced to the whims of men and women. Any of those leaders will prove to be imperfect—even those that embody the hopes and good will of the majority are susceptible to the corrupting influences of power, the recalcitrance of institutions, the blindness of certitude, and the sway the interested few. It is the Constitution that protects the general welfare against misguided whims, that gives mere mortals the counterweight to politicized pressure, that gives the imperfect a means by which to become more perfect.

It is a 221-year-old idea—the idea of three co-equal branches each asserting their power equally and in the open—that gives a large and aging country the tools to make the change we need.

(cross-posted on The Seminal and Daily Kos)

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