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Note: this article was originally published on
March 6, 2006 here at www.moreliberty.org
However, I think it still explains what is
happening to our country right now. The assault on our Constitution and Bill of
Rights has been a sustained and relentless attack over many years by fake
"conservatives" and their Democratic fake opponents. Recent events, such
as the enactment of the Military Commissions Act, are merely more of the same.
- Stewart Rhodes
Dana Milbank's recent article "A War of Words: 'Declare' vs. 'Make' and Its
Allies" correctly points out how John Yoo and the rest of the
neo-conservative cabal, masquerading as originalists, are engaged in a thinly
veiled rewriting of our Constitution to turn Congress into a mere debating
society and, at most, a rubber stamp.
But like most such commentators and like all of
the post 9/11 federal court decisions, Milbank ignores the full scope of the
pending destruction of our liberty by acting as if the only constitutional
principle that is in danger is the separation of powers. From the Padilla and
Hamdi cases (U.S. citizens declared enemy combatants) right down to the
NSA spying controversy, the mainstream political and legal talking heads only
debate whether Congress needs to give its approval before the president can act
in these ways, and then whether Congress has given that approval.
While separation of powers is certainly important,
our form of government is foremost one of limited and enumerated powers. That
fact is further enforced by an expressed Bill of Rights that both clarifies the
limited nature of our federal government (through the Ninth and Tenth
Amendments), and serves as a final shield to our lives, liberty, and property
through its clear procedural protections. And it is that principle of limited
powers and our Bill of Rights that is now on the execution block with the
so-called opposition on the left acting as accomplices, since they only insist
on their preference for a role for Congress and the courts in an otherwise
totally unrestrained "wartime" federal government.
The Government Supremacists
The first step toward wisdom is to call something
by its rightful name. Men such as John Yoo, Jay Bybee, Viet Dinh, and the other
Bush legal theorists are not just executive supremacists who think that the
president, as commander in chief, is unrestrained by Congress or the courts.
They are, in fact, government supremacists who believe that our federal
government (in whole or in part) when it claims to act in wartime, is entirely
free of the restraints of the Bill of Rights, or of any of the other
constraints within the main text of the Constitution, since those are
"peacetime provisions only" and simply do not apply to the war on
terror, because America is a battlefield and our government can treat us, the
American people, precisely the same as it treats enemy aliens on a foreign
battlefield. This underlying premise that U.S. citizens can be the
"enemy" in wartime is the fundamental legal doctrine behind the
detention of citizens as enemy combatants and the claimed power of the
president to spy on the American people without a warrant.
A Dime's Bit of Difference?
The left and right differ only on what part
of the federal government gets to decide when we are stripped of our
constitutional protections. Certainly, many liberals disagree about particular
policies, such as some of the provisions of the Patriot Act, the invasion of Iraq, rendition for torture, and the manner of
confinement and treatment at abu Ghraib and Guantanamo. But we are concerned here with
the constitutional law claim that we the people can be treated like the enemy
at all. The right insists the president can do it entirely on his own, while
the left insists that he must have the blessings of Congress and/or the courts
before he spies on us, interns us in military brigs or concentration camps,
tortures us for information (or renders us to a foreign nation to do that) or
have us tried by a hand-picked military tribunal in a show trial before having
us shot (if we get a trial).
In the Hamdi decision, the Supreme Court
agreed with the government and the opposition by ruling that, once accused of
being an enemy combatant (terrorist), a citizen has none of the expressed
protections of the Bill of Rights, such as a right to an indictment, to a jury
trial with the presumption of innocence, to confront one's accusers, or the
prohibition against compelled self incrimination (torture). But after finding
that Congress has authorized such detention of citizens, the court then created
a role for judges in this new system where the judges will "balance"
our liberty against national security and grant us whatever minimal procedural
protections they deem proper and expedient as the war on terror evolves (but
never a trial by jury, and no presumption of innocence, of course).
With the federal government now nearly totally
unrestrained by the Constitution, so long as it evokes national security, all
that separates us from becoming the next addition to history's totalitarian
parade of horrors is a matter of degree defined by whatever political checks
remain (until a future catastrophic terrorist attack) with no other peaceful
method left to us to bind down our own government, since the chains of the
Constitution Jefferson urged us to use will have been destroyed. Our nation is
perilously close to becoming a democratic dictatorship where, as Alexis de
Tocqueville warned, we may delude ourselves into believing we are free because
from time to time we chose our otherwise unrestrained rulers. All other
constraints on government power, save voting, will have been wiped away.
The Neo-Con National Security New Dealers
The neoconservatives have thus done the New
Dealers and their heirs one better. Certainly from the time of the New Deal,
the federal government has been freed from most of the chains of the
Constitution through expansive readings of the power to regulate commerce, the
destruction of the non-delegation doctrine, and the resultant de-facto federal
police power used against us by un-elected bureaucrats in administrative
agencies. The Supreme Court also gutted the Tenth Amendment by declaring it an
empty "truism" and nullified the Ninth Amendment by acting as if our
rights came from the court rather than from God as the Founders believed. (What
the court has the power to grant, it has the power to take away.)
However, the rest of the Bill of Rights remained
as clear, written limits on federal power. The court has since chipped away at
many of the remaining provisions, such as with the recent Kelo decision
which made meaningless the Fifth Amendment takings clause. But the procedural
protections that remain are still powerful constraints on government
deprivation of life and liberty. Even with the New Deal and all of the assaults
on the Bill of Rights since, government must still act according to a law (or
at least a regulation), must still get a warrant in most cases, must still
secure indictment with clear charges, and must afford us a jury trial with all
of its ancient protections of the accused, such as presumption of innocence.
It is these last procedural protections of the
Bill of Rights (along with the First and Second Amendments) that the
neo-conservative government supremacists now seek to destroy to attain their
dream of unrestrained, unlimited "war" power in a loosely defined war
on terror; a war that will likely never end. And the loyal opposition only
insists on a role for politicians and willful judges in this murder of the Bill
of Rights, trusting only in the god of democracy and the high priests on the federal
bench to secure our lives and liberty. Our Constitution and our Bill of Rights
have been largely abandoned by both the Republicans and the Democrats.
Stewart Rhodes
© 2006
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