teacherken's musings on everything

crossposted at dailykos and myleftwing

My department chair knows, and as of Tuesday my students also know. I am wrestling with the question of whether I can continue to teach government. And after listening to some remarks yesterday by Sen. Pat Leahy, I think I am just about at the breaking point. Let me explain.

I heard Senator Leahy complaining that one provision still in the new so-called Patriot act (which I have not read) would allow an individual FBI agent to effectively issue a warrant on his own say-so in cases os suspected terrorism, that such a warrant - with no supervisory or judicial oversight - would allow him to do things like seize computers as well as papers, and that such warrants would be considered classified so that the recipient could not even file a complaint to a Court after the fact.

I may have misheard. I have as noted not yet read the applicable portion, although I wonder how many Senators have, given the provisions that were put into the original Patriot Act that none had read.

Yesterday my AP Government students were discussing limitations on the Supreme Court. One that they noted was of course the lack of any enforcement power, as the Supreme Court does not have an army or a police force to enforce its decrees as these are under the control of the executive branch. But at least they have their prestige - it was enough that Nixon did not dare disobey the decision to turn over the tapes, the contents of which were enough to undercut a substantial portion of what supporter he still held, and of greater importance confirmed the accuracy of much of that to which John Dean had testified.

The only thing that the Patriot Act does not do, which would force me to the conclusion that teaching the Constitution is dishonest, is that it does not as far as I know remove appellate jurisdiction on the issue from the Supreme or other courts. For those who do not know, Article III specifically says that the Supreme Court shall have such appellate jurisdiction as the Congress may provide, and all other courts are established and their jurisdiction defined by acts of Congress. In the post-Civil War period, when there was fear in the Congress that the various acts of Reconstruction might be declared unconstitutional the Congress hastily passed a law removing some jurisdiction in the matter, and the Court, in Ex Parte McCardle, concluded I believe unanimously that the Congress had the power to do so.

Our system survives on the basis of checks and balances. At various times in our history one or another branch may be seen as more dominant, as clearly the Congress was in most of the period between the Civil War and the New Deal. One can argue that in the period of the mid-1950’s (from Brown) through the late 1960’s the Court was most dominant in its expansion of civil and individual rights and liberties, but that after Roe in 1973 the dominance of the Court has significantly diminished.

In the situation I just describe, if the Congress and the President were in agreement, then there is little that the Court could do if both decided to ignore the Court. And we have seen continued movement in this direction -- passage of a partial birth abortion bill with no provision for the health of the mother, features of the original Patriot Act, attempts to legalize the NSA spying after the fact.

Some commentators have argued that SCOTUS would insist that it still has the right of judicial review on appellate jurisdiction in any matter involving fundamental rights. And we have seen some pushback -- the Rasul case with O’Connor's remarks at SCOTUS, Luttig’s blistering comments when the 4th Circuit attempted to deny the transfer of Padilla.

As a government teacher I am supposed to help my students understand a system of limited government, of separation of powers, of checks and balances. But if the Congress, including most of the Democrats, will not exert every effort to oppose legislation such as that which just passed the Senate, where is there any check on the assertion of an executive that they have plenary power because the President is Commander in Chief in a time of war? What difference does it make if the Court has for half a century abided by the principle laid down by Jackson in his concurrence in Youngstown that when the Congress ha spoken explicitly the power of the president is at its weakest ebb if the Congress refuses to speak, or if - as apparently Specter is prepared to do - it will legalize the previously banned actions of the President after the fact?

I am still forcing myself to go to work everyday, to try to point out to my students that their actions, even as 15-18 year old attendees at a high school, can make a difference - that they can write letters, make phone calls, work on behalf of candidates and causes for which they care. But I am not sure that I can continue to make such an appeal with any sense of honesty when I see what is happening in this country.

Even if the facts about the FBI which I described above the fold are somewhat inaccurate, my reaction probably would be the same. That only 4 Senators were willing to vote against this atrocity depresses and angers me. Yes, it is 4 times the number the first go-around, and Sen. Feingold is now not alone. But the damage to our system of government will continue to be done.

This president has an approval rating in the low 30’s, and that was before the tapes on Katrina led the evening news cycle. This president does not have support, and it should be easy to make the case that it is not the lack of legitimate power but rather the incompetence of the administration that has put us at risk. And yet, other than the 4 who voted no, I see no profiles in courage on the floor of the US Senate.

I will not teach unless I can teach with integrity and honesty. For now I continue, as I will this morning, because I am pointing out to my students my concerns. I contrast the content of what they read in the news with what is described in their text, in the political science selections that supplement that text.

I do not know how much longer I will be able to rationalize what I am doing. I do not YET despair. I do begin to weep for the country that I have known. I was born in 1946, and grew up in a time when this nation was confronting one of its worst aspects, the racism that had justified the mistreatment of a substantial number of our citizens. I lived through a period when young people could assert that what their government was doing in their name was wrong, and not only help end an improper war, but achieve full political participation by lower the voting age. Most of my students do not think that their lives can have a similar impact. Even most of my conservative students have become cynical about the administration. So far they still journey down the path of exploring government and citizenship. Will today be the day when someone blurts out that there doesn’t seem to be any point in what we are studying, and I am unable to persuade her - or the other students - that such a statement is wrong?

I remain active. I challenge my students. But with each passing day, with each new story of abuse of our system, with each lost opportunity for the other branches to assert themselves, the chances of our governmental system righting itself seemingly become more distant and less probable.

Is it honest to teach students the Constitution? I have taught it as a living document. Perhaps I can still teach it as a piece of history, of a quaint time during which I lived most of my life. But I do not know that I will be able to teach them that it will matter similarly in their own lives. I do not yet despair, but each passing day brings me closer to that point.


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