teacherken's musings on everything

Originally posted on May 26 at dailykos

Should we amend all of the textbooks in America to explain to schoolchildren that what has been taught for more than two centuries about checks and balances is no longer valid? Should we teach them instead that the United States Congress and the courts are merely advisory groups that make suggestions to the president on what the law should be, but that the president is all-powerful and now has the final say on everything? Should we teach them that we are a government of men, not of laws? Should we teach them that we used to be a democracy but now we only pretend to be?

The words above are from a chapter entitled "Democracy in the Balance." They appear on p. 226 of Al Gore's new book The Assault on Reason which I read yesterday. Like the other words I will cite in this posting, they move me to anger, despair, frustration, depression, sadness and more. And they make it absolutely clear why I will not, even at the cost of my life, give up the struggle to save this nation, and thereby perhaps humanity.

During this past year I have on occasion posted online pieces about my struggle - could I continue teaching with integrity? What do I say to my students about the depredations of democracy and of the Constitution ongoing under this administration?

I have said that this is not a book review. While reading I went through a welter of emotions. I marked a number of passages such as that with which I began this posting. From those I have selected some which I propose to share, and by share I mean not only offering them for you to consider but at least on occasion sharing my immediate or more considered reaction.

From pp. 112-113 a passage that cuts to the heart of the matter:

Is it possible that Bush and Cheney truly believed the false assertions they foisted on the American people and our allies? Leonardo da Vinci once wrote, "The greatest deception men suffer is from their own opinions." And investigative journalist I. F. Stone wrote in A Time of Torment: "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." If Bush and Cheney actually believe in the linkage that they assert in spite of all the evidence to the contrary presented to them contemporaneously - that would by itself make them genuinely unfit to lead our nation. On the other hand, if they knew the truth and lied, massively and repeatedly, isn't that worse? Are they too gullible or too dishonest?

Paul Wolfowitz acknowledged that they settled on weapons of mass destruction because it was the easiest way to justify an invasion to the American people. Andrew Card talked about not rolling out a new product before Labor Day. The evidence is clear that those working closely with the two elected to lead the nation knew they were lying and manipulating. Gore cites many examples from both of them as well. In either case, as hard as the task may seem, is not the responsibility of the Democrats in Congress to constantly remind the American people of these incidents? Is it not the duty of all Americans to ask the questions that inevitably lead to a recognition that they are either incompetent or deliberately venal, and either case "genuinely unfit to lead our nation" as Gore says?

From page 25, in chapter entitled "The Politics of Fear"

Is the world more dangerous than when we faced an ideological enemy with thousands of missiles poised to annihilate our country at a moment's notice? Fifty years ago, when the nuclear arms race with the Soviet Union was raising tensions in the world and McCarthyism was threatening our liberties at home, President Dwight Eisenhower belatedly said, "Any who act as if freedom's defense are to be found in suppression and suspicion and fear confess a doctrine that is alien to America." Edward R. Murrow, whose courageous journalism was assaulted by Senator Joseph McCarthy, declared, "We will not be driven by fear into an age of unreason."

I am 61. I lived through the McCarthy period, with my first television memories being the Army-McCarthy hearings. I also lived through the Cuban Missile Crisis in 1962, when we believed realistically that we could be facing imminent nuclear war. In the former case the Congress, belatedly, took responsibility for oversight, and the press gave us honest coverage of the distortions that were occurring in our government. In the latter our President honestly informed the American people of the risks we faced, and yet did not use the occasion to aggregate more power to the executive nor to deny people their constitutional rights. I often wonder if too many in both the Congress and the media are either too young to remember things like this, or too ignorant of the history of our nation. In either case, it is incomprehensible to me how anyone can rationally think that we should allow restrictions on the grounds of a threat far less than that we lived with for so many years.

But then, this is not a question of rationality. We are encountering a deliberate manipulation of our emotions and our fears. As is put bluntly onp. 28:

A scientist at Stony Brook University, Charles Taber, went so far as to say, "The Enlightenment model of dispassionate reason as the duty of citizenship is empirically bankrupt."

That scares me - absent reason he who yells the loudest or offers the scariest scenario is likely to dominate the "discussion" with results that are horrific to contemplate.

We then become the recipient of directions on how to respond, rather than co-participants in a liberal democracy. This is made explicit in a two paragraph selection from the chapter entitled "The Politics of Wealth" that begins on p 73:

The derivation of just power from the consent of the governed depends upon the integrity of the reasoning process through which that consent is given. If the reasoning process is corrupted by money and deception, then the consent of the governed is based on false premises, and any power thus derived is inherently counterfeit and unjust. If the consent of the governed is extorted through the manipulation of mass fears, or embezzled with claims of divine guidance, democracy is impoverished. If the suspicion of reason causes a significant portion of the citizenry to lose confidence in the integrity of the process, democracy can be bankrupted.
If citizens no longer participate, those among them who notice signs of corruption or illogic have no way to voice their concerns and summon the attention of others who, upon examining the same evidence, might share their dismay. No critical mass of opposition can form among individuals who are isolated from one another, looking through one-way mirrors in soundproof rooms, shouting if they wish but still unheard. If enough citizens cease to participate in its process, democracy dies.

And that quote is sufficient argument for me to continue to struggle to teach government honestly, to provoke my students to participate in the processes in the hope if not yet fully the belief that by their participation they may be able to make a difference.

And yet we face what Gore has in one chapter entitled "The Assault on the Individual." We face a government prepared to argue that it should be entitled to suspend any rights it may choose under the rubric of the president's inherent powers as commander in chief in a time of war that the administration warns may never end. Gore notes on page 133 that

As Winston Churchill once put it, "The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist."

If anyone can be used to violate Godwin, surely Churchill would qualify. And when we look further, we will see that applying Churchill's seemingly extreme words is by no means a stretch. Gore further illustrates with 3 paragraphs on p. 159:

The president has also claimed that he has the authority to deliver captives under our control for imprisonment and interrogation on our behalf by autocratic regimes in nations that are infamous for the cruelty of their techniques for torture.
Can it be true that any president really has such powers under our Constitution? If the answer is yes, then under the theory by which these acts are committed, are there any acts that can on their face be prohibited? If the president has the inherent authority to eavesdrop, imprison citizens on his own declaration, kidnap, and torture, then what can't he do?
After analyzing the executive branch's claims of these previously unrecognized powers, Harold Koh, dean of Yale Law school, said: "If the president has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.

These are scary times in many ways. And recognized leaders have for some time pointed out how much so, and suffered personal attacks in return. On page 183 we read two paragraphs upon which we should all reflect:

General Joseph Hoar, former head of the U. S. Marine Corps, told Congress, "I believe we are absolutely on the brink of failure. We are looking into the abyss." When a senior military leader like Joe Hoar uses the word abyss, then the rest of us had better sit up and listen. Here's what he means: more American servicemen and women dying, Iraq slipping into more chaos and violence, no end in sight, with America's influence and moral authority seriously damaged. Retired Marine Corps general Anthony Zinni, the former four-star-general in charge of Central Command, said recently that our nation's current course in Iraq is "headed over Niagara Falls."
Zinni, named by President Bush as his personal emissary to the Middle East in 2001, offered this view of the situation in a recent book: "In the lead-up to the Iraq war and its later conduct, I saw at a minimum true dereliction, negligence and irresponsibility; at worse, lying incompetence and corruption; false rationales presented as a justification, a flawed strategy, lack of planning, the unnecessary alienation of our allies, the underestimation of the task, the unnecessary distraction from real threats, and the unbearable strain dumped on our outstretched military. All of these caused me to speak out, and I as called a traitor and a turncoat by civilian Pentagon officials."

That Gore accidentally assigns to Hoar a position he never held in no way diminishes the power of these two paragraphs. And for those of us who have continued to criticize the administration on many of the same points and on similar matters, perhaps the reason we have so far been ignored is that we lacked the credibility, the gravitas, that men like Zinni have. But we cannot doubt that were we to be viewed as a threat the denigrations, the pejorative expressions would quickly be directed towards us. And if those proved insufficient to discredit what we had to say? At that point do we not have to consider what other actions this administration might feel were warranted? Could we, especially given our lack of individual visibility, perhaps find ourselves in custody as individuals designated by the President as providing material assistance to terrorists, denied our rights under habeas corpus and the 4th, 5th, 6th and 8th Amendments?

There is a very human tendency to want to please those we admire. We are often tempted to make compromises in the hopes of obtaining position, influence, wealth, or power. Far too many of the supernumeraries of this administration have demonstrated the folly of such an approach. Once one begin down such a path with this administration, it is as if one has entered a criminal enterprise with the Mafia tradition of omerta, silence. Those who choose to criticize find the full force of the administration devoted to destroying them. Ask Paul O'Neill or John DeIullio. And while that might, as was the case with Anthony Zinni, be viewed as rank disloyalty, one need not have officially affiliated, merely to have questioned - ask Valerie Plame and Joe Wilson.

We may have little time left. And I think the American people will, if presented forcefully with an alternative, reject what this administration has been doing. Let me allow Gore to put it quite bluntly, as he does in pages 221-22 from the chapter "Democracy in the Balance":

President Bush has repeatedly violated the law for six years. In spite of the fact that the only judicial decision to have reached the question of legality has ruled comprehensively against the president's massive and warrantless surveillance program, both the Justice Department and the Congress have failed to take any action to enforce the law. There has been no request for a special prosecutor, and there has been no investigation by the FBI. There has been deafening silence. But the consequences to our democracy of silently ignoring serious and repeated violations of the law by the president of the United States are extremely serious.
Once violated, the rule of law is in danger. Unless stopped, lawlessness grows. The greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles. As the executive acts outside its constitutionally prescribed role and is able to control access to information that would expose its actions, it becomes increasingly difficult for the other branches to police it. One that ability is lost, democracy itself is threatened and we have become a government of men and not laws.
Any executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary become the central threat that the Founders sought to nullify in the Constitution. In the words of James Madison, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

Quite obviously I found the book worth reading. It moved me to further thought, and I would suggest that there is much beyond what I have quote which will do the same for you. But that is insufficient.

We must act as if it is not already too late. We cannot allow temporary setbacks or still further disclosures of how bad things have been to discourage us from further action, from serious opposition, from demanding that those who seek positions of leadership demonstrate a willingness to reassert the proper functioning of a liberal democracy.

Jefferson told us in the Declaration that governments were instituted among men to protect our rights, that life, liberty and pursuit of happiness were only some of the rights with which were were endowed. Jefferson made clear that government has its JUST powers only from the consent of the governed.

I hereby withdraw my consent for the depredations of this administration against our democracy and against humanity. It did not seek office or reelection on an explicit platform of abandoning our Constitution, and even had it done so no legislative action outweighs the limits on government provided by a Constitution designed precisely to limit the power of the government, Marshall argued this persuasively in Marbury v Madison:

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.

This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [5 U.S. 137, 178] So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

The principle established in Marbury was expressed with respect to legislative acts, but is also in cases like the steel seizure case clearly applied to the executive as well. Marshall noted near the end of his opinion

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.

The other departments includes the president of the United States. The actions of this administration are in clear violation of the principles of limited government, separation of powers, checks and balances - all the things which I am required to teach my government students.

If these are to be meaningful we must act now. We must be prepared to pay the price of speaking the truth. We must demand of our elected officials and those that seek elective office that they commit to a reinvigoration of our constitutional democracy, and oppose as forcefully as they can the not-so-creeping moves in the direction of tyranny under which we have lived since September 11, 2001.

We owe it to ourselves. Those of you with children and children clearly owe it to them. We owe it to the rest of the world. And if we stop to measure the cost, we will already have lost.

If we do not act, and speak, now, we will have abandoned the concluding statement of our founding document, the Declaration of Independence. The men who signed faced far greater risk in their actions than do we, at least so far. We still have the rule of law, to some degree, we still have the ability to speak out and criticize. Franklin warned at the end of the Constitutional Convention that we would have a republic only if we can keep it.

So I close as did the signers of the Declaration. I take unto myself the responsibility of those words, and ask that you do likewise:

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Peace.