On re-establishing our Constitution rights…

There must be a sense of urgency if we are to avoid the excesses of the GWB administration in the Obama administration or in administrations yet to come.  Once an office-holder gets power, it is very difficult to reclaim the power and give it back to its rightful owners (“We, the People”).  

It is also clear that Obama will abandon his principles in the name of “getting SOMETHING done.”  This has held true for every controversial issue that has come before us in the last couple of years (and before that when he voted “present” in the IL State Senate).

The only way we can get our rights re-established within the current governmental structure is to enact campaign finance reform in order to shift the power back to the people and seize it from fat-cat Big Business and their special interest groups and lobbyists.  Until we do this, Congress and the Executive Branch will allow them to “pay to play” and will not make decisions that benefit the people.

Campaign Finance Reform is the first and most critical step.

Once that is in place, a healthcare bill can be passed that benefits the people and not the insurance companies, healthcare providers and Big Pharma.

Decisions about how to solve the economy will move back from “welfare for Big Businesses” and the proper restraints and regulations that were eroded since the Reagan years (and even before that) will be re-established.

And, of course, if we re-establish the natural balance between the three branches that the authors of the Constitution intended (and which have worked reasonably well in the past), it stands to reason that our rights and protections will be re-established as well.  All the executive abuses of the past, from torture, rendition and the writ of habeas corpus to Executive Orders and all the provisions in the last few FISA amendments and the Patriot Act will cease to exist in their present form. 

We must acknowledge that “We, the People” do not have to relinquish our constitutional rights and protections in order to be safer.

 

Fear causes us to make bad decisions out of desperation in order to “feel better” or less fearful of our enemies and the potential threats it presents to our country and its citizens.  And what it really accomplishes is to change what is good about our society and form of government based on our fear and desire for safety.  We only have to look in our past to see how we slaughtered Indians by the millions and imprisoned Japanese American citizens in our own concentration camps because we didn’t trust people who didn’t look like us.

And we must pass a rule that amendments that are not germane to a bill cannot be included in any bill.

We also must demand the SCOTUS rule on whether or not an Executive Order is constitutional and binding, particularly if it includes provisions that are unconstitutional (abolishing the writ of habeas corpus, etc.).

And we must clearly establish the Right to Privacy, which will resolve such issues as abortion and homosexual marriage (and, for all practical purposes, many of the wedge issues that have plagues us since 1980).  I believe the Right to Privacy does exist.  If you look at the Bill of Rights, it is quite apparent that our Constitutional framers believed in the “man’s castle” theory which clearly establishes our inherent Right of Privacy.

Anyway, I think we must approach this issue in two ways:

First, get back control over our elected officials, who have reason to fear Big Business and Special Interests because of the enormous cost of running a successful re-election campaign, through passing campaign finance reform.

Second, we must try to educate “We, the People” and make them realize how dangerous it is to set such precedents that shift too much power to either of the three branches and shift power from the People to the government.  We must re-establish the inherent controls and balance between the three branches of government and the unconstitutional shift of far too much government power to the Executive Branch.  Even if we like and trust (or think we do), the guy in office now, we must remember that these precedents, once set, will empower and candidate that occupies these governmental position in the future. 

Unchecked power and unaccountable authority just don’t work, whether we are speaking of individuals or a political party.  We have seen that throughout the ages, and especially since 1980, when the political parties and special interests influenced the general public in becoming more and more polarized.  And that is the real danger. 

A democracy must be “people-oriented” and “people controlled “  Any act or action that contributes to American society by solving societal problems or preventing abuse by a government branch that refuses to acknowledge their accountability to the law of the land and to We, the People, must be effective and results-oriented in order to succeed and achieve the true goals of a democracy.  Every time we allow wedge issues to consume public discourse and further polarize Americans or sit back and watch our inherent constitutional rights and protections “flushed down the toilet” — regardless of any fear that permeates political discourse or public discourse — we move further and further way from the true freedoms that only a democracy can provide.

Abandoning our democratic values in exchange for the delusion that we are safer is the greatest “win” the terrorists could have hoped for…. and we gave this to them out of fear.

The GWB administration was masterful when it came to fear-mongering.  They proved how instilling fear in the general population could successfully empower an unhealthy, unchecked Executive Branch who believed themselves to be above the law.  And we also see how the country was bankrupted by the GWB administration to the point where the People are now financing with their own tax dollars poorly run companies with incompetent or criminal executive management; who deserve to be punished, not rewarded with multimillion-dollar executive bonuses BEFORE they have paid the American taxpayers back for their bailout money… These are the same executives that routinely and for a significant period of time made bad management decisions and were even criminally negligent to the point that their actions consist of a criminal breach of their fiduciary responsibilities.  And then we allow them their million-dollar bonuses while we are punished for their crime by having to carry the load of an out-of-control national debt.

Campaign Finance Reform is the first step

Without it, the Constitution will not be restored to its original intent, real healthcare that first protects the best interests of the People and not Big Business, Big Pharma and other Special Interest will never pass, and Big Business, the NRA and Special Interests will continue to have improper, excessive access to our elected officials, which results in the power to secretly write bills that benefit them or their industry.

It’s all about the integrity of the process…

When our founding fathers wrote the Constitution of the United States, they were writing this document from the worldview of immigrants who had fled their home country because of tyranny.  Tyranny came to our founding fathers  in many forms, but most often in the form of lack of religious freedom and the enslavement of the “common” man (not nobility) primarily via indenture (debt bondage) and forced labor. 

Contemporary forms of slavery includes: debt bondage, serfdom, forced labour, child labour and child servitude, trafficking of persons and human organs, sexual slavery, children in armed conflict, sale of children, forced marriage and the sale of wives, migrant work, the exploitation of prostitution, and certain practices under apartheid and colonial regimes. As a legally permitted labour system, traditional slavery has been abolished everywhere, but it has not been completely stamped out. There are still reports of slave markets. Even when abolished, slavery leaves traces. It can persist as a state of mind- among victims and their descendants and among the inheritors of those who practised it –long after it has formally ended. (http://www2.ohchr.org/english/issues/slavery/rapporteur/index.htm)

Additionally, the ascendacy of individualism left its mark on the authors. 

In political philosophy, the individualist theory of government holds that the state should protect the liberty of individuals to act as they wish as long they do not infringe on the liberties of others. This contrasts with collectivist political theories, where, rather than leaving individuals to pursue their own ends, the state ensures that the individual serves the whole society. The term has also been used to describe “individual initiative” and “freedom of the individual.” This theory is described well by “laissez faire,” which means in French “let [the people] do” [for themselves what they know how to do]. This term is commonly associated with a free market system in economics, where individuals and businesses own and control the majority of factors of production. Government interferences are kept to a minimum.

Individualists are chiefly concerned with protecting individual autonomy against obligations imposed by social institutions (such as the state). Many individualists believe in protecting the liberties of the minority from the wishes of the majority. Thus, individualists oppose democratic systems without constitutional protections existing that do not allow individual liberty to be diminished by the interests of the majority. These concerns encompass both civil and economic liberties. For example, they oppose any concentration of commercial and industrial enterprise in the hands of the state, and the municipality. The principles upon which this opposition is based are mainly twofold: that popularly-elected representatives are not likely to have the qualifications, or the sense of responsibility, required for dealing with the multitudinous enterprises, and the large sums of public money involved in civic administration; and that the “health of the state” depends upon the exertions of individuals for their personal benefit (who, “like cells”, are the containers of the life of the body). (http://en.wikipedia.org/wiki/Individualism)

This is why the authors of the Constitution made sure of two things that: 

1. The system of government they set up could be dynamic (change as needed)  with a peaceful transfer of power and well-defined line of authority and reporting structure, and
2. The rights of all citizens, particularly the minority, could not be infringed by the will of the majority. 

That’s why we have a representative form of government with a well-articulated Bill of Rights. It prevents what we now call “government by polls,” of the Rule of Man in majority “group” form.  In a pure democracy, a vote to determine the will of the people really only reflects the will of the majority — the minority never wins unless they can build a coalition with other minority groups.  If the rights of ALL individuals in a society cannot be protected, the result is a tyrannical rule by the majority based on current public opinion, which lends itself to instability and uncertainty.

The authors of the Constitution knew the difference between the Rule of Law and the Rule of Man.  They understood that a pure democracy was not practical.  The Rule of Man — whether by one man or a group of like-minded men —  is fickle and unstable — there is no consistency or continuity between rulers.  There is usually not a peaceful transfer of power.   Living under the Rule of Law means our founding fathers set up a system with integrity — one that could maintain continuity of government during the transfer of power and consistency regardless of who sat in the White House Oval Office or which party was in power at any particular moment in time.

The best example of how ruling by opinion polls can undermine equal rights and equal protection under the law — in a society supposedly based on the Rule of Law — is California.  I believe that it would have been unthinkable to our Founding Fathers that any state vote could infringe on a minority’s rights, as has the defeat of California’s Prop. 8, which has been held up by the California Supreme Court.

The loss of the sanctity of the writ of habeas corpus (requiring a warrant for arrest, search and/or seizure of persons or property) is the most alarming, because it also involves the loss of due process, meaning that the government (thanks to the Patriot Act) can deem individuals to be enemy non-combatants, arrest them, detain them without arraignment or trial, torture them, and even refuse to give them access to an attorney until they have signed a confession written by the government. Our current president, who campaigned on restoring individual rights that had eroded during the last administration, is now considering the concept of preventive detention, where our government can arrest and detain individuals who have not actually committed an act of terror, but are considered to be potential terrorists.  One of the cornerstones of our system of justice was the concept of “innocent until proven guilty” [by a jury of peers]. 

How can a constitutional scholar and professor not be troubled by the concept of detaining someone BEFORE they commit a crime or even make an attempt to commit a crime?

Oscar Wilde once said “Life imitates art far more than art imitates Life.” (http://www.brainyquote.com/quotes/keywords/imitates.html) In the case of this issue, Steven Spielberg’s film, Minority Report, may be closer to our new reality than we think..

When I was growing up, the Soviet Union and Red China were the “boogey-men” who committed these types of human rights atrocities.  America was the country that protested this kind of treatment of individuals.  Now we torture detainees. Now we are the “boogey-man.” I have not doubt that, in years to come, our behavior in reaction to terrorism will be deemed as a shameful time for Americans, much like our treatment of Japanese Americans during WWII.