COMMENTARIES ON OUR TIMES - Current events & the US Constitution

Current events - the presidential election campaigns - the Republicans and Sarah Palin:

Personally, I don’t think it’s a good idea to have a fundamentalist religion believer - whose belief system posits that an Armageddon-type scenario is a Good Thing - a heartbeat away from the US presidency. In fact, I don’t think it’s a good idea at all, never mind my personal feelings on the subject.

But this brings up another issue...

******

‘If the truth be known...’

America is in trouble. She needs to be helped out of her troubles, and back on the higher road to her spiritual destiny (as opposed to her collapse in ignominy). But to do that, we need to understand some basics about the ‘mid-course correction’ she needs. And that brings up the subject of her history.

Re: the state of the US Republic in our day and age; my kid’s eye looking at the matter:

‘Hang on a minute. These Bill of Rights enumerated items are examples of a limitation on the Federal Government by the States, as generally summarized, in confirmation, by the 9th and 10th Amendments. How did the Bill of Rights ever get turned on its head, to apply as limitations from the Federal Government to the States?’ The States had their own constitutions, which regulated their legal life (and in point of fact, were guaranteed, by the Constitution, “a Republican Form of Government”, to do that very sort of thing in their state legislatures); so - what happened along the way to our place in time?

This question came to me fairly early on in my life, after I had left university (pre-Med) abruptly - the day of my 21st birthday, in unintentional point of fact - and started on a search for ‘Truth’, in general and specifically, as to ‘the meaning of life’. One of my areas of interest was ‘America’, and her role in the world, spiritual and secular. I knew that there had been a question about something called ‘States’ rights’ in the late ‘40s and early ‘50s, when ‘the South’ objected to various pronouncements from the Federal Government regarding racial issues (‘Jim Crowism’, whatever that was precisely); but I didn’t know the ins and outs of that argument, except that - as came around again during JFK’s tenure in the early ‘60s - it had something to do with ‘the commerce clause’ of the Constitution.

In trying to research this development, I went first to my local library, and then to the Law School Library at UCLA (whilst living in Southern California at the time), where I looked at various laws which came up in the 1930s - that watershed era in American politics - and were either affirmed or rejected by the Supreme Court. I found that for quite some time in that decade - and to the chagrin of FDR, who felt constrained by the court of his day (and thus tried to ‘pack the court’, a maneuver that didn’t get through the screen of public opinion; but not for lack of trying) - the court was, still, ‘conservative’ in its outlook - ie (as far as I am concerned regarding that term), under the mental sway of what has come to be known in our time as ‘strict constructionism’ (as opposed to...what. Liberals? Non-strict- constructionists? Believers in a ‘living document’? Anyway, you get the drift) - and it struck down some cases that were an attempt to widen the scope of the interstate commerce clause in the Constitution and give the federal government more power over that area than it had had theretofore. So, that constitutional attitude was still holding sway at that time. And then - as I subsequently discovered by reading some literature developed by the John Birch Society (firm believers in ‘less government, more responsibility, and, with God’s help, a better world’) - the changeover apparently started in the very early ‘40s, when there was a law passed by Congress regarding the treatment of the US flag, which apparently overruled the state-vs-federal norm to that point in time. And the deus ex machina, as it were, seemed to involve the 14th Amendment.

A later reading of one of the (excellent) books by Judge Robert Bork gave me my substantive picture of the matter. In it he talked about a juridical ‘principle’ developed (apparently by some liberal law professors) given the name ‘incorporation’. The 14th Amendment - which in the aftermath of the Civil War sought to redress some racial grievances - stated, in part: “...nor shall any state deprive any person of life, liberty or property, without due process of law [ie, it can’t be arbitrary in its decisions, must adhere to the law]; nor deny to any person within its jurisdiction the equal protection of the laws.” The ‘original intent’ of this legislation seemed to be to strike down state laws that differentiated between the races, ie, having one set of laws referring to blacks and one set referring to whites. (This is what is called ‘de jure’ discrimination, ie ‘according to law’, as opposed to ‘de facto’ discrimination, which is not in place due to any legal determination but simply due to ’existing in fact’.)* So the 14th Amendment started a constitutionally legal policy that said, in effect, that ‘the law’ needed to be color blind; that it could not distinguish between the races.

So far, so good, in making all citizens equal in the sight of the law. But the amendment was used by some central-government ideological types who wanted it to go further, and act as a foot in the door for greater federal control over the people. (Ie, one size to fit all; and thus save having to try to change the law on some social issue in all the states individually.) The gimmick they used to overturn the original, lawful emphasis of the Constitution and its Bill of Rights - ie, that it was primarily a brake on the power of the federal government - was to argue that ‘the due process clause’ in the 14th Amendment (“...nor shall any state deprive any person of life, liberty or property without due process of law”) meant, in effect, that the terms in the Bill of Rights referring generally to ‘life’ and ‘liberty’, eg, now applied wholesale FROM the federal government TO the states (were all ‘incorporated’ into the 14th Amendment’s intention). That the federal government was now the guarantor of our rights - and its judicial branch could determine the definition OF those rights (through a Supreme Court made up in its majority - hopefully, to the liberals behind this usurpation-by-stealth - of persons ‘constitutionally’ inclined to substitute their personal socio-political proclivities for the law, and thus bending ‘the law’ - the Constitution - to their whim).**

The old shell game. Follow the switched-around pea, if you can.

Sweet. And corrupt.

Now I grant that this tension, between the states and the federal level of government, was/is a bit of a block to the development of the American nation to its fullest potential, in unifying a continent and creating a national citizenry. But that conundrum was pretty well dealt with in the move from the Articles of Confederation to the Constitution. Within that change, there was still a tension between the levels of government; but it became more of a healthy ‘checks and balances’ than a stumbling block - part of the overall genius of the American system, in setting the legislative, executive and judicial branches of government in check of each other. However, this ‘incorporation’ funny business fundamentally altered the balance of power between the States and the Federal Government, and put the US on a path that has led near-inevitably to this day and age, where the executive has assumed powers far beyond its constitutionally-allotted basis, and is getting away with it primarily because of this switch in emphasis, from a devolved system to a unitary, centrally-controlled system. It was never meant to be that way. But here we are.

On this point, a point about the Bill of Rights. Madison (the historically accepted ‘Father of the Constitution’) was initially against such a thing - a bill of rights - because it would potentially lend credence to the idea that the proposed federal government had such powers granted to it by the proposed constitution in the first place that it needed to be hedged around against such exercises of power. (The federal government as proposed had only those powers delegated to it; was a government of limited and delegated powers. Paraphrased quote from Madison, in The Federalist Papers: “The powers delegated to the federal government are few and defined [my emphasis].”) How prescient is that?

Let me clarify. If the people of the American republic want(ed) an amendment to their Constitution saying something like: ‘The powers previously reserved to the States or to the people shall now reside in the federal government’, the Constitution allows for such amending. The way that ‘amending’ was done, however, was pure sleight of hand. And unfortunately, in particular because of the caliber of the teaching of UnIted States History & Government in the public schools of the country (at least in my day), but also largely due to the failure of the country’s ‘free press’ to do its job (and especially in a democracy, where self-government can only work with a literate and knowledgeable populace, or it will deteriorate into mobocracy; as the Founders well knew from their reading of history), the vast majority of the American citizenry, I would wager, don’t have a clue how this fundamental changing of their system of government took place - or even that it DID take place. I would make that wager, because even someone as curious and interested in these sorts of things as I, didn’t understand what had happened - or even that it HAD happened - until I took the trouble to do a search for it; reading the Bill of Rights through the eyes of the little boy who called the emperor on his new clothes, and wondering, ‘Now how did these clear statements of limitation of power TO Congress and the federal government get turned around and applied FROM the federal government to the states?’

Anyway. Not good enough. And time for a change. Either back to the Constitution as it truly is - to get away from the spirit of ‘I am the law’, ie, the rule of men, back to the rule of law - or for a change in the contract duly authorized by the terms of the Constitution.

Or do you REALLY want to live in a country where the president can get away with saying, about your Constitution, that “It’s just a goddamned piece of paper”?


As to the de jure vs de facto contretemps in America. I am not a supporter of manipulating the law to try to accomplish ‘good’ ends. Every tyrant down through the ages has ruled by the ‘principle’ that the ends justify the means. Any means. Including torture, and assassination,*** and so forth.

I will have none of that.

Nor should America.


End of lesson for today.

Discuss.

- O -


P.S. In reading through what I have written here, I realize that I feel a need to emphasize my main point a little more, and not let the major thread get lost in some of the more extraneous details.

My main point is: So what does all of this have to do with our day and age? Well, for one: We’re in danger of a ‘unitary executive’ taking over the whole country in one fell swoop - quite similar to how Hitler and the Nazis took over the German federal republic. It can’t happen here? But it has. Not ‘but it could’. IT HAS. All the pieces are now cleverly in place for a declaration of martial law, and boom - the US has been purloined. Not a noble outcome.

So the example of Hitler should be instructive, for those who would learn from history: The electorate needs to dismantle the surveillance state, not build on it; needs to elect representatives to Congress who will roll back the Patriot Act, and the Military Commissions Act, and so forth - all the pieces of the oppression just waiting to be fastened on the populace, in claiming the pre-eminence of safety over liberty.

The call to political arms is clear. We must heed it, before it’s too late, and the jackboot descends from on human high.

*****

In sum. The individual states in the American federal republic are healthy entities, for two main reasons:

(1) They can be laboratories for experiments on various ways of dealing with life issues, such as health care and welfare provisions; and

(2) They are a stumbling block to a unitary executive.

As to this latter point: During the 21st century Bush administrations, the Powers That Be have ingeniously managed to override individual state governors and take over their states’ National Guards at King George’s call - and we have bought it, hook, line and sinker.

So much for being awake, as opposed to ‘letting George do it’.

Got it? ‘It’: the Founding Fathers were no dummies. And had had enough of the King George of their day.

Madison said that 'If men were angels, we would not need constitutions'.+ And another wise observation is apt here; this by a quintessential Englishman, Lord Acton: Power corrupts; and absolute power corrupts absolutely.

It’s time to take our country back, from those PTB who would take it away in furtherance of their own ends. Which is primarily to establish a New World Order, along fascist lines, ie, a nexus between government and the corporate world; where cronyism reigns, and The People are reduced to serfdom, to keep them quiet, docile, and safely consuming - safely, for their overseers.

And a socialist form of fascism - ie, rule by workers’ collectives - is no better a form of government, either. The Mob (literally and figuratively) can be just as dictatorial as the Boss. We would be better custodians of our magnificent legacy if we steered a course between the Scylla of the Right and the Charybdis of the Left. And went neither right nor left but up, to a level engaging our higher selves in our daily lives.

But that’s a subject for another time. And only so to speak.

- O -


Footnotes:

* This distinction, incidentally, would sorely be tested later on - in the aftermath of the 1954 Brown vs. (some) Board of Education decision outlawing ‘separate but equal’ schools in the South - with the move to bus school children to schools to effect ‘racial balancing’, which caused a severe rent in the social fabric of America, between ‘strict constructionists’/’conservatives’ and ‘liberals’, and between the races; which is still playing out in our day and age, with such ‘principles’ as ‘affirmative action’, aka to ‘conservatives’ as reverse discrimination (and de jure discrimination rather than merely de facto at that). More on all this aspect of this business below.

** Shades of Alice in Wonderland, with Humpty Dumpty declaring, “Words mean what I say they mean, neither more nor less.” Or of Hitler’s declaration: “I am the law.”

*** Assassination can also be of a political nature. Example: what happened to New York State governor Eliot Spitzer.
The story given to the public was merely that he was caught with his pants down, in a prostitute encounter. The suspicion among some was that he was caught in a honey trap sting. Why? Who would want to eliminate him from the picture politically? One lead: His Op-Ed in the Washington Post of a few weeks before, wherein he accused the Bush administration of supporting banks in a predatory mortgage lending scam, and was leading a challenge to the poorly regulated policy by several states’ attorneys general.
Why would the Bush administration want to do all that, ie, cover for the banks in the first place, and have the motive to ‘rub out’ a crusading governor over the matter in the second place?
Anybody noticed what has happened recently? Where the financial system has been put in ‘play’ by just such a toxic financial factor?
Why would ‘they’ want to do that?
Ever hear of the ploy of crisis - opportunity? Of action - reaction?
The claim that I propose here: The Bush administration, in cahoots with the PTB, has been putting into place the means to cause a crisis in America, the better to take her over - to jettison the Constitution once and for all, and, under the cover of a declaration of martial law, complete the takeover of power. On the way to melding the United States into a North American Union, of the former US with Canada and Mexico. On the way to creating a region, among other regions, of their vaunted - and telegraphed - New World Order.
But more on that, anon.

+ And Jefferson warned us, about the Supremes and their judicial subordinates: “Bind them down from mischief with the chains of the Constitution.” Otherwise, the American people might see what we have in fact seen in our day and age. With ’penumbras’ and other exotic rationales employed to make words mean what the Supremes say they mean. Nothing more. And nothing less.


Brief bibliography:

American Government and Politics. Potter, A.; Fotheringham, P.; Kellas, J.
Faber Pb, 1981

Captive State: The Corporate Takeover of Britain. Monbiot, George. Pan Books, 2000

End of the Nation State, The. Ohmae, Kenichi. HarperCollins, 1995

Founding Brothers. Ellis, Joseph J. Vintage Books, 2002

Global Trap, The: Globalization and the Assault on Prosperity and Democracy.
Martin, H-P and Schumann, H. Zed Boks Ltd, 1997

Occult Conspiracy, The. Howard, Michael. Destiny Books, 1989

Private Planet: Corporate Plunder and the Fight Back. Cromwell, David. Jon
Carpenter Publ, 2001

When Corporations Rule the World. David C. Korten. Earthscan Publ Ltd,
1997