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The Real And Racist Origins of the Second Amendment December 20, 2012

Posted by rogerhollander in Genocide, Gun Control/Violence, History, Race, Racism.
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Tue, 12/18/2012 – 19:19 — Bruce A. Dixon

A Black Agenda Radio commentary by BAR managing editor Bruce A. Dixon

The “well-regulated militia” that the US Constitution’s second amendment refers to were slave patrols, land stealers and Indian killers, all quite necessary as the amendment’s language states “to the security of a free state” built with stolen labor upon stolen land. Unless and until we acknowledge that history, we cannot have an honest discussion about gun control.

The Real and Racist Origins of the Second Amendment

A Black Agenda Radio commentary by BAR managing editor Bruce A. Dixon

This commentary was originally published in Black Agenda Report April 19, 2008.

Why does the US Constitution guarantee a right “to keep and bear arms”? Why not the right to vote, the right to a quality education, health care, a clean environment or a job? What was so important in early America about the right of citizens to have guns? And is it even possible to have an honest discussion about gun control without acknowledging the racist origins of the Second Amendment?

The dominant trend among legal scholars, and on the current Supreme Court is that we are bound by the original intent of the Constitution’s authors. Here’s what the second amendment to the Constitution says:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”

Clearly its authors aimed to guarantee the right to a gun for every free white man in their new country. What’s no longer evident 230 years later, is why. The answer, advanced by historian Edmund Morgan in his classic work, American Slavery, American Freedom, the Ordeal of Colonial Virginia, sheds useful light on the historic and current politics and self-image of our nation.

Colonial America and the early US was a very unequal place. All the good, cleared, level agricultural land with easy access to transport was owned by a very few, very wealthy white men. Many poor whites were brought over as indentured servants, but having completed their periods of forced labor, allowing them to hang around the towns and cities landless and unemployed was dangerous to the social order. So they were given guns and credit, and sent inland to make their own fortunes, encroaching upon the orchards, farms and hunting grounds of Native Americans, who had little or no access to firearms. The law, of course did not penalize white men who robbed, raped or killed Indians. At regular intervals, colonial governors and local US officials would muster the free armed white men as militia, and dispatch them in murderous punitive raids to make the frontier safer for settlers and land speculators.

Slavery remained legal in New England, New York and the mid-Atlantic region till well into the 1800s, and the movements of free blacks and Indians were severely restricted for decades afterward. So colonial and early American militia also prowled the roads and highways demanding the passes of all non-whites, to ensure the enslaved were not escaping or aiding those who were, and that free blacks were not plotting rebellion or traveling for unapproved reasons.

Historically then, the principal activities of the Founding Fathers’ “well regulated militia” were Indian killing, land stealing, slave patrolling and the enforcement of domestic apartheid, all of these, as the Constitutional language declares “being necessary to the security of a free state.” A free state whose fundamental building blocks were the genocide of Native Americans, and the enslavement of Africans.

The Constitutional sanction of universally armed white men against blacks and Indians is at the origin of what has come to be known as America’s “gun culture,” and it neatly explains why that culture remains most deeply rooted in white, rural and small-town America long after the end of slavery and the close of the frontier. With the genocide of Native Americans accomplished and slavery gone, America’s gun culture wrapped itself in new clothing, in self-justifying mythology that construes the Second Amendment as arming the citizenry as final bulwark of freedom against tyranny, invasion or crime. Embracing this fake history of the Second Amendments warps legal scholarship and public debate in clouds of willful ignorance, encouraging us to believe this is a nation founded on just and egalitarian principles rather than one built with stolen labor on stolen land.

Maybe this is how we can tell that we are finally so over all that nasty genocide and racism stuff. We’ve chosen to simply write it out of our history.

For Black Agenda Radio, I’m Bruce Dixon. Find us on the web at www.blackagendareport.com.

Bruce A. Dixon is managing editor at Black Agenda Report, and a member of the state committee of the Georgia Green Party. He lives and works in Marietta GA and can be reached via this site’s contact page or at bruce.dixon@blackagendareport.com.

Leon Panetta’s explicitly authoritarian decree January 30, 2012

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Democracy, Uncategorized, War on Terror.
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Defense Secretary Leon Panetta listens as President Barack Obama speaks on the Defense Strategic Review, Thursday, Jan. 5, 2012, at the Pentagon. (Credit: AP Photo/Haraz N. Ghanbari)
Roger’s note: I try not to burden the readers of this Blog with excessive repetition, and I have posted articles on this theme several times.  Just as the blatant torture regime of Cheney/Bush was mind-boggling in its violation of constitutional and international law, so is the Obama regime’s institution of presidential assassination of US citizens with no process and no accountability.  If the president says you are a terrorist, he can kill you.  Doesn’t even measure up to the Alice in Wonderland standard of “execution first, trial later.”  There is no trial.  The United States was founded upon a basic and fundamental principle that reflected the real danger of unchecked government power.  This principle is embedded in the constitution and the Bill of Rights; and today it is simply ignored with impunity.  When all is said and done, Obama justifies this monstrous abuse of authority on the notion that the entire world is a battleground in the so-called War on Terror, which gives him the right to execute an “identified” enemy as a soldier would on a real battlefield.  The flaws in this logic are too obvious to need pointing out.  It is the same logic that justifies sending predator missiles into anywhere he chooses, regardless of how many innocent civilians he kills in the process.  So far Obama has only killed a couple of American citizens.  Imagine the precedent he has set and how it would possibly be used in the hands of one of the Republican maniacs that could occupy the White House one day soon.
Glenn Greenwald,  www.salon.com, January 30, 2012

CBS News‘ Scott Pelley appears to be one of the very few American journalists bothered by, or even interested in, the fact that President Obama has asserted and exercised the power to target U.S. citizens for execution-by-CIA without a shred of due process and far from any battlefield. It was Pelley who deftly interrogated the GOP presidential candidates at a November debate about the propriety of due-process-free assassinations, prompting Newt Gingrich, Mitt Romney, and Michele Bachmann to applaud President Obama for assassinating Awlaki (just as Rick Perry, Dick and Liz Cheney, and Bill Kristol had done). Last night, Pelley did the same when he interviewed Defense Secretary and former CIA chief Leon Panetta on 60 Minutes. It’s well worth watching this three-minute clip because, although Panetta doesn’t say much that is new (he simply asserts the standard slogans and unproven assertions that Obama defenders on this topic always assert), watching a top Obama official, under decent questioning, defend the power to target U.S. citizens for assassination viscerally conveys the rigidly authoritarian mindset driving all of this:

Panetta’s answers are suffused with dubious and even factually false claims. It is, for instance, false that the U.S. provides due process to everyone apprehended for Terrorism. To the contrary, the Obama administration has been holding dozens of Terrorism suspects without any charges for years, and President Obama just signed into law a bill codifying the power of indefinite detention for accused Terrorists. But even if it were true that all Terrorism suspects who are detained were entitled to receive due process, that merely underscores how warped it is to assert the power to target them for execution without due process. After all, how can it be that the Government must prove guilt merely to imprison Terrorists but not to execute them?

But this is one of the towering, unanswerable hypocrisies of Democratic Party politics. The very same faction that pretended for years to be so distraught by Bush’s mere eavesdropping on and detention of accused Terrorists without due process is now perfectly content to have their own President kill accused Terrorists without due process, even when those targeted are their fellow citizens: obviously a far more Draconian and permanent abuse than eavesdropping or detention (identically, the very same faction that objected to Bush’s radical whole-world-is-a-Battlefield theory now must embrace exactly that theory to justify how someone riding in a car, or sitting at home, or sleeping in his bed, in a country where no war is declared, is “on a battlefield” at the time the CIA ends his life).

It is equally false, and independently both misleading and perverse, for Panetta to assert that a citizen in Awlaki’s position could come to the U.S. to assert his due process rights. For one thing, Awlaki was never charged or indicted for anything in the U.S. — he was simply executed without any charges (the Obama administration, after trying to kill him, reportedly “considered” charging him with crimes at one point but never did) – and thus, there was nothing to which he could “turn himself” in even if he wanted to. Even worse, President Obama’s hit list of those he approves for assassination is completely secret; we only learned that Awlaki was being targeted because someone happened to leak that fact to Dana Priest. The way the process normally works, as Reuters described it, is that targeted Americans are selected “by a secretive panel of senior government officials, which then informs the president of its decisions”; moreover, “there is no public record of the operations or decisions of the panel” nor “any law establishing its existence or setting out the rules by which it is supposed to operate.” So, absent a fortuitous leak (acts for which the Obama administration is vindictively doling out the most severe punishment), it would be impossible for American citizens to know that they’ve been selected for execution by President Obama (and thus obviously impossible to to assert one’s due process rights to stop it).

Worse still, if a judicial proceeding is commenced by a targeted American seeking to put a halt to the assassination attempt in the absence of a trial — as Awlaki’s father did, with the help of the ACLU and CCR, on behalf of his son — then the Obama DOJ will insist that the reasons for the assassination are “state secrets” and cannot be judicially examined, and independently, that such matters are for the President alone to decide and courts thus have no role to play in interfering with such decisions (see POINT II). American courts, largely deferential to claims of presidential secrecy and authority in the post-9/11 era, almost reflexively accept such claims. In other words, if a targeted American tries to assert these due process rights, the Obama administration will go into court and take exactly the opposite position of the one Panetta is claiming here: namely, that the person has no rights to have a court interfere in the President’s assassination order.

So for so many reasons, Panetta’s claim is utterly false: American citizens secretely targeted by President Obama for execution have no means of obtaining due process even in the unlikely case that they learn they have been so targeted. And this is all independent of Panetta’s warped notion that an American has to be on U.S. soil to claim constitutional protections, a wholesale rejection of well-settled Constitutional law that Americans have the right to travel abroad and, when they do, they retain their Constitutional rights against the U.S. government even when on foreign soil. As the Supreme Court put it in 1956, specifically discussing the requirement that a citizen be given a trial before punishment can be doled out (emphasis added):

At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution.  Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government.

But the final point is the most important and revealing of all: Panetta’s whole case rests on simply asserting, without proving, that Awlaki was a Terrorist trying to “kill Americans.” That, of course, is precisely what is in dispute: actual Yemen experts have long questioned whether Awlaki had any operational role at all in Al Qaeda (as opposed to a role as its advocate, which is clearly protected free speech). No evidence has been publicly presented that Awlaki had any such role. We simply have the untested, unverified accusations of government officials, such as Leon Panetta, that he is guilty: in other words, we have nothing but decrees of guilt. The U.S. Constitution, first and foremost, was designed to prohibit the doling out of punishments based on government accusations untested and unproven in a court of law; for those who doubt that, just read the relevant provisions (“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court“; “No person shall be deprived of life, liberty, or property, without due process of law”).

But as I wrote the other day, “the U.S. really is a society that simply no longer believes in due process: once the defining feature of American freedom that is now scorned as some sort of fringe, radical, academic doctrine.” Instead:

Supporters of both political parties endorse, or at least tolerate, all manner of government punishment without so much as the pretense of a trial, based solely on government accusation: imprisonment for life, renditions to other countries, even assassinations of their fellow citizens. Simply uttering the word Terrorist, without proving it, is sufficient.

Here we have the U.S. Defense Secretary, life-long Democrat Leon Panetta, telling you as clearly as he can that this is exactly the operating premise of the administration in which he serves: once the President accuses you of being a Terrorist, a decision made in secert and with no checks or due process, we can do anything we want to you, including executing you wherever we find you. It’s hard to know what’s more extraordinary: that he feels so comfortable saying this right out in the open, or that so few people seem to mind.

* * * * *

ABC News‘ Jake Tapper pressed White House spokesman Jay Carney back in October about the evidence the administration possesses showing Awlaki’s guilt, and the same authoritarian decree issued: we have said he’s a Terrorist and that is all that is necessary.

Glenn Greenwald
Follow Glenn Greenwald on Twitter: @ggreenwald.More Glenn Greenwald

US Supreme Court Deals Mortal Blow to Privacy June 5, 2011

Posted by rogerhollander in Civil Liberties, Criminal Justice.
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Published on Sunday, June 5, 2011 by the Atlanta Journal-Constitution

Last month, the United States Supreme Court, in an 8-1 decision in the case of Kentucky v. King, told the police in our nation that they may break into a home without a warrant if they believe that the occupants might be in the act of destroying evidence.

Only Justice Ruth Bader Ginsberg realized that this might be the last nail in the coffin of one of the most important personal protections left for Americans. While the politicians in Washington are fiddling away our economic security, the Supreme Court has lit a match that will burn up what is left of the right of privacy and the Fourth Amendment’s protections against unreasonable searches and seizures.

While the tax-avoiding patriots were dumping taxable tea in the harbor at Boston, men like Patrick Henry and John Adams were more concerned, and rightly so, with the loss of personal liberties in the Colonies.

Perhaps none of the “protective” amendments to the U.S. Constitution has as much connection with the events leading up to the American Revolution against England and its king than does the Fourth Amendment.

This amendment, more than all of the other “Bill of Rights,” is directly associated with specific acts that led, ultimately, to the call for a complete break from England and for the establishment of a separate nation.

Perhaps the most succinct observation about the dichotomy between those who see a continuing erosion of the Fourth Amendment and those who see it as an impediment to law enforcement officers and prosecutors can be found in a more reasoned Supreme Court decision from 1948. In that opinion, the court stated:

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence … [it demands that] the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”

In February 1761 in Boston, there was a widely publicized debate over the issuance of general, limitless search warrants called Writs of Assistance. James Otis, a lawyer in Colonial Massachusetts, in a famous 1761 debate, condemned the use of these general search warrants, declaring them to be untenable in a land of free men.

But he did make a suggestion that later formed the basis for part of the Fourth Amendment. He suggested that any lawful searches be made only pursuant to warrants that contained explicit restrictions as to where the search was to take place and to the objects of the search, and that the warrants be issued only upon the making of specific oaths by the person seeking to carry out the search.

Patrick Henry followed the news reports of the debate over the use of these general search warrants (those authorizing searches at any time the holder of the search warrant deemed it necessary to search someone’s home or business) and he also argued against the abuses of such writs of assistance.

In 1778, during the constitutional debates before passage of the Bill of Rights, he argued for congressional consideration of a series of amendments to the constitution, one of which guaranteed the security of the citizenry against unreasonable government searches. This proposed amendment quite clearly presupposed that an “unreasonable” search could be avoided only by use of a warrant, and only if that warrant met certain standards.

After the adoption of the Fourth Amendment there appeared to be a general understanding of the nature and extent of the protections afforded citizens from searches without proper judicial warrants.

Up until the Supreme Court’s decision in Kentucky v. King, there was a general acknowledgment that the Fourth Amendment is a living creation with the ability to adapt its protections to new and ever-changing technology. Despite some erosion of the historical protections found in the Bill of Rights, there has been the hope that the Supreme Court would continue to regard the Fourth Amendment as necessary to protect citizens from the government.

Unfortunately, eight members of the present Supreme Court have decided that the Fourth Amendment is nothing more than a historical relic that has outlived its welcome in our “free” society.

© 2011 The Atlanta Journal-Constitution



Michael Mears
 Michael Mears, an associate professor of law at Atlanta’s John Marshall Law School, is the former director of the Georgia Public Defender Standards Council

The Largest Prison Strike in American History Goes Ignored By US Media December 23, 2010

Posted by rogerhollander in Criminal Justice, Human Rights, Media.
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By Joe Weber Thursday, December 16, 2010


Today marks the end of a seven-day strike where tens of thousands of inmates in Georgia refused to work or leave their cells until their demands had been met. The odd thing is, that until today, no one had ever heard about this strike.

Inmates in ten Georgia prisons, Baldwin, Hancock, Hays, Macon, Smith and Telfair State Prisons, to name a few, went on strike last Thursday to protest their treatment and demand their human rights.

According to an article by Facing South, Department of Corrections have been nervous about deteriorating conditions in Georgia’s prisons since early 2010. Wardens started triple bunking prisoners in response to budget cuts—squeezing three prisoners into cells intended for one. Prison officials have kept a watchful eye out for prisoners meaning to riot, for prisoners’ rights lawyers to litigate, or both.

Poor conditions and substandard medical care are also on the inmates’ list of demands. However, the jailed’s main gripe seems to center on landing recognition as workers entitled to fair pay.

As it goes, prisoners in Georgia are forced to work without pay for their labor—seemingly a violation of the 13th Amendment, which prohibits slavery and involuntary servitude.

For months the prisoners had apparently used cell phones to get in touch with inmates from other prisons, organizing a non-violent strike. The outcome began the morning of Dec. 9—by Dec. 13 the GDC issued a statement that four prisons were completely on strike.

An interview with one of the strike leaders revealed that every group of inmates in the prison had been working together. “They want to break up the unity we have here,” said an anonymous strike leader in an interview with the Black Agenda Report. “We have the Crips and the Bloods, we have the Muslims, we have the head Mexicans, and we have the Aryans all with a peaceful understanding, all on common ground.”

The largest prison strike in American history seems like a topic ripe for the press, however there was no mention of it anywhere in mainstream media. Smaller outlets like Black Agenda Report and Facing South (Institute for Southern Studies) have been covering the strike since day one.

Perhaps there was a larger hand at play—one that did not want the deplorable conditions of the Georgia prison system to surface. If Wikileaks has taught us anything, it is that the revolution will be televised.

The prisoners demands:

  • A LIVING WAGE FOR WORK: In violation of the 13th Amendment to the Constitution prohibiting slavery and involuntary servitude, the DOC demands prisoners work for free.
  • EDUCATIONAL OPPORTUNITIES: For the great majority of prisoners, the DOC denies all opportunities for education beyond the GED, despite the benefit to both prisoners and society.
  • DECENT HEALTH CARE: In violation of the 8th Amendment prohibition against cruel and unusual punishments, the DOC denies adequate medical care to prisoners, charges excessive fees for the most minimal care and is responsible for extraordinary pain and suffering.
  • AN END TO CRUEL AND UNUSUAL PUNISHMENTS: In further violation of the 8th Amendment, the DOC is responsible for cruel prisoner punishments for minor infractions of rules.
  • DECENT LIVING CONDITIONS: Georgia prisoners are confined in over-crowded, substandard conditions, with little heat in winter and oppressive heat in summer.
  • NUTRITIONAL MEALS: Vegetables and fruit are in short supply in DOC facilities while starches and fatty foods are plentiful.
  • VOCATIONAL AND SELF-IMPROVEMENT OPPORTUNITIES: The DOC has stripped its facilities of all opportunities for skills training, self-improvement and proper exercise.
  • ACCESS TO FAMILIES: The DOC has disconnected thousands of prisoners from their families by imposing excessive telephone charges and innumerable barriers to visitation.
  • JUST PAROLE DECISIONS: The Parole Board capriciously and regularly denies parole to the majority of prisoners despite evidence of eligibility.

The Day of the Dead May 26, 2009

Posted by rogerhollander in Civil Liberties, Criminal Justice, Democracy, Iraq and Afghanistan, War.
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Monday 25 May 2009, www.truthout.org

by: Cindy Sheehan, t r u t h o u t | Perspective

I was on an airplane flying to Orange County from Sacramento to attend the al-Awda Conference, which is a Palestinian Right’s Conference (al-Awda translates to “The Returning”), when the pilot’s voice filled the cabin to make an announcement that I think went unnoticed by most of my fellow passengers, but I heard it.

    As the plane was on the approach to John Wayne airport, the Captain came on the intercom to remind us all to “remember our brave troops who have died for our freedom.” Even in this post 9-11 paranoid paradigm, if I wasn’t belted in for landing, I would have popped out of my seat at 13D and charged up to the cockpit to let the pilot know that my son was killed in Iraq and not one person anywhere in this world is one iota more free because he is dead.

    As a matter of fact, the people of Iraq, the foreign country thousands of miles away where my oldest child’s brains, blood and life seeped into the soil, are not freer, unless one counts being liberated from life, liberty and property being free. If you consider torture and indefinite detention freedom, then the pilot may have been right, but then again, even if you do consider those crimes freedom, it does not make it so.

    Here in America we are definitely not freer because my son died, as a matter of fact, our nation can spy on us and our communications without a warrant or just cause, and we can’t even bring a 3.6 ounce bottle of hand cream into an airport, or walk through a metal detector with our shoes on. Even if we do want to exercise our Bill of Rights, we are shoved into pre-designated “free speech” zones (NewSpeak for; STFU, unless you are well out of the way of what you want to protest and shoved into pens like cattle being led to slaughter), and oftentimes brutally treated if we decide we are entitled to “free speech” on every inch of American soil.

    If you watch any one of the cable news networks this weekend between doing holiday weekend things, you will be subjected to images of row upon row of white headstones of dead US military lined up in perfect formation in the afterlife as they were in life. Patriotic music will swell and we will be reminded in script font to “Remember our heroes,” or some such BS as that.

    Before Casey was killed, a message like that would barely register in my consciousness as I rushed around preparing for Casey’s birthday bar-be-que that became a family tradition since he was born on Memorial Day in 1979. If I had a vision of how Memorial Day and Casey’s birthday would change for my family, I would have fled these violent shores to protect what was mine, not this murderous country’s. Be my guest; look at those headstones with pride or indifference. I look at them now with horror, regret, pain and a longing for justice.

    I can guarantee what you won’t see this holiday weekend are images of the over one million Iraqi dead. Say we assign, in an arbitrary way for purely illustrative purposes, an average height of five feet for every person killed in Iraq and then line those people up from head to toe. That gruesome line would stretch from Los Angeles to Portland, Oregon… 950 driving miles up Interstate 5. If we count the Iraqis who have been forced to flee, we would have to go back and forth between Los Angeles and Portland another four times.

    There are obscene amounts of people who have been slaughtered for the US Profit Driven Military Empire who do not count here in America on any day. People in Vietnam are still dying from the toxins dumped on their country by the US, not to mention the millions who died during that war. Let the carnage escalate in Afghanistan while we protect our personal images by turning a blind eye to Obama’s war crimes. Are you going to feel a lump of pride in your bosom when the coffins start to be photographed at Dover for this imperial crime of aggression? Will you look at those flag-draped boxes of the lifeless body of some mother’s child and think: “Now, I am free.” Is it better to be dead when Obama is president?

    A tough, but real, aspect of this all to consider is, how many of the soldiers buried in coffins in military cemeteries killed or tortured innocent people as paid goons for the Empire? To me, it is deeply and profoundly sad on so many levels. If I have any consolation through all of this, I learned that my son bravely refused to go on the mission that killed him, but he was literally dragged into the vehicle and was dead minutes later – before he was forced to do something that was against his nature and nurture.

    Casey will always be my hero, but he was a victim of US Imperialism and his death should bring shame, not pride, as it did not bring freedom to anyone. I will, of course, mourn his senseless death on Memorial Day as I do every day.

    However, we do not need another day here in America to glorify war that enables the Military Industrial Complex to commit its crimes under the black cloak of “Patriotism.”

    From Palestine to Africa to South America, our quest for global economic domination kills, sickens, maims or oppresses people on a daily basis, and about 25,000 children per day die of starvation. I am not okay with these facts and I am not proud of my country.

    I will spend my reflective time on Memorial Day to mourn not only the deaths of so many people all over the world due to war, but mourn the fact that they are the unseen and uncared for victims of US Empire.


Cindy Sheehan is the mother of Spc. Casey Sheehan, who was killed in Bush’s war of terror on 04/04/04. She is the co-founder and president of Gold Star Families for Peace and the Camp Casey Peace Institute. She is the author of three books; the most recent is “Peace Mom: A Mother’s Journey Through Heartache to Activism.” Following an unsuccessful challenge to House Speaker Nancy Pelosi, Sheehan launched a radio show on 960AM in the San Fransisco Bay Area that can also be heard on Soapbox.com.

Backlash grows against Obama’s preventive detention proposal May 25, 2009

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Uncategorized.
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Glenn Greenwald
www.salon.com, May 25, 2009
(updated below – Update, Update II )
The backlash against President Obama’s extraordinary proposal for indefinite “preventive detention” — already widespread in the immediate aftermath of his speech — continues to grow.  On Friday, Sen. Russ Feingold sent a letter (.pdf) to Obama which, while praising some aspects of his speech, vowed to hold hearings on his detention proposal, and in the letter, Feingold rather emphatically highlighted the radical and dangerous aspects of Obama’s approach:

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.
While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world.  It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.
You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues.

Feingold’s last point — that the more Obama embraces radical Bush/Cheney polices, the more entrenched they become as bipartisan consensus — is critically important, and extends to other policies as well, from the use of state secrets to block judicial review of executive branch lawbreaking, the concealment of evidence of government crimes, the veneration of “looking-forward political harmony” over the rule of law in cases of extreme government lawbreaking, and the denial of habeas corpus rights to individuals we abduct and transport to a war zone (such as Bagram).
On Twitter on Friday, Rachel Maddow pointed to the civil liberties questionnaire from Charlie Savage which Obama answered during the Democratic primary and asked rhetorically:  “This is the same guy now proposing ‘prolonged detention’ without trial?”  The New York Times‘ William Glaberson wrote that Obama’s detention policy “would be a departure from the way this country sees itself”; observed that “in some countries, it is called ‘administrative detention,’ a designation with a slightly totalitarian ring”; and quoted the Center for Constitutional Rights’ Michael Ratner as pointing out that “holding detainees domestically under a new system of preventive detention would simply ‘move Guantánamo to a new location and give it a new name.'”  And on Meet the Press this Sunday, the same bizarre (though entirely understandable) pattern continued to assert itself whereby the hardest-core followers of George Bush can barely contain their admiration for Obama’s “counter-terrorism” policies (National Review‘s Rich Lowry:  “it’s kind of a funny debate because Obama has embraced the essentials of the Bush counterterrorism program. I think that program worked, I think it’s wise of him to do that and it, it reflects some admirable kind of flexibility and pragmatism”).
It’s a bit difficult to claim that what Obama is proposing is nothing new, nothing out of the ordinary, given that his own White House Counsel just last February told The New Yorker‘s Jane Mayer that it would be “hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law.”  As acknowledged by two of the leading proponents of preventive detention — Bush OLC lawyer Jack Goldsmith and Obama’s Deputy Solicitor General Neal Katyal — the real purpose of preventive detention (contrary to what some are arguing) is not to classify and treat all detainees as “prisoners of war” (since some of them, by Obama’s own description, will get trials in real courts and others in military commissions), but rather, to give “the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates” (h/t EJ).  I defy anyone to re-read that description of what this “preventive detention” system does and then claim that what is being described is a “justice system” in any meaningful sense of that term.
* * * * * 
On Friday, I spoke with the ACLU’s Ben Wizner about these issues and the transcript is here.
UPDATE:  In this morning’s New York Times, the aforementioned Charlie Savage examines Obama’s choice to replace David Souter on the Supreme Court in the context of executive power, noting that while Obama has rejected some of the most extreme Bush legal theories, his embrace of many of the same policies — denial of habeas rights at Bagram, revised military commissions, preventive detention — places Obama on what Savage called “his own collision course with the court.”
As Savage notes, Souter was a very reliable vote in favor of placing some limits on Bush’s executive power assertions (which were almost invariably 5-4 decisions against Bush).  Thus, replacing Souter with a justice who is more receptive to broad claims of executive power could shift the balance of the court on these questions.  
Savage examines the record, which reveals that one leading candidate — Seventh Circuit Court of Appeals Judge Diane Wood — has some very impressive past statements that demonstrate her recognition of the need to impose real limits on executive power, including what would appear to be her opposition to Obama’s just-announced plan for military commissions (“‘the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business,’ [Wood] wrote”).  By contrast, Obama’s Solicitor General — Elena Kagan — has, as Law Professor Darren Hutchinson also documents, repeatedly endorsed broad theories of executive power of the type that would fit in nicely with Bush’s OLC circa 2004.
That Obama may be motivated to seek out a Justice with much more permissive views of executive power than those to which the Bush-41-appointed Souter subscribed — all in order to ensure that the Court approves of his “counter-terrorism” policies — simply underscores the irony of what Obama is doing in this area.
UPDATE II:  When he introduced his proposal for preventive detention during  Thursday’s speech, Obama said he wants to “work with Congress to develop an appropriate legal regime, that our efforts are consistent with all values and our Constitution.”  But as CQ reports today (h/t EJ), key members of his own party are baffled by how any such preventive detention system could ever possibly be consistent with the Constitution:

President Obama may not get a lot of help from Congress in designing the detention system he says he wants: something that can hold people who haven’t committed any terrorists acts, but probably will, in a way that’s consistent with the Constitution.
So far, congressional Democrats have no idea how he can do that — which pretty much leaves him with the burden of figuring it out himself. . . .
The problem is, the congressional Democrats he’d consult on the issue don’t seem to have any suggestions for Obama on how to detain potentially dangerous people without violating the Constitution.
“I don’t know,” said House Judiciary Chairman John Conyers Jr. of Michigan, who would be likely to be involved in any discussions between Obama and Congress. . . .
Democratic Rep. Jim McGovern of Massachusetts gave Obama “credit for taking the issue on in a straightforward way,” but said only that “I’d be interested to see what he’s proposing” on a constitutional system of preventive detention. “Maybe he’s a smarter man than I,” McGovern said, but “I can’t think of a system that fits within the Constitution” . . . .
“That was one of the troubling moments in his speech, which was generally very strong on the rule of law,” said Sarah Mendelson, director of the Human Rights and Security Program at the Center for Strategic and International Studies. “Either you have committed a crime, and we’re prosecuting you, or you haven’t. I know there’s no silver bullet, believe me, but I think he’s got some mixed messages.”

If incarcerating people with no charges and no trial indefinitely — while making clear that the imprisonment will likely last decades — isn’t unconstitutional, then it’s hard to imagine what would be.


Human Rights Attorney Vince Warren: Obama’s “Preventive Detention” Plan Goes Beyond Bush Admin Policies May 25, 2009

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice.
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www.democracynow.org, May 22, 2009

We get reaction to President Obama and Vice President Dick Cheney’s dueling speeches on torture from Vince Warren, the executive director of the Center for Constitutional Rights. Warren took part in a secret meeting Wednesday between Obama and several human rights groups. Warren says although he welcomes Obama’s willingness to hear critical views, he’s disappointed in Obama’s new support for preventive detention.

AMY GOODMAN: Vince Warren joins us now. He’s in San Francisco, though he’s usually based in New York, executive director of the Center for Constitutional Rights. He met with President Obama earlier this week, the day before President Obama gave his speech at the National Archive yesterday.

Vince, welcome to Democracy Now! And start off—well, explain why this meeting that you, representing CCR, and other human rights groups had was supposedly originally a secret meeting. And then, what happened? And where did you meet? Tell us all the details.

VINCENT WARREN: Well, I’m not—still not allowed to talk about the substance of the meeting, but it was a meeting in which we met at the—in the Cabinet Room of the West Wing. And there were a number of high-level officials that were there at the meeting.

And what was sort of shocking about it is we were told that we should not at all talk about the meeting, but right promptly afterwards, the press started calling us, because the White House Press Office told everybody about the meeting.

But it was—in my sense, it was something that President Obama wanted to do to be able to talk and to hear our views, the views of some of the human rights organizations like CCR, and to really embrace his critics, which I think is a wonderful hallmark of this administration.

The problem is that he goes out the next day, and he has a speech in which he not only embraces the opposition, meaning George Bush’s policies, but then he comes out with things that even George Bush didn’t come out with, like preventive detention.

JUAN GONZALEZ: And, Vince, while you’re saying you can’t talk about the substance of the meeting, were you surprised at all, after the meeting you had, about the positions that he took, or did you have at least some indication that this was going to happen beforehand?

VINCENT WARREN: Well, with respect to how I felt about it, the military commissions piece was something that he had come out with earlier than the meeting. And so, the Center had opposed that very vigorously. You know, putting a few due process protections on an old George Bush policy is like rehabbing a house on a toxic waste site. You know, it really didn’t make a whole lot of difference. And you can’t make the military commissions better.

What was very surprising was to hear President Obama talk about what he called prolonged detention, but what I think we can all safely say is preventive detention, moving forward, the idea of detaining people not because they’ve committed a crime, but because of their general dangerousness or that they may commit a crime in the future. That’s something that the documents that President Obama was standing in front of, particularly the Bill of Rights and the Constitution, simply doesn’t permit. And when I heard that in his speech, I was deeply, deeply shocked that he would go in that direction.

AMY GOODMAN: Had he told you that the day before?

VINCENT WARREN: No, he hadn’t—he didn’t talk about his speech at all. We really didn’t have a sense of what was going to come the next day. And we didn’t discuss preventive detention. And I think what’s interesting about it is, for most people in the room, I suspect that that wasn’t even something that anybody was contemplating or really could conceive of. We haven’t heard that discussion for, you know, eight or nine months. And so, this was really the first time that we were confronted with it.

AMY GOODMAN: Vince, why can’t you talk about that meeting? Why is it off the record? Why is it supposed to be secret? And, well, that’s the question.

VINCENT WARREN: Yeah, well, you know, there are probably a couple of reasons. And one thing you can say is that the President wants to be able to have frank discussions with folks without the concern that those discussions will leak out to the press, and I think there’s some benefit to that.

You know, there’s another way to think about it, which is that President Obama wants to silence his critics. I don’t think that’s the sense, because all of the positions that I took in that meeting were positions that CCR had taken publicly before that meeting and certainly are positions that we’re still going to be taking after that meeting. So I’m not really sure what that is.

My view is that, in entering the meeting, I gave my word that I would keep the meeting confidential. And I take those things seriously.

JUAN GONZALEZ: And, Vince, your reaction to seeing former Vice President Cheney immediately afterwards with a speech that’s televised, the enormous pressure that has been coming on the Obama administration from some sectors of the Republican Party? The Vice President is actually being seen publicly a lot more now, the former Vice President, than he was when he was in office. And, of course, he said in his speech that those who criticize enhanced interrogation are practicing “recklessness cloaked in righteousness.”

VINCENT WARREN: Yeah. I really yearn for the day when I don’t have to turn on my television and see Dick Cheney talking. It’s been eight years of that, and I can’t believe that it’s still moving forward.

And, of course, you know, he’s done—he’s doing the same thing that the Republican machine has done ever since September 11th, is every time that there are policy discussions on the table, every time that they begin to lose the fight about what is legal and what is proper, they roll out the fear carpet, which, of course, he’s doing again.

And not only has he, you know, I fear, spooked this administration a little bit, but he’s also spooked the Congress. It’s outrageous that the Congress is playing this entire piece on the Republican battlefield.

The President said—you know, let’s focus on some of the good things. President Obama said that he was going to close Guantanamo in a year, and he should be applauded for that. But, of course, Congress is messing with that timeline fairly severely by not providing the funding for him to do that and by saying no one will be able to release to American soil, whether they’re in—they come as prisoners or detainees or they come as free people, which, of course, holds up the timeline for any types of trials that the administration wants to do. It doesn’t allow groups like the Uyghurs, the Chinese Muslims who everybody says pose no threat to anyone, to possibly be resettled in the United States, which they absolutely should. And when that doesn’t happen, it keeps the doors to Europe locked. So, the question is, with the Congress taking this stance, how is the administration going to close Guantanamo and send people who can be released back to where they came from or to third countries, or to try the people that can’t be released?

AMY GOODMAN: Vince Warren, I want to go to that issue of the Uyghurs, for people to understand what you’re talking about. A judge says they should be released immediately. The Chinese government doesn’t allow them back into China. So, where are they? And explain why this is such a good example of the argument of people being allowed into the United States?

VINCENT WARREN: The Uyghurs are a very, very interesting group. And we should start out by saying that there used to be more Uyghurs in Guantanamo than there are now. There were a group of Uyghurs that were released several years ago and are now living in Albania in a camp there, posing no threat to anyone. The remainder of the group are still in Guantanamo. But, of course, the factual circumstances of the people in Guantanamo are the same factual circumstances of the people that were released to Albania. And, of course, it’s just a hallmark of the Bush era that they would release some people but not release others.

So now we have court cases in which we’ve gotten orders that the Uyghurs should be released or can be released. And first the Bush administration and now, it appears, the Obama administration, in terms of their legal position, has been opposing that. So we’re in a situation where the Uyghurs fall into, I believe it was, the third category of detainees that President Obama talked about, when these are people that have been released—ordered released by courts, but right now what makes it difficult is that China doesn’t want them back, and then no other country wants to take them, because they fear getting into a tangle with China.

So this has completely politicized a situation that has fallen on the backs of innocent men who have been in Guantanamo for years. And no one, especially not Congress, is stepping up to do anything about it.

What we need to do is to release the Uyghurs into a Uyghur community into the United States. That will then unlock the door to Europe to take a whole range of other people that should be released, some that have ordered been released and some that have been cleared for release by the Bush administration that are sitting in Guantanamo right now.

AMY GOODMAN: President Obama’s opposition to an independent commission?

VINCENT WARREN: That was an interesting discussion, because our view at the Center for Constitutional Rights is that the purest form of accountability is criminal prosecution. We don’t oppose a commission at the Center for Constitutional Rights, one in which there’s subpoena power, in which criminal charges can come, and there’s no amnesty.

But what I found interesting is that President Obama opposed blue ribbon commissions like the 9/11 Commissions, but at least in his discussion seemed to leave open the possibility of criminal prosecution, by saying that the existing part of the democracy, the Justice Department, has the full ability to investigate folks. So, I found it a little bit interesting. I think that there’s room there for a criminal investigation, and I certainly think that accountability and transparency go hand in hand.

And to the extent that this administration is agreeing to release documents and release information as a subject of our lawsuit and the ACLU lawsuit and to the extent that those documents show criminal activity, it’s beholden—it behooves this government to start criminal investigations of the very information that they’re releasing to the public. You can’t just put it out there and pretend it doesn’t exist.

JUAN GONZALEZ: Vince Warren, I want to play one more part of former Vice President Dick Cheney’s speech yesterday and then get your response.

    DICK CHENEY: Over on the left wing of the President’s party, there appears to be little curiosity in finding out what was learned from the terrorist. The kind of answers they’re after would be heard before a so-called truth commission. Some are even demanding that those who recommended and approved the interrogations be prosecuted, in effect treating political disagreements as a punishable offense and political opponents as criminals. It’s hard to imagine a worse precedent filled with more possibilities for trouble and abuse than to have an incoming administration criminalize the policy decisions of its predecessor.


JUAN GONZALEZ: Vince Warren, your reaction to former Vice President Dick Cheney calling this an issue of political disagreements?

VINCENT WARREN: That is a tremendous amount of nonsense. This is not a political disagreement. What has happened here, this is arguably some of the worst and notorious criminal activity committed by government officials in the history of the United States.

So, what we really need to be focusing on is, once the criminal activity is exposed, what is this administration going to do about it? This is not about partisan wrangling in the Beltway. This is not about respectful policy disagreements. This is about torture. This is about illegal activity that was engaged in by members of the administration and military operatives and CIA operatives under the Bush administration. And it is absolutely beholden on this administration, and in fact required under Article IV of the Geneva Conventions, once this information is out there, specifically around torture, to begin an investigation. It’s not a question of “if”; it really is a question of when he’s going to do it.

JUAN GONZALEZ: And on a related note, what’s your reaction to the report that came to light this week, the Pentagon report that one in seven former detainees at Gitmo who were released have gone back to terrorist activities?

VINCENT WARREN: Yeah. Juan, every couple of months, the Department of Defense rolls out these statistics of who’s gone back to the battlefield. I have a couple of comments on that. Number one, they’ve never been specific, for the most part, about who these detainees are. Number two, when you look at the going-back-to-the-battlefield rhetoric, they talk about a range of things. They talk about people who may have taken arms up against the US, but they also talk about people that support people that take arms up against the US. So, theoretically, you can be one of those people on the Department of Defense list if you are consorting with people who have expressed that they want to take up arms against the United States. And so, the devil is in the details in these numbers.

And I think the important piece is this: they are way over-inflated. We’ve never gotten any details of this. Interestingly enough, this document has been the subject of a Freedom of Information Act suit for a very long time, and we still haven’t gotten it. But they like to roll out those numbers.

And I think, finally, the thing that’s important is I am convinced that the specter, the fact of Guantanamo, generates more dangerous people than the number of people that have ever been released. For every one person that may go back to the battlefield or may harbor ill will towards the United States, those number—the people that are beginning to do that for every day that people are held in Guantanamo far out-cede that—outweigh that. And so, the issue really isn’t about who’s going back to the battlefield; the issue is, who are we going to prevent from going to the battlefield in the first place by doing the right thing in the United States?

AMY GOODMAN: Vince Warren, I want to thank you very much for being with us, executive director of the Center for Constitutional Rights.

The Constitution is Unconstitutional August 22, 2008

Posted by rogerhollander in Political Essays (Roger), The Constitution is Unconstitutional.
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(I recently got a hold of a copy of the United States Constitution, and I read it from cover to cover – it’s not that long a document.  I remember having had to memorize the preamble when I was a student.  It is quite an idealistic statement; and it is too bad that neither the Constitution itself nor the general thrust of our nation’s history come near to living up to it.  In my humble opinion, of course.)



They bought and sold human flesh, had a profound mistrust of anyone who didn’t own real property, and were misogynist to the core.  Their only redeeming characteristics were a healthy disdain for organized religion and feudal nobility.  Surely you will recognize their names: Nicholas Gilman, Jonathan Dayton, George Clymer, Richard Basset, Daniel of St. Thomas Jenifer, and Richard Dobbs Spright, et. al. 




Signers of the Constitution of the United States.  Our revered Founding Fathers.


In high school they had us memorize the Preamble to the Constitution, an eminently noble document; and I can only speculate whether it might have been the intention of its authors, perhaps unconsciously, for its stunning idealism to lull the reader into a state of tranquility so as to lose sight of some of what followed.


It jumps right out at you on page one of the United States Constitution – Article I, Section 2, “Representatives and direct Taxes shall be apportioned among the several states … according to their respective numbers, which shall be determined by adding to the whole Number of free Persons …three fifths of all other Persons.” “Other Persons?”  What could our noble Founding Father possibly have meant by that?  Oh, yes, I forgot: slaves.  Today we call them Afro-Americans.


The meaning and impact of counting of slaves (those “Other Persons” so dearly important to the nation’s economy at the time) is often misunderstood.  It is not, as it appears on the surface, that slaves were considered two fifths less than human.  It’s worse than that.  Much worse.  The Constitution allocated to its resident slaves not three-fifths, but rather zero rights.  As human beings they were “worth” nothing, not three fifths.  The reason they jacked them up to three fifths of a person in the Constitution was only so that those who governed the Southern slave states –their Masters – could have a larger number of representatives in the House of Representatives (where a state’s number of representatives is determined by that state’s population).  This, of course, had the effect of giving the Southern slave states more political power.  Three fifths of the slaves’ bodies were thereby enshrined in the Constitution so that those who rule them could have more power to deny their very existence as human beings, consider them property, and deny human rights not only to their bodies, but to their minds and souls as well.


It was a classic and tragic case of adding insult to injury.


The Civil War and the Fourteenth Amendment put an end to that little indignity, but, there are others.  The disenfranchisement of women, for example, until the Nineteenth Amendment put an end to that political peccadillo in 1920, seven years after the guys gave themselves the right to dun our paychecks with the Sixteenth Amendment.  You can see where the priorities lie.


Whereas in recent years Americans have become painfully aware of the Constitutionally ordained method for choosing their president through the arcane and Byzantine Electoral College and the winner-take-all principle of presidential primaries (thereby in effect potentially disenfranchising up to 49.9% of the voters in any given state), there exists what in my estimation is the most unjust and undemocratic principle written into our Constitution, and it is still there, and hardly anyone ever notices the implications, and it is virtually unamendable.  I refer to the institution of the Senate of the United States of America.


There it is again in Article I.  Section 3 reads simply, “The Senate of the United States shall be composed of two Senators from each State …”   Fifteen of the most undemocratic words you will ever read.  Perhaps only second to the President him or herself (some day), the U.S. Senate has emerged as one of the most powerful institutions in the country.  Its responsibilities are roughly parallel to those of the House of Representatives (known, significantly, as the “lower” house), but its powers to “advise and consent” on Presidential appointments give the Senate a great deal of extra leverage.  And given that there are nearly five times the number of Representative than Senators, it gives each individual Senator just that much more power.


Consider how radically undemocratic is the United States Senate.  California with a population of roughly thirty five million gets two measly Senators.  One for every seventeen and a half million citizens.  Wyoming, with its population of a half million, gets the same number as senators as California, one for every two hundred and fifty thousand citizens.  That gives the Wyoming voter seventy times more senatorial power than the California voter.  Not exactly consistent with the “one person one vote” principle.  How this works in practice is even scarier.  Traditionally Southern and rural states have been able to frustrate the will of the majority of Americans through its manipulation and control of the Senate.  Their members accrued seniority and exercised power though the Senate’s inviolable Old Boy seniority system.  This phenomenon was to a great extent responsible, for example, of maintaining racial segregation in the United States from the end of Reconstruction in the 1870s until the Supreme Court stepped in 1954, and the Civil Rights Movement pressured the Congress into enacting the Civil Rights Act of 1964.


That has been the practice.  In theory it could be even worse.  The population of the United States is approximately 290 million.  The largest 25 states (population-wise) make up a full 240 million of that (the population of California and Texas and New York combined is roughly equivalent to the population of the 32 smallest states: in the Senate, 6 votes versus 64).  Therefore, representatives (overwhelmingly male and White to this day) of little more than 50 million Americans could in theory constitute a majority in the Senate and frustrate the will of the remaining 240 million.  While it may never reach this extreme, it has and will continue to give drastically disproportionate power to a minority of Americans.


And guess what?  It will probably never change.  The British and Canadians, our two closest ideological neighbors, have made the British House of Lords and the Canadian Senate – their two “upper houses” – into largely ceremonial bodies.  We could do the same, you exclaim.  Thank God for the Amendment provision.  Think again.  I am no constitutional scholar, but what can Article V. of the Constitution mean if not an undemocratic Senate in perpetuity?  It reads, “…no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” (my emphasis).  Can you imagine in your wildest dreams a State giving up its Senatorial votes?  I have nothing against Wyoming, but really.


I choose to judge the Constitution by its own Preamble, which reads in part, “We the people of the United States, in order to … establish Justice.”  They capitalized “Justice.”  A nice touch, but I would prefer the substance to the image.


You will not find political parties mentioned in the Constitution, but they soon appeared in full force with the election of the second U.S. President, John Adams in 1796.  By and large there have always been two predominant parties, although they have changed names and philosophies over the years.  This has had the effect of limiting choice and discriminating against visionary points of view.  It certainly has favored moneyed interests, given the huge costs of election campaigning, and the lack of teeth in campaign spending legislation.  The Founding Fathers would have had no problem with this.  They were big on property and money.  It just took them a few years to get their act together.  Historians and politicians and pundits speak proudly of our two party system.  Along with our perfect self-correcting Constitution, they say, it provides for stability. 


Oh, in this era of Clintonian “Republicrat-ism” and King Bush the Second’s hijacking of the presidency, how one longs for a little political instability.


And, what is more, nowhere in the Constitution do we see the words “checks and balances,” that principle we were taught in high school civics classes that the Constitution reflects in creating the three branches of government: Executive, Legislative, and Judicial.  This is the principle that is supposed to guarantee democracy forever and make revolutionary change anachronistic. What it doesn’t account for is a single political party gaining effective control over the three branches.  It’s bad enough when a single party controls both the Congress and the Presidency, which combine to make and enforce our Laws, including laws about how we vote, how electoral districts are drawn, how population is counted, etc. (was anyone surprised that President George W. Bush didn’t veto the redistricting legislation that gave the Republican party additional seats in his home state of Texas?).  But when the Supreme Court is in their back pocket as well (in 2000 they stopped the vote count in Florida when their boy was ahead), is there really that much left of our treasured Constitutional Democracy?


Our country was born in revolution.  Today “revolution” is a dirty word.  We have been indoctrinated into believing that our Constitution protects us forever and ever against tyranny and injustice. 


Here’s what the Declaration of Independence says:


“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness … That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness … when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”


Did I read the word “duty?”  Did I just see the Declaration of Independence telling us that revolution is not only the People’s right but their duty?


Al Gore, not exactly a wild-eyed left wing radical communist, in a Martin Luther King Day speech a couple of years ago, made just that argument about the current George W. Bush government, that it may have rendered our democracy despotic beyond democratic repair.  It is a speech worth reading.


Many treat the United States Constitution the way fundamentalist Christians treat the Bible, that is, as an infallible document.  This ignores the reality that it is human beings collectively who, for better or for worse, control their own destiny.  As Shakespeare said, “It is not in the stars.”  No political system, including and especially democracy in a world of capitalist economics, is infallible.  The deeper truth that we must not forget is that the price of liberty lies not in a piece of paper, however elegant, but in eternal vigilance.