Chairman: Senate Judiciary Committee
New York Times-Friday November 2,2002
"BUSH, DEFENDING JUSTICE NOMINEE, SEES UNFAIRNESS"
Your problem, Senator, is not with Judge Makasey whether he thinks waterboarding is torture or not; your problem is dealing with a defective and outdated constitution.
I quoted Thoreau in my first blog with reference to the Constitution's relative importance: "Seen from a lower point of view, the Constitution, with all its faults, is very good; the law and the courts are very respectable; even this State and this American government are in many respects, very admirable and rare things, to be thankful for, such as a great many have described them; but seen from a point of view a little higher, they are what I have described them; seen from a higher still, and the highest, who shall say what they are, or that they are worth looking at or thinking of at all?"
You, Bush, Cheney, the Democratic and Republican candidates, everybody in D.C. keeps referring to "The Constitution," an 18th century horse-and-buggy, musket and cannonball document, as if it were the Holy Grail, immutable, absolute and eternal. (It took three months for President Washington to get a letter to his Ambassador in France, Ben Franklin, a period when England, France and Spain were eager to take on the states one-by-one with their man-à-wars.)
Your problem, Senator, is Article II, Section 2 of the Constitution which Patrick Henry declared treasonous and huffed out of the continental congress complaining that it bestowed on the president "discretionary powers" in time of war when wearing his Commander-in-Chief hat which put him in command of the army and navy "in the actual service of the United States."
In brief, that article contradicted the original premise of popular sovereignty.
Yesterday, Bush stated that "on too many issues, Congress is behaving as if America is not at war." And that's the clue to your present dilemma, Senator, for you and the whole Democratic caucus, and, indeed, for the entire United States constituency. Since September 11, 2001 he (and proxy Cheney) is wearing his Commander-in-Chief war bonnet. And does he love it! All manic-depressives do. But his power "umbilical" cord is attached firmly to "father" Cheney's suspenders.
James Madison, bless his immortal soul, knew that Article II, Section II was a deadly compromise to the democratic principle or popular sovereignty, the Achilles heel of the document. But hey, in 1787, someone had to speak for the new-born nation vis-à-vis those ancient fictions with their armed might, England, France and Spain, not to mention all the other smaller if established political nations beyond the shores.,
So what did this Greek-speaking political genius (4th U.S. president) do to offset the new president's unilateral, absolute war powers. I know you know but I also know you can't use it as the Chairman of the Judiciary Committee or even as a U.S. senator and that is at the bottom of your frustration with Mukasey's testimony. It is, of course, the 9th amendment to the Constitution, that almost unknown and neglected reference to "unenumerated rights retained by the people." (See my blog #1, "The Hidden 9th Amendment").
You are already "inside" the Constitution's mandates whereas Madison, still "outside" as a Virginia citizen but not yet a United States citizen in a sort of political vacuum about to be filled, proved to be a veritable "citizen of the world" in that the 9th Amendment, in referring inalienable rights BACK TO THE PEOPLE, was acknowledging that THAT'S WHERE THEY CAME FROM IN THE FIRST PLACE!
In other words, he made sure that the US Constitution derived its sovereignty from the sovereign people and not ever from the president as "Commander-in-Chief" even in time of war when he (or she) was speaking and defending the state AND NOT THE PEOPLE. The people, however, had to RECLAIM that sovereignty whenever the central government denied it. How? By exercising the prime right of political choice as did the Founders!
And this is your dilemma as well as every single United States' government official, including, ironically, Supreme Court judges. So, from the outset, the US Constitution contained and enshrined this basic contradiction of sovereign power. Why indeed did Bush (and his clan) "declare" a "war on terrorism" when clearly there was no real enemy "out there" beyond the shoreline? Both he and Cheney, especially Cheney, had to try on that war shroud. "Power corrupts; absolute power corrupts absolutely." Hence Bush's talk about World War III using Ahmadinejad as the patsy. (See my last blog). Bush's fingers rigidly fixed directly above 3,000 hair-triggered nuclear missiles are itching to give them a final push before he (and the rest of humanity) "leaves office."
Go back, Senator, to that day when you took your oath of allegiance as US Senator. Remember "I swear to defend the Constitution against all enemies, foreign and domestic so help me God"? It was the same one George Washington swore to and 220 years later all would-be US citizens swear to today, including Supreme Court and all other judges. In this 21st century when a Space Station, communication satellites, the internet, etc., etc. have totally collapsed time and distance BETWEEN US HUMANS, this 18th century political con game continues to threaten humanity in the name of "national security."
Whether Mukasey becomes Attorney-General or not doesn't change the ultimate game of war or peace given the condition of anarchy between nation-states. Only world law, as Einstein, among others. stated, can do that.
Tom Paine spelled it out over 200 years ago: "Every age and every generation must be free to act for itself in all cases as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insulting of tyrannies. The circumstances of the world are continually changing and the opinions of men also change. And as government is for the living and not the dead, it is the living only that has any right in it. That which may be thought right and found convenient in one age may be thought wrong and found inconvenient in another."