DEMOCRATIC IDEAS, XIII: CONTROLLING THE AGENDA

Column No. 123 By Steven Jonas, MD, MPH - SEPTEMBER 28, 2006

Here’s a multiple choice question for you.  The key to winning elections in the United States is: a) money, b) incumbency, c) issues, d) personality, e) control of the agenda, f) all of the above.

Yes, it is “all of the above.”  But in my view, so many Democratic candidates, indeed many too many Democratic candidates, lose sight of “e.”  For the contemporary Republican Party it is an absolutely essential arrow in their quiver.  Although the understanding of the importance of controlling the agenda began with Lee “Willie Horton” Atwater, the art has been developed to its highest level under his primary acolyte, Karl Rove.  He couldn’t do it without the Democrats falling into the trap every time, but he weren’t setting the traps, the Democrats couldn’t fall into them.

On the macro level consider 2000.  When the focus should have been on the vast differences a Bush Presidency would bring to our country, Rove was able to make it “Bush is not Clinton and Gore is.”  In 2002 the Bush Presidency is already failing on many fronts but the Iraq “menace” is “rolled out” (as Andrew Card so eloquently put it) and that was that.  In 2004 Bush is reeling from one failure to the next: in Iraq, in foreign policy in general, in the destruction of so many domestic functions of the Federal government that are mandated by the Preamble to the Constitution, in the fact that corruption is already apparent as well as rampant, in the fact that the rich are getting richer at the expense of the rest of us, and so one and so forth.  And so, with the cooperation of the Democrats, Rove manages to make homophobia, terror, and Kerry’s Vietnam War record the major agenda items.  For 2006, they haven’t fixed firmly on their desired agenda items yet, although “fighting terror” is certainly the item of the month, but they are focusing on doing so.

Once again, what is Rove’s number one tactic (other than outright electoral theft, of which, according to some, he is an expert practitioner)?  Taking control of the agenda.  So, Karl, what to do now?  It is not simply a matter of making up stories about Bush and his “greatness.”  After all, now we’ve got the Iraq cesspool, Katrina, the apparent failure of Israeli foreign policy, global warming caused by human activity as a reality accepted not only by virtually all scientists but by an increasing number of citizens, Afghanistan, Korea.  But the master of agenda control is on the job.

Let’s consider a recent master stroke on the micro level: the ABC 9/11 “docu” drama.  In an editorial on September 9, 2006, our sister publication BuzzFlash noted that: “Lost in the uproar over ABC subcontracting 9/11 over to right wing extremists is the smoking gun conclusion of a Republican/Democratic Senate report that says Saddam had no connection to al-Qaeda -- and that, indeed, he went to great lengths to keep them out of Iraq. That means Bush and Cheney are responsible for opening up Iraq to al-Qaeda -- and that they lied and lied again.”  On the same day, BuzzFlash also observed: “Who Does the Writer/Producer of the Infamous ABC ‘Path to 9/11’ Fiction Mini-Series Give His Major Interview to? Radical Wing nut David Horowitz's Publication, That's who. In it, the Writer/Director Heaps Praise on Bush, Scorns Clinton, Praises the Patriot Act, scurrilously attacks the film ‘Syriana,’ and so on.” (See also Eric Alterman’s “Lying About 9/11? Easy as ABC,” The Nation, Oct. 2, 2006 for details on the right-wing cabal behind the piece.)  Hmm.  Trouble for Bush, no?  Well, no.

Quite some time ago, possibly while he was cooling his heels in Patrick Fitzgerald’s office waiting to make the deal he surely made to stay off the hook until after the election Bush can pardon Libby and have done with that matter, Karl was saying to himself, “come Fall, old fellow, to what we should we change the agenda?  With 9/11 coming, let’s focus on Bush’s best moment, no?  Even though it was a great moment only in Bush-fiction, his devoted followers think it was real and right now, with his poll numbers in the pits, that’s all that counts.” (Note that Bush’s poll numbers were going up ion the third week of Sept.)  So the first thought would be “let’s do a re-run of Bush and 9/11 and all will be well in the land of the Georgites.”

But hold on.  There are problems there too.  The media are getting a bit frisky.  9/11 occurred on Bush’s watch.  Sandy Berger, Clinton’s National Security Advisor, warned Condi Rice that al-Qaeda was the number one security threat faced by the United States.  Rice ignored him.  Richard Clarke tried to warn Bush of the al-Qaeda menace on his first day in office and Bush ignored him.  The August 6, 2001 Presidential Daily Brief, the myriad FBI warnings about students at flight schools interested only in flying, not in either how you get up in the air in a plane or back down on the ground with it in one piece, the Dept. of Defense mess-ups on 9/11, what the 9/11 Truth Movement continues to find out about what really happened in the run-up to the tragedy and on the day itself.  And so on and so forth.

Thus, for this Fifth Anniversary and on the day itself, another Bush posturing effort might just not do the trick.  The agenda of Bush-as-hero, Bush-in-command, Bush saving-the-nation, Bush-keeping-it-safe, the-war-on-Iraq-is-just-the-ticket, just might not work.  And so what to do?  One thing that might work, Rove likely thought some time ago, would be to shift the focus to the Clintons, and then count on them to come back with their traditional defensiveness rather than immediately going over on the offensive, which of course they never do.  By golly, that would be good for now and good for 2008 too.

And so Rove did it, timed perfectly for 9/11. Just think abut it for a moment.  What was so much of the uproar, on our side of the verbal battles as well as theirs, about?  Was it about Bush and the Georgites and what they did and did not do?  Was it about the mounting, horrible failure of Iraq, which Bush sold on the basis of 9/11?  Was it about that smoking gun of a (Republican mind you) Senate Intelligence Committee report? Was it about those Bush failures leading up to 9/11?  Was it about the subsequent failure of the Georgites to implement many of the key provisions of the 9/11 Commission Report?  Was it about the disaster that is the Department of Homeland Security that Bush set up in supposed response to 9/11?  Why no. None of the above.

It was about Clinton and the Clintonites and what they did and did not do. (That virtually all of the latter material was totally fictional was irrelevant.)  With the uproar about the Disney fiction about the role of the Clintonites being first on the list, the truth of the Georgite crimes just gets lost.  Another winner for Rove.  He changed the agenda once again, from Georgite incompetence-to-criminality to "let's blame it all on the Clintons."  And then with the Clintons’ collective “you’re- lying-we-did-we-didn’t” and etc. response the whole political argument gets away from the multiple disasters that have occurred on Bush's watch onto "yes-you-did, no-I-didn't, yes-you-did,” about the Clintonites.  The man is brilliant.

Just for fun, what might an effective Democratic response consist of?  I’ve gone over this before in this space and others, but it would include: “you ignored multiple warnings, 9/11 occurred on your watch no one else’s, you failed in Afghanistan, the principle outcomes of the War in Iraq you lied us into are: producing terrorists at an alarming rate, not eliminating them, turning much of the Muslim world against us, isolating us from our allies, gradually taking the hart out of what was once the world’s great military force.”  And so on and so forth.

Unless the wheels completely fall off the Georgite juggernaut due to the arrival of some deus ex machina or the discovery of an incontrovertible smoking Iraq-gun in the hands of Bush and the Georgites, if the Democrats don’t learn the lesson of agenda control, they will never win another election, including the upcoming one.

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Note:  This column is based in part on a column that was published on BuzzFlash.com on Sept. 11, 2006.

GEORGE BUSH’S AMERICA

Column No. 122 By Steven Jonas, MD, MPH - SEPTEMBER 21, 2006

Dr. Jonas’ article below was first published in TPJ on October 14, 2004, in the days immediately prior to the 2004 General Election.  Dr. Jonas accurately projected the consequences of a 2nd Bush administration – the continued centralization of power in an imperial President – President Bush.

TPJ is republishing Dr. Jonas’ article as a reminder to all Americans, but especially Democrats, of the consequences if Democrats do not capture majority control of the US House or US Senate in November.  Dr. Jonas’ article is a clarion call for Democrats to put their shoulders to the task at hand – every day.   – Junkie

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A lot is made of George Bush’s “misstatements,” internally contradictory pronouncements, distortions, and outright lies.  Based on what he says, it is very difficult sometimes to tell just what George Bush stands for.  For when he talks about the famous “compassionate conservatism,” “spreading freedom and democracy,” “securing the homeland,” “creating a fair tax system,” “fighting a war on terrorism,” “protecting traditional values,” one is often reduced to the “huh?” response: what exactly does he mean, how does he intend to get there, and where are the resources?

When one looks at what he actually does, however, then Bush policies and their meanings become much clearer.  As my good friend, personal editor, and The Political Junkies contributor Tony Pell says about the Bushes (and he coined the following phrase in reference to George I; it applies with a vengeance to George II): “Read their lips; but watch their hips.”

And so this column is not about Bush lies.  The Georgites always say, “no they’re not,” regardless of the facts on the ground.  The spin around the Duelfer Report on Iraqi WMD, as “reposted” as “news” by Fox “News” Channel for example, made it sound like the contents of the Report supported the reasons the Georgites gave for going to war.  They just hope to get into an endless and distracting “are, are not, are, are not” argument.

This column is not about Bush mis-use of the language, which the Georgites always pass off as “well, that’s just the country boy in him” (the Andover, Yale, Harvard country boy!).  It is not about any of the outrageous Bush statements like the “war on terror is unwinnable,” which he and/or the Georgites always manage to “correct” by the next day or so and then deny that he ever made, or at least ever meant, the original.

This column is about policies and programs that George Bush has either implemented or clearly proposed for implementation.  Some are prominent; some are obscure.  All of them present a very clear picture of what George Bush wants our great nation to be, to become.  If you possibly have any undecided voter friends, you could present this list to them with the question: “Is this is what you want our country to look like?”  And then follow up with, “If you do, make sure to vote for Bush.”

George Bush will propose to the next Congress, if he is re-elected, “the further reduction, if not the elimination, of taxes on savings and investments, including taxes on dividends and on capital gains on stocks, bonds, and real estate” (New York Times, Taxes for an Ownership Society, Editorial page, Sept. 15, 2004).  If Bush is re-elected, he will have clear majorities in both Houses of Congress, and legislation to implement this proposal will pass, meaning that all that will remain of the income tax will be a wage tax.

The Patriot Act, that piece of civil liberties-busting legislation that the Georgites must have written before 9/11 because its 340-plus densely written pages were introduced to the Congress within about two weeks of the tragedy, will be made permanent.  Presently, it is due to expire in 2005.  George Bush wants it in place forever.  (In a future column, I am going to deal with the question no one seems to ask: why?)  Yes, George Bush does permanently want the power, on his own authority, to bypass the Constitutional guarantees for protection against non-judicially-warranted search and seizure (the Fourth Amendment), the right to due process of law (the Fifth Amendment), and the right to a speedy trial by jury in criminal cases (the Sixth Amendment, for any person, US citizen or not, whom he deems to be a “terrorist threat” of one sort or another.

In the United States, marriage is both a religious and civil procedure.  It is defined in and regulated by the law in each of the 50 states, as well as by the numerous codes of the numerous religious entities that exist in our country.  George Bush supports the passage of the “prohibition of gay marriage” amendment, which would deny the benefits and obligations of civil marriage to same-sex couples.  That would vitiate the provision of the Fourteenth Amendment to the Constitution that prevents any state from denying “to any person within its jurisdiction the equal protection of the laws.”  It would restore the status quo ante bellum (the Civil War, that is) that one or more classes of persons, defined by who they are, not anything they have done, can be placed outside of one or more provisions of the law, this time at the Federal as well as at the state level.  If the homosexual community is hit first (as it was in Nazi Germany), which one would be next?  (Just guess.)

As detailed in the September 18, 2004 Report from the office of Congressman Henry Waxman of California, the Bush Administration would continue its process of creating the most highly secretive Administration in United States history.  For example, Bush has already issued an Executive Order severely restricting access to the papers of former Presidents, denied access to any records of the famous Cheney task force on energy, adopted a policy to refuse initially any requests for Executive Branch information under the Freedom of Information Act, and doubled the number of government documents put under the seal of “classification,” including ones issuing from such Departments as Agriculture and Health and Human Services.

The Bush Administration is in the process of giving border patrol agents “sweeping new powers to deport illegal aliens from the frontiers with Mexico and Canada without providing them the opportunity to make their case before an immigration judge” (R.L. Swarns, US to Give Border Patrol Agents, New York Times, August 11, 2004).  Who will be the next group of persons for whom a police agency will be able make a determination of law violation and go right on to determine and then impose punishment?  This, by the way, is the exact same power that the Nazi German Schutz Staffel (known colloquially as the “SS”) had.  Who, here, might be the first victims? Protestors against such policies, perhaps?

If Bush has his way in a Second Administration, his choice for CIA Director, politico Porter Goss, would have the power to engage in domestic intelligence gathering and surveillance, whether or not any criminal activity is suspected.  Presently, the FBI does need some semblance of suspicion of criminal activity in order to do the same thing.

It is already clear that Bush follows the dictum of Hermann Goering, pronounced by him shortly before his death at this own hand at Nuremberg: to enhance the power of government over the individual.  Goering said: “whether it is a democracy or a fascist dictatorship . . .  all you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger.  It works the same in any country.”

George Bush appoints people like Prof. Diana Schaub to the Federal Bioethics Commission.  Speaking on stem cell research, she said: “Every embryo for research is someone’s blood relative. . . .  I would not be prepared to restore the intellectual functioning of a 93-year-old man by sacrificing embryonic life” (Stem Cells and Slavery, Science, June 18, 2004, p. 1742).  Talk about the imposition on all of us of one particular personal belief on the matter of when life begins! The Georgite approach is to apply the “life-begins-at-the-moment-of-conception” doctrine to both the beliefs and actions of every member of our society, regardless of whether or not they agree with it.

“The U.S. adolescent pregnancy rate is the highest in the industrialized world -- 10 times more than in the Netherlands or Switzerland.  Of the 900,000 U.S. teenagers who become pregnant every year, 8 in 10 say their pregnancy was un-intended” (Playing Politics with Women’s Lives, Science, July 2, 2004, p. 17).  The Bush policy for dealing with this situation is a combination of abstinence preaching, sorry “teaching,” and the criminalization of abortion.

On a wide variety of environmental, health, labor, and personal safety matters, the Bush Administration has re-written existing regulations to suit the wishes of industry, often with former industry employees and/or lobbyists writing the self-same regulations (J. Brinkley, “Out of the Spotlight, Bush Overhauls U.S. Regulations,” New York Times, August 14, 2004).  The article’s headline says it all about the public relations approach of the Administration on this policy.

This ends this litany of what Georgitism really means.  Among Bush’s many failings, however, is not a “failure of leadership,” as Bob Herbert described the Administration’s conduct in relation to Iraq policy in his New York Times Op-Ed column of August 6, 2004.  While I agree with much of what Bob Herbert has said over time, I totally disagree with this position.  It is not a failure of leadership, on Iraq or on any of the issues presented briefly above.

The Bush Administration’s ideology is clear: it is an approach to government and governing that puts as much power as possible, with as little legislative, judicial, or public accountability as possible, in the hands of the Executive Branch.  It takes the country back to the Coolidgean view that “the business of government is business.”  Moreover, since George Bush is capable of distracting huge numbers of people who are in fact negatively affected by his governmental philosophy and actions, and actually get them to support him, from the Georgite perspective he is the perfect leader for their movement.  After all, look at just how much the twin forces of the Radical Reactionary Right (mis-named the “neoconservatives”) and the Republican Religious Right have achieved in such a short time under George Bush’s leadership, and at how much more of their agendas they will be able to achieve, should their chosen leader be re-selected.  For the implementation of his chosen policies and for his voters, George Bush is a fine, almost a perfect, leader.

DEMOCRATIC IDEAS, XII: FOCUSING ON THE CONSTITUTION

Column No. 121 By Steven Jonas, MD, MPH - September 14, 2006

George Bush is the worst President the United States has ever had.  Notice that I did not use the word “arguably.”  He is simply is.  For one reason.  He is the first President ever to have as his primary goal the destruction of the Constitutional, Democratic, system under which he took power (notice that I did not say “elected”).  This is for him the absolutely primary goal.  For the nation as a whole it would obviously be an unmitigated disaster. It stands above even those of: further entrenching the power of the extractive industries and further securing their dominance over U.S. economic and environmental policy; reducing the functions of the government other than those of repression at home and military expansion abroad, to the barest minimums; and filling the pockets of his rich supporters at the expense of the public treasury.

There have been, to be sure, other bad Presidents.  Millard Fillmore, Franklin Pierce, and James Buchanan essentially stood by as the nation slid towards civil war.  Andrew Johnson established the basis for what became the South’s long-term victory in that Civil War in every element other than preserving the legal institution of slavery (see my column, “How the South Won the (1st US) Civil War,” Sunday, November 06, 2005, at http://www.planetarymovement.org/ [archive] ).

Some of those bad Presidencies shared major characteristics with that of the Second Bush.  Ulysses S. Grant (a predecessor who was drunk in office), Warren G. Harding, and Ronald Reagan presided over Administrations rife with corruption.  James Polk and Lyndon Johnson essentially lied our country into foreign wars aimed at, in the first case, gaining large swatches of the territory of another county, and in the second preventing the establishment, through the Democratic process, of a system of government in another country that ours did not approve of.  Herbert Hoover was incompetent when it came to dealing with major economic and natural disasters, and had a strong predilection for favoring the rich.  Nixon was paranoid; Clinton was personally irresponsible, and so on and so forth.  But none of them set out to destroy US Constitutional Democracy and replace it with a Dictatorship (otherwise known as the “Unitary Executive”).

Let me make it clear that we are not talking about substantive, individual governmental policies here.  Bush’s differ in no essential ways from those of most of his Republican predecessors since Lincoln except in matters of degree.  He is the first Republican President in modern times to have a Republican Congress, and a very pliable as well as unified one at that, at his disposal.  Thus he has been able to implement polices that his two immediate Republican predecessors, Reagan and his father, could only dream of doing.

In terms of Bush’s Republican predecessors since the New Deal, one should note that Eisenhower might have trouble getting DLC support for the Democratic Presidential nomination because he was a firm believer in the New Deal, with certain modifications, and Nixon was a bundle of contradictions.  Yes, the old McCarthyite liked using government agencies to spy on his political enemies, kept the war on Vietnam going for a totally unnecessary additional four years, and introduced racism to the Republican Party.  But he also fully supported the development of our modern system of environmental regulation and protection that the Georgites are determined to dismantle, in the Spring of 1973 introduced a national health plan to the Congress that had much in common with the Clinton Health Plan of 1993, created the “opening to China,” and lead the “Second Détente” with the Soviet Union.

In terms of particular foreign and domestic policies, Bush has simply been following the line laid down by Goldwater, Reagan and his father, as noted above.  Except for one significant element, those policies are really nothing new in the Republican playbook. That one element is, of course, the prominence given by this Administration to the Christian Right and their policies in the social realm that it would like to implement.  For the top Republican policy-makers, in the current era led by Cheney and Rove, as is well known it is not that they like the Christian Fundamentalist content so much, but that their rock-solid voting base of support for the ultra-corporatist Republican line is to be found in the Christian Right.  Otherwise on policy and the differences now versus what Goldwater would have done if he had become President and what Reagan and Bush I did do to some extent, and would have done to a much greater extent except for the Congress, it is just that Bush is getting to implement them.

What is totally different, totally new, is the assault on Constitutional Democracy.  I have illustrated this assault, I have been writing about it in this space, from the last three columns on “Let’s Hear it For Strict Constructionism” all the way back to my second TPJ column ever, that appeared on March 4, 2004.  That one was “A Firebell in the Night,” my first effort in the discussion of the so-called “Gay Marriage Amendment” (a subject that I revisited this year on April 2 and 9, that is more accurately termed “The Homosexual Discrimination Amendment”).

And so under Bush we have, in brief, his declaration that we “at war” when under the Constitution only the Congress can declare war; the so-called “Signing Statements” under which Bush arrogates to himself  the supposed authority to ignore Congressional legislation at will; the claim that he can ignore international law to which the US has ascribed by treaty, when ratified treaties are, under the Constitution, part of it; that he can ignore provisions of the First, Fourth, Fifth, Sixth and 14th amendments at his pleasure.  And so on and so forth.

In understanding what is going on here, what I have termed a “coup d’etat in slow motion,” it is vital to note that so many major Georgite policy moves are taken not so much on the substance but in an attempt to establish a precedent unchallenged for establishing a dictatorship.  Do you think that Bush (well, maybe not Bush, even when he is sober which seems to be less and less frequently these days) and his policy-makers don’t know that the FISA requires warrants, that under it warrants were virtually never denied, and that the national security apparatus would function just fine, thank you very much, should they be complying with the law on wiretapping?  Of course they do.  It ain’t about warrantless wiretapping, folks.  It is about unfettered Presidential power to do what he wants to do when he wants to do it, without any interference or even comment from either of the other two branches of the government.  The “I will ignore the Fourth Amendment in relation to Guantanamo,” “I will ignore the anti-torture law,” the obvious policy of “if I decide [and after all, I am the Decider] to launch a war on Iran I will just go ahead and do it,” are all first and foremost about establishing the Georgite Dictatorship (oh sorry, “Unitary Executive”), than about the specific policy.

The lessons for the Democrats here?  First, to now focus on Constitutional Democracy, its preservation and promotion could very well be the “Big Idea” that they supposedly have been looking for, for the last thirty years.  (In fairness, the DLC isn’t looking for this one or any other Big Idea.  Their latest tack is to run against Wal-Mart rather than against Bush and the Republicans even though there is nothing the Constitution that says that a corporation, no matter how big it is, can run either for Congress or the Presidency.  But I am talking about and to Real Democrats, not Georgite Collaborationists.)  Properly formulated (“framed” is the current jargon), a fairly easy job to do beginning with slogans like “The New Patriotism,” organizing around the preservation of Constitutional Democracy as the primary political objective could quickly become a very powerful political weapon.  But even more important than that: if we don’t do it and don’t do it soon, we will not see another chance to do it until the task becomes, somewhere way down the Road of History, the Restoration rather than the Preservation, of Constitutional Democracy.  And so, the primary reason to take this up as the rallying cry and the battle of the Democratic Party is the salvation of the nation.

Are there other major issues?  Of course there are, the War on Iraq being the prime one.  Then there are the monstrous tax-giveaways in the form of the rapidly and monstrously increasing national debt, the foreign debt, the criminal energy policy, the unprecedented (and in the light of Grant, Harding, Reagan, et al that’s a pretty strong word) corruption, the evermore sophisticated tools, plans, and campaigns for stealing elections, and so on and so forth.  But they all have to be seen and presented, should be seen and presented, can easily be seen and presented in the context of the counter-assault that absolutely must be launched and launched soon against the Georgite assault on US Constitutional Democracy that has been underway since they took office on January 20, 2001.  Mark my words, folks.  There is not too much time left.  The Democratic Party simply must get moving, before it is too late.

As I noted at the end of my last column in this space: “As my good friend Jack Dalton said some time back: ‘ Was it not George W. Bush who stated 5 years ago, “…this would be much easier if this were a dictatorship, as long as I was the dictator?”  Was it not George W. Bush who was quoted recently [as] stating, “The Constitution is just a goddamn piece of paper?“ ’ (Jack's Straight-Speak 1-2-06, http://jack-dalton.blogspot.com/).”

LET’S HEAR IT FOR STRICT CONSTRUCTIONISM, V. 3, PART 3

Column No. 120 By Steven Jonas, MD, MPH - September 7, 2006

George Bush has said on many occasions that when it comes to the Constitution and the appointment of Federal judges at all three levels, he is an “Original Intentionist” or “Strict Constructionist.” He has also told us more than once that his two favorite Supreme Court Justices (that is before the appointments of Roberts and Alito at least) are Scalia and Thomas.  According to Bush they are “Original Intentionists” par excellence.  As we saw in the first column in this series (published on August 3, 2006), Scalia has a very interesting notion of what “Original Intention” and “Strict Constructionism” actually are.  He has told us on more than one occasion that among other things they mean that the Constitution is over-laid by something called “Natural Law,” handed down by “God.”  That there is no such wording remotely referring to such a matter in the Constitution itself would seem to be a mere detail of, dare I say it, interpretation, for Scalia.  Then there was his statement that his decision in the Hamdan case was based on the fact that he had a son on the battlefield in Afghanistan, where Mr. Hamdan happened to have been captured.  An interesting interpretation of those “bonds of a dead document” by which Scalia likes to tell us he is bound when it comes to something like, oh let us say, a matter of civil rights or liberties.

In the light of what Bush’s favorite Supreme Court Justice means when he says “Original Intent” and “Strict Construction,” I thought that it would be useful to look at what Bush himself means when he uses those words.  It would appear very much to be consistent with what we might call the “Scalia Doctrine.”

For example, the Fourth Amendment to the US Constitution reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

According to Bush the strict construction of this language means that the President on his own authority can conduct warrantless searches if he deems it necessary to preserve something he calls “national security.”

The Constitution, using declaratory language, rests the power to declare war in the Congress.  According to Bush the strict construction of this language means that when, absent a formal Congressional declaration, he puts the US armed forces into a “war” in the vernacular sense of the term, which means that war has been declared in the Constitutional sense as well. It also means that Bush thinks that, under the Constitution, he can send US forces into combat overseas, without any kind of Congressional authorization before the fact, on any pretext he pleases, just as long as he happens to include the word “terror” in his description of his pretext.

The Original Intent of the Constitutional Commander-in-Chief clause is not clear, except that it refers to the Army, the Navy, and “the militia.”  In a document that is supposed by the Right not to be open to interpretation, it is a highly interpretable article.  However, it has never been interpreted as Bush is interpreting it.  What happened to Truman when he tried to take over the nation’s steel mills in time of war to prevent a strike is instructive.  His move was disallowed by the Supreme Court, and at the time just about every major politician of both parties thought that that was a fine decision.  Here is the famous quote from Justice Robert Jackson on that one:

"His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."

But for the Bush version of “Strict Constructionism,” never mind. Actually, if one were to literally follow the Constitutional language, what Scalia says he is bound by but in practice certainly is not, Bush would be Commander-in-Chief neither of the Air Force nor the National Security Agency because they are not specifically mentioned in the document.  But according to Bush, the Original Intent of the Commander-in-Chief clause is that he can do anything he likes, on both the legislative and judicial (see Guantanamo, Padilla, Abu Ghraib, Hamdan, and etc.) sides, as long as he states that the nation is at war and under the threat of “terrorism.”

The Patriot Act over-rides not only the Fourth, but also the Fifth (due process) and Sixth (jury trial rights in criminal cases) Amendments.  I guess that the power to do such over-rides, actually first taken by the Congress before it handed it to the Executive Branch, comes under the Bush definition of “Original Intent” and “Strict Construction” as well.  However, it just so happens that no exceptions were built into the Constitution by the framers, in any clear or even not-so-clear language of any kind.

“Vice-President” Cheney's original objection to the supposed torture prohibition legislation that was eventually passed by Congress was not based on the grounds that torture is a good thing to have in one’s quiver (although he may well believe that; we don’t know).  Rather his pitch revolved around his claim that prohibiting its use by the President would interfere with Presidential power to what he wants to do “in time of war” (whether in the vernacular or the Constitutional sense).

The “Signing Statement” (which the Georgites claim allows the President to over-ride legislation he doesn’t like) system plays right into this one.  I have looked at the Constitution in detail, but I can find nothing that says, as noted in last week’s column, that legislative authority is shared between the legislative and executive branches.  Nor can I find any reference to “Presidential Signing Statements” at all, whether they would have legal standing or not.  The Constitution gives the President veto power, of course, subject to clearly stated checks and balances.  But except for political grandstanding purposes, as in the stem cell controversy, Bush has not used it.  In my view, this was done on purpose to give supposed authority of some sort to his “Signing Statements” in which he claims ha can ignore Congressionally passed legislation for whatever whim or reason he might put forward.  (That the American Bar Association has recently come to the same conclusion that on this matter first expressed in a column of mine dated January 26, 2006 is a matter most pleasing to me.) Another score for the Bush meaning of “Original Intent.”

Finally, as my good friend Jack Dalton said some time back:

“Was it not George W. Bush who stated 5 years ago, ‘…this would be much easier if this were a dictatorship, as long as I was the dictator?’  Was it not George W. Bush who was quoted recently [as] stating, ‘The Constitution is just a goddamn piece of paper?’ “(Jack's Straight-Speak 1-2-06, http://jack-dalton.blogspot.com/).

But hey, you can’t blame George.  It’s in his genes.  His Dad was quoted as saying something similar about dictatorship when he was President.  His grandfather, Prescott Bush, stopped his financial dealings with Nazi Germany in February, 1942 only when FDR threatened to prosecute him under the Trading with the Enemy Act. (Hitler had declared war on the US on December 8, 1941 --- yes, Hitler, as surprised by Pearl Harbor as we were, reluctantly declared war on us under a treaty obligation he had to Japan; President Roosevelt did not first declare war on him.)  And a maternal great-grandfather, George Herbert Walker, began financing Hitler and the German Nazi Party in 1924.  With this background, it is only natural that George W. Bush’s interpretation of the terms “Original Intent” and “Strict Constructionism” mean that the Constitution, yes indeed, does provide for a Presidential dictatorship, just as long as one George Bush or another is the dictator.  Oh well, I guess that there is something new to learn every day.

WHICH SIDE ARE YOU ON?

Column No.   118 By  Steven Jonas, MD, MPH - August 10, 2006

JUNKIE:  Dr. Jonas’ article today is a rerun of his perspectives of Sen. Dick Durbin’s speech on the floor of the US Senate in summer of 2005 questioning Bush’s inhumane treatment of prisoners at Gitmo and comparing the treatment to the techniques used by the Soviet Union.  Sen. Durbin was roundly attacked by Republicans and their allies in the press at the time for daring to compare Bush’s policies to those of the Soviet Union.   Dr. Jonas’ article published in TPJ can be found at this hyperlink, “THE DICK DURBIN DISASTER.”

The point Dr. Jonas so clearly made was that there are “sides” in the fight to preserve constitutional democracy. My take on his article at the time was that Dr. Jonas was making a critical point.  Does the Democratic Party really want to win and maintain constitutional democracy in the United States?

Dr. Jonas wrote this follow-up article, which has been slightly edited for republication, making the case that there are but two sides; and Americans have to choose.

There are many perspectives circulating on Lamont’s victory over Sen. Lieberman on Tuesday.  We invite you to reread Dr. Jonas’ article below in the context of the choices that citizens of Connecticut made on Tuesday.

"THE DICK DURBIN DISASTER:" A FOLLOW-UP

Last week I in this space, I published a lengthy column on what I called “The Dick Durbin Disaster.”

Stephen Gheen kindly introduced my article with the following words [slightly amended]:

“Dr. Steven Jonas authors an article today that [puts in bold letters] the problem that threatens the vitality and reemergence of the Democratic Party.  Dr. Jonas frames the issues with simple perfection: ‘Do we want to win?  Do we really want to restore and preserve our precious constitutional democracy and above it, the Rule of Law?  [If we do], the first thing we have to do is recognize that there are sides in this battle and then recognize who is on which side.’  [In his column] Dr. Jonas draws the sides and provides some critical [recommendations] for Democrats.”

Over the years since 9/11 and the Georgites’ response to and use of it to undertake in earnest their long planned full assault on Constitutional democracy in the Untied States, I have occasionally thought of a union song from the 1930s by a woman named Florence Reese.  Although we in the upper middle-class, left-wing, Depression/New-Deal Era households of the type in which I grew up, in New York City had not-too-much in-depth knowledge of, and certainly no direct experience with, the events, or even the type of events, to which it referred, the song was a staple.

The song was about the situation in the coal-mining county of Harlan, Kentucky that came to be known as the “Harlan War,” during which the county came to be known as “Bloody Harlan.”  The “J.H. Blair” referred to in it was the local sheriff who, after he had his men violently break up a local meeting of the National Mineworkers Union, famously said: “The Red revolt in Harlan County has been crushed!”  For a further brief history of the period, I refer you to http://www.carlestes.com/bloodyharlan.html.

Let me share with you the lyrics of that song, which often bring tears to my eyes when I think of them, and do now as I write this.  Will we need to have a book entitled Cry the Beloved Country written about our glorious land too?  For me, these words just resonate so well down to our own time, sadly on so much larger a scale.

“They say in Harlan County there are no neutrals there You’ll either be a union man or a thug for J.H. Blair.

“Chorus: Which side are you on? Which side are you on?

“My daddy was miner and I'm a miner's son And I'll stick with the union 'til every battle's done.

Come all you good workers, I have good news for you I'll tell of how our union has come in here to dwell.

“Chorus: Which side are you on? Which side are you on?”

“Oh workers can you stand it? Oh tell me how you can; Will you be a lousy scab or will you be a man? Don't scab for the bosses, don't listen to their lies Us poor folks haven't got a chance unless we organize.

“Chorus: Which side are you on? Which side are you on?”

In defense of the Constitution, there are only two sides.  Just as on the slavery question, there is no middle ground.  You are either for it, or agin’ it, as they would say in the hills of Kentucky, and North Carolina too, for that matter.  The only question now is: is our side going to organize for its defense and protection before it is destroyed by the Republican Religious Right, lead by the Georgites, and win the battle through organizing and electoral politics?  Or will we have to fight for its Restoration after they have completed the campaign of total destruction leading to theocratic fascism they are currently engaged in?

LET’S HEAR IT FOR STRICT CONSTRUCTIONISM, V. 3, PART 2

Column No. 119 By Steven Jonas, MD, MPH - August 17, 2006

On August 3 we began a reconsideration of the mode of Constitutional interpretation known as “Strict Constructionism,” or the “Doctrine of Original Intent.”  We showed clearly (I hope) that its current primary judicial avatar, Antonin Scalia, himself actually engages in anything but, when it come to the Constitution.  In this column, we turn to the plain language of the Constitution itself.

A major theme to consider is the contrast found in the document between those sections that have ambiguous meanings and those that have very clear ones. If one reads the Constitution clearly, it clearly says “here are some specifics, some definites,” while in other places it clearly says, by being ambiguous, “interpret me please.”  There is no evidence that the Framers were dunces, did not know how to use the English language, and thus were not being purposeful in how they used it.  As theocratic Georgite fascism comes barreling down the track, it’s all we’ve got to defend ourselves with.

We begin with the Preamble, that almost always forgotten, ignored, suppressed part of the Constitution.  It just happens to tell us in plain language what the role of the government as established by the Constitution is, according to the Framers:  “We the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”  That’s a pretty broad, positive, set of tasks is it not?  A major characteristic of the statement is its ambiguity, begging for interpretation one might say, is it not?  And if it doesn’t beg for interpretation, then precisely how one would precisely interpret it?  The Original Intent here is quite obvious: “Interpret me --- and apply me --- please.”

On the other hand we next come to Article I. In Section 1 it says: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”  It doesn’t say, as the Georgites would have it, “some legislative powers are vested in the Congress, and the rest in the Executive, subject to the whim of the latter.”  It doesn’t say “well, Congress can pass all the laws its wants to, and the President, in something to be called a ‘signing statement,’ can interpret them any way he wishes to.”  Yes, the Original Intent would appear to be obvious here too.

Sections 2-7 of Article I are mainly about matters of organization, voting, and discipline for the legislative branch.  Then we get to the famous Article I, Section 8.  It says, in part: “The Congress shall have power to… regulate commerce with foreign nations, and among the several States, and with the Indian tribes…” The term “regulate commerce” is nowhere defined.  Again ambiguous, no?  It, like the Preamble, begs for interpretation.  The RRR would have you think that the Constitution puts strict limits on how the Congress may interpret and apply that clause.

For example, Janice Rogers Brown, confirmed for an Appellate Judgeship last year after a very hard Georgite push in the Senate, believes that any regulation of the economy, undertaken by the Federal government under the interstate commerce clause since the time of the New Deal, is a worse institution than human slavery (she is an African-American it so happens).  Again, I have looked hard for it, but I just cannot find any language in the Constitution putting limits on the interpretation of that clause.  Again, the Original Intent is obvious here; “interpret me, please.”  On the other hand, the Constitution is pretty specific about one power of the Congress: “To declare war.”  That one doesn’t seem to be open to interpretation, does it?  It doesn’t say, “to declare war except when the President does, or wants to, or labels some military action that he/she has initiated as a ‘war.’ “Strict Construction” strikes the RRR again.

Then there is Article I, Section 9, which says in part: “The privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  That seems pretty specific too.  Habeas Corpus, according to Strict Construction, is to be suspended only in times of rebellion (which is when Lincoln did it) or invasion, and only the Congress may suspend it.  According to the plain language, the President, for example, cannot do it on his/her own authority (Lincoln, acting unconstitutionally to be sure, did it on his own authority), nor can Congress authorize its abolition except under those two specific circumstances, certainly nothing as vague as some “war against flanking maneuvers” (sorry, I mean “terror”).  The Original Intent is again pretty obvious here, is it not?

Going on to Article II, Section 2 says that “The President shall be Commander in Chief of the Army and Navy of the United States.”  Again, vague.  Nowhere to be found is a definition of “Commander-in-Chief.”  It could mean “General-in-Chief,” as the Georgites would have us believe.  But it could just as easily mean that final military authority is simply to be subject to civilian rule, a logical interpretation based upon the historical experience and knowledge of English history of the Framers.  Nevertheless, interpretation is invited (although according to an absolutely strict interpretation, since the words “Air Force” do not appear in it, the President has no authority over that branch of the armed forces).  Yes, under the Constitution Bush, in contradistinction to every previous occupant of the White House other than Lyndon Johnson who personally picked out bombing targets in Vietnam, could be what he thinks he is, General-in-Chief.  But then again, he might not be.  But even if he is General-in-Chief, there is nothing in the plain language of the Constitution that would then empower him to violate any other provisions of document on his own authority, at whim.

Article III, Section 1 states that the “judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  While there is a list of powers of the Supreme Court, nowhere to be found in Article III is any description of the power of Judicial Review over the actions of the other two branches of the government.  In the early 19th century, Chief Justice John Marshall and his colleagues invented the concept, using some fairly complex legal reasoning and logic to arrive at it.  They thus interpreted the Constitution, for nowhere in it is there any plain language or other evidence of “original intent” to provide for judicial review.

Over the course of two decades, the Marshall construction was accepted by the rest of the polity. (Jefferson was at first strongly opposed to the idea, but even he eventually went along with it.)  However, it was the result of the application of interpretation to some of the interpretable, non-specific language in the document.  We can hardly say that granting that power to the Court was part of the Original Intent of the Framers, unless we rely on the concept that by being vague, for certain sections they were inviting interpretation.  If, for example, Justice Scalia were to be consistent with what he says he believes in (although he obviously doesn’t, see last week’s column) and insist that interpretation has no place, nowhere in the application of the Constitution, he would have to advocate doing away altogether with the Supreme Court as the arbiter of the Constitutionality of acts of both the Executive and the Legislative Branches.  But I don’t think that anyone has ever accused Scalia of being consistent.  After all, consistency is just the hobgoblin of small minds, isn’t it?

Moving right along, Article V is quite specific about which body can amend the Constitution.  It is not the Executive Branch.  Article VI is quite specific that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land” (see former White House Counsel and now Attorney General Gonzales and the “quaint” Geneva Conventions, by a provision of the Constitution itself, part of it).  The words under Strict Construction are quite clear once again.  This particular provision of the Constitution was used in part by that slender-reed majority of the Supreme Court to rule against the Georgites in Hamdan.  They said yes, indeed, Article VI makes the Geneva Conventions part of the Constitution and therefore the President cannot violate those agreements.  They did not say that he could seek to renegotiate them of course.

Turning to the Bill of Rights, the First, Fourth, Fifth and Sixth Amendments are pretty explicit about the guarantees of the rights with which they are concerned.  For example, the Fourth provides protection against unreasonable search and seizure and requires judicial warrants for making searches, the Fifth guarantees the protection of due process of law, and the Sixth guarantees jury trial in criminal cases.  All happen to have been over-ridden by the Bush-Patriot Act, which Scalia has voted to uphold.  Finally, there is the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  My, my, my, how vague, how broad, how interpretable.  No wonder that the authoritarian Judge Bork (you remember him), he who was, and is, supposed to be such an avatar of the Doctrine of Strict Construction, described the Ninth as an “inkblot on the Constitution.”  It is such an inconvenience for the RRR.  After all, this Amendment is wide open to interpretation. For example, it could even be interpreted to mean that there is something called the Right to Privacy.

One must then come to the following conclusion.  Yes, the framers did intend that their document and its meaning be followed in our country down through history, as written.  Given the presence of ambiguous language in certain places, it is clear that part of that intention was to provide within it the means for dealing with changing times and circumstances.  Thus one must conclude that if they had been asked “do you believe in the Doctrine of Original Intent?” they would have replied pretty much in unison as follows:

“Oh yes we do.  That is why we made certain clauses as specific as we did, especially those clauses guaranteeing personal freedom and limiting governmental powers in relation to it, as well as those clauses dealing with governmental actions concerning life and death, such as war and making treaties.  That is why also we made other clauses vague and open to interpretation, especially those dealing with commerce and industry and economic affairs.  For those are areas in which government must have flexibility to deal with changes in human abilities to deal with the physical means of life.  That times and needs change too is why we created the Ninth Amendment, in reference to personal rights and liberties. Finally we were intentionally broad, very broad, with the Preamble.  There is so much good that government can do, and we want to make sure that ours focuses on it.”

In the final column is this series, we shall examine how Bush himself interprets the Constitution, supposedly using the Doctrines of Original Intent and Strict Constructionism.