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.

DEMOCRATIC IDEAS, IX: "LET’S HEAR IT FOR STRICT CONSTRUCTION (V. 3), PART 1"

Column No. 117 By Steven Jonas, MD, MPH - August 3, 2006

The Georgite mission of Constitutional destruction is now out in the open through a variety of revelations.  Serious concern with it is no longer the sole province of the Left.  Mickey Edwards is a former member of the House Republican leadership, national chair of the American Conservative Union, and a founding trustee of the Heritage Foundation.  In the July 31/Augst 7, 2006 issue of The Nation (!, p. 5), he said: “[Bush has shown] deliberate disregard of a law prohibiting electronic surveillance of US citizens without a court-ordered warrant. . . . [The] issue at stake is . . .  the continued viability of the separation of powers, the central tenet in America’s system of constrained government. . . .  The concentration of power in the hands of a single chief executive, whether President or King, is an outcome neither the left nor the right should welcome.  But with a President who assumes that all important decisions are his to make, . . . that may well be where we are headed.”  Unless, that is, the Georgites are headed off, and fairly quickly too.

Since that article was published, a bipartisan task force of the American Bar Association issued a strong critique of Bush’s extra-Constitutional “signing statements” system. In my view, a key to Democratic victory in November and again in 2008 (if Republican cheating can possibly be overcome) is putting the restoration of Constitutional Democracy front and center as an election issue, in terms of how the President’s depredations of it AFFECT YOU.  The thoughts and observations presented here are offered in support of that position.

The Republican Religious Right (RRR) likes to tell us that Constitutional jurisprudence as conducted by the nation’s courts has been all wrong since the time the Supreme Court started coming around to the support of the New Deal in 1938.  This jurisprudence has, they tell us, been dominated by “activist,” “liberal” judges who just “impose their own views on the law, in violation of everything good and sound.”  What is needed in applying the Constitution to the law, policy, and policy-making, according to the RRR, is a return to what they call the “Doctrine of Strict Constructionism.”  (The term “Original Intent” is also used by them.)  This Doctrine can be defined as taking the Constitution literally, as assuming that its words have a plain meaning and that they should be followed in applying it to both the law and the structure and functions of government that it describes and defines.  A bad idea, no?  Well, in my view, no.  It is actually a very good idea as I hope to illustrate as we move through this analysis, and actually one that the RRR ignores completely.

Let us begin with an examination of the views of Justice Antonin Scalia on the matter.  The RRR in general and Pres, Bush in particular hold him up as their primary avatar of this Doctrine.  So just how does Scalia formulate it?  In the July and August issues of Inquirer, its Editor/Publisher Mr. Gerry Dantone considered Scalia’s position on the primacy of “God” and organized religion in public life and what its relationship to the law should be.  Proceeding from that foundation, it is useful to examine how Scalia himself views the Constitution, and indeed how he applies the Doctrine of Strict Constructionism to it.  As Mr. Dantone showed, Scalia holds that “God” and organized religion should be at the center of public life, of government, and of Constitutional interpretation.  Examining his many speeches, writings, and Supreme Court opinions on various aspects of this subject, it will come as a surprise to many observers that it is clear from his own words that in fact Scalia himself does not follow the Doctrine of Strict Constructionism. How can that possibly be, you might ask.  He just beats the drum on the subject, doesn’t he?  Well, in his verbiage, yes.  In his practice, no, as illustrated by the following examples.

In relation to the Constitution and its interpretation, the most important indicator of Scalia’s non-adherence to the Doctrine is his oft-state belief in something he calls “Natural Law,” standing above the Constitution.  For Scalia (as documented in the Dantone articles referred to above) “Natural Law” means “God’s Law.”  For a further example, consider the following words of the Justice, as quoted by Sean Wilentz ("From Justice Scalia: A Chilling Vision of Religion's Authority in America," New York Times, July 8, 2003).  Wilentz wrote: “Beginning with a quote from St. Paul as his thoughts are represented in the New Testament, Scalia had this to say about the subject (2002):  ‘For there is no power but of God [St. Paul is said to have said]; the powers that be are ordained of God. . . The Lord repaid -- did justice -- through his minister, the state . . . [This was the consensus] of Christian or religious thought regarding the powers of the state… That consensus has been upset, I think, by the emergence of democracy . . .’ ”

In his book Big Lies (New York: Thomas Dunne Books, St. Martin’s Press, 2003, p. 99), Joe Conason notes: “Antonin Scalia, a conservative Catholic and Bush’s favorite Supreme Court justice, declared in 2002 that ‘government derives its moral authority from God’ and acts as the ‘minister of God.’ Acknowledging that such theories of divine dispensation conflict with democratic ideals, Scalia added rather ominously: ‘The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it effectively.’  Scalia’s medieval view of government as divinely ordained, rather than as the expression of popular sovereignty, is utterly foreign to the founding concept of the United States.”  As well as to, as best as I can make it out (and perhaps I have missed something), both the Original Intent, of say James Madison, a lead author of the body of the Constitution, and Thomas Jefferson, a lead author of the first Ten Amendments, and the plain language of the document.

Then consider that more recently, Justice Scalia has come out with an even more original interpretation of the “Doctrine of Strict Constructionism.”  In a speech given in Switzerland in March, 2006 (“Scalia Unplugged,” The Progress Report, March 27, 2006) the Justice allowed that he had already pre-judged the Hamdan case on whether non-US citizen Guantanamo detainees have any protections under the Geneva Conventions.  Since they are the subjects of treaties to which the US is a party, the latter are part of the US Constitution.

Referring to Mr. Hamdan, Scalia told his Swiss audience that “if he was captured by my army on a battlefield that [referring to Gitmo and indefinite detention without any rights] is where he belongs.  I had a son on that battlefield and they were shooting at my son and I’m not about to give this man who was captured in a war a full jury trial.  I mean it’s crazy.”  These are the words of a Justice who regularly accuses his colleagues on the Bench of reading things about personal rights and liberties under the Bill of Rights into the Constitution pursuant to “personal whim.”

Obviously he feels that doing so is taking gross liberties with the document because the exact wording of a certain right or liberty is not in it. At the same time, according to him making judgments about the Constitutionality of an Executive Branch action based upon the fact that his son was being shot at in Afghanistan is being a Strict Constructionist, even though on very careful examination I for one cannot find in the Constitution any words sanctioning the use of such a criterion for making judicial decisions.

Thus in practice Scalia goes against his own words. For nowhere in the Constitution are any such thoughts or principles, grand or picayune, to be found, either in its plain language or in any conceivable interpretation of it. He has told us on numerous occasions that there are no “inalienable rights of man,” for the Framers the basis of Constitutional Law.  According to Scalia there are only rights that are granted by God.  Since God does not often speak to us directly, in practice that means any individual rights are only those granted by God’s representatives on Earth, in accordance with what they think God’s wishes are (that is unless He or She speaks to such representatives, like Antonin Scalia or George Bush perhaps, in private).  "Natural Law," the “law(s) of God,” are thus whatever Church authority, such as Scalia’s apparent favorite, the Pope, or (heaven forfend) Scalia himself, happens to tell us they are.  In reality, this, that is some “Natural Law” standing above the Constitution, is nothing more or less than the rule of man, not law.  Again, although I may have missed it, I cannot find anything like Scalia’s jurisprudence anywhere in the Constitution. Nor, by the way, can I find the word “God.”  And this, George Bush, Antonin Scalia and the rest of the Republican Religious Right, tell us is “Strict Constructionism.”

To be continued.

_________

Note to the reader: On September 8, 2005 TPJ ran an earlier version of this column.  A revised version of it was published in the November issue of the Long Island Inquirer (http://www.centerforinquiry.net/li/index.html), the monthly publication of the Long Island (NY) Secular Humanists.  With their kind permission, parts of that version are used in what has become a three-part TPJ series.

WHAT’S IT ALL ABOUT, ALFIE?

Column No. 116 Steven Jonas, MD, MPH - July 27, 2006

The Supreme Court decision in the Hamdan case concerned the Bush Administration’s use of specially designed “military commissions,” not previously defined by U.S. law or the U.S. Uniform Code of Military Justice, at the prison camp at Guantanamo. The rules of these “commissions” deny the accused of any element of due process under either the U.S. Constitution or the Geneva Conventions concerning the treatment of prisoners of war, of which the U.S. is a signatory. The Supreme Court told the Bush Administration that it must abide by the Geneva Conventions, for they are part of the Constitution (see Article VI). The Court said that the President cannot decide on the advice of his Counsel (now the Attorney General) that those Conventions are "quaint" and then choose to ignore them at whim. Nor can Congress draft rather loosely some piece of legislation appearing to give the President the power to do so. Congress must abide by the Constitution too.  A victory for progressives and the fight to preserve Constitutional Democracy in our beloved country?  Not so fast.

Paraphrasing the title of a famous 1966 British film starring the then debonair romantic lead Michael Caine (this brilliant actor still represents the height of the debonair, even when playing the butler in Batman Returns) and Shelley Winters, “What’s it all about, Alfie?”  Well, with the Georgites it is well known by now that, as Little Miss Buttercup sings to Captain Corcoran in Act II of the Gilbert and Sullivan operetta “H.M.S. Pinafore,” “Things are Seldom What they Seem.”  On July 11, 2006, the Deputy Defense Secretary told the Senate Judiciary Committee that from now on the DOD is going to comply with both the Supreme Court decision in Hamdan and the Geneva Conventions as written (The New York Times, "White House Says Terror Detainees Have Basic Geneva Rights," July 12, 2006, p. A20.) No more of those nasty (and they are nasty) Military Commissions. Ah yes. But then at the same hearing, one Daniel Dell'Orto, the DOD principal deputy general counsel says "We would ask this body to render its approval for the system as currently configured" (same ref.). And on July 13 the Times reported that "Administration Prods Congress To Curb the Rights of Detainees" (NYT, July 13, 2006, p. 1).

As The Times noted in its lead editorial of July 16, 2006 entitled “The Real Agenda”: “This whole sorry story has been on vivid display since [Hamdan]. . . . For one brief, shining moment, it appeared that the administration realized it had met a [Constitutional] check that it could not simply ignore. . . . But by week’s end it was clear that the president’s idea of cooperation was purely cosmetic. At hearings last week, the administration made it clear that it merely wanted Congress to legalize President Bush’s illegal actions . . . . As for the Geneva Conventions, [the] administration . . . . want[s] to scrap the international consensus that no prisoner may be robbed of basic human dignity. . . . The most embarrassing moment came when Bush loyalists argued that the United States could not follow the Geneva Conventions because Common Article Three, which has governed the treatment of wartime prisoners for more than half a century, was too vague. Which part of ‘civilized peoples,’ ‘judicial guarantees’ or ‘humiliating and degrading treatment’ do they find confusing?”

Then on July 17, 2006, in his Times column entitled “The Definition of Tyranny,” Bob Herbert had this to say: “Congress is dithering. . . .as the administration of George W. Bush systematically trashes such fundamental American values as justice, due process, respect for human rights and submission to the rule of law. . . . In the kangaroo courts that the administration concocted to try detainees at Guantánamo Bay, Cuba, a defendant could be prevented from seeing the evidence against him, would not have the right to attend his own trial and would not have the right to appeal the sentence to a civilian court. . . . The court’s decision brought into sharp relief the importance of one of the most fundamental aspects of American government, the separation of powers. Checks and balances. Mr. Bush has tried to scrap the very idea of checks and balances. . . . Justice John Paul Stevens, who wrote the majority opinion in the Hamdan case, referred to a seminal quote from James Madison. The entire quote is as follows: ‘The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.’ ”

But then one must go on to ask, why are the Georgites so intent on getting around the Geneva Conventions? Is it because doing so will help "fight terror" most effectively? There is no evidence of that coming from the Georgites. Is it that they have a bunch of highly dangerous folks, most of whom could be easily proven guilty of high crimes as well as misdemeanors down at Gitmo? Well, no. It has been leaked on more than one occasion from a variety of sources that the vast majority of the unfortunates being held at Gitmo are guilty of nothing more than being in the wrong place at the wrong time. Is it thus that the Georgites know that if these folks were granted a fair trial most of them would have to be released and the DOD would have egg all over its face? Well, yes. But that is still not the reason, in my view. Their spin machine, lead by the Privatized Ministry of Propaganda, could handle that one, one, two, and three.

What the Georgites are now in the process of doing is confirming their position that as long as the President says that he is "fighting terrorism" he can do whatever he wants to whomever he wants to whenever he wants to do it. The legislation on how to handle Gitmo-type prisoners as so far drafted supposedly meets the Supreme Court's Hamdan requirements. But it doesn’t (Center for American Progress: The Progress Report, July 18, 2006, “NATIONAL SECURITY: The Specter of Compromise”). In classic Georgite fashion it says that it is abiding by the Geneva Conventions, while it is violating them. It says that the President will abide by the limits on his power prescribed by Article II of the Constitution, when it does anything but.

Thus it confirms the President's claim that he can violate the Constitution whenever he pleases to do so under some totally imaginary "Commander-in-Chief" powers. (In Article II, the Founders were very explicit about what the President's powers were and were not to be. If they had wanted to say that in his role as Commander-in-Chief he could violate any provision of the Constitution he wanted to as long as he deemed it necessary, they would have just given him that power. They didn't. Hey, who is an "Original Constructionist" now?) By the time the matter gets back to the Supreme Court, first of all Roberts will be voting, and second of all it is highly likely that at least one of the liberals will have been replaced, for one reason or another. And then the Georgites will have their equivalent of the Hitlerite Enabling Act of 1933 which gave that person the power to over-ride the German Constitution whenever he pleased to do so.

And so, well beyond Gitmo and violating the Geneva Conventions provisions of the Constitution explicitly, why are the Georgites trying so hard to get around the Constitutional system of checks and balances?  And why do the Georgites want to do away with the most central element in the Constitution concerning how governing is to be conducted and how government should operate?  Why are they, in Bob Herbert’s words, absolutely intent on establishing tyranny right here at home?  To deal with "terrorism?" Well, as pointed out above, hardly. To have the President’s “hands untied” so that he can deal directly and most effectively and efficiently with such major national problems as the uncontrolled export of US capital and with it US jobs, the Hurricane Katrinas, the rapid degradation of our domestic environment, global warming, massive government corruption?  Well, hardly.

In fact, there is an increasing amount of opposition among Americans of whatever political stripe, except Right-wing Christian Fundamentalism, to all the major Georgite policies, on the War, on the economy, on the environment, on global warming, on corruption, on the very nature of government and its functions.  Especially if the Georgites continue to steal elections, that opposition could become seriously organized, it could become seriously militant, it could become seriously dangerous to the continued existence of Georgite authoritarianism.  As Winston Churchill once said: “The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist" (courtesy of International Clearinghouse, emailtom@coxnet, 7-12-06). And you thought that you weren't labelable as a "terrorist," didn't you? See you in the camps, folks. And that's what it's all about, Alfie.

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Author’s note:  This column is based in part on a Comment of mine that appeared on BuzzFlash, on July 14, 2006, under the same title (http://www.buzzflash.com/jonas/06/07/jon06012.htm).

DEMOCRATIC IDEAS, VIII: LET’S PLAY CAPTURE THE FLAG

Column No. 115 By Steven Jonas, MD, MPH - July 19, 2006

I published the original version of this column on the Weblog of my dear friend and colleague, Michael Carmichael, the European Editor of The Political Junkies.net, The Moving Planet Blog, on July 4, 2006 (http://www.planetarymovement.org/blog/2006/07/dr-js-short-short-shot-no-30-citizens.html).   I thought to expand the text and share the ideas with you here.

On July 2, 2006, the important, honored progressive American historian Howard Zinn published an essay entitled “Put away the flags” ("The Progressive" http://www.informationclearinghouse.info/article13823.htm). He began his essay by saying:

“On this July 4, we would do well to renounce nationalism and all its symbols: its flags, its pledges of allegiance, its anthems, its insistence in song that God must single out America to be blessed. Is not nationalism -- that devotion to a flag, an anthem, a boundary so fierce it engenders mass murder -- one of the great evils of our time, along with racism, along with religious hatred? These ways of thinking -- cultivated, nurtured, indoctrinated from childhood on -- have been useful to those in power, and deadly for those out of power.”

What he says about nationalism in its militant variety, is certainly true, sadly true. Until the advent of Nazi nationalism, the power, militarism, and brutality of certain organized religions over the course of history for the past two millennia or so caused more death, destruction, and human suffering than any other force our species could muster.  Nazi nationalism of course outdid militant religion.  And while militant religion is now making a comeback in its bid to once again become the number one destroyer, militant nationalism is still a grave danger to the future of our species. Nevertheless, I think that a great mistake that progressives have made is to let our own militant nationalists, in our time led by the Republican Religious Right and the Georgites, take over so many symbols of our nation and nationhood.

For symbols are just that, symbols. Symbols have meaning only when it is given to them by people. A single symbol can be given a wide variety of different meanings, over time. For example, the original swastika (svastika in Sanskrit) was an ancient Indian good luck symbol, used by Hindus, Buddhists, Jains, and Tibetans going back thousands of years.  Further, the counterclockwise version used by the Nazis is also the letter “G” in the medieval Northern European Runic Script. It appears as well in ancient Norse culture, associated with the God of Thunder.  It was used thus used by air forces of both Latvia and Finland when they gained independence after the First World War. The most prominent armed force to use it was of course the Nazi Wehrmacht, the Nazis using it as both a military and a civilian symbol, conveniently mixing the two just as other proto-fascist administrations are attempting to do.  The Nazis themselves called it the Hakenkreutz (“hooked cross”), not the swastika.

But what of the symbols of our great nation? Why does our flag have to mean militant, militaristic Christian-Rightist Republicanism?  Only because we progressives have let them make it so.  Yes, the processes that lead the thirteen original States to become fifty have in part been one of often bloody conquest.  But it has also been one of the spread of the ideas that were at the center of the formation of our nation across our part of the North American Continent.  On the Fourth of July as we battle against the onslaught of Georgite theocratic fascism I felt that it was important to recall the most important words of our Declaration of Independence from the tyranny of an earlier King George: “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 to secure these rights, Governments are instituted among Men,”

Yes, folks, according to the founding document of our great nation, governments are instituted among men to secure those rights with which they endowed by their Creator.  (And that “creator” can be whatever one thinks it is.  If the Congress had wanted to use the word “God,” they would have.  But they chose a word that theists of whatever stripe and non-theists alike can be comfortable with.)  Governments are not there to submerge freedom of thought and expression, or to line their own pockets, or to destroy the commons, or pursue foreign wars on their own authority.  The Declaration is about what we, not our opponents, stand for.  One of its most important symbols is our flag.  We have let them take it.  It is time to get it back.

Further, we have let them take over the Pledge of Allegiance, because in the 1950s an earlier right-wing Republican Congress, presaging the present Republican-Christian Alliance, artificially added the words “under God” to the original.  But the last line of the Pledge is “with liberty and justice for all.”  Isn’t that what the United States at its best is all about?  Does not, in fact, “liberty and justice for all” trump “under God?”  Yet we have let the Pledge become the property of those who would precisely deny “liberty and justice” to any and all Americans who do not share their political and religious beliefs nor their ethnic heritages.

Our national anthem concludes with the vision of our flag waving “o’er the land of the free and the home of the brave.”  One can rightfully complain that the tune of the old English drinking song that Francis Scott Key used at his moment of inspiration, ranging over two octaves, is virtually unsingable.  But even though it is hard to sing we should not have let it too become a symbol of militant, militaristic Republicanism. Why not? Because again at its best our nation is and has been the land of the free and the home of the brave.  Indeed, so many of those who are on the front lines battling to rid us of the Georgite pestilence want it once again to be totally free, and are so brave in carrying on the battle.  Our national anthem is indeed about them.

We who are devoted to what distinguished our nation at its founding and still does at its best moments and in its best incarnation, have let our symbols go, have let them become the property of those forces in our country who are doing their very best to destroy everything that those symbols truly stand for.  On the Fourth of July I honored our flag and the thought that underlay it at our nation’s beginning by rereading the Declaration in its entirety, thinking about its meaning and what more I can do to try to stop the Georgite theocratic fascist juggernaut intent upon trampling into the dust everything that it stands for. We have let the reactionaries capture the flag, capture patriotism (which is truly love of country and devotion to its best interests), totally obliterate what our nation stood for in the eyes of its Founders, and stands for today in the eyes those of us who believe that Constitutional Democracy is the only way to govern, and is the essence of true Americanism.

Have our nation and its forebears done bad things? Oh yes they have, many too many of them. Howard Zinn's list hits some of the "high spots." But those horrible events occurred because those who led the nation to do what it did abandoned the very principles on which it was founded. What we progressives have to do is recapture the flag, show our own people and the world what it really stands for, and then beat back the dark reactionary forces of Christian Rightist Georgite Republicanism so that our nation can once again become the beacon to the world of Constitutional Democracy and the Rule of Law that on its best days has been, certainly has been.