Tuesday :: Mar 21, 2006

The Last Battle Of The American Republic

by pessimist

For several weeks now, we have witnessed the demise of the American legislative branch. Now little more than a rubber stamp to legitimize Bu$hCo excesses, the participants no longer even pretend to have minds of their own and the right to act on their deliberations. This concerns the editorial board of the New York Times:

The President and the Courts
March 20, 2006

Since the Republican majority has decided to allow President Bush to usurp Congress's role in matters of national security, the battle to save the constitutional balance of powers moves to the judiciary.

As soon as Mr. Bush signed this law [taking away the 'right' of the Supreme Court to review the decisions of military commissions like those at Guantanamo], he declared that the administration was going to apply it to all pending cases, about 160 or so, and the solicitor general told the Supreme Court it no longer had a right to hear Hamdan v. Rumsfeld.

This is court-stripping — the attempt by another branch of government
to prevent the court from deciding a particular issue.
At a minimum, we hope the court will rule that Congress and the president may not deny the justices the power to review pending cases. But it should also reject the defective military commissions, as well as the idea of denying access to the courts for future valid claims brought by Guantánamo detainees, including claims of torture.

The retired Justice Sandra Day O'Connor observed in a recent speech that the framers created three separate and equal branches of government because they knew that preserving liberty requires that no single branch or person can amass unchecked power. According to NPR's Nina Totenberg, who heard the speech, Justice O'Connor cited Republican court-stripping efforts as an example of dangerous overreaching. "It takes a lot of degeneration before a country falls into dictatorship," Justice O'Connor said, "but we should avoid these ends by avoiding these beginnings."

The president seems to forget that and Congress clearly will not remind him. The nation cannot afford for the Supreme Court to forget as well.

It doesn't matter to Bu$hCo about the nation. Everything - SCOTUS included - is merely an asset available for sale to the highest-bidding, even foreign, interests.

One foreign interest, seeking last year to influence to makeup of the court, are the fundamentalist Catholics of Poland. All that mattered to them was that both Roberts and Alito be confirmed to join the Court, primarily due to their religious beliefs.

In the linked article, many statements are made that the rise of Roberts and Alito represents an improvement in the prospects for Catholics in America to rise to power, a situation that would only play into the fears the WASP Fundamentalists held about Catholics for many decades. Why this would be a good thing to the Polish Catholics is reflected in the adapted Bu$hCo talking points they used to justify the selection. If you really want to read them all, you have the link.

I have serious problems with allowing foreigners to influence the makeup of our government. Did not Al Gore get into deep troubles over allegedly soliciting campaign contributions from the Chinese via Buddhist temples in California?

For the sake of limiting the discussion, we'll assume that the charges against Gore were true.

It would indicate that the Democrats, like the GOP over the Dubai Ports World management contract, are only interested in acquiring power by whatever means, including foreign ones. It could also indicate why Bu$hCo is much more friendly toward the Gulf States than China, (the opposite for the Dems), but that would be another digression.

But within the country, citizens not only have a right, but an obligation to influence the makeup of the government. The only legitimate way to do so would be through the ballot box, but we will allow for lobbying - by individuals - to be legitimate for the purposes of this discussion. Corporations, who have constantly abused their massive economic power vis a vis individuals in their lobbying efforts, would have to be limited to the power available to individuals if any semblance of fairness in politics were to exist. Not to do so would turn American politics into the jungle that it now is.

But let's say that my admittedly idealistic standards are functional. This would mean that every community in America would have the right to lobby their representatives. But should they also have the right to lobby Supreme Court Justices?

Blacks Must Reach Out to Supreme Court Justice Kennedy
By Gary L. Bledsoe, NNPA
March 20, 2006

Gary L Bledsoe, an attorney in Austin, Texas, is president of the Texas State Conference of the NAACP branches.

The late Justice Hugo Jackson once said that we don't have a pure democracy in this country because the majority would run roughshod over the minority. That is so true today, and something we must take note of as the judiciary is being made into a rubber stamp of those currently in power.

The African-American community may be in for some very difficult times in the years to come as a result of the Samuel Alito confirmation. We know that it doesn't matter what our issue is, we will start a case with four judges solidly against us. In the past, there were 3.75 because Justice Anthony Kennedy almost always went with the conservative coalition of Clarence Thomas, Antonin Scalia and William Rehnquist-but he did not always. Justice Sandra Day O'Connor, a true conservative in her own right, went with them most of the time but not as much as Justice Kennedy. Now with Alito's confirmation, our only hope is Justice Kennedy.

Those of us in the civil rights community must reach out to him as much as possible since he does seem to not be an automatic vote.
Make no mistake about it, he is a solid conservative but because the others are so rigidly conservative, a person who might disagree with them five times out of 100 is now considered to be a moderate. Hopefully, all of us will invite Justice Kennedy to our activities and reach out to him. Without O'Connor, it might become increasingly difficult for him to simply be a conservative who puts his country first as opposed to one who is simply an extension of those in power from the executive and legislative branches of the federal government.

Judge Alito, on the other hand, has expressed reservations about the one-man, one-vote principle that, along with the Voting Rights Act of 1965, has led to the level of minority participation in politics today. He repeatedly voted against African-American litigants in employment discrimination cases and in favor of White litigants in so-called reverse discrimination cases. Justice Alito has even defended prosecutors who have systematically eliminated African-Americans from juries.

The confirmation of Judge Alito will serve to put African-Americans back to the days of the pre-Warren court. An all out assault on minority rights is not just possible, it is likely.

I surely hope I am wrong, and that Roberts or Alito decline to act in accordance with their record and their confirmation process, but early indications are that they will be solid votes against minority issues.

The analysts of Roberts / Alito Court would try to claim that such predictions cannot be made about them because "There's not likely to be one Roberts Court, but several courts as the faces change and the issues change".

That will depend on what the Roberts Court does with its current makeup and slate of cases. From the early returns, those who held concerns about this Court were right to do so:

Supreme Court: Latest Developments
The Associated Press
Monday, March 20, 2006

[My comments will follow each section in brackets]

-- Highlights of actions taken Monday by the Supreme Court. The justices:

_Refused to consider tossing out a $50 million damage award against Philip Morris USA to the family of a two-pack-a-day California smoker who died of cancer. [This is the only anti-corporate development in this group. My read on this is that the Justices don't like smoking much.]

_Affirmed a lower court decision against a photographer who claimed a federal decency law violated her free-speech rights to post pictures of sadomasochistic sexual behavior on the Web. [While an unsavory topic, this is a rejection which aids the effort to limit the First Amendment.]

_Heard arguments in a pair of cases that will decide whether 911 calls and other police statements can be used against criminal defendants if those defendants do not get a chance to confront their accuser. [Based on the Justices' limited past records, I wouldn't want to be the defendents, whatever the actual merits of the case! Wave goodbye to the Sixth Amendment!]

_Declined to give Jonathan Pollard, now serving a life sentence for spying for Israel, access to records that could bolster his case for presidential clemency. [Ditto, whatever the actual merits of the case.]

_Said they would not consider reinstating Robert O. Marshall's death sentence in New Jersey in a case that inspired a best-selling book, "Blind Faith." [While I have not researched this case, I have no inherent opposition to this rejection. When the New Jersey governor (I assume) commuted the sentence, that is the end of the capital penalty. End of story.]

_Refused to consider an appeal from former Arkansas Gov. Jim Guy Tucker, who wants to withdraw his 1998 guilty plea to tax conspiracy. [Unless Gov. Tucker can show coersion, I agree with the Justices. Considering his former position, I doubt he was coerced.]

_Turned down a case that sought to open U.S. presidential elections to voters in Puerto Rico. [This would require a Constitutional amendment. The Justices were correct to reject this.]

_Declined to take up an appeal from a Pittsburgh Steelers fan who claimed taxpayers in National Football League cities have been coerced into helping build costly new stadiums. [A very pro-Big Business rejection, whatever the actual merits of the case.]

_Refused to consider an appeal from Florida death row inmate William Van Poyck over DNA testing. [I would have to know the actual merits of the case, but I will count this as anti-defendant.]

From this rejection list, as long as the case doesn't involve a large business or governmental entity, the Court appears to decide based on the merits of the case. But be a mere citizen against such opponents, ...

It is such a list of rejection decisions that cause the objections to the Roberts Court to be raised in the first place. It doesn't help when one Justice issues masked slights and slanders against another, as reported in Thom Hartmann's March 9, 2006 "Independent Thinker" Book of the Month Review column of Active Liberty: Interpreting Our Democratic Constitution by Stephen Breyer:

On February 14, 2006, the Associated Press quoted U.S. Supreme Court Associate Justice Antonin Scalia, while addressing the Federalist Society in Puerto Rico, as criticizing "those who believe in what he called the 'living Constitution.'" The specific quote from Scalia was:

"[T]he argument of flexibility . . . goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that . . . . The Constitution is not a living organism, it is a legal document."

The main "idiot" the Scalia was referring to - a point not lost on most in the legal or political fields - was U.S. Supreme Court Associate Justice Stephen Breyer, who along with the majority of his and Scalia's peers agreed with the Founders of our nation and the Framers of the Constitution that it was a document that should change with the times.

If Thomas Jefferson were to be consulted, there is little doubt he would disagree with Scalia and his extremist conservative compatriots on the Court.
In a letter to Samuel Kercheval on July 12, 1816, eight years after he'd left the presidency of the United States, Jefferson wrote clearly and unambiguously his thoughts on the nature of our Constitution and the Founders' and Framers' opinion of it being a legal document or something that should change with the times.

Jefferson even went so far as to suggest that the Constitution should be regularly revisited, and expressed his concern that if it were not, and society were rigidly maintained as it were in 1787 when the Constitution was written,
* society would crumble;
* an oligarchy of, by, and for "the rich" would arise and increase the public debt for their own enrichment;
* the middle class would be destroyed;
* and Americans would become mere "automatons of misery."

Jefferson's Letter

SIR,--I duly received your favor of June the 13th, with the copy of the letters on the calling a convention, on which you are pleased to ask my opinion.. .... The infancy of the subject at that moment, and our inexperience of self-government, occasioned gross departures in that draught from genuine republican canons. In truth, the abuses of monarchy had so much filled all the space of political contemplation, that we imagined everything republican which was not monarchy. We had not yet penetrated to the mother principle, that "governments are republican only in proportion as they embody the will of their people, and execute it." Hence, our first constitutions had really no leading principles in them. ...

"Where then is our republicanism to be found? Not in our Constitution certainly, but merely in the spirit of our people. That would oblige even a despot to govern us republicanly. Owing to this spirit, and to nothing in the form of our Constitution, all things have gone well. But this fact, so triumphantly misquoted by the enemies of reformation, is not the fruit of our Constitution, but has prevailed in spite of it. Our functionaries have done well, because generally honest men. If any were not so, they feared to show it.

"But it will be said, it is easier to find faults than to amend them. ... Only lay down true principles, and adhere to them inflexibly. Do not be frightened into their surrender by the alarms of the timid, or the croakings of wealth against the ascendancy of the people. ...

"I am not among those who fear the people. They, and not the rich, are our dependance for continued freedom. ...

"Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.

"I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead.

"I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects.

"But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.

"We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual change of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses, entrenched themselves behind steady habits, and obliged their subjects to seek through blood and violence rash and ruinous innovations, which, had they been referred to the peaceful deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms.

"Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. ...

"Each generation is as independent of the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the Constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time, if anything human can so long endure.

"It is now forty years since the constitution of Virginia was formed. The same tables inform us, that, within that period, two-thirds of the adults then living are now dead. Have then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofore made by them, the other two-thirds, who, with themselves, compose the present mass of adults?

"If they have not, who has? The dead?

"But the dead have no rights. They are nothing; and nothing cannot own something. Where there is no substance, there can be no accident. This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. ...

"If this avenue be shut to the call of sufferance, it will make itself heard through that of force, and we shall go on, as other nations are doing, in the endless circle of oppression, rebellion, reformation; and oppression, rebellion, reformation, again; and so on forever.

"These, Sir, are my opinions of the governments we see among men, and of the principles by which alone we may prevent our own from falling into the same dreadful track."

As you can see from this rather lengthy
(and not previously published in its long form since 1904)
quote from Jefferson,
in the minds of the Founders and the Framers,
the "idiot" would be Antonin Scalia.
So what about the other side of the Court? Although there is no "liberal wing" to today's Court, Breyer is one of the most articulate of the "moderates" on the court. (In this, I'd suggest his "moderate" perspectives are probably most similar to those of Eisenhower, Nelson Rockefeller, JFK, and today's "moderates" like Olympia Snow, Susan Collins, and Joe Biden.)

The logic - and conclusions - of several of the arguments in Stephen Breyer's book are ones with which many progressives would find discomfort or outright disagreement (including me), particularly when it comes to corporate personhood. (I wish he would read my book "Unequal Protection" about the corrupting of the Supreme Court in 1886.) On the other hand, several of his insights and deep-diggings are startling, thought-provoking, and ultimately very common-sensical.

Because Breyer is not a doctrinaire conservative, it is all the more important that the legacy of his thought-process exist in the form of this book, and that Americans familiarize themselves with his perspectives on the most important issues of our day.

I wouldn't hold my breath if I were you, Mr. Hartmann. Too many Americans can't be bothered to know what the issues of the day are, much less understand the various opinions about them. They would rather let George do it for them - no matter how poorly.

As a result, I don't hold much confidence that this final battle over the separation of powers will be decided along traditional constitutional lines, much less the more modern ones over which this issue has arisen again. The people the Constitution is supposed to protect don't seem to care, so it will go as Bu$hco desires.

The Republic is dead, short live the Empire.

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