Friday, July 31, 2009

Constitutional Rights: Death Throes

Usually they just claim taxpayer status, but the other day there was a guy on a rant in the library insisting it was his “Constitutional right” to use the facilities. He was most likely one of the many homeless we have here who often have mental health issues. But what can we say about our politicians, even our President, when they don’t understand the Constitution?

By the design of the Founders, most American political issues are driven by the vicissitudes of political realities, shaped by practicalities and resolved by horse-trading compromises among competing factions. But not all political questions were to be subject to that process. Some were intended to be immunized from those influences. Those were called "principles," or "rights," or "guarantees" -- and what distinguishes them from garden-variety political disputes is precisely that they were intended to be both absolute and adhered to regardless of [...] "the practical considerations policymakers must contend with."

We don't have to guess what those principles are. The Founders created documents -- principally the Constitution -- which had as their purpose enumerating the principles that were to be immunized from such "practical considerations." All one has to do in order to understand their supreme status is to understand the core principle of Constitutional guarantees: no acts of Government can conflict with these principles or violate them for any reason. And all one has to do to appreciate their absolute, unyielding essence is to read how they're written: The President "shall take Care that the Laws be faithfully executed." "[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." "Congress shall make no law . . . abridging the freedom of speech." "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." "No person shall be . . . deprived of life, liberty, or property, without due process of law."


Instead of "the President shall take Care that the Laws be faithfully executed," we have: "Presidents should try to obey the law except when they decree there are good reasons to violate it." Instead of "in America the law is king," we have: "we can only apply the law when it won't undermine bipartisanship." Instead of "treaties shall be the supreme Law of the Land," we have: "we can't have torture prosecutions because they'll distract from health care." To "no Warrants shall issue, but upon probable cause" and "No person shall be . . . deprived of life, liberty, or property, without due process of law," we have added: "unless there are Terrorists who want to harm us, in which case we spy without warrants and imprison people for life without charges."

  Glenn Greenwald

The founders set those rights into the Constitution for a good reason, which Thomas Jefferson stated:

The spirit of the times may alter, will alter. Our rulers will become corrupt, our people careless. A single zealot may commence persecutor, and better men be his victims. It can never be too often repeated that the time for fixing every essential right on a legal basis is while our rulers are honest and ourselves united. From the conclusion of [their] war [for independence, a nation begins] going down hill. It will not then be necessary to resort every moment to the people for support. They will be forgotten, therefore, and their rights disregarded. They will forget themselves but in the sole faculty of making money, and will never think of uniting to effect a due respect for their rights. The shackles, therefore, which shall not be knocked off at the conclusion of [that] war will remain on [them] long, will be made heavier and heavier, till [their] rights shall revive or expire in a convulsion." --Thomas Jefferson: Notes on Virginia Q.XVII, 1782.

They don’t seem to be reviving. And the prophetic TJ must be spinning in his grave.


  1. Jefferson is by far my favourite Founder, if for no other reason than he's so completely conflicted between his ideals (liberty, freedom, equal rights) and his desires (building Montecello, farming with slave labour).

    He's a complex character, and in this case, as in so many others, he was spot-fucking-on.

    I'm putting my money on the convulsion, as there doesn't seem to be much hope for anything else.

  2. your money is safe, i believe.

    as for jefferson's conflicts...i agree. i am baffled by how otherwise seemingly intelligent, caring people can hold such contradictory views that allow them to condone slavery or torture and to shun social responsibility toward others. but then, in truth, i myself hold similar contradictions of thought and deed - perhaps just less extreme. i think we are all a bunch of conflicted, internally contradictory creatures, and i suppose therein lies the crux of most, if not all, our problems. and in fact, i think people who hold strict non-contradictory stands are likely to actually be the less intelligent amongst us - or at least it could be regarded as inflexibility of thought. at any rate, it's a very interesting aspect of human character.

    thanks much for your comments and opportunities to think again.


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