OR Books — Hacking Politics. This ebook retells the story of the eclectic collection of some of the strangest bedfellows to be found in modern American politics: Occupy Wall Street teaming with Tea Parties, Ron Paul supporters connecting with liberal activists and many others from all across the political spectrum [and the 'left-right' concept of politics is badly in need of updating] to defeat Internet-controlling legislative proposals ‘SOPA’ and ‘PIPA.’ The spontaneous rallying of these disparate and often hostile elements in support of Internet freedom may be thought of as an online ‘American Spring.’ Their story is hot off the word processor and here for you to read; more importantly, this story can serve an an example and a road-map for future coalition-building online in support of core American principles like freedom of expression whenever they are endangered, regardless of the intent of those who endanger them.
Fans of the old Star Trek TV series may recall an episode titled ‘The Omega Glory’ whose plot revolves around a planet parallel to Earth in its’ development, but whose history diverged in that their ‘Cold War’ opponents fought a nuclear war. When The Enterprise arrives on the scene, the survivors, barbarian ‘Yangs’ and more peaceful ‘Kohm’ villagers, are locked in a fierce struggle which ends, despite outside intervention, with the former winning and reclaiming the last of their old territory in a ‘Reconquista‘ campaign that has been waged by generations of their forbears.
What has the above to do with social studies, one might well ask. Fair enough. The point of the trip down TV’s Memory Lane to the 1960s (and a mediocre episode in of a long-defunct series) is that the victorious Yangs had been at the reconquista business for so long that the ideas and ideals they sought to preserve and defend had become objects of veneration, but not of study,and they no longer understood what they professed to worship as the ‘holy of holies.’ It took a typically hammy performance by Cpt. Kirk to save the day,not only for his mission and crew, but also for the poor Yangs, who’d forgotten who they once were – Yankees. Their holy words were from the Constitution,and their garbled incantations inspired their courage but befuddled their understanding.
Can this happen to us, even without a nuclear holocaust driving the survivors into caves? If one reads the Declaration of Independence, the Constitution (which includes the Bill of Rights), as well as the Federalist Papers, Magna Charta and the other primary documents of Anglo-American political development, one might just think so. Even if the syllabus is contracted to just the Declaration of Independence and the Constitution, documents that all Americans should have read in civics class back in high school, one might well wonder., as one also might, as I did last night at a sporting event, at everyone standing (as I did),men with hats off, during the playing of the National Anthem. Are we still ‘The Land of the Free/And the Home of the Brave‘?
The recent events in Boston and vicinity leading to the capture of the surviving terrorist suspect give pause to those who give more than lip service to our civic/secular ‘holy words.’ Are we ‘free’ indeed if the police can, automatic weapons at the ready, order us out of our houses and conduct searches of them? Would those Americans who came before us have tolerated it? Reading the Declaration of Independence, one would have to answer with a ‘no.’ Do we remain ‘free’ if we cede control over our lives to an all-powerful State that ‘protects’ us by eavesdropping on our phone calls, reads our e-mail traffic, monitors our financial activity and can stop, search or detain us – with Miranda rights even a subject of controversy, as if guilt can be determined before trial – it would appear, at will, all in the name of fighting a nebulous ‘terror’? If one is willing to tolerate some ‘temporary’ curtailment of liberty, for how long is it expected to last? Who decided when we can declare victory against ‘terror’ and how do we get our freedom back if it is not willingly offered to us? Is it ‘freedom’ if it can be given or taken by the State? If our rights are truly ‘inalienable,’ then the answer is something we ought to give to our public servants after due deliberation that takes counsel from the histories of those who have lived out the experiment in self-government in the past. We ought to ponder and act now, as the precedent set at Watertown may truly be our ‘E Plebnista’ moment – and a point of no return, as far as ‘the American Way of Life’ we have known it is concerned.
Boston was haunted by a familiar spirit the week of April 15th. The ghost of Col. Dalrymple, late commander of the British ‘Redcoat’ battalions sent by King George III to enforce martial law in rebellious Boston, lives again, in the de facto martial law that descended upon the seat of the American Revolution as militarized police conducted house-to-house searches for the terrorist bombers of the Boston Marathon. (That terrorists deserve to be caught and punished swiftly – and capitally – is not in dispute here.)
It is a well-established principle in America that search and seizure proceed from probable cause alone; that the military does not have civilian law enforcement authority (militarized police who are trained, uniformed and armed as soldiers are, de facto, soldiers, regardless of their titular status); martial law and the suspension of our Constitutional (and for that matter, natural and Common Law) rights cannot happen if the courts – and thus the system of justice – are in operation. We decided that,once and for all – or so one would have thought – with the Posse Comitatus Act (1878 – the military does not do domestic law enforcement) and Ex Parte Milligan (1866 – no martial law while the courts remain in session).
There was nothing like this after the much-deadlier Oklahoma City after a much-deadlier bombing; New York City did not shut down after 9/11; none of the other mass shooting events of recent memory resulted in martial law. Americans of all political persuasions ought to engage in private and public soul-searching about these events; as a nation we have to decide if we think that our liberty is more precious than a spurious ‘security’ to be purchased by its’ surrender. If we do not have this debate,then the question will be settled in the negative, as silence in the face of these actions by our government equals consent.
A recent editorial suggested, perhaps tongue-in-cheek, that it’s a good thing that Michigan has a bicameral (two-house) legislature. While the subject of the editorial was an attempt to, in the author’s opinion, infringe on the constitutional independence that Michigan’s public universities enjoy, the focus of this discussion will be on the existence of Michigan’s bicameral legislature, which the editorialist credits with stopping a bad idea from becoming law.
Michigan, like 48 of her 49 sister states, (Nebraska is the exception) mirrors the Federal arrangement wherein the legislative branch is divided into two houses. The lower of these, in both systems, is supposed to be closer to the people, with representatives elected biennially from smaller districts. The upper house, usually styled the ‘senate,’ is supposed to be more deliberative, often operating under different rules (such as the filibuster) that give each Senator more power and freedom of action. (One Senator can block a nomination requiring Senate approval or hold up legislation via a filibuster, for example, in the Unites States Senate.) State senators usually serve longer terms and represent larger constituencies as well.
As state legislatures mirror their Federal counterpart, they both take their form from the English model (House of Commons/House of Lords) and from the Roman Republic, where the Senate (‘Senex’ = ‘old man’ in Latin) was composed of the ‘conscript Fathers,’ or the leading men of the state, while the various popular assemblies, such as the Centuriate, represented the people, or were composed of the body politic itself, in a display of direct democracy.
The intent of all three systems is to create a process that allows for deliberation at two levels; the lower, or Popular one should be most in touch with the wants, needs, and desires of the people, while the other should be insulated enough from popular passion to be able to take a breath, debate and discuss legislation more deliberately, and give opponents of any given measure a second chance to make their case. In effect, the two-house system allows for an additional opportunity to kill a bad idea, as is the case with attempting to infringe on the constitutional independence of public universities.
In the English and Roman systems (as well as the old French three-house legislature of the ancien regime and others) is to represent different classes of society – lords (spiritual and temporal) and commons, under the assumption that each class had distinct interests that could best be served by their having a legislative house open to their own, representing their own, and controlled by their own. America’s Founders initially set up the Federal legislative branch in much the same way, with Senators representing their state’s interests, while members of the House would answer directly to the people. Until the ratification of the Seventeenth Amendment, it could be said that each house did indeed represent a different set of interests, as Senators answered for their votes not to the people, but to state legislatures, who had power to elect them to office. Now, it would be safer to say that both houses answer to the same electorate, though in different configurations. This arrangement is not without controversy, even in our time, as there are some who continue to argue that the old system was a sounder foundation for effective, balanced and limited government. This same evolution has occurred within state legislatures, as the principle of ‘one man [person], one vote‘ has, since Baker v. Carr, reshaped state legislative districts to be equal and proportional to the voting population they contain.
Despite the changes in how legislative representation is apportioned and whom they represent, the additional deliberative layer added by having legislation pass through two houses before it may be sent to the Executive to (possibly – if not vetoed) become law, remains, and it provides a valuable bulwark against a too-quick adoption, in the heat of the moment, of a good-sounding bad idea. Once made law, bad ideas are harder to undo than beforehand; we should be happy that we continue to have a system that, when it moves slowly, does so to protect our lives, liberties, our pursuit of happiness from abuses that come from rushing to ‘do something’ in response to the crisis of the day. We should act to keep it so for those who come after us.
The recent Senate filibuster of the President’s CIA Director nominee and the ACLU’s investigation into police departments using military-style weapons are connected. Both are also connected to law enforcement agencies’ recent purchases of armored military vehicles for domestic use. The connection that this writer sees is this: Opponents of the filibuster concerning a Presidential nominee’s connection to drone strikes and questions pertaining to domestic use of the same are part and parcel of a post-9/11 belief held by many that the ‘Global War on Terror’ means that everywhere – America included – is a battlefield, and that being the case, extraordinary, ‘wartime’ measures are necessary to combat the shadowy foe. This is also reflected in the growing militarization of our police forces, ostensibly to fight the ‘War on Drugs.’
The common link here is the use of ‘war’ in order to justify extraordinary infringements upon our liberty. By that, I mean that a police force that is a de facto military force becomes an army of occupation – one a civilian population cannot resist. Drone strikes against ‘terror suspects,’ as defined by an Executive Branch official, without charges having been files, a trial conducted or guilt established, is another infringement, in that our rights to due process, to a speedy and fair trial, to confront our accusers, to know the charges against us, to defend ourselves, to the presumption of innocence and to having a jury of our peers be judge of our innocence or guilt all disappear once it is an accepted fact that one man can be our accuser, prosecutor, judge, jury and executioner.
If we stop to consider this in light of the last time America was a battlefield – the Civil War – we can see how our forbears dealt with actual rebel armies on the march in Union territory, actual spies in our midst, and what they thought about what they did in the aftermath of a successful conspiracy to kill a sitting President had done its’ evil deed.
in 1866, a year after Lincoln’s assassination had followed hard on the heels of Appomattox, the Supreme Court ruled, in Ex Parte Milligan, that President Lincoln’s suspension of habeas corpus use of military courts was unconstitutional, because the Constitution remains in force wherever our flag flies, for so long as the courts can remain in session. In other words, where an appeal to justice remains possible, the judge, not the soldier, is arbiter of the law.
in 1878, in the aftermath of Federal troops ending their occupation of the former Confederate states, Congress passed, and President Hayes signed the Posse Comitatus Act. Federal troops – soldiers – cannot be used for purposes of domestic law enforcement. (Use of troops for law-enforcement goes by the name ‘martial law.’) This is still recognized as a guiding principle of American law today, though it is usually applied to formally designated military organizations, such as the U.S. Northern Command, which has military responsibility for U.S. territory.
The blurring of the lines between police and military services is troubling in this regard. A century and a half after the Civil War’s conclusion, we find ourselves living in a country where it is controversial to defend habeas corpus and due process against demands that ‘threats’ be ‘neutralized’ by Executive fiat, as if such a mortal threat to our security exists as to justify measures that match – and exceed those Abraham Lincoln used when the Army of Northern Virginia’s reveille sounded in his ears every morning – and which were rejected by the Supreme Court shortly thereafter. Whether styled ‘police’ or ‘homeland security personnel,’ the ‘Duck Test‘ applies: If it looks like a soldier, is armed like a soldier and rides around in an armored vehicle, it’s a soldier, no matter what the badge says.
Government is a useful, but dangerous servant. Allowing a servant to become so well-armed and formidable as to make resistance to it impossible tempts an abuse that cannot be easily corrected. It matters not if that abuse is made incrementally, and with the best of intentions: The results are the same. From Roman Emperors becoming captives of their Praetorian Guard to Caliphs giving way to their sultans to modern examples of national security states run amok, the end-result – loss of liberty without achieving safety from real or imagined threats – is the result. We were warned, even before we became an independent nation, by none other than Ben Franklin. We have a duty, as citizens, to ensure that the balance between order and liberty is maintained in that dynamic tension that allows government to keep order while respecting a liberty that, once lost, may be very hard to recover.
Sen. Rand Paul’s near-13-hour filibuster made national news and drew both praise and scorn, some of the latter from members of his own party. The right of a United States Senator to speak for as long as he or she can stand and deliver is as old as our Republic. It may seem obstructionist and outdated to many; why then do we still allow it?
Our system of government is based on checks and balances; it is not intended for swift action. the Founders knew that the rights of minorities, or of everyone, could be steamrolled by a majority ramming through ‘emergency’ decrees unless there were mechanisms in place to safeguard due process and to allow for a full, extended debate where the truth could come out. Filibusters are part of the genius of our system. They are also a cause of frustration for those who claim that ‘we can’t wait – this time it’s different.’
The Founders knew their history. Most were steeped in the classics. they knew, for example, that when a young Rome faced its’ first constitutional crisis in ‘the secessions of the plebeians,’ the end result of the commoners literally leaving the City and going on strike was, among other things, the establishment of the tribunate (each tribune had veto power over Senate bills), the ‘plebiscite,’ or vote of the commons, which had force of law, and other reforms intended to balance power to power.
This kind of lesson was not lost when the Senate was formed; it’s self-proclaimed title, ‘The World’s Greatest Deliberative Body,’ stems in part from rules that give individual Senators extraordinary power over the legislative process, as compared to members of virtually all other legislative bodies. One Senator may block an Executive or Judicial Branch nomination (when such require, per the Constitution, the ‘advice and consent’ of the Senate), for as long as she or he sees fit. A lone Senator may also speak for as long as he or she can stand and hold the floor of the Senate – the ‘filibuster.’ No less an authority than the late Sen. Robert Byrd, a master of parliamentary maneuver and intrigue, considered the filibuster to be an integral and essential part of the Senate’s character as a legislative and deliberative body.
Senator Paul’s use of this Senate rule is a rarity in our time; Senators often threaten, but seldom actually take the floor to speak for hours on end. The mere threat of a filibuster is often enough to force action on what the Senator wants done. Some notable filibusters, such as the late Senator Thurmond’s record-setting 24+ hour speech blocking the Civil Rights Act of 1957 (which passed and became law anyway), are best remembered, if at all, as a reminder that the filibuster, like any other tool, may be used for good purposes, or ill ones. However, the ill-use of a power does not mean that the power itself is unjustified, and the limits of human stamina make of this one only a delaying tactic.
In this case, the President’s nominee to head the CIA was confirmed in spite of Sen. Paul’s filibuster. however, the question upon which the confirmation debate revolved – does the President have the right to order the execution of Americans, without trial, on American soil, by use of ‘predator drones’ – got the hearing it deserved, and the speech rallied opposition to the idea to the point that the Attorney General issued a statement denying that the power to kill ‘non-combatant’ Americans on our own soil existed. (No definition of who is, or is not, a ‘combatant’ was offered, nor was it specified who makes that decision; however, the Senator’s effort is still a classic example of the use and value of this rule in forcing a debate in place of a rush to judgement.)
For the same reason that one juror may block a conviction, our system recognizes the right, in certain circumstances, of a lone individual to stand up and stop what they see as gross injustice from taking place, the Senate’s rules allow for the use of the filibuster. With examples ranging from ancient Rome, to our own time of ‘emergencies’ being used to seize power, abrogate individual rights and as a cover for crimes of all kinds, we ought to be happy that our system is designed to be inefficient – if by that one means that things don’t happen until all voices have a chance to a full hearing.
I was honored to be a guest on Silvio Canto’s radio show last night for a discussion centering around current political events in Michigan and other items in the news. The link above is to an audio recording of the show.
The Washington Times reports that some are calling for Presidential ‘Executive Orders’ to be used to deal with the ‘gun control issue’ if Congress does not legislate as these advocates would like. As one Clinton-era staffer said about executive orders – ‘Stroke of the pen, law of the land. Kinda cool.” But…
The Constitution vests all legislative power in Congress, unless that power, unless that power, per the 9th Amendment, pertains to something not among the enumerate powers of the Federal Government, in which case the power to legislate upon it devolves upon the States or the People. Not for nothing did early Americans fear executive power: It had been used against them by King George III and his appointed colonial governors, who often ignored their legislatures, prorogued them out of existence and who governed, in the colonists’ opinion, as virtual despots. (Even those colonists who remained loyal to the Crown of England – a.k.a. ‘Tories’ – had reason to complain of the abuse of their rights as Englishmen; they generally disagreed only upon the remedy for the problem.) Thus, they separated the executive and legislative power, as well as reserving the power to tax and spend to the legislative branch of government at both the state and Federal levels. They did this because experience, both their own, that of the ‘Mother Country’ and the history of other republics taught them that combining executive and legislative powers was to create de facto tyranny.
Presidents do, however, have executive order authority. They are CEOs of the Executive Branch of the Federal Government. Thus, any order they give, when operating within the scope of their authority, is a de facto executive order. What is referred to here is policy-making power, which, again, Presidents have within the Executive Branch. As the Executive Branch is an employer of millions of people, grantor of billions of dollars to millions of others and spender of trillions of dollars, orders that affect it in its’ entirety have very broad scope. They are not, however, laws. Indeed, executive orders used to be of a very mundane nature, indeed. Even an activist President such as Theodore Roosevelt confined his executive orders to things such as veterans’ preference in Federal hiring, land management, planting trees on Federal property, promotions within the Civil Service and pay rates for members of the Armed Forces.
The use of executive orders to make public policy generally dates from the 1960s, when Lyndon Johnson used his power to prohibit Federal contractors from engaging in racial discrimination and to require that they use affirmative action to redress previous patterns of discriminatory activity. Because of the size and scope of Federal activity, an executive order of this type has very broad reach across society as a whole. It is not, however, a law of itself, and there are those (non-contractors of the Federal government) to whom it does not apply.
Thus, a desire to see policy enacted via executive order is not truly an end-run around Congress, due to the limited nature of the power to issue such an order. It would be an extreme overreach for any President to assert that his executive orders had the force of law. It is not outside the realm of possibility, however, as power, especially when un-checked or long-held, has a tendency to be abused, even if the best intentions are involved. The point of contention here is not the rightness or wrongness of any action, but the issue of who(if anyone) may exercise the power in question. This we have seen, for example, a rash of post-9/11 ‘signing statements,’ where Presidents have signed laws but published their own interpretation of them when doing so. This, too, is a separation of powers issue, as the interpretation of law is strictly a matter for the courts, and only the Courts may decide the Constitutionality of a law, or the interpretation thereof.
The Constitution vests control over the purse – spending – as well as over the public credit and the coining of money with Congress. There is no ‘loophole‘ allowing the Treasury to mint a coin with a Zimbabwe-esque denomination. When we, as citizens, decide how we are to pay for $16,000,000,000,000 in national debt, in addition to perhaps $100,000,000,000,000 promises made for Social Security, Medicare, Medicaid, veterans’ benefits and the like, we may debate whether to pursue austerity to reduce current consumption, as many households do when faced with a budget crunch, or we may opt to support higher taxes to fund our expenses, but he cannot, as serious adults, spend time talking about magic money being used to pay for actual debts owed and promised made. In more mature political societies, discussions like this would not take place.