Constitution in Crisis, Candidates in Denial

Published on
by
The Nation

Constitution in Crisis, Candidates in Denial

by
John Nichols

Independent presidential candidate Ralph Nader shows a copy of the U.S. Constitution during a news conference at the National Press Club in Washington, Wednesday, Sept. 10, 2008 with third-party candidates calling for greater inclusion of candidates beyond the Republican and Democratic majorities. (AP Photo/J. Scott Applewhite)

Constitution Day has arrived without major statements from Democrat
Barack Obama or Republican John McCain on the need to restore this
country's commitment to the rule of law.

In contrast, independent presidential candidate Ralph Nader's
campaign produced a video statement detailing his commitment to
constitutional renewal.

Here's Nader's video, in which he says, "You and I cannot turn our backs on the Constitution, as the two parties have done."

Even more powerful is the statement made by Senator Russ Feingold,
the Wisconsin Democrat who chairs the Senate Judiciary Committee's
Constitution subcommittee, at the opening of Tuesday's hearing -- which
Obama and McCain should have attended -- on how to repair the damage
done by the Bush-Cheney administration to the system of checks and
balances and our fundamental liberties.

Decrying the administration's record as a "shameful legacy that will
haunt our country for years to come," Feingold declared that America
needs to "get started right away on this immense and extremely
important job of restoring the rule of law."

The Wisconsinite pondered seeking the Democratic nomination for the presidency this year but instead backed Barack Obama.

Would that Obama was speaking up as Feingold is on the Constitution.

Here's the Constitution subcommittee chair said in his call to action:

 

Tomorrow, September 17, is the 221st anniversary of the
day in 1787 when 39 members of the Constitutional Convention signed the
Constitution in Philadelphia. It is a sad fact as we approach that
anniversary that for the past seven and a half years, and especially
since 9/11, the Bush Administration has treated the Constitution and
the rule of law with a disrespect never before seen in the history of
this country. By now, the public can be excused for being almost numb
to new revelations of government wrongdoing and overreaching. The
catalogue is breathtaking, even when immensely complicated and far
reaching programs and events are reduced to simple catch phrases:
torture, Guantanamo, ignoring the Geneva Conventions, warrantless
wiretapping, data mining, destruction of emails, U.S. Attorney firings,
stonewalling of congressional oversight, abuse of the state secrets
doctrine and executive privilege, secret abrogation of executive
orders, signing statements. This is a shameful legacy that will haunt
our country for years to come.

There can be no dispute that the rule of law is central to our
democracy and our system of government. But what does ‘the rule of law'
really mean? Well, as Thomas Paine said in 1776: ‘In America, the law
is king.' That, of course, was a truly revolutionary concept at a time
when the King, quite literally, was the law.

Over 200 years later, we still must struggle to fulfill Paine's
simply stated vision. It is not always easy, nor is it something that
once done need not be carefully maintained. Justice Frankfurter wrote
that law:

is an enveloping and permeating habituation of behavior, reflecting
the counsels of reason on the part of those entrusted with power in
reconciling the pressures of conflicting interests. Once we conceive
‘the rule of law' as embracing the whole range of presuppositions on
which government is conducted . . ., the relevant question is not, has
it been achieved, but, is it conscientiously and systematically pursued.

The post-September 11th period is not, of course, the first time that
events have caused great stress for the checks and balances of our
system of government. As Berkeley law professors Daniel Farber and Anne
Joseph O'Connell write in testimony submitted for this hearing: ‘The
greatest constitutional crisis in our history came with the Civil War,
which tested the nature of the Union, the scope of presidential power,
and the extent of liberty that can survive in war time.' But as legal
scholar Louis Fisher of the Library of Congress describes in his
testimony, President Lincoln pursued a much different approach than our
current President when he believed he needed to act in an
extra-constitutional manner to save the Union. He acted openly, and
sought Congress's participation and ultimately approval of his actions.
According to Dr. Fisher:

[Lincoln] took actions we are all familiar with, including
withdrawing funds from the Treasury without an appropriation, calling
up the troops, placing a blockade on the South, and suspending the writ
of habeas corpus. In ordering those actions, Lincoln never claimed to
be acting legally or constitutionally and never argued that Article II
somehow allowed him to do what he did. Instead, Lincoln admitted to
exceeding the constitutional boundaries of his office and therefore
needed the sanction of Congress.... He recognized that the superior
lawmaking body was Congress, not the President.

Each era brings its own challenges to the conscientious and systematic
pursuit of the rule of law. How the leaders of our government respond
to those challenges at the time they occur is, of course, critical. But
recognizing that leaders do not always perform perfectly, that not
every President is an Abraham Lincoln, the years that follow a crisis
are perhaps even more important. And soon, this Administration will be
over. So the obvious question is: ‘Where do we go from here?' I believe
that one of the most important things that the next President must do,
whoever he may be, is take immediate and concrete steps to restore the
rule of law in this country. He must make sure that the excesses of
this Administration don't become so ingrained in our system that they
change the very notion of what the law is.

That, of course, is much easier said than done. It's not simply a
matter of a new President saying, ‘Ok, I won't do that anymore.' This
President's transgressions are so deep and the damage to our system of
government so extensive that a concerted effort from the executive and
legislative branches will be needed. And that means the new President
will, in some respects, have to go against his institutional interests.

That is why I called this hearing - to hear from legal and
historical experts on how the next President should go about tackling
the wreckage that this President will leave. I've asked our two panels
of experts who will testify to be forward-looking - to not only review
what has gone wrong in the past seven or eight years, but to address
very specifically what needs to be set right starting next year and how
to go about doing it.

In addition to the testimony of the witnesses here today, I
solicited written testimony from advocates, law professors, historians
and other experts. So far we have received nearly two dozen submissions
from a host of national groups and distinguished individuals. I want to
thank each and every person who made the effort to prepare testimony
for this hearing. You have done the country a real service.

All of this testimony will be included in the written record of the
hearing, which I plan to present to the incoming Administration. The
submissions we have received so far can be seen on my website at
feingold.senate.gov. I hope that many of these recommendations, along
with the testimony we will hear today, will serve as a blueprint for
the new President so that he can get started right away on this immense
and extremely important job of restoring the rule of law.

 

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