Much has been written over the past four-plus years lamenting a supposed assault against the United States Constitution and the elimination of rights it has historically protected from government encroachment. The complaints ~ rarely raised in the mainstream media ~ invariably cite President George W. Bush's wiretapping by the National Security Agency, the elimination of Habeas Corpus for "enemy combatants," secret prisons, torture, rendition of terror suspects and the Military Commissions Act that authorizes persons being held incognito, without being informed of charges against them (if any), denied access to any evidence against them (again, if any), prevented from appealing their confinement in a US court and myriad other government abuses.
But let's not go so fast to embrace such complaints because much is undetermined. Had any of those activities been undertaken outside of war, there would be no question that each and everyone would be illegal ~ even subversive ~ but a problem is the landmark 1918 Supreme Court case of Schenck v. United States. In that decision the court held as a matter of law that the government could do during times of war what would be blatantly unconstitutional at all other times. That was the case that introduced "clear and present danger" and "falsely shouting fire in a crowded theater" to American lexicon and which Americans constantly misuse.
The court's rational was that in dangerous times, when the nation was faced with destruction, the government must have extraordinary leeway to exercise its war powers to provide for the "common defence" (Article I, Section 8, paragraph 1). In the Schenck case the right of free speech was eliminated by a government that jailed socialists who counseled young men on the unconstitutionality of the military draft (involuntary servitude prohibited by 13th amendment).
Schenck also was the precedent behind the confinement in relocation camps of 120,000 Americans of Japanese descent (and some of Italian and German heritage) and for near-total control of society including rationing, censorship and confiscation of property for military use and production during World War II.
Oliver Wendell Holmes Jr., writing for the majority in Schenck, failed to mention just what "times of war" entailed. He was writing of a time when World War I had been officially declared by Congress, so it's logical to conclude he envisioned the decision to apply only during officially declared wars, but he never said that. It's also logical to conclude that the decision applied to laws made through constitutional procedures, not actions taken unilaterally by an administration without benefit or cover of law, but he never said that either. The Schenck decision would clearly apply during WWI and WWII, but would it apply during the Korean War that was authorized by treaty with the United Nations or the Vietnam War authorized by membership in the now-defunct Southeast Asia Treaty Organization? And would it apply to George Bush's "War on Terror" that has not been declared as "war" by Congress or authorized by treaty? And how far would this "war power" go? Surely we shouldn't apply it to the "war on drugs" (even though Ronald Reagan tried), the "war on poverty" or other "wars" such as the "war between the sexes". The court will have to decide because the Schenck and Korematsu decisions (accepting the Japanese-American confinement) have never been negated by court decision or constitutional amendment, thus remain the "law of the land." Minor chipping away at those decisions by lower courts doesn't clarify about what is justified. That the Supreme Court will have to clarify this issue some day shows how cowardly Democratic senators in the 109th Congress were to roll over and play nice, letting Bush name John Roberts and Samuel Alito to that court knowing, or should have known, they could conceivably endorse Bush's abuse of power and dictatorial tendencies.
Bush's "war against the US Constitution" must rest on actions not related to military conflict but clearly unconstitutional, but never mentioned as such by the mainstream media.
Among Bush actions that clearly contravene the US Constitution is the drive to privatize, or personalize, Social Security. This horrible proposal keeps popping up whenever the political right feels it can scare the population with warnings about "bankruptcy" of the system several decades in the future when the program will be able to meet 80-90 percent of its promised obligations. Never mind that this shortfall has been standard operating procedure on the federal budget since Ronald Reagan opened the war on the middle and working classes in 1981. Democrats rightly oppose the right's efforts to alter Social Security, but for the wrong reasons. The Democrats claim the proposal is bad policy or politics when it really is constitutional subversion. The Social Security issue relates to Article I, Section 8, paragraphs 1 and 18 and which Democrats join the media in missing.
Paragraph 18 says that all laws made by Congress must be based on a power that the Constitution gives government and must be necessary and proper. The fact that the Constitution doesn't give government the power to legislate procreation (abortion), or our love lives and marriages (sodomy or gay marriage ), nor is including "under God" in the Pledge of Allegiance necessary in any way and there is nothing to indicate the United States should determine the political or governmental structure of other nations is a matter for another article; this article involves the power to tax and spend to provide for the "general welfare" (paragraph 1).
Social Security's legitimacy rests on the power to tax and spend for the general welfare and is not provided for anywhere else in the Constitution. Under Bush's Social Security plan, individual taxpayers would determine where and how their tax contributions would be used.
The first problem with Bush's scheme is the Constitution authorizes "general welfare" as a legitimate function of the taxing-and-spending power of Congress. Nowhere in the Constitution is there authorization to use tax moneys for "personal welfare" or for "private welfare," as Bush proposed. This is constitutional subversion No. 1.
In 1923, the most-conservative Supreme Court in US history handed down two rulings on taxpayer issues. In the cases ( Massachusetts v. Mellon and Frothingham v. Mellon) the court established that money collected by government through taxation is owned by the government. It is not the property of taxpayers, therefore there is no such thing as "taxpayers' money" the media like to bandy about. Bush's plan to let taxpayers continue to own their tax payments amounts to constitutional subversion No. 2.
The second point the court made is something that should be obvious to anyone who follows government. It is that Congress has the sole constitutional authority to determine how public money is to be used. Bush's plan to allow taxpayers to determine spending of government money is constitutional subversion No. 3.
The Constitution specifies that the general welfare (Social Security) is to be funded with money raised through taxation; no other way. The power for government to borrow money for other purposes wasn't introduced into the Constitution until paragraph 2 of Article I, Section 8; well after funding for general welfare with tax money was established; therefore Bush's plan to borrow close to $2 trillion to cover transition costs of converting Social Security to unconstitutional private or personal accounts is constitutional subversion No. 4.
The Social Security subversion isn't the only instance of misusing the taxing-and-spending power. Another subversion of constitutional principles that went totally undetected by the mainstream media involved funding of the Public Broadcasting Service (PBS). Bush's hand-picked chairman of the board of the Corporation for Public Broadcasting , the agency entrusted with funding public television, decided the unbiased-and-professional journalism of Bill Moyers' NOW program needed balancing with right-wing propaganda, so he created a segment with staffers of the Wall Street Journal's editorial page spouting their biased opinions. The Constitution allows for spending for broadcasting (general welfare), it doesn't give power to government to also program public TV's schedule. Government would need to own PBS ~ which it doesn't ~ before it had legal authority to program that network. Such a subtle distinction didn't bother Bush functionaries, but was clearly constitutional subversion.
Bush wasn't the first to wage war on the Constitution. Ronald Reagan's Iran-contra episode of the 1980s stands out as one of the most-glaring scandals of the decades that followed the civil-rights struggles. The Reagan administration confiscated million of dollars worth of US military equipment to sell to Iran, then used the proceeds to fund right-wing contras trying to overthrow the revolutionaries in Nicaragua and return that nation to control of the henchmen who ran the country through kidnapping, torture and murder during the Somosa dictatorship.
The Constitution is specific. It states in Article IV, Section 3, that Congress decides the manner by which property belonging to the United States is disposed. The Reagan administration's sale of US arms without congressional direction amounted to subversion No. 1.
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Thomas Bonsell is a former newspaper editor (in Oregon, New York and Colorado) United States Air Force cryptanalyst and National Security Agency intelligence agent. He became one of American journalism's leading constitutional experts through years of study at Georgetown University Graduate School of Government in Washington, D.C., and tries (without much success) to be patient with people who argue endlessly on subjects they have never studied. He is the author of "The Un-Americans: Trashing of the United States Constitution in the American Press", a critique of the mainstream media for ignorance of, or disdain for, our constitutional principles of self-government. He left newspaper work years ago, disgusted at the direction the Fourth Estate ~ under the mismanagement of ineffectual, out-of-touch, can't-do executives ~ was taking away from honest responsible journalism and the observation that there was no place in the mainstream media for a progressive, or liberal, constitutional "expert". Bonsell is an honors graduate of Woodbury College (Los Angeles, California) with a bachelor of business administration degree. He is profiled in Marquis Who's Who in America. (Self-portrait, above, was handled to make author/artist appear prettier than he actually is.)
Personal motto: Have brain; will use.
Anybody who has only vague notions about the differences between Democratic and Republican ideologies needs to read this article, plus at least two more by Thomas Bonsell.
They are: "Differences Between Liberal and Conservative", in which he correctly identifies Benedict Arnold as an early Republican, and root causes for the Civil War, and the great depression, and even brain differences between the two viewpoints.
The second is titled "Liberals Ignore True Conservative Agenda", in which we learn the code phrases that actually mean something else. Gov. Wallace was wrong- there is more than "...a dime's difference between the Democrats and the Republicans", and the difference is like night and day. This should be part of every body's education, starting with Civics classes. Maybe at some point we can drive a stake into the heart of the beast, and then, drown it in a bathtub. Just to make sure.
by
Chuck Garner (0 articles, 0 quicklinks, 0 diaries, 118 comments)
on Friday, February 16, 2007 at 10:39:19 AM
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