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.
The Constitution ~ as said above ~ states unequivocally that Congress determines how money owned by the US is to be spent. Sending it to right-wing death squads in Nicaragua by Reagan was constitutional subversion No. 2.
Article I, Section 9, also says that when money is disposed of it must be entered into a journal and made public. Reagan's attempt to keep the money transaction with Nicaraguan rebels secret amounts to constitutional subversion No. 3.
While the mainstream media reported on the Iran-contra scandal, they totally missed the obvious constitutional subversions that were present. Then members of the media hired and promoted many perpetrators of that subversion as commentators or columnists just as they did for operators in the Richard Nixon Watergate subversion. That the media have never exposed such subversions or attempted subversions of the Constitution is the simple reason there is no one in the popular media ~ and that includes such know-it-all stalwarts of journalism as The New York Times and Washington Post ~ who understands anything about the Constitution and its subtle nuances. In fact, a writer The Seattle Times passes off as its expert constitutional specialist eagerly endorses the constitutional subversion present in Bush's Social Security "reform".
Not understanding isn't a sin, but pretending to be knowledgeable on a subject not studied is just another form of lying. Journalism should be better; but it isn't.