Should America abandon its Constitution?

That must seem like a silly question. Isn’t the Constitution the bedrock of our society, our political system, and our legal system?

And didn’t the Republicans seize power in the House of Representatives to defend the Constitution against that awful Kenyan / Muslim / Socialist / “Uppity Negro” Obama?

No, and no.

I’m ambivalent about people who claim to be “defenders of the Constitution.” First, most of them aren’t. And second, though I’ve spent many years arguing that America should return to following its Constitution, I’m no longer sure that it’s a good idea.

Enumerated Powers for the Federal Government

Americans tend to forget — if they ever knew — that the U.S. Constitution set up a system of enumerated powers for America’s federal government and un-enumerated rights for the states and the people.

Under that system, the U.S. federal government is forbidden to engage any activities except those that:

• Are specifically authorized by the Constitution, or
• Are clearly necessary to carry out the Constitutionally-authorized activities.

In other words, the legitimate powers of the federal government are “enumerated” (listed) by the Constitution. However, the rights of the states and the people are not limited to those enumerated in the Constitution. The states and the people have not only specific rights listed in the Constitution, but also have all their historic rights from tradition, the British common law, and settled practice.

The general welfare clause, which states that the Constitution is intended “to promote the general welfare,” is often used as a catch-all justification for federal government activities. However, the general welfare clause states a goal of the Constitution, not a power of the federal government. It doesn’t authorize anything.

In 1787, the American population was divided about whether or not to adopt the new Constitution as a replacement for the Articles of Confederation, which had governed the United States up to that point. Supporters of the new Constitution wrote a series of essays called The Federalist Papers in which they answered objections to the Constitution.

The authors of The Federalist Papers opposed adopting “the Bill of Rights,” that is, the first 10 amendments to the Constitution which list specific rights of the states and the people. The main reason they opposed a bill of rights was that the federal government was already forbidden to do anything not listed in the Constitution.

For example, the Constitution did not list any powers for the federal government to suppress free speech, or to search people’s homes without probable cause and a search warrant from a judge. Because it didn’t list such powers, the government was not allowed to do those things. What would have been the point adding amendments to forbid things that the government couldn’t do anyway? In Federalist Paper 84, U.S. founding father Alexander Hamilton wrote:

I go further and affirm that bills of rights … are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

Hamilton’s fears were well-founded. In the 20th and 21st centuries, the fact that the Constitution lists specific rights has enabled supporters of oppressive government (who falsely call themselves “conservatives”) to claim that Americans have only the rights listed in the Constitution.

American founding father Thomas Jefferson, who often disagreed with Alexander Hamilton, agreed completely that the federal government had only those powers enumerated in the Constitution, and no legitimate power to infringe on the rights of the states or the people:

I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.” (Tenth Amendment) To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition. (February 1791)

We have taken many thousands of steps “beyond the boundaries” of the Constitution, to the point at which the U.S. government claims not only unlimited power at home, but presumes to dictate to countries around the world what they may and may not do. Federal agencies and activities not authorized by the Constitution — and therefore forbidden under the doctrine of enumerated powers — include:

• All wars started without a declaration of war by Congress (including those against Iraq and Afghanistan, neither of which attacked or threatened the United States)
• Direct taxation of citizens of the states (Constitutional amendment never ratified)
• National laws about abortion (whether pro or con)
• National laws about religion (whether supporting it or forbidding it)
• National laws about affirmative action and “diversity” (whether pro or con)
• Laws against racial and sexual discrimination
• The FBI
• The IRS
• The CIA
• The National Security Agency
• The Department of Education
• The Department of Health and Human Services
• The Social Security Administration
• All federally-operated welfare programs
• Direct election of U.S. senators (Constitutional amendment never ratified)
• The U.S. “Patriot Act”
• The Transportation Security Agency
• The Department of Homeland Security
• Imprisoning people indefinitely without trial
• Torturing prisoners
• Wiretapping people without independent court review and a court order
• Caging protesters in “free speech zones”
• Subjecting air travelers to “gate rape” and virtual strip searches without probable cause

Moreover, when Thomas Jefferson wrote, Congress was seen as the one and only law-making body in the federal government. Hence, when he talks about limits on the powers of Congress or the United States, he means limits on the powers of the federal government. No one among the founders even imagined that the executive branch and its agencies would be laws unto themselves. That, too, is a power not listed in the Constitution — and thus is Constitutionally forbidden.

In essence, contemporary political theory has turned the U.S. Constitution upside-down. Originally, the federal government was forbidden to do anything not specifically permitted by the Constitution, while the states and people were free to do anything not specifically forbidden by the Constitution. Now, the U.S. federal government claims that it is free to do anything not specifically forbidden by the Constitution, while the states and the people are forbidden to do anything not specifically permitted by the Constitution.

Should America Abandon Its Constitution?

But there’s another side of the argument. In the 21st century, should the United States follow a Constitution that was designed for an 18th-century society?

De Montesquieu (in The Spirit of the Laws, a book that inspired the American founders) said that laws should match the people for whom they were created. And though it’s doubtful that the legal sewage of the Bush-Cheney era and its timid aftermath would match any population above the level of particularly stupid and thuggish monkeys, it’s also true that the U.S. Constitution no longer matches the American population.

At the time the Constitution was written, the American economy was decentralized and largely agrarian. Americans were almost exclusively Anglo-European and were highly self-reliant. They were literate and informed: instead of being an assignment for college students, The Federalist Papers were printed in newspapers and debated in taverns. Americans considered themselves first and foremost to be citizens of their states, not of a vast nation-state. As recently as 1965, the American population was 88 percent white, 11 percent black, one percent “other,” and almost everyone spoke English.

Those things are no longer true. We now live in a centralized, urban, and technological society of multiple races, nationalities, languages, and cultures that is held together only by the armed might of the federal government and the economic power of giant corporations.

The United States is now quite similar to the Soviet Union just before it fell apart, including the wars in Iraq and Afghanistan, military bases and covert wars around the world, and the oppressive domestic internal-security state.

Nobody Really Wants to Follow the Constitution

If the United States followed its Constitution, the country would shatter into at least a dozen pieces. That might be a blessing in the long run, but in the short run it would be very, very difficult for many people.

That’s why Republicans like Senator Mitch McConnell (R-KY) and House Speaker John Boehner (R-OH) aren’t serious about following the Constitution, no matter how much they talk about it to deceive their grassroots supporters. They work for Wall Street, giant corporations, and the super-rich, who would suffer financially if the United States collapsed. They won’t let that happen if they can avoid it.

Democrats aren’t serious about following the Constitution, either. Social programs that benefit the poor, regulations that help curb the power of giant corporations, and laws against racial or sexual discrimination are all un-Constitutional. The vast majority of Americans approve of those things.

So hardly anyone wants to follow the Constitution, but everyone wants to pay it lip service. It exists only as an empty symbol, to which people vow undying loyalty and then completely ignore.

Isn’t it about time we ended the pretense?

Copyright 2011 by N.S. Palmer. May be reproduced as long as byline, copyright notice, and URL (http://www.ashesblog.com) are included.

Stoning a blasphemer in ancient Israel. A scene from the film "Monty Python's The Life of Brian." The rabbi (John Cleese) is about to get bonked in the head.

What’s so bad about stoning?

All right, it’s a rhetorical question. I oppose capital punishment of any kind, and that includes stoning.

Questions about what people “deserve” for various crimes are impossible to answer. How much punishment should they get? What kind? And who has the right or the duty to inflict the punishment?

In an insightful book called Without Guilt and Justice, philosopher Walter Kaufmann (1921 – 1980) showed that those questions are much more difficult than you might think. The only defensible justifications for punishment are deterrence and rehabilitation. Under the United States’s current for-profit prison system, those goals are rarely achieved. But I digress.

Much of the current publicity about stoning comes from the need to justify the U.S. government’s continued occupation of Afghanistan (which kills a lot more people than stoning). Neoconservatives also use it to demonize Iran in anticipation of an Israeli attack on that country (which would kill a lot more people than stoning).

However, Sunday’s New York Times revealed some facts about stoning of which I was previously unaware. As horrendous as stoning is, some of the laws governing it seem to embody a certain amount of common sense. It’s not the unmitigated exercise in barbarism that some political writers make it out to be. Not unmitigated, at least.

First, stoning is not prescribed by the Qur’an, the Muslims’ central holy book (they also recognize the Jewish and Christian scriptures). Instead, stoning is prescribed by Islamic legal traditions called hadiths, which are something like the interpretations of Jewish law contained in the Talmud. The hadiths apply it mainly to the crime of adultery.

As is often the case, religious traditions develop laws based on the needs and customs of the society in which they arise. Because lineage and family were so important in Middle Eastern cultures, adultery was considered a very serious crime. The religious tradition prescribed a correspondingly serious penalty.

Second, just as with Jewish and Christian religious law, very strict standards were established for proof of guilt. To prove adultery, four male eyewitnesses had to testify that they witnessed the act. That makes adultery difficult to prove because it is usually carried out in secret. As a result, stoning for adultery could be expected to be rare.

Moreover, the four eyewitnesses had to give the same account of the facts. If their stories differed in any detail, they would be subject to punishment. That would discourage accusations of adultery unless the witnesses were quite sure about what had occurred and very serious about testifying. Yes, sometimes witnesses might collude. But getting four men to tell the same story, in the face of punishment if they’re found out, is a barrier to false accusations that would not exist if only one witness was required and if perjury was treated lightly.

Third, the people responsible for convicting someone of adultery had to take personal responsibility for carrying out the punishment. If the adulterer confessed, then the judge had to cast the first stone. If witnesses proved the adulterer’s guilt, then one of the witnesses had to cast the first stone. For most people who are morally normal, the idea of injuring another person by stoning is horrendous. That, too, would discourage false or uncertain accusations.

Of course, those are the Islamic laws and traditions governing stoning. Thugs and psychopaths don’t care about laws and traditions, so they’ll stone anyone they dislike and feel great about it. But that’s not unique to Islamic countries.

The article mentioned one other fact I hadn’t heard:

The former head of Iran’s judiciary made several recommendations to judges not to impose or implement stoning sentences, but all have been ignored.

Much like the United States, where it’s hard to rein in “conservative” judges who want to impose cruel and unusual punishments on anyone who falls into their clutches.

Stoning is still wrong. It’s still barbaric, but so is all capital punishment. At least stoning seems to be governed by some sensible, if not failproof, safeguards.

Copyright 2010 by N.S. Palmer. May be reproduced as long as byline, copyright notice, and URL (http://www.ashesblog.com) are included.

Some Americans react with hostility to Muslim attire. Source: The New York Times.

Unenlightened Americans are being mean to Muslim women.

That’s the central message of “Behind the Veil,” an article in the Styles section of this morning’s New York Times.

And the article is correct: A few Americans are indeed being mean to Muslim women.* Gratuitous meanness is unenlightened.

But let’s reflect for a moment about the article’s contention (with which I agree) that the meanness is gratuitous.

The article recounts the troubles of Hebah Ahmed, a woman who started wearing a Muslim veil after the 9/11 attacks that were blamed on Muslim terrorists from Saudi Arabia.

The veil, called a hijab, covers Muslim women’s faces and bodies, though part of the face is left uncovered so that they can see where they’re going. Ms. Ahmed’s veil provoked strong reactions from some Americans:

Hebah said she has been kicked off planes by nervous flight attendants and shouted down in a Wal-Mart by angry shoppers who called her a terrorist. Her sister was threatened by a stranger in a picnic area who claimed he had killed a woman in Afghanistan “who looked just like” her. When she joined the Curves gym near her home in Edgewood, N.M., some members threatened to quit. “They said Islamists were taking over,” Ms. Ahmed said.

The Heckler’s Veto

What the article describes is called a “heckler’s veto.” Ms. Ahmed is having trouble because other people object to her attire and its Muslim affiliation.

The premise of a heckler’s veto is that if an idea offends anyone in a speaker’s audience, then the offended person can shout at the speaker to stop him or her from stating the idea. The heckler’s veto was on display last year, when Republican Party operatives disrupted legislators’ “town hall meetings” to prevent them from explaining health care reform to their constituents.

To her critics, Ms. Ahmed’s veil symbolizes terrorism, an alien religion, and a threat to Western society. They would like to exercise their heckler’s veto to prevent her from bringing that symbol into their presence, whether it’s on a plane or in a grocery store.

Ms. Ahmed and other peaceful Muslims, of course, argue that the hijab and other Muslim customs do not symbolize terrorism to them. They symbolize merely a religious tradition and its customs.

Both sides have a point. Rightly or wrongly, Ms. Ahmed’s critics are offended by her Muslim attire and what it symbolizes to them. Ms. Ahmed counters that she means to convey no such message and that her critics’ interpretation of her attire is different from hers. They think that her hijab is an in-your-face endorsement of terrorism. She thinks that it’s merely a statement of piety.

Her critics suspect that her avowals of peace and piety are just a smokescreen. They believe that she secretly endorses terrorism and war on the West. She denies it.

Because both sides have legitimate arguments, one can decide the dispute either way. In America, we have decided that freedom of expression should override a heckler’s veto.

Well, sometimes. Let’s consider another case where the same issue is involved.

The Confederate Flag

The Confederate Battle Flag. Source: Wikipedia.

In the 19th century, Southern states tried to secede from the United States because the Union government’s economic policies favored the industrial north at the expense of the agrarian south. Slavery was an issue, but a minor one. Slavery was legal in both Southern and Northern states. Although U.S. President Abraham Lincoln’s “emancipation proclamation” is widely thought to have freed all American slaves, it applied only to Confederate states, where Mr. Lincoln had no legal authority. It said nothing about ending slavery in the Union states over which Mr. Lincoln actually had at least some legal jurisdiction.

Based on the U.S. Constitution, the Southern states argued that they had a right to secede from the Union. But their Constitutional argument was crushed by the superior military power of the Union, which invaded and subjugated the Confederate states.

As a result, many Americans in former Confederate states see the Confederate flag as a symbol of their “lost cause,” and of the principles of the original U.S. Constitution that decentralized most power to the states.

But those flag supporters have their critics. Critics argue that the Confederate flag is merely a racist symbol affirming white superiority over black people and denying the evils of slavery. Seen that way, the Confederate flag is deeply offensive to African-Americans and to anyone else who believes (as I do) that people of all races are equal in rights and human dignity.

So this is another case in which a symbol’s supporters claim that it means only good things to them. Its critics suspect that the supporters are really motivated by hatred and racism, but that they are concealing those motives behind high-sounding rhetoric about the Constitution and states’ rights.

In the case of Muslim attire and practices, received wisdom rejects the heckler’s veto. Polite society accepts Muslim symbols as meaning what nice Muslims like Ms. Ahmed say that they mean. Anyone who doubts it is considered to be a narrow-minded hater.

Yet in the case of the Confederate flag, received wisdom embraces the heckler’s veto. Polite society accepts the flag as meaning what its critics say that it means. Anyone who defends it is considered to be a narrow-minded hater.

Threatened by boycotts and federal sanctions, Southern state legislatures have acted against the wishes of majorities to remove Confederate imagery from flags and to ethnically cleanse building and street names of references to Confederate heroes. Students wearing T-shirts with the flag are sent home from school to change clothes. Any public display of the flag is subject to harassment, violence, and even (rarely) arrest. Why? Because hecklers might be offended by the flag.

What’s the Difference?

The inconsistency most likely arises because Muslims in America, whatever their merits or demerits, are an “official victim” group against which it is socially and legally unacceptable to hold any bias.**  Their hecklers, on the other hand, are just plain vanilla Americans, with no special status or rights.

In the dispute over the Confederate flag, however, the roles are reversed. Supporters of the disputed symbol are just plain vanilla Americans with no special status or rights. Their hecklers are members of, or profess to act on behalf of, an aggrieved official victim group (African-Americans).

——————————————–
* Not as mean as some Muslim men are to Muslim women, but it’s still wrong.

** It serves the interests of the U.S. government to handle its domestic Muslim population gently, lest American Muslims be driven by mistreatment to make common cause with their co-religionists in Muslim countries currently under attack or occupation by U.S. military forces.

Censorship can be overdone. Everyone understands that. But it can also be done correctly.

Popular entertainment shapes popular morality, and our popular entertainment is sometimes pretty vile. A little censorship wouldn’t be a bad thing.

There are good arguments on both sides of the issue. The problem, I think, is that most people hold few if any explicit moral principles. Instead, their sense of right and wrong tends to be guided by what they see on television and in movies. And what they see these days is unwholesome.

It’s true that that scene-by-scene censorship is prone to abuse. So is censorship of ideas, though I would argue that even censorship of ideas is not always a bad thing. Televised fantasy-dramas such as the Fox Network’s “24” did more to legitimize torture, brutality, and lawlessness than would any number of wonkish policy studies from The Heritage Foundation or neocon preachments in The Weekly Standard.

I’d like a set of broad principles about the kinds of moral values that entertainment should and should not promote. I’ll give you an example from a movie I recently watched: “The Browning Version,” which won an Academy Award as the Best Picture of 1951. It got a “restricted” rating, meaning that only adults could see it.

Why? Because although it contained no nudity, no sex acts, no foul language, and no violence, two characters were involved in an adulterous relationship. The restricted rating, and the way that the movie handled the situation, conveyed the clear message that such relationships are wrong.

One can argue that moral education should be more widespread. However, in modern secular society, that is probably impossible. The most we can get are politically-correct nostrums about avoiding racism and sexism. That leaves us with popular entertainment. The only question is whether it will be a benign or malignant influence.

The usual tendency of corporate capitalism is to seek the lowest, the meanest, and the stupidest common denominator it can find. Carefully designed censorship could tip the scales in a more positive direction.

One solution, from the 1933 film "Gabriel Over the White House."

The catastrophic oil spill by BP (formerly known as British Petroleum, and before that as the Anglo-Iranian Oil Company) has drawn attention to the fact that corporations can get away with murder. Literally. Largely exempt from accountability or punishment, they cause incalculable damage to communities, ecosystems, economies, and human lives.

The libertarian “solution,” if you want to call it that, is to do nothing. To hear libertarians tell it, corporations are deterred from evil acts by two factors.

First, they are deterred by their fear that consumers will refuse to buy dangerous products or patronize firms that commit crimes. But corporations have found easy ways to get around that problem. The easiest way is to buy up or buy off the news media. If that doesn’t work, they can just change the name of their company or its products. Consumers might remember the old name, but they won’t know the new one. The “magic of the market” doesn’t work.

Second, libertarians claim that corporations are deterred from criminal acts by their fear that the people they harm will sue them. But the BP disaster shows conclusively that corporations have nothing to fear. Millions of gallons of oil have spilled into the Gulf of Mexico as a result of BP’s negligence. However, the company has taken steps (such as using chemical dispersants to break up the oil) that will make it extremely difficult to prove the extent of damages. Even more difficult will be proving that specific amounts of damage were done to specific people and communities as a result of BP’s actions. The company might have to pay out a little, but any damage payments will be dwarfed by the massive profits it continues to make from cutting corners on safety. The numbers are clear: crime does pay, as long as you’re corporate and connected.

So what to do?

As I see it, there are three ways to approach the problem of corporate crime — whether by oil companies like BP or financial bloodsuckers like Goldman Sachs.

First, there’s the libertarian solution: do nothing. Corporations and their owners love that one. It’s great for them. For most people, however, not so much. It means that government ignores its primary obligation to protect the people.

Second, use regulation to prevent corporations from engaging in foolishly risky or criminal activities, particularly when they think that any profits will accrue to them but any costs will be borne by others. That would have prevented not only the BP oil spill, but the Wall Street meltdown of 2008.

Third, don’t regulate, but impose Draconian punishments to induce corporate managers to act responsibly. Without advocating it, let me describe an effective solution. At a certain point in the near future, federal marshals surround the headquarters of BP or Goldman Sachs. They arrest the members of corporate top management who were most guilty of causing the oil spill or the economic crisis. They march them out into the street and, in front of TV cameras, execute them on the spot. We would only need to do that one time. After that, corporate managers and owners would know that if they caused sufficient harm, they might not live to enjoy the profits from their crimes.

My point is that we have only three choices. Two of them are unacceptable. That leaves one which, in spite of any shortcomings, is the best of the three.

Choice number one, the libertarian solution of doing nothing, isn’t an option. Choice number three, shooting corporate executives in the head, would be effective but would violate the rule of law and would sometimes be unjust.

That leaves solution number two: Regulate the daylights out of corporations to prevent them from acting irresponsibly and criminally. That’s what a sensible person can support.

Update: BP and Halliburton Knew They Risked Disaster

In case you missed it, The New York Times reports that internal memos show BP violated its own safety guidelines to use riskier but cheaper methods for the Deep Horizon drilling project:

As far back as 11 months ago, [BP] was concerned about the well casing and the blowout preventer. On June 22, for example, BP engineers expressed concerns that the metal casing the company wanted to use might collapse under high pressure.

BP went ahead and used the riskier methods anyway, having bought off and/or corrupted the U.S. Minerals Management Service regulators who were supposed to be monitoring them. In addition, former U.S. Vice President Dick Cheney‘s company Halliburton, which was also involved, knowingly used faulty cement to seal the well.

Maybe choice number three isn’t such a bad idea after all.

People often make the mistake of thinking that if we respect human rights or due process rights, we are doing terrorism suspects a favor instead of giving them what they are due.

Human rights belong to every person regardless of nationality, religion, or combatant status. Respecting those rights means we are acting as a civilised society instead of acting as a bunch of bloodthirsty barbarians.

Due process rights, such as defendants’ rights to know the charges against them, to have legal representation, and to confront accusers, uphold the integrity of our legal system. They protect the innocent from false accusations and persecution by evil or irresponsible government officials. Their purpose is not to coddle “terrorists,” but to ensure that accused people are either proven guilty or cleared and released.

A big part of the problem is that we no longer follow the Constitution, which requires that wars be declared by Congress, not by the President. The Constitution also requires that wars be declared against clearly-defined adversaries, not against amorphous groups that might include anyone.

Legitimate prisoners of war can be held without charge because they’re not accused of any criminal offense. They must be treated humanely under international law and they must be released when the war is over. But “enemy combatant” is a bu–sh-t category that the Bush-Cheney regime invented so it could claim that it was exempt from the Constitution and international law: that law, civilization, and human rights didn’t apply to anyone it wanted to torture.

One lesson about life on earth: most so-called “enemy combatants” are either dead or still imprisoned, while Bush and Cheney walk free, living at taxpayer expense for the rest of their evil lives. The Obama administration hasn’t changed that, and isn’t going to change it.

Today’s New York Times has a forum about the Cheney gang’s attempt to demonize lawyers who represented accused terrorists during the Bush-Cheney era.

Before reading the exchange, I noticed that Harvard law professor Alan Dershowitz was one of the participants. I wondered what position he would take.

In the past, he’s represented unpopular clients such as Claus von Bulow and has argued vigorously for their right to counsel — a right which is long established in European and American law. He’s also smart enough to recognize the stark contradiction between those facts and the Cheney gang’s propaganda campaign.

At the same time, Dershowitz is in the neoconservative orbit and could be expected to support anything for a war either against Islam or against those whom he perceives as Israel’s adversaries. In the United States, “accused terrorist” has been seen as roughly synonymous with “accused Muslim,” so it’s not much of a stretch.

In the end, Dershowitz did not disappoint. He acknowledged that accused terrorists, including sympathizers and “fellow travelers” (look it up), had a right to legal counsel. But he then drew a moral equivalence between providing legal counsel to suspects and providing legal cover to the Bush-Cheney regime for torturing prisoners. Providing the latter is the same kind of war crime for which Nazi judges were tried at Nuremberg and sentenced to long prison terms.

Give Dershowitz credit: He’s an advocate. No matter how immoral or irrational his position, he’ll argue it well.

Surprise, surprise: Today’s New York Times reports that the U.S. Justice Department has given only a slap on the wrist to John Yoo and Jay Bybee, the Bush-Cheney regime lawyers whose “torture memos” provided specious legal cover for violation of U.S. and international law.

Yoo and Bybee’s work not only tried to justify torture of prisoners. It also committed torture: against logic, human decency and — most relevant — against both statutory law and legal precedent.

Yoo is now a (much-protested) law professor at the University of California / Berkeley. Bybee is a federal judge, appointed to the post by the Bush-Cheney regime.

Ethics lawyers in the Justice Department’s Office of Professional Responsibility (OPR) concluded that Yoo and Bybee had

… ignored legal precedents and provided slipshod legal advice to the White House in possible violation of international and federal laws on torture.

The OPR recommended that Yoo and Bybee be cited for “professional misconduct,” which could have led to the revocation of their licenses to practice law.

However, David Margolis, associate deputy attorney general, overruled the OPR’s recommendations, which were already far too mild. As a result, the official Justice Department report (PDF) cited the two war criminals only for “poor judgment.”

Thus, the Obama administration once again let the psychopathic monsters of the Bush-Cheney regime (starting with Bush and Cheney themselves) escape justice.

In 1947, German jurists who had provided similar legal apologetics for the Nazi regime were tried at Nuremberg for crimes against humanity, were convicted, and served long prison terms. As a result of the Justice Department’s whitewash, Yoo and Bybee won’t even suffer the loss of their law licenses.

Republicans try to frighten the uninformed by painting Obama as a wild-eyed leftist (as well as a Kenyan Socialist Muslim), but there’s no indication he’s anything but a slightly less vicious, considerably more intelligent version of his predecessor.

From his continued support for Bush-Cheney policies that benefit Wall Street at the expense of Main Street, to his continuation of the Bush-Cheney regime’s Afghanistan occupation, to his complete lack of leadership on issues such as jobs and health care reform that would benefit working Americans, Obama is starting to look very much like “Bush-lite.”

And that is not “change we can believe in.”

Today’s New York Times featured a roundtable discussion about what to do with prisoners that the Bush-Cheney regime has tortured. It was prompted by Pentagon official Susan Crawford’s public statement that she had dismissed charges against one prisoner because he had been tortured.

The roundtable’s participants included two law professors, a human-rights activist, and a Bush-Cheney apologist from National Review magazine, which I used to like before it donned a brown shirt and started heiling den Fuhrer.

The participants all had interesting things to say, but they missed what I regard as the most obvious solution to the problem.

As I noted in a previous article, I don’t believe that the United States should follow its Constitution in every area. However, war and peace are one area where the document has held up quite well over the centuries.

All of the hand-wringing about how legally to detain people fighting the United States would be unnecessary if the government simply followed its Constitution:

1. Go to Congress and get a declaration of war against a specific, definable enemy for a specific, definable conflict.
2. For the duration of the conflict, imprison any captured enemy combatants as prisoners of war. Treat them as we would want American prisoners of war to be treated. By all means, question them, but do not torture them or subject them to other forms of abuse.
3. Fight and win the war.
4. When the war is over, either charge the prisoners if they committed crimes outside the law of war, or release them.

That approach not only solves the legal problem of detaining combatants, but solves the problem of dictatorial “war powers” claimed by the president, vice president, and their administration. The problem with the Bush-Cheney administration’s claims about its “war powers,” apart from the fact that its claims are insanely broad, anti-American, legally groundless, and clearly unconstitutional, is that Bush and Cheney’s “war on terror” will never end. Instead of a temporary expansion of government power to deal with a crisis situation, Bush and Cheney envisioned a permanent expansion of power to crush honest Americans under an iron boot of surveillance, fear, and oppression.

The Roman Empire had a more sensible solution. When it faced a mortal threat — whether military or otherwise — the Senate would appoint a “dictator” to deal with the problem. The dictator had almost absolute power in his area, but was appointed for a specific amount of time (usually one year) and was given authority to deal only with a specific problem. When the dictator’s term was over or the problem was solved, the dictatorial powers ended.

All of that is quite obvious unless one’s real goal has less to do with “fighting a war” than with establishing a permanent American dictatorship.

As for what to do with prisoners that the Bush-Cheney regime has already tortured or abused, release them and:

• Keep an eye on them in case they decide to take revenge on innocent Americans.

• Give them standing to file charges (both civil and criminal) against the people who authorized and committed acts of torture. The people who authorized torture deserve the severest possible punishment. The people who committed acts of torture cannot claim, as their defense, that “they were only following orders.” That defense wasn’t acceptable when the Nazis made it in the Nuremberg trials after World War II, and it’s not acceptable now.

Apart from being the daughter of an assassinated U.S. president, one of Caroline Kennedy’s supposed qualifications to be a U.S. senator is that she is a “defender of the Constitution.”

I’m ambivalent about people who claim to be “defenders of the Constitution.” First, most of them really aren’t. And second, though I’ve spent many years arguing that America should return to following its Constitution, I’m no longer sure that it’s a good idea.

I won’t deal with the desirability of having any more Kennedys in government office except to observe that it’s only by comparison with the Bushes that the Kennedys seem like patriots. Ms. Kennedy is not entitled to high office merely because of her last name. Many Americans do believe that they live under an absolute monarchy and they yearn to be ruled by a hereditary royal class (as opposed to the British system of constitutional monarchy), but that’s not the American system.

Defender of the Constitution?

Ms. Kennedy is certainly an intelligent woman. She seems like a fairly decent person. However, she is not serious about defending the Constitution. If she were, she would not make it a centerpiece of her campaign for senator that she will help the state of New York get “its share” of unconstitutionally collected and allocated federal money. Moreover, if she were serious about the Constitution, she would support abolition of most of the federal government because it is not Constitutionally authorized — that is, it is unconstitutional.

Unlike the British Constitution, which evolved over many centuries and is embodied in many different documents and institutions, the U.S. Constitution is a specific written document. It has evolved both by amendment and by re-interpretation, but the text is still there to be read.

Enumerated Powers for the Federal Government

Americans tend to forget — or if they went to government schools, they never knew — that the U.S. Constitution set up a system of enumerated powers for America’s federal government and un-enumerated rights for the states and the people.

Under that system, the U.S. federal government is forbidden to engage any activities except those that:

• Are specifically authorized by the Constitution, or

• Are clearly necessary to carry out the Constitutionally-authorized activities.

In other words, the legitimate powers of the federal government are “enumerated” (listed) by the Constitution. However, the rights of the states and the people are not limited to those enumerated in the Constitution. The states and the people have not only specific rights listed in the Constitution, but also have all their historic rights from tradition, the British common law, and settled practice.

The general welfare clause, which states that the Constitution is intended “to promote the general welfare,” is often used as a catch-all justification for federal government activities. However, the general welfare clause states a goal of the Constitution, not a power of the federal government. It doesn’t authorize anything.

In 1787, the American population was divided about whether or not to adopt the new Constitution as a replacement for the Articles of Confederation, which had governed the United States up to that point. Supporters of the new Constitution wrote a series of essays called The Federalist Papers in which they answered objections to the Constitution.

The authors of The Federalist Papers opposed adopting “the Bill of Rights,” that is, the first 10 amendments to the Constitution which list specific rights of the states and the people. The main reason they opposed a bill of rights was that the federal government was already forbidden to do anything not listed in the Constitution.

For example, the Constitution did not list any powers for the federal government to suppress free speech, or to search people’s homes without probable cause and a search warrant from a judge. Because it didn’t list such powers, the government was not allowed to do those things. What would have been the point adding amendments to forbid things that the government couldn’t do anyway? In Federalist Paper 84, U.S. founding father Alexander Hamilton wrote:

I go further and affirm that bills of rights … are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

Hamilton’s fears were well-founded. In the 20th and 21st centuries, the fact that the Constitution lists specific rights has enabled supporters of oppressive government (who falsely call themselves “conservatives”) to claim that Americans have only the rights listed in the Constitution. American founding father Thomas Jefferson, who often disagreed with Alexander Hamilton, agreed completely that the federal government had only those powers enumerated in the Constitution, and no legitimate power to infringe on the rights of the states or the people:

I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.” (Tenth Amendment) To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition. (Thomas Jefferson, February 1791, advising U.S. President George Washington that a government-established national bank would violate the Constitution)

We have taken many thousands of steps “beyond the boundaries” of the Constitution, to the point at which the U.S. federal government claims not only unlimited power at home, but presumes to dictate to countries around the world what they may and may not do. Federal agencies and activities not authorized by the Constitution — and therefore forbidden under the doctrine of enumerated powers — include (and these are only a few):

• All wars started without a declaration of war by Congress (including those against Iraq and Afghanistan, neither of which attacked or threatened the United States)
• Direct taxation of citizens of the states (Constitutional amendment never ratified)
• National laws about abortion (whether pro or con)
• National laws about religion (whether supporting it or forbidding it)
• National laws about affirmative action and “diversity” (whether pro or con)
• The FBI
• The IRS
• The CIA
• The National Security Agency
• The Department of Education
• The Department of Health and Human Services
• The Social Security Administration
• All federally-operated welfare programs
• Direct election of U.S. senators (Constitutional amendment never ratified)
• The U.S. “Patriot Act”
• The Transportation Security Agency
• The Department of Homeland Security
• Torturing prisoners (including torturing prisoners by shocking them with Tasers)
• Wiretapping people without independent court review and a court order
• Caging protestors in “free speech zones”

Moreover, when Jefferson was writing, Congress was seen as the one and only law-making body in the federal government. Hence, when he talks about limits on the powers of Congress or the United States, he means limits on the powers of the federal government. No one among the founders even imagined that the executive branch and its agencies would be laws unto themselves. That, too, is a power not listed in the Constitution — and thus is Constitutionally forbidden.

In essence, contemporary political theory has turned the U.S. Constitution upside-down. Originally, the federal government was forbidden to do anything not specifically permitted by the Constitution, while the states and people were free to do anything not specifically forbidden by the Constitution. Now, the U.S. federal government claims that it is free to do anything not specifically forbidden by the Constitution, while the states and the people are forbidden to do anything not specifically permitted by the Constitution.

Should America Follow Its Constitution?

But there’s another side of the argument. In the 21st century, should the United States follow a Constitution that was designed for an 18th-century society?

De Montesquieu (in The Spirit of the Laws, one of the books that inspired the American founders) said that laws should match the people for whom they were created. And though it’s doubtful that the legal sewage of the Bush-Cheney era would match any population above the level of particularly stupid and thuggish monkeys, it’s also true that the U.S. Constitution no longer matches the American population.

At the time the Constitution was written, the American economy was decentralized and largely agrarian. Americans were almost exclusively Anglo-European and were highly self-reliant. They were literate and informed: The Federalist Papers, for example, were printed in newspapers and debated in taverns. Americans considered themselves first and foremost to be citizens of their states, not of a vast nation-state. As recently as 1965, the American population was 88 percent white, 11 percent black, one percent “other,” and almost everyone spoke English.

Those things are no longer true. We now live in a centralized, urban, and technological society of multiple races, nationalities, languages, and cultures that is held together only by the armed might of the federal government and the economic power of giant corporations. It’s quite similar to the Soviet Union just before it fell apart, including the war in Afghanistan and the oppressive domestic internal-security state. If the United States followed its Constitution (or the Chinese stopped lending money to the U.S. federal government), the country would shatter into at least a dozen pieces. That might be a blessing in the long run, but in the short run it would be very, very difficult for many people.

Back to Ms. Kennedy

Ms. Kennedy clearly does not respect the Constitution in anything more than a ceremonial sense. She shares that attitude with almost all national politicians except for Congressman Ron Paul (R-TX). Congressman Paul is a medical doctor whose colleagues call him “Dr. No” because  he votes against any law that is unconstitutional — which means he votes “no” on almost every legislative proposal to come before the House.

But Ron Paul is a Congressman for a better, saner era and a better, saner American population. For the current American population, Ms. Kennedy is probably as good a candidate as any, and better than some. Her name, and the memory of her assassinated father, give her influence that might be helpful in repairing the damage caused by the Bush-Cheney regime. If she wants to be a senator, we could do worse.