Conservatives tell us not to worry about the Constitution’s death

Summary: The Constitution is dead.  Conservative attorneys explain why it’s all for the best, and produce elegant treatises justifying torture, assassination of US citizens, unlimited surveillance — anything the State desires.  But the facade still stands.  Property remains inviolate (unless needed by the government).  The Courts still exist to debate abortion and what men can do with their dicks.   Here we look at the next step in the process of adjusting to our new form of government.

Burning Constitution

Grief is the price we pay for love.  Kubler-Ross describes grief as psychological process of adjustment consisting of five stages (for more on the theories of Kuber-Ross see Changing Minds and Wikipedia):

  1. Shock & Denial:  Initial paralysis at hearing the bad news:  trying to avoid the inevitable.
  2. Anger:  Frustrated outpouring of bottled-up emotion.
  3. Bargaining:  Seeking in vain for a way out.
  4. Depression:  Final realization of the inevitable.
  5. Testing and Acceptance:  Seeking realistic solutions; finally finding a way forward.

Our constitutional Republic has died (or details see this post of July 4, 2006), and each of us feels the loss in some way (this accounts for the low morale seen in public opinion polls).  We have moved with little fuss through stage one.  What comes next?  We’re sheep (the Republic died from our passivity and ignorance).  The ovine grief process differs from that of men and women.  Perhaps we will move directly to step five.

To help us see these things more clearly Eric Posner (Prof Law, U Chicago; bio here) and Adrian Vermeule (Prof Law, Harvard) have written a book explaining the  Republic had died, and that is OK with them:  Executive Unbound: After the Madisonian Republic.  You can download the first chapter at Amazon, which reads like a stage hypnosis act:  it’s necessary, it’s inevitable, it’s necessary, it’s inevitable.  Here is Eric’s very brief summary (from the Volokh Conspiracy):

The book argues that the Madisonian system of separation of powers has eroded beyond recognition and been replaced with a system of executive primacy (which others have called the “imperial presidency”) in which Congress and the courts play only a marginal role. Most scholars who have recognized this development have called for a return to the Madisonian system, but we believe that the rise of the executive has resulted from a recognition among political elites that only a powerful executive can address the economic and security challenges of modern times.

Posner shows how the new State works, looking at the exercise of its greatest power — making war:  “Why Congress Played No Role in the Libya Intervention“, Volokh Conspiracy, 21 March 2011 — Excerpt:

President Obama is following a long line of precedents in which the executive launched a foreign war without congressional authorization. The president disavowed these precedents during his campaign; he may or may not attempt to distinguish his campaign statement by invoking the UN security council resolution authorizing the attack, as Truman did for Korea. But this legal wrangling is all superstructure. Congress is disabled in numerous ways from making practical contributions to a war effort. It cannot prevent the president from starting a war, and it is nearly impossible to halt an ongoing war. Wars, then, simply become an opportunity for members of Congress to stake their reputations as hawks or doves for the sake of future elections.

Not a good choice. Congress may be disabled, but the Executive has acted liked a special needs child.  Our actions show little research, analysis, or thought (see these posts).  A New York Times articles suggests that Obama was browbeaten into approving the war.

For more of Posner’s thinking, see “Has Obama Taken the Imperial Presidency to a Greater Height than Bush?“, Volokh Conspiracy, 22 March 2011.  No matter how weak al Qaeda might be, to Posner it serves a valuable role by justifying the expansion of State power.  As explained here, war is the health of the State.   To see but one example of where this leads, see this article by Scott Horton at Harper’s and this by Glenn Greenwald at Salon — about warrantless surveillance (as always, the links are the most valuable content).


Conservatives and liberals both agree that we must be little so the State can be great.  It’s all about choice, and we choose to be sheep.  Step by step devolution since WWII.  As we have changed, so must our form of government.

“We’ve spawned a new race here … We’re a new nationality. We require a new nation.”
— Benjamin Franklin, speaking at the Continental Congress, 7 June 1776 (in the movie 1776)

“If God didn’t want them sheared, he would not have made them sheep.”
— Calvera, bandit leader in the movie “The Magnificent Seven” (1960)

Posts about the American spirit, the American soul

  1. America’s Most Dangerous Enemy, 1 March 2006
  2. Americans, now a subservient people (listen to the Founders sigh in disappointment), 20 July 2008
  3. de Tocqueville warns us not to become weak and servile, 21 July 2008
  4. The American spirit speaks: “Baa, Baa, Baa”, 5 August 2008
  5. We’re Americans, hear us yell: “baa, baa, baa”, 6 August 2008
  6. This crisis will prove that Americans are not sheep (unless we are), 8 January 2008
  7. About security theater, a daily demonstration that Americans are sheep, 25 January 2009
  8. Are we citizens? Or peasants?, 21 May 2009
  9. A famous guest speaker visits the FM site to tell us that we are not weak — we are strong, 8 June 2008 — Patrick Henry
  10. A wonderful and important speech about liberty, 23 July 2009 — Judge Learned Hand
  11. Why the Turkey is not our national bird, and a reminder that America belongs to us, 26 November 2010

1 thought on “Conservatives tell us not to worry about the Constitution’s death”

  1. Another snip from the Constitution

    Don’t worry. Like every previous rip torn in the Constitution, the government assures us it’s necessary. There are bad guys out there. Just like there have always been. But we’re a weaker and more fearful people, so the government must be stronger to protect us.

    Rights Are Curtailed for Terror Suspects“, Wall Street Journal, 24 March 2011 — Excerpt:

    New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades. The move is one of the Obama administration’s most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

    The Supreme Court’s 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue. That exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.

    A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public. Matthew Miller, a Justice Department spokesman, said the memo ensures that “law enforcement has the ability to question suspected terrorists without immediately providing Miranda warnings when the interrogation is reasonably prompted by immediate concern for the safety of the public or the agents.”

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