Watch the Constitution die right now as we burn a 2452 year old vital legal precedent

Summary: The Plebes of Rome asked what is the law?  Show it to us, rather than merely handing down verdicts.  So in 451 BC the Senate appointed 10 men to draw up the law.  They inscribed it upon 12 bronze tablets and publicly displayed them in the Forum.  Since then the essence of law in a just society was that all can see it.  That’s no longer true in America, as we take another step towards a new political regime — away from that founded by the Constitution.

They paved paradise
And put up a parking lot
With a pink hotel, a boutique
And a swinging hot spot

Don’t it always seem to go
That you don’t know what you’ve got
Till it’s gone
They paved paradise
And put up a parking lot

Big Yellow Taxi by Joni Mitchell


  1. Introduction
  2. The latest step along the road leading to a new regime for America
  3. What happens next?
  4. Other posts about the Constitution, our liberties, and our government

(1)  Introduction

On July 4, 2006 I forecast the death of the Constitution, which seemed outlandish at that time (I did not mention Bush or Republicans).   Five years later it’s happened.  Historians may choose another arbitrary date for the death of the Second Republic (the Articles of Confederation being the First).  But so much has happened in the past two years that we’ve clearly crossed the line beyond which the Constitution no longer governs. Increased surveillance without warrant, long detention without trial (5 years for Jose Padilla), torture, assassination of citizens without charge or trial, wars without Congressional authorization.

The two parties argued about the significance of these things (ie, the pro-government and pro-citizen parties, as the conservative/liberal lines no long track these issues).  All that matters is that we consented in the most fundamental way to every growth in government power since 9-11 (more broadly, since WWII).  Silence means assent.

(2)  The latest step along the road leading to a new regime for America

The Teabaggers were right: We really do have a death panel. Just not the sort of death panel that they were rallying against. And some of the people who wanted restraints on executive power when there was a Red boot stomping on a human face will serve as death panelists when there’s a Blue boot stomping on a human face. Just as the Teabaggers were silent for 8 years.
Thoreau at Qunualified Offerings, 9 october 2011

The Office Of Legal Counsel has written memos to justify the government’s surveillance and assassination policies.  Secret memos.  Citizens cannot see them, cannot evaluate them.  But are bound by them, even to the extent of losing our lives. In effect, secret laws written by the President’s minions.

The withholding of the legal basis for targeting al-Awlaki is inappropriate for two reasons. First, the world already knows that the U.S. killed al-Awlaki; how could it possibly harm national security to disclose why the Justice Department believes the killing was legal? Second, unless rejected by the President or superseded by a court ruling, OLC’s legal interpretations are binding on the executive branch. Undisclosed OLC opinions are therefore a kind of “secret law,” something that has no place in a democracy.
— “Reducing Overclassification Through Accountability“, Elizabeth Goitein and David M. Shapiro, NYU School of Law, 5 October 2011

Presidents can always find someone among their political appointees at DOJ to provide the legal stamp of approval for whatever they want to do. Bush officials, of course, infamously claimed that everything Bush did in the areas of detention, surveillance, interrogation and war were legal because DOJ lawyers issued memos saying they were legal … Under this theory, the president is free to commit whatever crimes he wants with total impunity as long as he can find some DOJ underlings to opine in advance that he has the legal authority to do so, something that every president – who always commands vast hordes of dutiful partisans and ideological loyalists – would be able to do in every instance. … More and more, this is how the most vital matters in our democracy are decided: by secret deliberations among the President’s partisan lawyers.
Glenn Greenwald, Salon, 9 October 2011 — IMO a must-read article!

If it is the case that the president can designate an Office of Legal Counsel functionary to immunize government officials and employees against criminal behavior, then it is true, to all intents and purposes that “if the president does it it’s not illegal.”
Digby, posted at Hullabaloo, 11 July 2009

(3)  What happens next?

We can still turn back.  On this cause both liberal and conservative can unite.  Write your representatives demanding that the President release these memoranda.  Write letters to your newspapers.  Talk to your friends and relatives.  Protest in the Streets.

Of course, I suspect we will do nothing.  Our rulers are competent, and have carefully tested us since 9-11 to learn the extent of our apathy.  They have slowly released information about their surveillance activities and assassination programs.  Each announcement tests our reaction and prepares us to accept the next.  They have moved faster, more boldly, and more successfully than I imagined possible when I first wrote about the Constitution in 2006.

This is just one step on the road.  More will be taken, slowing giving the government still greater powers.  Less visibility.  Less accountability, more immunity from legal recourse.  Eventually most Americans, all but the hard-core fascists among us (who are becoming increasingly visible), will realize what we’ve lost.

There have been a lot of lessons learned in the decade that has passed since 9/11, but one of them, I think, is that executive branch legal interpretations matter enormously. It is so rare for one of these weighty issues of war powers to be decided on the merits by the courts, because they are almost never justiciable.

… By acting on their theories, they were converting them into historical fact. A president had done these things based on these theories, and since he had done them, those theories must be true and so would be available to future presidents to invoke when they, too, wanted to do something that seemed to conflict with a statutory or legal constraint. At its most cynical, that’s how executive branch lawyering works: in the vast areas that are immune to judicial review and take place largely in secret, the accretion of historical precedent – whatever a president in the past got away with — becomes the baseline for his successors to build upon, pushing out further. These precedents are now an immutable part of American history, and will influence how the government handles itself for generations.

— Charlie Savage (New York Times reporter), Power Wars: Unmasking National Security Legal Policy Deliberations Under Bush & Obama (2011)

Historians will debate the exact point at which the Second Republic died, but it’s a matter for Trivia Pursuit players.  Today, or after next year’s new measures, or the bigger steps ten years from now.  RIP, Constitution.  It was a nice dream, but existed only so long as it lived in our hearts.  Too bad we were not up to the task of carrying on the program bequeathed to us by our ancestors.

It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt.
— Often misattributed to Jefferson, this was said by John Philpot Curran in a speech upon the Right of Election (1790)

Other posts about the Constitution, our liberties, and our government

Running commentary on the slow death of the US Constitution:

  1. Forecast: Death of the American Constitution, 4 July 2006
  2. The Constitution: wonderful, if we can keep it, 15 February 2008
  3. Congress shows us how our new government works, 14 April 2008
  4. See the last glimmers of the Constitution’s life…, 27 June 2008
  5. Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
  6. A report card for the Republic: are we still capable of self-government?, 3 July 2008
  7. Another step away from our Constitutional system, with applause, 19 September 2008
  8. What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
  9. Are Americans still willing to bear the burden of self-government?, 27 March 2009
  10. “Lights, Camera, Democracy” by Lewis Lapham, 24 May 2009
  11. “The Constitution that I interpret and apply is not living, but dead.” – Supreme Court Justice Scalia, 9 June 2009
  12. More about the tottering structure of the American political regime, 17 August 2009
  13. Listen to the crowds cheering Sarah Palin, hear the hammerblows of another nail in the Constitution’s coffin, 8 February 2010
  14. Another nail put in the Constitution’s coffin, but we don’t care, 9 February 2010
  15. Recommended reading about the Constitution, 17 March 2010 — About the invisible “living” Constitution
  16. Another step towards fascism: “Silencing the Lawyers”, 31 May 2010
  17. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
  18. The President’s big stick (domestic): his National Emergency Powers, 12 June 2010
  19. Code red! The Constitution is burning., 5 August 2010
  20. An Appalling Threat to Civil Liberties and Democracy, 8 August 2010
  21. Every day the Constitution dies a little more, 1 September 2010 — About US government assassination programs
  22. What do our Constitution-loving conservatives say about our government’s assassination programs?, 2 September 2010
  23. Cutting down the tree of liberty, 9 September 2010 — Government secrets trump fair trials.
  24. The guilty ones responsible for the loss of our liberties, 11 September 2010
  25. A great philosopher and statesman comments on the Bush-Obama tweaks to the Constitution, 10 October 2010
  26. This week’s news: many stories showing that the Constitution is dead, 8 December 2010
  27. We’re at war, again. Another shovel of dirt on the corpse of the Constitution., 21 March 2011
  28. Conservatives tells us not to worry about the Constitution’s death, 23 March 2011
  29. The Constitution will still work for us, if we’d only use it. About options for responding to our enemies. , 29 March 2011
  30. Can the UN give Obama the authority to send US forces in the Libyan War?, 1 April 2011
  31. Tearing the Constitution is a bipartisan sport!, 4 April 2011

11 thoughts on “Watch the Constitution die right now as we burn a 2452 year old vital legal precedent”

  1. There are multiple breakdowns (all quite deliberate) in the checks and balances. If the Executive Branch’s OLC is effectively deciding on its own laws, the Judiciary has been cut out of the loop. The Executive Branch has decided that it controls war-making powers by manipulating what “war” is. And, for the sake of our sanity, let’s not contemplate how the Legislative Branch has controlled the budget.

    I suspect that many watch this happening in silence because we don’t believe that “writing our congressman” will do anything but increase Washington’s dumpster load. I’ll go a step farther and say that I don’t believe that I have a congressman, or any representative in Washington. There are people there who have taken my vote from me, and who wave it around and claim it’s in my name. But I know it’s not. It’s not.

    Yet we don’t want to see a revolution because (hopefully most of us) we know that, more often than not, attempts to entirely replace a political system are an invitation to totalitarians. I have nightmares about what that might look like – Iran with a fake facade of christian dominionists instead of a ayatollahs? A bankrupt and inefficient state with nuclear weapons, selling plutonium to pay the bills like the Russians did, swirling down the drain of history while hoping for someone like Vladimir Putin to come along and make it all make sense? No, thank you.

    Knowing that our votes have been taken from us, and now the rule of law is taken, we can acknowledge that we owe the government nothing further. They’re getting to the point where they’re willing to kill us. We become a super-saturated solution of unrest, uncertainty, mistrust, and fear – they have to know that solutions like that crystallize rapidly in strange ways. If they’re smart they will back off on their without following this course to its inevitable conclusion. Why do I say that? Because there are toxic ideologies that can be released against them, political WMD, which can disempower the mighty. The people will not resort to them unless they know they have nothing left to lose. That, in a nutshell, is why you can’t beat an insurgency. Because there’s no amount that you can hurt someone who is already in a state of despair; what are you going to do, cheer them up?

  2. Nice summary of the dilemma. (Interspersed is more hopelessness from FM.) Nice reply from Marcus who touches on a personal reflection of what most people feel:

    “I’ll go a step farther and say that I don’t believe that I have a congressman, or any representative in Washington.”

    That is not “apathy” but a personal statement of a sense of things.

    Silence is NOT assent. Consent (in whole or in part) can be withdrawn at anytime, in total silence.

    “We hold elections every two years”…such exhortations to electoral politics deny the reality of the sheer lack of efficacy of such exercises; naive, at its best.

    “Don’t confuse apathy with powerlessness.”
    Only those in Power would confuse such disparate ideas….and they obviously have made that mistake.

    Accountability is coming. Make no mistake It always does. Power is wielded by Consent and only through willingness, ultimately. Consent is withdrawn slowly at first and then like a spark it can ignite seemingly, in an instance.

    Take heart. Our fellow citizens are not as stupid as some would imagine; nor as uncaring.

    1. This reads like it was written by God. “Accountability is coming!” says the Voice from the burning bush. Please, change the dosage. Nobody knows what the future holds. Your dreams are not evidence; please don’t state your hopes as facts.

      “Accountability is coming. Make no mistake It always does.”

      No, it seldom does. That’s the grim truth of history. Hence the comfort of religion, hoping that greed and cruelty are punished in the afterlife.

      “Silence is assent.”

      This is not only an ancient legal doctrine (rent A Man for All Seasons” for details), but an operational fact. Perhaps God feels differently; despite your confidence we’ll learn that only after death.

  3. Hmmm. I’ve always been cynical and skeptical and very pessimistic about the US short/medium term. But far more hopeful longer term.

    The counter reaction is happening FM. The occupy Wall Street (and all the rest) is just the start. Will they succeed? No. They will be ignored, put down, smashed, etc .. of course. But the next generation of protest will have a bigger impact, then the next after that, then the next.

    The US, for all of its faults, has actually been a shining beacon .. but not in the way the US elites think. It is because ordinary US people, eventually at times, have shown the capacity to change things .. often against extreme oppression. .. and have won far more often than they have lost.

    Never, ever underestimate ordinary US citizens.

    The civil rights movements in Northern Ireland were modeled on the eventually successful US civil rights movements in the US. The British (duh) oppressed them .. and got the IRA .. then finally after a lot of blood delivered what the original movement wanted in the first place.

    The Egyptians face this now, first win, then the inevitable counter reaction (duh) … now we see the mettle of the resistors.

    Both of those (and all so many others) .. take their example from the US. Not the US’s Govts (god forbid), or their elites , but what ordinary people have achieved.

    1. Mass movements tend to be evaluated almost in purely tribal terms. Are they like me? If yes, they’re good! If not, they’re a public menace!

      Objectively, the Tea Party movement is (from its start) structurally more promising. Highly committed people, grassroots organization, dedicating time and money, focus on education and base-building (less on media grandstanding), emphasis on political policy and elections. The OWS is deficient in all these things. It gets better press than the TP because its members are more like the chattering classes. Guessing, I suspect they’re seen as somewhat between a joke and farce by much of the public (we’ll know soon, as polls are done).

      This is a depressing analysis, because the TP has been to date a massive failure — almost totally co-opted by the GOP. They serve as shock troops, justification for the GOP to adopty far-right positions desired by their rich donors — while shifting the blame onto the increasingly unpopular TP. This is easily seen with respect to the original issue motivating the TP protests — bank bailouts. The candidates they support are bank tools, working to weaken bank regulation.

  4. Well the same picture can be found .. almost everywhere in the western so called Democracies. There are variations on the theme … but essentially the same picture appears: countries run by polit-bureacratic elites in close collaboration with Big Finance. That may not per se be so bad .. but this elite has done and does its task LOUSY .. for all to see mainly because the elites have become too GREEDY … and because they LIE too much to those they gouvern .. hardly able to hide their own CORRUPTION anymore … There is 1 EXTEMPTION .. as far as I know: SWITZERLAND. which is the last bastion of real democracy and adherance to written Law in the western World. (That is why those who have some kind of real money prefer to deposit their savings there..) GERMANIC central european states are not too bad. Of the scandinavian countries Finland also is not too lousy, In all other western countries , especially those under heavy ANGLOSAXON influence the people are mislead, bribed , . intimidated, scared, passive, apathic and GOUVERNED

    1. I am frequently amazed at some people’s definition of democracy. We hold elections, at which people freely cast their votes. That there are powerful centers of influence does not mean that the state is not a democracy. Nobody points a gun or threatens Americans in the voting booth. If we have not the wit and will to rule ourselves that does not mean America is not a democracy. The Founders never promised us a rose garden, or said that domestic elites would not try to wrestle the controls away from us.

  5. Great legal analysis, except for the fact there is none.

    There is nothing that prevents the US from killing its enemies at a time of war, whether they are citizens or not. Forget the fact the Mr. Al-Awalki renounced his citizenship because that is irrelevant. If he wanted to subject himself under US due process he had every right to do so. All he needed to do is avail himself to US jurisdiction. They would have gladly taken him in and put him on trial. Instead, he lived in Yemen and directed terrorist activities against the US.

    During the Civil War, US soldiers killed confederate US citizens. During the WWII, there were several instances of US citizens of german and italian decent who either went back to Europe to fight the US or were performing spy operations here. No legal precedent ever required the government to seek a warrant for these peoples arrest nor has any legitimate legal theory ever held that the government could not kill people who have declared war against it.

    You are filled with righteous indignation and you do not cite one sentence, not one line, not one word from the Constitution or case law to back up your assertions.

  6. So I took your advice and wrote both my Congressman and Senator. Only the Senator responded. Please see my email first and her reply afterwards:

    Subject: Memoranda used to justify assasination of Anwar al-Awlaki

    Dear Senator Cantwell,

    I’m pleased to say this is my first letter to Senate. I feel somewhat strange writing about this subject, but I feel that it is vital. I assume you heard about the assassination of Anwar al-Awlaki, a US citizen living abroad and actively encouraging one and all to bring war to the US. Although I do not by any means agree with this line of hateful thought and behavior, I do not feel right nor can find a legally justified basis for his assassination. I feel deeply troubled at the assassination of anyone without due process, let alone a US citizen.

    I understand that the Office Of Legal Counsel has written memos to justify the government’s surveillance and assassination policies in regards to this issue. I’m writing you as my representative to request that you demand that the President release these memoranda. I suspect that OLC will deny this request on the grounds of State Secrets. However, the withholding of the legal basis for targeting al-Awlaki is inappropriate for two reasons. First, the world already knows that the U.S. killed al-Awlaki; how could it possibly harm national security to disclose why the Justice Department believes the killing was legal? Second, unless rejected by the President or superseded by a court ruling, OLC’s legal interpretations are binding on the executive branch.

    Undisclosed OLC opinions are therefore a kind of “secret law” something that has no place in a democracy. I hope that this request is reasonable and something that you would be able to take up for the good of our district and country.

    Please feel free to contact me with any questions.


    From the Office of Senator Cantwell

    Dear Mr. Safavi,

    Thank you for contacting me regarding Anwar al-Awlaki. I appreciate hearing from you on this matter.

    As you may know, Anwar al-Awlaki is a regional commander and senior recruiter for the al-Qaeda terrorist organization as well as holding dual citizenship for the United States and Yemen. Al-Awlaki has been connected by the Central Intelligence Agency to multiple terrorist attacks from the September 11, 2001 attacks to the more recent shooting at Ft. Hood by Major Nidal Malik Hasan.

    Terrorism is a serious threat in the United States and around the world, and we must be vigilant in confronting it at home and abroad. This includes being able to track terrorists across the globe as well as ensuring that we can detain and prosecute them effectively. Please know that I will keep your thoughts in mind on this very important issue should any legislation come to the floor of the United States Senate.

    Thank you again for contacting me to share your thoughts on this matter. You may also be interested in signing up for periodic updates for Washington State residents. If you are interested in subscribing to this update, please visit my website at Please do not hesitate to contact me in the future if I can be of further assistance.

    Maria Cantwell
    United States Senator

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