Constitutional Crisis Issues

A Suggested Cure for a Constitutional Crisis



(Note, you can view the entire discussion at Bill Moyer's Journal: Tough Talk on Impeachment)

My Thoughts:

Whatever the founders may have imagined when they were designing this governing system was inevitably based on the availability of only a very few democratic prototypes to choose from at the time. And their own imaginations were, by the very nature of constructed imagination as we now understand it with our modern cognitive sciences, an accumulation of memes of organizational boilerplates mishmashed together through 12,000 years of humanly evolved social complexity experiments. This appears to have begun after some of our species began experimenting and leaving behind the simple, easy to self manage group problem solving strategy of wandering bands of hunter gatherers, a strategy that had brought us through several million years of evolution to the beginnings of a brilliant innovation: the agricultural subsistence strategy ages and their correlated social organizations somewhat arrogantly coined as "civilizations." And now, perhaps, the creative combining of various cultural memes developed through this period has brought us all to the edge of our doom -- but that's another story.

While apparently Ben Franklin brought in some ideas from the Iroquois participatory democracy model, for the most part the US prototype drew from the Roman Republic model, and thus we got the vestigial Roman Senate thrust into our bicameral legislature to represent what they imagined needing representation, and that was the states themselves, somehow separated in concept from the people. After all, there simply wasn't a big supermarket of democracy prototypes to choose from, and these guys had to finally, somehow, come up with something.

Most of those Founders were of the elite of their time, educated in the classical traditions of Europe, so knowing what we know about the mind now, we can assume their imaginations conscribed to what they knew at that time. That's one reason why our Constitution is called an experiment. They really did not know how it would actually work out once in play. Since then a lot of different democracy models have evolved. Ours is arguably something of an antique, being an early experiment founded in the horse and buggy mentality of its day.

Perhaps 19th Century American Exceptionalism still holds sway in our thinking and the accumulated traditions of American hubris makes questioning the document's greatness inhibitory. Because I find that trying to bring up the subject of actually redesigning the Constitution does not perk up many ears.

One of the problems I suspect embedded in our Constitution's design is that power in any hierarchical order of society acts like a drug, and it works in many nefarious ways. Most of the Founders were from a European class structure in which as elites they had advantages they took for granted. The "drug of power" of their very positions can be expected to have dimmed their imaginative faculties, no matter how excited they each may have been about the new "revolution of individualism" they were in, and they had difficulty extending full humanity and a corresponding application of the Bill of Rights to all the individuals we are now willing to consider fully human in this country after some 200 years.

What they didn't know was that a presidential system itself has ontological implications built in, and no matter how much they didn't want it to become like the monarchies of Europe, they didn't recognize how evolution of institutions themselves can supersede the individual. We ourselves still focus on personality, when it's the institution itself that the next president will inherit, and much of what they say while stumping for election will vanish once they sit in the seat of power.

With the evolution of society, the growth of corporations, and the economic system that altogether has evolved, all along the way the government has had to try to adapt to meet the Constitutional mandates and the contingencies of reality. What's being tested in the process is the legal structure itself. Often the resolutions are an unhappy result of paradox, like applying the 14th Amendment, which is about individuals, to a corporate entity, the private corporation, and declaring that a corporate entity is a person under the law. The very notion of the revolution of individualism and the Bill of Rights is thrown into some sort of conceptual chaos with that.

What's evolved is a result of basic structures that were in place, some of those results have memic features that are almost Frankensteinian in their very DNA. The point is there may have been no way to interpret the Constitution that could have come out to look anything like what the Founders hoped for, and a kind of legal fundamentalism calling upon an originalist interpretaiton itself puts a chain around the pressures calling for a creative approach to problem solving that maintains democracy. If we find we are giving up our democracy for anything -- security from terrorism, for instance -- then perhaps there may be an inherent structural problem worth considering in the Constitution itself.

Howard Zinn on "the Best of wars"

What did you learn from WWII, Howard?

Colbert "Finger-Waggin' at the Boss"

Born ...in the U S A

Born ...in the U S A

"I think there were, you know... some verses, but I'm more of a chorus guy."

The Warrior Many Tongues

I awoke this morning hearing a voice saying:

"Beware of the warrior Many Tongues whose mind is cluttered with things and he walks the earth in confusion, deep in his fear of the Great Spirit Emptiness, for he knows that without Emptiness there would be no-thing."

I lay there a trying to remember the dream and the events that led up to that voice, and trying to visualize the face, but it wouldn't come back to me. But I could still remember the phrase and the sound of the voice, so I reached for my leather bound journal on the nearby night stand, fumbled around for the pen, and I managed to write it down without losing the memory of it. It's sometimes very hard for me to write down phrases I hear in dreams, they just vanish when I try.

The thoughts and feelings from that dream hung about me like a sheer gray curtain, as I got up and began my morning. I made my coffee, turned on the computer, and sat back for a moment, looked at the headlines on a news page, but I was not really reading them.

It seemed like a koan. "Without Emptiness there would be no-thing." Just enough of a pause between the "no" and the "thing" to seem like two words, but said to sound like "nothing."

Thoughts of the meaning of infinite and spirit crossed through my mind, like old memories, for I'd thought such thoughts many times. Yet somehow this dream phrase seemed freshly related. The age old corporeal problem, the spirit world and the ever emergence of things surrounded by space, or nothing, which ancient philosophers hypothesized to be composed of something, and now modern philosophers, in the form of physicists are imagining it to be something as well. But if infinity is unmeasurable, is there ultimately a something? Maybe the "great spirit" is no more than that which makes thought possible.

And people have made up places where they can revere this seemingly amazing possibility, like the sense of awe some express after smoking some weed and then looking at an ordinary, everyday object as if for the first time, dragged forth on a long, thin line...

The Bell Curve Possibility

It's been my experience, much of it from observation, that different schools of child rearing are handed down through families. Some of us have actually had different experiences than "because I said so" and the parental attitudes that often go with it. I am inclined to wonder sometimes how important that parenting experience is in setting up the way we expect the world to be for us, and how we will approach it after with that initial, formative experience.

But that aside, there are times when a parent does need to be concerned with a child's safety, and even the most nurturant parent should recognize the necessity of invoking a "command moment" I would think. And who hasn't felt frustration on a "bad" day and invoked the "almighty" voice?

I also agree that much concern should result in noticing that our educational institutions do concern themselves with enforcing obedience to authority in that same vein. I'm aware that for some, it does not provoke concern, but a sense of satisfaction.

Yes, indeed, you are patronizingly reassured, as your thin little body sits in the huge wooden chair across the desk from the rather large and imposing stern vice principal in the office to which you've been summoned once again, you are free as long as you stay within these carefully drawn lines. No questions outside the box, please (with no hint of please in the stern voice). Otherwise, without this training, people may not be quite so willing to run out and find jobs once they escape from the torture chambers of squirming daily in rows of those hard, slippery wooden desks while an authority preaches,...er teaches.

It's my perception that these institutions invoke methods of ingestion, regurgitation and then take regular measurements of quantities of regurgitation. The methodologies of teaching ingestion and and invoking regurgitation often rely on behavior modification enforced pain and pleasure principles, all together of which creates an institutional atmosphere whereby students can be measured and sorted, sifted and stacked, and which also offers verification of that controversial Bell Curve possibility is in fact...

real.

On the other hand, awakening another form of intelligence, the open-ended, therefore non measurable ability to creatively question, is not really something that can be taught, just as teaching the proverbial horse to feel thirst is not an option. So you won't find any troublesome methods of that nature anywhere in there.

But... and this is an important "but" for an itinerant rambler to a vice principal's office like myself... an intellectual "thirst" to simply "find out" can be systemically suppressed in a population through its institutions. I at least believe that much. I also believe each of us faces a challenge to overcome that on our own, daily, if indeed it does occur as I seem to experience it. I find that possibility very exciting to imagine, but then I get out and about and talk to people, and my excitement sort of just dwindles away. As Linda Hunt asks Kevin Kline across the bar at the Midnight Star in Sliverado, "What's wrong with us?" And then she gives him that look and that sly smile.


Laurie Anderson Lyrics
Baby Doll Lyrics

A Little Bit of Comedy Central

Since I don't own a television -- I refuse to actually pay to be propagandized -- I don't get to see some things, unless they show up in the Internet. So I saw these little Steven Colbert things this morning and decided I wanted to have them preserved on my website for posterity! To understand the wit that goes back and forth in the second, where Steven has Arianna Huffington on his show -- specifically her comment about Grizzly bears -- I felt the first one to be helpful:





Arianna and Steven:

Objectification -- It's Much More than a Women's Issue!

PSA from Laurie Anderson - Women and Money

I can recall noticing through most of my life that most men react to the women's movement by taking it as a personal attack on their manhood. I don't see it that way. I can guess at why I don't, but I can't say for certain how that's come about for me. If I tried I think the effort would get quite lengthy.

One of the ways I tend to look at this issue of objectification is as a long revolutionary struggle, the liberal revolution, that began several hundred years ago. Whether it's a return to a human potential that evolved in the species before we began developing the authoritarian meme in our cultures, which hypothetically is the result of the complexities that followed the onset of agriculture 10-12,000 years ago, or not, is maybe an interesting question, but not one that makes much difference about the importance of the liberal revolution for individual rights or not. That revolution continues to evolve and each of us who embrace it, can embrace it with the very instructions built into our DNA. Fantasizing about how our ancient relatives did it 40,000 years ago won't really make much difference.

One of the narratives I run through my mind is that the Founders of this political system were a group of men who were philosophically tantalized by the ideas about liberal thinking at the time -- each in their own way, and hypothetically to different degrees. I take note of the fact they were a group of elites, many both monied and propertied, they were mostly from the European cultural traditions that were emerging at that time from feudalism -- and that very fact had a lot to do with their thinking framework, the context of their thoughts. This nation was structured out of that context in a specific period in what I see as an extended revolution of liberation from tyrannical, authoritarian structures of thought.

A question might be asked, revolution for who? And I'd answer, for the individual. I'm an individual, for instance.

What was born here in the US was, then, potentially not the final fruits of that struggle because of the very nature of what it was born into. I can see that the framework everyone genuflects over is still imperfect, and out of that imperfection has emerged the continued struggle for rights of the individual, the inhibit-ation of which I believe we can see in the very nature of feudalism, which itself is an extension of other forms of individual repression going back into history. Some of the dogma of the rights of property from that feudalistic era over our individual rights have been put down on this very thread, as the rights of a "property owner" known as an employer, and stated as, "this is the way it is." These, to me are the feudal fragments the Founding Fathers couldn't leave behind and they got built into the system, and because of that even corporations became "persons" with individual rights, it appears. And as long as we believe that this is the way it is, just as, as long as we believe we operate as a society under the rule of law, then it's so. But sometimes it seems to me those "this is the way it is" concepts come into play in ways that are seemingly contradictory. And it's then that I feel we are challenged with the problems of this liberal revolution that still need to be solved. One of the aspects of the liberal revolution is to recognize that very unique feature of ourselves, and to get out from under the self imposed belief in an authority that dominates how we think.

I feel that the revolution for individual rights was limping along on a single, somewhat crippled leg until women started to wake up and express themselves as individuals. Oddly enough, there's a group feature to individual freedom, and it's hypothetically very contradictory in nature. I believe we cannot free ourselves of authoritarianism while practicing it on any part of our humanity. Objectification, by the way, is to me an ingredient of the authoritarian mind frame. I discovered the very structure of feudal objectification when I was in the military. I was too young to know it already existed in society, so I was completely shocked when I discovered it. That really set my mind off. I had questions going in my head like: how do you take away someone's freedom to act and decide for themselves in a so-called democracy in this way to fight that which I was being told was a totalitarian system that does just that to its population? That was really a huge existential question for an eighteen year old mind I recognize now. I nearly went insane. But in the process I set up some ingredients for possibly working things out for myself.

When I got back into the "real" society, where the US constitutional Bill of Rights were the rules, not the Uniform Code of Military Justice, I decided it was time to get an education. In college I met members of the women's movement, and many of them were just about as confused as I was about all of this. But I managed to sort out through many of our talks, some highly emotional, that we were struggling for some of the same things, and against some of the same abstract institutional structures. Many or those structures are simply "authoritarian" and not oriented to promoting individuality of any kind, but because of the nature of our enculturation, the institutions themselves get associated with men, and so men often feel they are being personally attacked.

So what's happened as women are waking up? Are we dealing with the imperfections of our system itself, those features that create the objectification process? Or are we just incorporating the rest of the individuals who got left out about 220 years ago into a latently feudal system that has never been fully structured to allow us all our individual freedom? I'm still asking that question after forty years.

One of the thoughts I have: we have somewhat successfully codified this system of rule by law, combined with an individual Bill of Rights. The Bill of Rights concept is being extended to the world, the United Nations has a nicely described version that even includes children. But it's like hand building a high tech Ferrari in a garage in the jungle. You start up that fine engine, open the garage door and there's no where to go, because there are no roads to drive it on. Most people spend most of their days in institutions that only vaguely and in fragments offer them individual rights to practice their daily tasks and to think in their own, individualized way. Their lives at home are planned and arranged around how they must relate to these institutions. Their children are carefully prepared so that they can successfully engage in them. And so we remain in a jungle of authoritarian institutions, and that jungle forms the context out of which we make up our minds, and that context is what we see as "the world" as it "must be."

The women's movement, the civil rights movements, those are about getting our good solid legs under us so we can go out into that jungle and claim our individuality consciously, and support each other in that process, instead of fight each other. Men are not being attacked as individuals by these ideas, in which the nature of objectification itself, for instance, is being questioned and examined. The institutions that men associate themselves with are not the individual men. And it's difficult to get that out where it can really be looked at and understood.

Maybe it would be easier, if only I were an expert...

The Office, Not the Person

The Unitary Executive and The Office of the Presidency


It's been suggested that no one is asking during this presidential horse race whether the person who takes office changes the office or whether the office changes the person. It's not quite accurate to say no one is asking. It's more that those asking aren't out in the spotlight of the media where the elements of public dialog are presented for mass consumption. I don't think it's a matter of the person being changed, it's more a matter of speaking with a forked tongue when they finally get to office, almost because they have to. For one thing, there is no national dialog that makes discussing what's really going on in making decisions available for public discourse. It's all packaged and wrapped in sound bite clichés that basically distract from the real matters that make government work.

When I discovered what the Unitary Executive Theory itself was, and who was both for it and against it, I discovered a whole world of people asking that question and looking at the structure of the office itself, how it could be reformulated to better serve the interests of power (and power is money, straight out), and for those concerned about the effects of reformulating it on the office of the presidency, how it could be prevented from better serving the interests of power. This is a bloodless struggle, but it's going on none the less. It's taking place in the boiler room of the Titanic, where what makes the ship move through the water is located, the very legal structure of the ship, the system that propels the bureaucracy, where you just apply energy (money) and make steam and the ship is propelled towards the ice bergs, no matter which Captain is on the bridge, because the ice bergs lie in the short cut to where the power wants to go.

None of that's in the news. It puts people to sleep.

But if you are the rich and the powerful, and you want to control this huge nation with its legally conscribed bureaucracy, your best investment is the executive branch. It has the most number of unelected professional elites who transcend the office holders, who the minions focus on for their brief moment to have any effect at all on that overly hyped day in November, the most chance for consistency of purpose to be carried out. That's why I don't even pay much attention to this personality contest, I look at their advisers, and who they are likely to be appointing to the heads of these bureaucracies to legally follow out the president's "orders" to operate the huge bureaucratic machinery of state. Folks like the head of FEMA we all remember Bush appointed, for example, heading a perfectly good agency like the blind, dry drunk who appointed him. That's how the power of money controls this country.

The wealthy and powerful who want the good Ship Titanic to go in their chosen direction invest their money in private think tanks. One not so obviously a think tank is called "The Federalist Society," and it comes across as an organization for legal theorist, judges and lawyers to schmooze together about the law. It has chapters in all the major law schools. It began in 1983 or so. It now has some 35,000 members. These are the people with their hands on the machinery of state. The laws. They all share a similar attitude towards the law. That attitude is now becoming the predominant one in the appointed judges that much of the recent controversy was over, the Federal prosecutors, and, significantly, in the recent appointments to the Supreme Court.

We are now approaching a Federalist Society weighted Supreme Court. The Federalist Society was started by the people who developed the Unitary Executive Theory. The UET is about increasing the executive branch's control over the bureaucracy, insulating it from and thereby decreasing the oversight by Congress which in its checks and balance role is supposed to make certain it administers the bureaucracy according to the laws that Congress has passed. Secrecy thus becomes an issue. Presidential minions not testifying before Congress thus becomes an issue. If you step back you can see it is a theory that moves towards a CEO style presidency. A CEO heads these private tyrannies we call corporations. How hard is it to make the connections?

"Fascism" is about the unification of the state, just as a corporation is a unified collective with a purpose, and it's structured much like a military organization, because militaries have evolved to be structured as a unified collective to accomplish a purpose.

These are structural matters. The word "freedom" means nothing whatsoever with these matters going on at the same time -- especially if these structural matters contradict our freedoms.

The person who finally sits in the oval office is concerned with structural matters. The Constitution is the law, the Constitution is about structural matters.

How do you say all that in a sound bite on the evening news? How do you make that dramatic enough for people to pay attention to what it all means so they can figure out what it means for themselves? Especially when you are a corporation, you own media, nuclear power plants, military industrial complex components, and your interest is profit, because it's mandated by this law (the structure) that "we" have that they give the stockholders a good return on their investment first and worry about what they are doing to the world as an afterthought.

One of the heroes of this silent, bloodless, but very hard fought battle is Christopher Kelley, who did his PhD dissertation on the Unitary Executive and the Signing Statements. A small, brief notice of this very complex issue made its way into the media, and it did so in a way that only managed to confuse people to think it had something to do with the actions of King George, and his henchman, Darth Cheney, mainly because the partisan battle is all anyone is interested in as they sit in front of their televisions and munch their popcorn. The media moguls know that, their well paid employees in their media mogul corporations are made aware of that, and that's how the news is manufactured so that the popcorn munchers will give their consent to the already carefully selected candidates, it hardly matters which, in the voting booths the first Tuesday in the appropriate November. (The headlines are making me sick now, I can't read them at this point in the horse race. It's the same every time.)

I've gotten to know Chris Kelley's work, and I keep tabs on his blogs where he keeps track of how the media screws things up, and more precisely, what actions are being taken in the executive branch, the judicial branch and the legislative branch on these dire and significant changes that actually do determine what the person in the office will be able to do when he gets there: Zone of Twilight and Media Watch.

One of the difficulties I've had in my discussions is getting rabid Bush haters to recognize that Clinton was also a promoter of the UET, and that any president is not going to give up his power willingly. It's built into the very structure of the job. That's what separates the rhetoric of ideology from reality. If you can't get past the rhetoric, then you won't get down into the boiler room of the Titanic to see what's really going on. You'll be sunbathing on the deck while th Captain pilots the ship, and dancing in the ballroom at night as the ship moves towards disaster. Chris is editing a book and I just got my eyes on a paper he wrote that will be a chapter in the book, that gives me all sorts of tasty details to work with concerning what Clinton did to promote the UET. It's titled:

The Unitary Executive and the Clinton Administration

The unitary executive and the George W. Bush administration seem indistinguishable. President Bush’s aggressive defense of his actions through the provisions of the unitary executive has brought the public focus of the theory as intertwined with this presidency with no consideration of its past. Thus for most Americans, before the Bush administration there was not unitary executive and after President Bush has left office there will be no unitary executive. As this chapter demonstrates, the unitary executive was there before Bush came to power, and in a Democratic administration to boot!

The Clinton administration often gets overlooked in the discussion of the push towards the expansion of presidential power. This story tends to begin with the Reagan administration and its dedication to restoring the powers of the presidency taken by an aggressive Congress in the years following Watergate and the resignation of President Nixon (so-called “imperiled presidency” thesis). The restoration continued through the first Bush administration, and the second Bush administration worked to restore the powers lost when the Clinton administration frittered them away for personal gain. While this is the story that partisans like to tell, it is, much like all partisan logic, void of certain truths. And one truth is that the Clinton administration behaved very much like its Republican predecessors, to the advantage of its successor.
This chapter will focus on two important ways that the Clinton administration exercised and advanced “unitarian” power: by pulling the executive branch agencies closer to the White House in order to advance political goals and by protecting the president’s right to exercise so-called “coordinate” constitutional power.

The Unitary Executive—The Theoretical Backdrop

The unitary executive theory began inside the Reagan Justice Department along with other members of the conservative legal organization, the “Federalist Society.” Those who advance its tenets often refer to themselves as “Unitarians,” though not to be confused with the religious sect that it shares a name with.

The theory argues that the presidency, as a coordinate branch of government, is both the only nationally elected public officer (thus able to speak for the nation) and responsible for independently interpreting the meaning of the Constitution. As the representative of the entire public, he may be held accountable for bills signed into law and for the way in which the law is administered. The core tenets of the theory gives the president the sole authority to remove inferior executive officers, give the president the power to direct inferior executive officers in their administration of the law, and finally provides the president with the power to veto or nullify the way in which inferior executive branch officers use discretionary executive power.

The unitary executive is a constitutional theory of presidential power. It argues that the president draws his power from three sources of the Constitution. First, the Vesting clause of Article II, Section 1 gives the president all of the executive power. This means the powers explicitly written into Article II and other executive power, or the so called prerogative power. Second, the Oath clause of Article II, Section 1 acts as a shield, protecting the president from enforcing any law independently determined to be unconstitutional. This responsibility is shared by the president with his attorneys in the United States Department of Justice, in particular the Office of Legal Counsel, and with his close advisors in the White House Counsel’s Office. And third, the Take Care clause of Article II, Section 3 obligates the president, with the advice and assistance of inferior executive officers, to take care that the laws are faithfully executed. As Michael Herz has argued, the “Take Care’ Clause insures that the president will not only execute the law personally, but also it obligates him to oversee the executive branch agencies to insure that they are faithfully executing the laws” as opposed to executing them independent of the president’s wishes or even to the wishes of some other body, such as the Congress.

Thus each president since Reagan has advanced these core tenets of the theory—using signing statements and OLC opinions to first refuse either defense or enforcement of “unconstitutional” law and second backing it up with an OLC opinion in defense.
While many believe that since the theory was born out of conservative gatherings that only Republican presidents have pushed its tenets, as I will show next, the Clinton administration positioned itself in 1993 to advance the cause of the unitary executive, though never using the term in defense of its actions.