Thursday, March 07, 2013

A Sufi Perspective Concerning A Dysfunctional Form of Governance: The Constitution and Sovereignty

The Office of Legal Counsel is a division of the Justice Department which provides legal advice for the Executive Branch of the United States. The framework for the OLC was created through Congressional legislation, and, by law, the members of the Executive Branch are required to follow the directives which are handed down by the OLC.

Relatively recently, a legal opinion was issued by the OLC concerning the issue of drones. That legal opinion sought to justify the use of drones, and, as a result, the President was legally enabled, allegedly, to pursue his drone program free from other Constitutional considerations and responsibilities.

Whether Congress had the constitutional right to pass the OLC legislation as it is currently framed -- e.g., with provisions that force the Executive Branch to follow the dictates of legal counsel issuing forth from the OLC -- is an interesting constitutional issue. In effect, the Congressional legislation underlying the OLC says there are individuals within the Executive Branch who have greater authority than does the President ... the man who occupies the desk where, according to Harry Truman, the buck stops.

One might suppose that the Judicial Branch of government, under the auspices of the Supreme Court, has the requisite authority and responsibility to fulfill the mandate which has been handed to the OLC within the Executive Branch. If so, then, one wonders about why the OLC was created in its current form -- except, perhaps, to give cover to, and plausible deniability for, the President in matters of policy (e.g., like drone killings) which the President wants to carry out but for which he does not wish to be held responsible ... after all, he could argue that it was just those nasty folks in the OLC which forced him to pursue the drone policy legally, his hands were tied.

On the other hand, when one begins to critically explore the whole issue of Constitutional interpretation and the basis on which it supposedly rests -- e.g., the Marbury v,. Madison case, along with a few other decisions of the Marshall Court which helped to establish some of the basic legal filters through which the Supreme Court engages issues  -- one finds that the work of the Supreme Court is rooted in a manner of reasoning which is entirely -- and, I do mean, "entirely" -- arbitrary. More specifically, noting how the Supreme Court operates in accordance with its manner of framing legal issues, is one thing -- i.e., it does what it does as a matter of custom -- but what is done by the Supreme Court with respect to the generation of legal decisions can't really be justified in any way that could satisfy the legal condition of, say, beyond a reasonable doubt ... and I realize this legal condition usually refers to criminal cases handled by a jury.

Nonetheless, if Supreme Court Jurists cannot reach unanimity in the way jurors for criminal cases are required to do, then how much legitimacy do the decisions of the Supreme Court actually have? 5-4 and 6-3 decisions, or even 7-2 decisions, give expression to judgments with respect to which there are serious reservations on the part of various members of the Supreme Court concerning whether, or not, the 'right' conclusions have been reached, and, of course, this leads naturally to questions like the following: What are the criteria for knowing what constitutes a 'right' decision with respect to the Constitution, and what justifies the use of those criteria?

Consequently, even if one were to concede the point that it is the Supreme Court and not the Office of Legal Counsel which should be calling the shots on what is, and is not, constitutionally legal in relation to various acts of the Executive Office, this doesn't really solve the drone problem. The Constitution, the manner and circumstances of its creation, and the interpretive pathways which historically have issued forth from it constitute much more of a dangerous philosophical and legal body of quicksand than is usually believed. In fact, the sovereignty of the American people has been sucked under by the three branches of government almost from the very beginning of the framing and ratification of the Constitution, along with passing of the first ten amendments.

While I applaud Rand Paul's stand (see the 8 minute video accompanying this post) to speak out against the way in which the Office of Legal Counsel and the Executive Branch have awarded themselves the power to eviscerate ;the rights of American citizens, not to mention the rights of foreign nationals -- if that Branch should choose to exercise those assumed powers, and, in fact, they have so exercised those powers in the slaying of, at a minimum, the teenage son of Anwar al-Awaki -- nevertheless, I believe that Rand Paul and Acronym TV are missing a more important point. The reason why problems like the drone issue exist is because the Constitution is flawed in fundamental ways ... ways which inexorably have led, and are leading, to irresolvable conflicts and tensions within American society.

In my opinion, the only things of value in the Constitution, are: the Preamble; Article IV; Section 4 of the Constitution; the Bill of Rights; the 13th Amendment; Section 1 of the 14th Amendment, along with the 15th and 19th Amendments (having to do with the right to vote). The rest of it is, at best, a mess and, at worse, the progenitor of conflict and misery among the citizenry. However, even in relation to the aforementioned constructive aspects of the Constitution, there are still a variety of difficult issues concerning how those facets of the Constitution should be understood or interpreted.

The problem which confronts the American people is not, strictly speaking, a function of: a self-absorbed Congress, or an imperial Presidency, or an arbitrary Supreme Court (as true as such characterizations might be). The problem is that the Constitutional framework through which those Branches of government operate is dysfunctional, and this dysfunctional disease has infected the entire process of governance.

Rand Paul and Acronym are talking about symptoms. They are not addressing the issue of the underlying Constitutional disease that is giving rise to those symptoms.

Irrespective of how the Brennan/CIA issue is resolved, the country will be right back in the same quagmire again tomorrow, next week, next month, next year, and beyond. This is what happens when one deals only with symptoms and never with the disease.

Many people -- including Rand Paul and the people at Acronym -- believe they understand the nature of the American Constitution, as well as how and why that document came into being. I would take issue with the accuracy of such a belief.

I have written extensively about these issues, and many more related matters, in the book: The Unfinished Revolution: The Battle for America's Soul (Bill Whitehouse). One can follow the lead of Dr. Rand Paul and become entangled in symptoms, or one can consider exploring an alternative perspective which seeks to diagnose the actual disease from which we all are suffering. As with everything else, the choice is yours ... caveat emptor.

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