Monday, July 22, 2013

Legality, Constitutionality, and Civil Disobedience

I recently listened to an interview involving retired judge, Andrew Napolitano concerning the Edward Snowden issue. Judge Napolitano was asked where he came down on the topic.

He drew a distinction between legality and constitutionality.  He noted that Edward Snowden had taken an oath of secrecy with respect to his job and, therefore, he was legally bound to keep such secrets. However, on the other hand, Edward Snowden also had a duty to uphold the U.S. Constitution.

According to the judge, everything boiled down to which duty had priority. Judge Napolitano indicated that it was a no-brainer -- the higher duty was to the Constitution, and he considered Edward Snowden to be a hero for leaking the information concerning the covert activities of the NSA ... incidentally have you heard about the cloud service that permits a person to store all of his or her personal data completely free that is being run by the NSA ... you don't have to do anything ... everything is done for you.

Judge Napolitano went on to point out that Congress and the Executive Office can issue all kinds of directives that purport to be legal actions. Nonetheless, the purpose of the Constitution is to place constraints on what can considered to be appropriately legal -- that is, what is consistent with the Constitution.

While I agree with the general point made by Judge Napolitano, it harbors a deep-rooted problem. More specifically, his position seems to presuppose that the meaning and scope of the Constitution is clear-cut and can be agreed upon by all, and this, sadly, is just not the case.

Many of the decisions handed down by the Supreme Court give expression to a 5-4 split. This means that four justices disagree with the majority concerning the meaning of the Constitution, and, as well, one should not forget that just because five individuals are agreed, generally speaking, with the purported meaning of the Constitution in a given case, this doesn't mean that they are correct ... only that they are agreed.

Waiting for the truth concerning the meaning of the Constitution is a lot like Samuel Beckett's 1953 play: 'Waiting for Godot' in which two characters while away their time engaged in various musings as they wait in vain for someone to show up. Beckett's play was labeled as being 'absurdist' in character ... a characterization that oftentimes is quite applicable to what takes place with respect to Supreme Court deliberations and decisions.

Then, of course, there is the whole matter of whether, or not, the Supreme Court jurists even ought to be doing what they are so busily engaged in doing since the Constitution really doesn't clearly stipulate what the role of the Supreme Court should be. While the power of the Supreme Court "shall extend to all cases in law and equity, arising under the Constitution, the laws of the United States, and treaties", as well as to a variety of other situations (such as disputes between states or between a state and citizens of another state), nothing is said in the Constitution about the precise nature of that power which was being given to the Supreme Court through the Constitution or how that power should be exercised.

Judge John Marshall took the bull by the horns and laid out a role for the judiciary in the Marbury v. Madison case of 1803. However, if one critically examines the logic of that decision -- and, I have done this, to a degree, in my book: 'The Unfinished Revolution: The Battle for America's Soul' -- a 660 page book that one can purchase for $3.00 through 'BillWhitehoue.Com) -- one comes away with a lot more questions than answers. In my opinion, Marshall's decision in the Marbury v. Madison case is deeply flawed and the problems inherent in his decision have compromised and corrupted the activities and decisions of the Supreme Court ever since ... resulting in many, many difficulties for the American people, if not the world.

Not that I agree with the manner in which the Constitution lays things out with respect to three separate but equal branches of federal government -- for I feel, as the aforementioned book delineates in some detail, that the whole constitutional exercise that began in 1787 in Philadelphia was a concerted attack on the sovereignty and natural law rights of human beings -- nevertheless, one might observe in passing that it would appear to be quite difficult to claim that three branches of government are equal, if one of them -- namely, the Judiciary -- gets to say what is, and what is, not Constitutional.

Moreover, by the time that the Supreme Court gets around to dealing with this or that Constitutional issue, oftentimes during the interim period of 'waiting for Godot', a great deal of damage has accrued -- damage that adversely affects millions of people around the world and not just in the United States. To say, in response to such difficulties, that the U.S. constitutional system might not be perfect, but it is better than all the rest is an exercise that dissembles the truth and seeks to dissuade people away from understanding that "being better" in the foregoing sense is simply not good enough.

If anyone reading this should wonder where I stand on things constitutionally speaking, I believe there are only a few good things in the U.S. Constitution. These are: the Preamble, Article IV, Section 4 of that document (which 'guarantees' a republican form of government to the states), the Bill of Rights (the first 10 Amendments), and portions of the 13th and 14th Amendments -- as long as these are not used to empower corporations and treat them as persons.

One way that might help to improve things -- i.e., to try to make the best of a bad constitutional situation -- would be to pass an amendment concerning a right to civil disobedience whose scope would be determined by the people rather than either the states or the federal government. This could be done through a grand-jury style format, and the decisions of that body would not be reviewable by any other agency of government (local, state, or federal).

Edward Snowden's action -- along with the actions of many other whistleblowers -- should not be considered from the point of view of legalities or constitutionality -- and, here, I part company with Judge Napolitano. Those acts should be considered from the perspective of the inherent sovereignty of individuals being judged against the sovereignty of their peers and what the latter individuals are prepared to accept as viable degrees of freedom concerning acts of conscience in the context of everyone's right to basic sovereignty.

We don't have to wait for Godot. Justice is conceivable as a function of what people -- independent of government -- are capable of achieving. This goes to the very heart of the 9th and 10th Amendments ... important issues that the judiciary rushes by like a scared kid whistling past the cemetery in the darkness of a stormy night.

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