When the colonies set out to form what would become the United States there was a great deal of controversy about what type of government the newly independent states should create. Alexander Hamilton, for example, argued for a monarchy because he believed that Americans were not intelligent or educated enough to govern themselves. There were long debates on such issues as sovereignty, the exact powers to be given the confederal government, whether to have a judiciary, and voting procedures The first effort resulted in the Articles of Confederation but that effort was generally regarded as a failure. It was a failure because the powers granted to the federal government were too limited. There was no president or executive branch, no judicial branch, congress could not control commerce between the states or foreign powers and congress could not levy taxes to name a few.
Something had to replace the Articles. With that as their goal, each state sent a group of representatives to meet in Philadelphia and hammer out a new, more workable, agreement. The deliberations of the Constitutional Convention in 1787 were held in strict secrecy. Consequently, anxious citizens gathered outside Independence Hall when the proceedings ended, eager to learn what had been produced behind those closed doors. As the delegates left the building, a Mrs. Powel of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got?” With no hesitation, Franklin replied, “A republic, if you can keep it.”
Clearly, that is the question facing us now. Can we keep it? Or, perhaps the question should be have we already lost it? If there is an answer to these questions it is to be found in evaluating the present day greatest threats to our freedom. While there has always been something of a disunion between what we like to believe about the application of law in America and how it has actually been applied, I think there is general agreement that the primary guiding principles can be found in the Bill of Rights, the first ten amendments to the Constitution. Of these amendments, six play the greatest role in our daily lives:
First Amendment – Establishment Clause, Free Exercise Clause; freedom of speech, of the press, and of assembly; right to petition. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Second Amendment – Right to keep and bear arms.
Fourth Amendment – Protection from unreasonable search and seizure.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Fifth Amendment – due process, double jeopardy, self-incrimination, eminent domain. “ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . .nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Sixth Amendment – Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel
Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment.
Two other rights are also worthy of note here, Habeas Corpus and the right to vote. The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause(Clause 2), located in Article One, Section 9. This states that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it." Primary issues regarding voting are addressed in these amendments:
15th Amendment (1870): "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."
19th Amendment (1920): "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."
23rd Amendment (1961): provides that residents of the District of Columbia can vote for the President and Vice-President.
24th Amendment (1964): "The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax."
26th Amendment (1971): "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."
The enumeration and protection of basic rights is fundamental to the survival of a republican form of government. Our rights are clearly enumerated so where are the threats to these rights to be found? The most obvious, and possibly the most ominous is the Patriot Act, officially the USA Patriot Act. This legislation, written in response to and in the immediate aftermath of the Sept 11, 2001, terrorists attacks, was signed into law on October 26, 2001. To satisfy the inviolate government demand for a catchy acronym the name stands for Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001.[1].
Without going into too much detail the Patriot Act dramatically reduced restrictions on the limitations on and increased the lengths to which law enforcement agencies could go (including real-time, random interception) to search telephone, e-mail communications, medical, financial, and other records. It expanded the scope of foreign intelligence gathering within the United States by intelligence agencies previously limited to outside the country. The Act expanded the government’s authority to regulate financial transactions, particularly those involving foreign individuals and entities and broadened the discretion of law enforcement and immigration authorities in detaining and deporting (without court action) immigrants suspected of terrorism-related acts.
Among the more controversial provisions of the Patriot Act is The National Security Letter. NSLs radically expanded the FBI's authority to demand personal customer records from Internet Service Providers, financial institutions and credit companies without prior court approval, without notification to the persons whose records are being searched and with no avenue of redress.
NSLs allow the FBI to compile vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded. The FBI can even unmask the identity of a person who has posted anonymous speech on a political website. A provision of the NSL also allows the FBI to forbid or "gag" anyone who receives an NSL from telling anyone about the record demand. During the eleven years since the passage of the Patriot act restrictions on the use of NSLs have been further reduced resulting in a tremendous increase in their use.
A close second in controversy is Section 215 of the Patriot Act. Section 215 authorizes the government to obtain "any tangible thing" relevant to a terrorism investigation, even if there is no showing that the "thing" pertains to suspected terrorists or terrorist activities. In other words, the government may mount and conduct an investigation on anyone without even a minimal showing that the individual under investigation might be guilty of a crime. Section 206 also deserves mention. Section 206, also known as "roving John Doe wiretap" provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped.
The act also expanded the definition of terrorism to include domestic terrorism. While this might seem reasonable enough on the surface, it can lead to a very slippery slope. Domestic terrorism occurs least often in democratic nations and, while a democratic nation espousing strong a commitment to civil liberties may rightfully be entitled to claim a certain moral high ground, an act of terrorism within such a state may cause a dilemma: whether to maintain its civil liberties and risk being perceived as ineffective in dealing with the problem or to restrict its civil liberties and risk delegitimizing its claim of supporting civil liberties and personal freedoms. We seem to have opted for the second.
It’s clear that the Patriot Act is a flawed piece of legislation. Many of its provisions stand in direct contravention of many of the freedoms guaranteed in the Bill of Rights and in the body of the Constitution. That the bill would be flawed should, however, have been expected of any law written in an atmosphere of national fear and at a time when opposition to it by a politician would almost surely be seen as un-American. What might not have been anticipated was the facility and the enthusiasm with which we as citizens gave up rights defended with so much American blood for over two hundred years
The second concern, the militarization of domestic police forces is a more subtle but still insidious threat to our way of life. One of the many disturbing trends in America in the post-September 11, 2001, era has been the steady militarization of domestic police forces who are supposed to “protect and serve” not “intimidate and attack.” While the reasons for this increasing militarization of American police forces seem obvious, the dangerous side effects are somewhat less apparent.
Prior to September 11, 2001, responsibility for fighting terrorism within the United States lay almost exclusively with our traditional, domestic law enforcement agencies, sheriff’s, marshal’s and police departments. After 9/11 the onus clearly shifted to the military. However, In 2006, White House's National Strategy for Combating Terrorism stated that the United States had "broken old orthodoxies that once confined our counter-terrorism efforts primarily to the criminal justice domain" meaning that domestic police forces were now expected to assume more responsibility for fighting terrorism on U.S. soil. Conspicuously ill-trained and ill-equipped to deal with this new responsibility, local agencies turned to a willing federal government for arms and training. Police forces throughout the country purchased heavily discounted military equipment including everything from body armor to armored, tank style troop carriers to attack helicopters, adopted military training, and sought to inculcate a "soldier's mentality" among their ranks. Keep in mind that the Posse Comitatus Act of 1878 states in part:
“. . . after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress. . . and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine or imprisonment.
Congress passed the Posse Comitatus Act to end military occupation of the defeated Southern states during the Reconstruction period because Southern Democrats had complained bitterly about the oppressive use of the military in a law enforcement role. The Act is important to this discussion because it incorporated a founding American principle of keeping the nation's military forces separate from and subordinate to the "Civil Power.''
There is also cause for concern in the way local forces employed their newly acquired military weaponry not only to combat terrorism but also for everyday patrolling. Not too long ago the heavy weaponry typically available to a police officer consisted of a standard pump-action shot gun, perhaps a high power rifle and, in the extreme, a surplus M-16, which would usually have been kept in the trunk of the supervising officer's car. Today, it is not unusual to see a big city patrol officer dressed in a battle dress, black uniform and armed with a M4 military assault rifle, the same issued to our troops in Iraq and Afghanistan.
With the acquisition and proliferation of heavy weapons and military equipment the role of SWAT (Special Weapons and Tactics Teams) has also changed. Once, only the largest of America's big-city police departments maintained SWAT teams, and they were called upon only when no other peaceful option was available. Today, virtually every police department in the nation has a SWAT team, the members of whom are often trained by and with United States special operations commandos. With the safety of their officers in mind, these departments now habitually deploy their SWAT teams for minor operations such as routine arrests or serving warrants. The "special" in SWAT has quietly become "routine" and escalation of force is in play before the operation has even begun.
The most serious consequence of the rapid militarization of American police forces, however, has been the subtle evolution in the mentality of the police from peace officer to soldier. This development is absolutely critical as it represents a fundamental change in the nature of law enforcement. An army defends a country against external aggressors; a police department defends the citizenry from criminal behavior. It seems to me that there is a significant, qualitative difference. The primary mission of a police officer traditionally has been to keep the peace. Those whom an officer suspects of having committed a crime are treated as just that, suspects. Police officers are expected, under the rule of law, to protect the civil liberties of all citizens, even the suspected or accused.
Perhaps the most serendipitous effects of the Occupy Wall Street movement has been to demonstrate the extent to which this militarization has occurred Now, it seems every police force from New York City to UC Davis to Cow Dung Wyoming has riot equipped, paramilitary garbed storm troopers trained, ready and more than willing to assault the nearest OWS encampment they can find. If they don’t have one in their city they’ll help some other town attack their’s.
Next on my list of threats to our form of government, our way of life is voter suppression and intimidation. When Franklin replied, “A republic . . .” to Mrs Powel’s question he was being very specific. The founding fathers had chosen a Republican form of government over a Democratic form because they wanted every citizen to have a voice in the decisions their leaders made. The difference here is clear. In a Democracy a simple majority rules, fifty percent plus one holds all the power. There is no voice for the minority. In a Republic checks are placed on the power of the majority so that the individual rights of all may be protected.. The parliamentary system of Great Britain is a perfect example of Representative Democracy and of the potential tyranny inherent in its system of unlimited rule by an omnipotent majority. Because unlimited government power is possessed by the House of Lords that body has the power to abolish anything and everything governmental in Great Britain.
The most effective way to turn a republic into a democracy is to limit who and how many are allowed to vote. As voter registration efforts by Democrats and liberal leaning community organizations began show results at the polls, Republicans and right wing groups were quick to recognize them as a threat. Right wing efforts to suppress low-income and minority voting is nothing new but today we are witnessing a better organized, better funded attack on voter rights that anything that has come before. We are also seeing an attack of unprecedented scope.
Early voting has been one area targeted by conservative functionaries because it tends to benefit low-income workers who may not be able to get time off to vote, particularly when wait times at the polls have dramatically increased because the number of polling places in low-income or minority areas have been intentionally reduced. Unrealistic and unnecessary ID requirements are another favorite. For some voters, photo IDs may be difficult or expensive to obtain and often no other, equally reliable forms of ID are accepted. Students are another group clearly being targeted because they tend to vote Democratic. In many states students are no longer allowed to register and vote using their school address in other states student Ids are not accepted. Laws intended to discourage voter assistance groups have also become popular. In some jurisdictions new laws hold these groups criminally liable if a single ineligible voter is registered.
Even more contemptible are the efforts at voter intimidation. Again, intimidation is not a new tactic but it is being used much more frequently and , reflecting the degree of organization available with a well funded, unethical canaille. The tactics vary from post cards and robo-calls giving the wrong date for the election to fliers and notices claiming the voter would be arrested if they arrived to vote and were found to have unpaid traffic tickets or even utility bills.
The right to vote is the absolutely fundamental to a free society and no one is more contemptible than the one who conspires to deny this right to others to advance his own cause. If his cause is worthy it will stand on its own merit.
Finally, the fourth threat to the form of government we’ve known in this country is the pernicious and corrupting influence of money. That an election could be bought by simply spending enough money has been known ever since Amos Tversky and Daniel Kahneman demonstrated the concept of the availability heuristic. Essentially, experiments showed that a neutral object could assume a positive quality simply by repeated exposure. Sadly, many voters also tend to know little about issues (with the obligatory nod to political correctness we call them low information voter instead of ignorant which is what they really are) and are persuaded to vote by thirty second , sound bite political ads which seldom have much basis in truth.
How excessive money has harmed our republican form of government is patently manifest but lets lay it out anyway. Using Reagan’s voodoo economics as a starting point and Ayn Rand’s soulless Objectivism as tacit justification, Republicans began to attack the 1930s era Glass-Steagall Act and other regulatory legislation and succeeded in removing the protections put in place to prevent the exploitation of America’s financial system from the irresponsible and the esurient. From there, it was just a matter of natural evolution, of, in a sense, Social Darwinism at it’s worst. With restraints removed it became possible for bankers, financiers, hedge fund managers and their ilk to plunder the economy and buy the connivance of politicians who were supposed to be looking out for the public interests. Those politicians have, however, not come cheap. The Center for Responsive Politics, a nonpartisan research group, estimated that in 2006, independent interests spent about $300 million on elections and now, thanks to the collusion of a corrupt Supreme Court and their Citizens United decision, there is effectively no longer a limit on how much can be spent to buy your favorite congressman.
The money has, though, been well spent. With the influence purchased with their obscene incomes, corporation and plutocrats have been able to secure legislation favorable to themselves and their officers while blocking legislation that would spend money to benefit millions of average Americans and they have done this without a shred of shame. In 2010, 46.2 million Americans , 15.1 percent, lived in poverty. That was an increase from 14.3 percent in 2009 and was the fourth consecutive annual increase in the number of people living in poverty. The number of poor people in 2010 was is the largest number in the 52 years the statistic has been kept. Between 2009 and 2010, the poverty rate increased for children under age 18 from 20.7 percent to 22.0 percent. Worse, twenty-five percent of very young children in America are living in poverty and number of children under six living in poverty rose to 5.9 million in 2010 from 5.7 million in 2009, according to researchers from the Carsey Institute at the University of New Hampshire. All this so an elite few could have more yachts, more limousines, more houses and so corporations could off-shore more money and more jobs.
So, have we kept our republic or have we let it slip away. The opportunity to forfeit the rights and benefits of a republic have certainly been in play. We allowed our basic constitutional rights to be eroded to a degree most frightening because we don’t know the extent to which they’ve been lost. No one is responsible for telling us. We’ve sat quietly by while our polices forces have been turned into pseudo-armies because seeing a patrolman with an M4 assault rifle makes us feel that the goverrnment is keeping us safe, at least until those pseudo-armies turn on us with quart sized canisters of pepper spray and we’ve been busy keeping up with the Kardashians
while our elections, and with them our government, have been bought by the highest bidder.
A year ago I would have answered no, we didn’t keep our republic. I would have said we let it out of disinterest and ennui and we weren’t going to get it back because there was no energy to get it back . Then, a handful of people in a park in New York started a movement that spread not only across America but around the world. They exposed just how badly our government had been coopted by special interests, how far their perfidy reached and how ingrained it had become. They showed how far those interests were willing go and to what extent they would employ their mobs of armed militants in blue to hold on to what they had stolen from you and me. That small group sparked an awareness bordering on a revolution. The oligarches still have a stranglehold on America but it’s not as tight as it was a year ago. The way Occupy Wall Street has spread should give notice that the people have had enough, the people are tired of being lied to and robbed and the people are coming for them and it no longer matters how many police they deploy, how many protesters they assault or how many encampments they bulldoze.