`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
If you do not recognize them, the first quote is from Through the Looking Glass and the second from Marshall's opinionMarbury v Madison. Until today I could hope that the 2nd would be the operable principle in the operating of our democratic republic, but with the vote today I will no longer have any doubt that instead the words penned by Charles Dodgson under his pen name of Lewis Carroll take precedence, the role of the speaker, Humpty Dumpty being shared equally by the President and the Senate. And thus I have a problem.
I teach social studies, primarily U. S. government. For several years I have been wrestling with a conflict. Part of my responsibilities are to prepare my students for external tests, Maryland's High School Assessment in Local, State and National Government, applicable to all of my students, and the Advanced Placement test on U. S. Government and Politics, applicable to three of my six classes. Both presume a government based on a Constitution which outweighs any actions by the legislative branch or assertions of authority by the executive branch. In the years since I first began teaching this subject, then only in the first course, which stretches back to 1998, I have watched as the government I thought I knew from years of study and participation as an active citizen began to change into something alien. Of course it has accelerated in the now almost 7 years since this nation was attacked in September of 2001. And now?
I am something of a student of history. I know that the paroxysms of assertion of power are not a recent phenomenon. We saw our second president (a man who had vigorously resisted abusive British authority and in his own 1780 Massachusetts Constitution assert a strong protection against search and seizure perhaps as a direct result of watching Otis argue against Writs of Assistance) insist on the autocratic authority of silencing critics through imprisonment with the imposition of the Alien and Sedition Acts. Andrew Jackson refused to abide by a Supreme Court decision addressing the rights of Native Americans. Lincoln suspended habeas. I regret to say that a fellow Quaker, Attorney General Palmer, rounded up and imprisoned people in complete violation of their rights. Franklin Roosevelt signed the Executive Order that placed those of Japanese descent, even if citizens, into concentration camps (and I use that term correctly: they were concentrated, but these were not extermination camps as set up by the Nazis). And then there are many abuses of power under Richard Nixon. These are but a few of the examples I could cite.
And certainly this is not the first presidential administration that has sought to accrue power independent of the Congress, or asserted principles not to be found in the text of the Constitution and its amendments. Nor is it the first that sought to tilt the courts in favor of its philosophical beliefs.
Why then do I now find myself in such a position of quandary that I seriously consider not returning to my classroom this Fall, even with as yet no other employment prospect?
I have to be able to teach with honesty. While I have been observing and struggling with this for a number of year, my first real confrontation came when the Senate passed the Military Commissions Act. I have previously written about what I told my students. After reflection, I decided to continue fighting to try to make a difference in understanding that might bear fruit down the road, and I actually increased my own political participation, not just by online writings such as this, but in lobbying candidates and elected public officials on issues that mattered to me.
In the past, when some presidents have attempted to go too far, we could at least depend upon a Congress or the Courts to be willing to exercise their separate powers, to assert checks and balances, and thus to provide the conditions under which our ship of state could once again be righted. As a teacher of government I ensure that my students examine some of these examples, whether it is to read the Opinion of the Court in cases like Marbury and Youngstown, Jackson's Concurrence in Youngstown, Jackson's opinion in Barnette, the resolutions of impeachment voted against Richard Nixon, the opinion in cases like the Pentagon papers and the White House tapes.
Those reading these words are likely to be people who have themselves struggled mightily to change the makeup of our government to prevent further depredation of our rights, continued distortion of the Constitution, the ongoing destruction of our democratic republic. Today for many they will not be able to avoid feeling that they have been betrayed when the Senate passes what the President has demanded about FISA, a president whose posturing clearly demonstrates that he is more concerned about telecomm immunity than he has any real concern about the underlying bill being necessary for the protection of the nation, because he has threatened to veto anything that does not grant immediate and uncontingent immunity to the telecomms. That we cannot even get 41 Senators to ensure that such a bill does not pass without the immunity at least being postponed until we know who authorized such breaking of the law (Bingaman's amendment) yet again illustrates how much our elected officials have abandoned their responsibilities. It matters not to me whether it is from fear, or merely because they cannot accurately read the plain text of the Fourth Amendment: to me they are violating their oaths or affirmations of the Constitution, oaths or affirmations required for them to take office.
To date, we have seen the Courts to some degree willing to restrict the administration, at least somewhat, on habeas issues. But some of those decisions occurred before the structure of the Supreme Court was changed with the addition of two men whose attitudes on the unitary executive were not properly vetted. And I for one hold out little hope that a majority of five justices could be found to declare the key portions of this act unconstitutional.
Let us be clear. The bill on FISA on which the Senate is voting posits that (a) a president can authorize the breaking of the law with no consequences, and (b) the property rights of corporations are more important the the personal, supposedly constitutionally protected rights of individuals.
How can I teach my students that their right are protected when - in violation of the principle argued by Marshall in his opinion in Marbury - the Congress believes it can waive those rights legislatively? How do I instruct them in the rule of law when a President is allowed to break the law with impunity, even extending his law breaking to corporations acting on his say-so? One principle supposedly established after World War II is that obeying orders does not exempt one from punishment for the crimes one commits. In fact, in my own military service in the 1960s we were specifically instructed that we were to disobey illegal orders, and this was before My Lai, an incident in which military officers ordered men under their command to commit war crimes. At least Calley was convicted, although unfortunately Nixon commuted his sentence.
The issues that trouble me are things on which there has been much discussion here, often with persuasive and powerful arguments offered by people with much greater expertise and far more effective communication skills than I can bring to bear. And one could argue that the action taken by the Senate today should neither be surprising nor does it represent anything significantly different than our recent experience. perhaps not. But at some point even one additional straw can cause the strongest camel to collapse. Or perhaps one hits the wall often experienced by those doing long-distance running: the final expenditure of the stored energy and the onset of total exhaustion.
Yes, one can continue, one can force oneself to keep running, in part by metabolizing one's own body. But perhaps as one reaches that point one needs to ask why? For the runner, perhaps the completion of the marathon or the triathlon or the other extreme athletic endeavor is its own reward. And one might well argue that one has the responsibility to continue the struggle against the diminution of liberty, the expansion of what too easily becomes tyranny.
I must believe in what I teach. I am in that sense transparent to my students. I must believe that our system of government and politics is meaningful. I cannot pretend otherwise, or they will see right through me. I cannot argue as I have for more than a decade that their participation in the process is essential or else they might someday wake up to find that rights they had assumed were theirs somehow had disappeared. I cannot model for them how that participation makes a difference when I am reaching the point where I no longer believe that it does.
Perhaps it is unfair of me to apply the quotation with which I began. And yet, when a President through signing statements can totally ignore specific legislative mandates, written into laws that he has signed and whose legislative history make clear their intent, then of what use is passing the legislation. The words mean not what they are intended to mean, only how the president chooses to interpret them, and thus the role of the legislature that I am to teach my students, that they create the law, seems to be at least partially replaced by a new theorem: the legislative branch can put together words but those words are without force unless the president and his administration choose to abide thereby. If we have justices on the Supreme Court and judges on lower courts who believe in stare decisis only when it suits them and apply original intent only when it is convenient, then what pray tell is the basis of how the Courts operate, of what meaning are Marbury and so many other precedents which have governed our legal system for now more than two centuries?
In the past I have noted with some cynicism that effectively the meaning of the Constitution is only what any 5 of the sitting justices say that it is. We have seen that to be ever more the case, which is why complete vetting at least of nominees for the Supreme Court is essential, creating a record that can serve as a basis for impeachment if those nominees should lie in order to achieve the ultimate judicial power. That does not mean that judicial or political philosophy cannot lead to serious disagreements. But when the legal and mental gymnastics used by Justices have the effect of demonstrating that they decide how they want a case to come out and then go looking for a legal way to justify it, are not the justices themselves in the position of Humpty-Dumpty?
This weekend I will attend my monthly seminar for my Political Leaders Program. Despite my advancing years, now being in my 7th decade, I was chosen for this program in the hopes that I could be trained to work across partisan divides for the benefit of the people of the Commonwealth of Virginia. My classmates cover a wide range of political orientations, and we have worked hard to find common ground. Next week I fly to Austin, where I will lead a panel of politically active young people. I made both of these commitments because I was still of the mindset of the importance of trying, that it was still possible to make a difference, that I could embark upon these endeavors with hope, with the belief that we could still save our democratic and republican form of government.
Perhaps there is a deus ex machina that will magically appear and prevent the miscarriage we all expect to occur in the Senate today. I doubt it. And for many, we will have to deal with our disillusion, our sense of betrayal by people for whose election we have worked so hard. I am not so easily disillusioned, perhaps because I am very much of a realist, with more than a soupcon of cynicism, even as I try to stay focused on what is still possible.
And perhaps my current state of mind is temporary, a sense of sadness that somewhat reminds me of words spoken to Joe McCarthy, which I rephrase as "Has it at long last come to this? Have you our elected representatives have no sense of decency?"
I have changed my sig. I am not quite ready to give up the fight. I am not yet quite ready to call my department chair and tell her to look for a replacement, or to offer to switch courses with someone else so that I am teaching the past and not the depressing present. But now I find I must question, I must ask why, and I must decide how far I am willing to go to support people who will not stand up for the preservation of the most basic principles of this nation, things to which we ostensibly commit ourselves.
Perhaps I am making the wrong application of Humpty Dumpty. Perhaps is should not be the words I have quoted, but the lines of the nursery rhyme where as children we first learn his name.
Humpty Dumpty sat on a wall,
Humpty Dumpty had a great fall,
And all the king's horses and all the king's men,
Couldn't put humpty together again.
Perhaps we need to recognize that we, the American people, and our two hundred year history of a republic, an opposition to tyranny is about to come off that wall which has protected us.
And then, those last two lines become worth remembering, and applying to us:
And all the king's horses and all the king's men,
Couldn't put Humpty together again.
Peace