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Wednesday, May 11, 2011


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obama fulfilled a campaign promise! well, then. he gets my vote.

What I find amazing is the far-right that is so dedicated to following the exact letter of the Constitution never has an objection to blatant, outrageous violations of their revered Founding Document when it comes to "national security". How can someone oppose Obama's putrid Health Industry Bailout Bill on Constitutional grounds but then applaud an invasion of another country to murder someone who is only suspected of a crime?

As Ted Rall wrote this week, with the murder of Osama, Obama has become the Jack Ruby of 9/11. We will never know what Bin Laden might have told us about that horrific attack and the others who planned and funded it. Of course, he might have been able to tell us a few other things that would be very embarrassing to the government.

In fact I recently wrote a posting on that very topic (how the health care bill has caused the two parties to switch sides, with Republicans effectively opposing the interests of the health industry and giving universal health care its best chance at resurrection by trying to kill off Obama's Romneycare bill).

It's hard to say which of them has the edge in hypocrisy, and as you say, the execution of bin Laden (and attempted assassination of al-Awlaki) really highlights that fact. The Constitution is apparently such a "living" document that it even changes depending on which party is in power.

Nah, the constitution has become Delphic. It means what you want it to mean -- not.

The Constitution is irrelevant.

It isn't even a touchstone.

We are ruled by fiat. As such, the behavior of either party's elite -- and the Republican rank-and-file -- is that of contextualized self-interest. Linking such behavior to the Constitution is as logical as linking said behavior to women's hemlines. Law is what you do, and the vast majority of American law is bureaucratic. (Indeed, the bureaucracy is the only part of the American government that truly works. It works shoddily, of course; everyone knows that. But it performs its essential function with little possibility that a fuckup there will spill over to the other branches and cause a meltdown, which can't be said of the official three branches.)

The switch on health care is paralleled to the much-more predictable state's rights switch once Bush entered office (speaking of government-branch fuckups); rightwingers went from dedicated "state's rights" defenders to federalists the moment the latter became a better platform with which to hurt brown people, among other things.

The Constitution is neither a predictor, nor limiter, nor guide to the behavior of our aristocracy.

Btw: I remember the very first time on tv the news flashed Bin Laden's face on the screen as the towers fell. I said, harping on a qualifier used by the CIA, that they're still not sure that was the guy. Later I was reading about how he's a terrorist financier, but not a plotter, and later still reading that a) he denied responsibility for the attacks -- which makes no goddamn sense since if he'd done them they would be a huge coup for him and b) the CIA doctored tapes to make it look like he was claiming responsibility.

In other words, the we have the opposite of evidence to prove Bin Laden carried out the attacks. And our government just murdered a key witness into their investigation.

I suppose, at this point, I could point out that I think Bin Laden was a piece of shit -- no surprise there. Anyone suffering through my posts can figure that my Human Quality Litmus Test involves the question "Is Okay With Murdering Innocents For Personal Gain (Y/N)" and a whole lot of blank space, and Bin Laden failed that test thirty years ago while a CIA employee. Oh, yeah, the CIA failed it too -- and they're the ones who told us Bin Laden did it and then got caught lying to prove it, right? Ok. So, ahem, the mere fact that he's dead causes me neither pleasure nor pain.

Problem is, his death was the opposite of justice. Even if the CIA weren't lying -- and if you believe that -- eh, fuck the metaphor, the notion is just moronic -- even if the CIA weren't lying, there were other plotters and criminals to round up. So no matter Bin Laden's actual connection to the attacks, even if he was even more closely related than the CIA says, the U.S. government just conspired to ensure that the other plotters go free for the rest of their lives.

So even if I trust the CIA -- and, hey, y'know me, I love to try to get along, so sure, I'll trust the CIA for just a few minutes -- we still let guilty people go free, up to and including Bush/Cheney who stood by while our people died in order to capitilize on our deaths for political gain.

But hey, John Stewart is happy, so that's what counts.

I mean, so long as you don't count the over a million people murdered by the U.S. who had nothing to do with the attacks in response to said attacks. Can't count them.

Obama's supporters were frankly relieved by bin Laden's assassination. They spoke openly of the potential damage to Obama's re-election chances if he had put bin Laden on trial in the US.

And oh my, did they hotly resent Chomsky asking us to consider whether we'd want anyone taking out our top guy! President Obama is a head of state, they'll have you know. So even if Obama has killed more civilians than bin Laden, they are not in the least comparable, thank you very much!

Got a link for any of that Chomsky resentment, Joe? I can imagine it (vividly) but I haven't run across it myself.

NOoC: The Constitution is neither a predictor, nor limiter, nor guide to the behavior of our aristocracy.

I agree with much of what you're saying, but this is too strong. The Constitution states certain limits and--as I think you were saying--the law establishes the actual parameters for those limits (speaking of Chomsky, he details how the actual right to free expression was established through the courts quite recently, not thanks to the mere existence of the First Amendment). Obviously elites are going to try to get around those limits as much as possible, just as they do with international law (though with greater success in that case). But they don't wield absolute power, and Constitutional restrictions do balk them.

The level of limitation there is debatable, but it's not insignificant. That's why I always say it's a serious mistake to discount the value of either legal remedies, the Constitution, or international law. Despite all the hurdles in their way, the Center for Constitutional Rights (for example) does regularly score victories in addition to defeats. It's a constant back and forth struggle. So strengthening the imperfect but nonetheless partially-effective mechanisms that place limits on those in power and hold them accountable for their actions is a worthwhile goal.

Exhibit A: the comments in a Daily Kos diary that reproduced Chomsky's comments at length.


"Tell Mr. Chomsky as you seem to be representing his work that he is full of shit."

"Any victory for the US is a bad thing for Noam. Must kill him to see most liberals cheering a decisive defeat of an enemy."

"Given that Chomsky has cuddled up with Holocaust deniers and served as an apologist for the Khmer Rouge, the only thing his doubts about the 9.11 story confirm is that he's a knee-jerk anti-American asshat."

"There is nothing 'Progressive' or 'Liberal' in attempting to make the comparisons that he is trying - and failing - to make. He only succeeds in sounding petty and bitter."

Here's the problem John. The parts of the Constitution which are most fiercely ignored (that's an odd formulation, hmmm?) are those which tend to be the hardest to sue over. In other words, what the common person can fight over becomes the hardest "law" in the land. My point isn't that we don't have laws -- a government by fiat still has laws -- but that those laws are not creatures of our common text, but creatures of political convention. So yes, the good guys do win some and no, it's not all Mad Max's Australia out there. But that isn't my point. My point is that our legal system isn't Constitutional. If it were, then violations of any part of the Constitution would be a crisis for all of the system. By the same token, you're not a part of my body, so if I get stuck with an icepick, you might feel bad for me, but you're not the one bleeding out.

I know this sounds like I'm splitting hairs, but I think this matters a tremendous deal. If you write a contract with someone to form a business and, in the course of time, over half the business is run by ad hoc agreements in clear defiance of the contract, do you then declare, in a moment of legal crisis, "well, we'd better just follow the whole text of the contract as written?" We've been off-book from jump and at this point the notion that we're following the Constitution by and large isn't a joke, it's just a banal absurdity. There are entire sections of government that literally would cease to exist if the Constitution were enforced and those elements aren't even brought up for casual, offhand discussion in law school.

Again, your comment refers to non-aristocratic victories in law, but that doesn't mean we are a Constitutionalist society, anymore than the mere existence of an election in our borders makes us a democracy. We certainly are legally informed by the Constitution, and we most certainly do have laws, but that doesn't mean we're run by the Constitution. We are a nation of men first, not laws. So, sure, we've won victories and it would be shameful if I ever discounted a victory for a liberal cause -- especially since I'm probably a benefactor of damn near each of those, one way or the other. But those victories are in the context of a somewhat liberalistic imperium, not a constitutional democracy, and if the constitution isn't the supreme law of the land, I can't call it a limiter on the behavior of the most powerful. I can call the laws it inspires limits -- for now -- but any element of the Constitution can and will be dismissed if sufficent political pressure established, regardless of the people's collective will.

However, though we may disagree as to our "constitutionalness" (English deserves better than my treatment), I'm actually in agreement with your mention of international law. If we're in what boils down to a political slugfest, then yeah, every kind of law and society can inform our system. This is a good thing.

I'm too damn long-winded when tired. I guess it's partially semantics. If I can peel out provisions of our central law and say "this counts" and then peel out other parts and say "this NEVER counts" through fiat, then while we may have laws, and may have good laws, but we don't have a Constitutional government. We have a bible that we fight over.

I would like to be wrong about that.

Joe: 'kay, not even going to dip my toe into that river of feces, not that I visit kos very often anyway. Line three is an outright rightwing lie and if it didn't get shot down as rightwing there, I don't see why I shouldn't save myself the puke-inducing color-scheme exposure and just go to Powerline or some shit. If you revisit this thread, do confirm if that lie went unchallenged if you have the time.

One of the things I find interesting in the Constitution are the tidbits that often get ignored:

The Constitution forbids states from violating a private contract. This has been held up by the Supreme Court in famous cases.

The Constitution upholds not having jury trials in civil cases.

The Constitution directly authorizes spending for the general welfare.

The Constitution mandates the practice of Grand Jury investigations into federal offenses.

The Constitution allows the Congress and States to restrict the freedom of expression and assembly at whim.

The Constitution allows the wealthy to appropriate the property of the poor (with "just" compensation, of course).

This is to say nothing about what's been amended out with respect to slavery.

Unremarked upon either of the two times the guy said it.

My talking heads weigh in on this topic:


BAS: long story short, some of those are interpretations -- that is, one step removed from the text.

Many of those examples have end-runs. Just because I can't interfere with your contract doesn't mean I have to allow your contract. Children can't contract at all, for example. I'm thinking of explicit text.

The most clean example here, imo, is something that directly contradicts not only the text, but the nigh-unanimous agreement of the framers in their public and private discussions: a black budget. The colonists hated the idea of Congress spending money that wasn't publicly accountable. The CIA exists because of this direct constitutional violation. It isn't remotely defensible: this is exactly what the framers didn't want. You'll hear a crap-ton about how our bureaucratic branch wasn't concieved of by the framers, but that could be handwaved in as a part of any of the three, existing branches, or all three in turn. (Hell, if we wanted to please a purist, we could have reps from all three branches in each job -- so the lady behind the counter at the DMV is executive, the one in the manager's office is legislative and so on. It really doesn't matter much; Congress has a shit-ton of discretion to get its laws enacted so the entire thing is a tempest in a teapot.)

But a black budget? There is nothing in heaven and earth that makes that kosher. It survives because of our current version standing doctrine, a spiffy bit of Calvinball which allows no one to sue over it for whatever reason I choose -- literally. It fits the definition of an ilogical proposition since it can mean whatever I want it to mean. And our courts find this version in the Constitution, but unlike a black budget, it isn't actually "written" anywhere.

The bits of Constitution that have been written down are less important than the bits that you pull out of your ass to help out a powerful interest.

Joe: thanks for taking one for the team.

Someday, I'm going to have the stomach to play with copy/paste from rightwing and leftwing blogs and show identical value systems at work, but right now, there's not enough pepto bismol in all the world.

Mx. Consequence:

I forgot about sovereign immunity, sorry. Points taken though.

In reading the comments one of my first thoughts is that states have constitutions too, and they generally count for naught when powerful interests want something.

The Commonwealth of Pennsylvania's constitution has exceptionally clear language that the state is not supposed to partner with nor extend credit to (and the language goes beyond this a bit) any private business. It couldn't be clearer.

When stadium funding here came up around a decade ago, I testified at Philadelphia City Council that the stadium deals were in blatant violation of the state constitution because the state was giving and/or lending hundreds of millions to private business. I might as well have been speaking Martian. No one cared, it had no effect. A citizens' group even sued in the state supreme court over what should have been slam-dunk win, and the court - with its political machine judges - ruled that somehow giving and lending millions of dollars to buiness was not giving and lending millions of dollars to business.

It gets very hard to believe that we're generally a land of law.

Well damned written, NooC.

Great comments, NOoC. And yeah, I'm guessing a lot of this is semantics and we'd basically agree if we could hash it out in a forum that doesn't require so much damn typing. And while I take your points, when you say things like "if the constitution isn't the supreme law of the land, I can't call it a limiter on the behavior of the most powerful" you're just setting an impossibly high standard. There's never been and there never will be any governing document--or contract, or law, or anything else--that would satisfy it.

But it's a false dichotomy. The Constitution is definitely not a guarantee or a panacea, and the powerful/elites/aristrocracy are of course always going to do everything in their power to get around whatever restrictions it might put on them (based on a straightforward reading). And they're going to succeed many times. Buy they'll fail others. And those failures are in no small measure thanks to the fact that the words are there in the document in the first place, so that people can fight to put meaning into them.

It's easy to take that for granted, especially because as Americans we're marinating in a level of rights that other people around the world only dream about. It's like air: you don't notice it except in its absence. But we have what we have in no small part thanks to the fact that some guys in the 1700s felt it was worthwhile to write it into the Constitution, and as much as we should recognize the document's flaws and limitations, it's a mistake to dismiss it.

Caruso: Agreed. Our differences are minor. And I'm really damn picky.

vastleft: You are awesome, but you knew that.

Chirs: dingdingdingdingdingding!, yep this is EXACTLY what I'm talking about here. There is absolutely, positively no good faith. I used to think, as a child, villains of the world were clever -- after all, well-written laws would seriously crimp a nonviolent criminal's style. But I soon found -- unfortunately, while still a child -- that you don't need to be smart to break the law. Criminals will just pretend the law is different. It's that fucking simple.

In NYC, the funding scheme for children's education is unconstitutional. Straight up. NY has some awesomely liberal stuff in its constitution and makes painfully explicit what's actually in the federal constitution that the Supreme Court wrote out: that funding disparities are discriminatory (especially given that the state will happily tax a minority while underfunding the same -- and then hand that money to a rich neighborhood). This isn't just me bitching; activists successfully sued to prove the point. Yay, we win.

Now what?

How do you force Congress to change a funding scheme? Do you hold the entire body in contemt? Well, yeah, that's exactly what you do, but it's not gonna happen.

So John's right -- I'm probably maintaining a seriously high standard at best. But my frustration demands nothing less. How can anyone have even the barest minutae of respect for a legal system where explicit text can be dismissed on a whim?

Oh, btw, we have even nastier examples of this phenomenon. As I've ranted shrilly about many a time here, the ability of your vote to be counted is directly proportional to your melanin content in this country. Spoilage rates increase as you become, well, um, less white. The biggest "winners" here: native americans! Yay! We will never be done fucking with you!

But the biggest voting bloc that hit by this with a serious, practical effect is (yawn) black people. How big? Kerry won in 2004. Gore won in 2000. Huge chunks of black peoples' votes were deliberately not counted in swing states, with spoilage rates greater than 10%. Short rant version: read Palast.

Okay, that's nasty enough, so how do you stop it?

Let's say the Sec. of Elections puts deliberately awful voting machines in your district because he is what we call a collosal dick. The point of voting machines, in general, is to a) give a kickback to a private interest and b) miscount votes, since voting by hand is easier and more accurate, so the mere existence of the machines is already a sign of some corruption. But the Sec. does is over the top: he deliberately puts broken and malfunctioning machines in your area. And, on top of this, the state has draconian laws restricting place of polling.

Now, something to keep in mind: voter registration is black peoples' "fault" in the first place. When did we get it? After the Civil War. Why do we have it? To stop the negro vote. Seriously. Too lazy to pull up the quote now, but a southern senator actually pointed out on the floor of a state congress that voter registration was designed to stop the nigger-vote. Now people of all colors can share the joy!

So, coming into this, we have a rigged game that serves no valid governmental interest. Okay, then we have a Sec. of Elections taking deliberate discriminatory action for clear personal gain.

Alrighty then, injunction time! I'll get my lawyer and --

-- waste my own time and money because I don't have standing. Why? No injury.

That's right motherfucker, we haven't taken anything away from you yet.

I won't make analogies that point out the absurdity there -- we all think that's bullshit (if you don't, chime in -- I'd be seriously curious to hear why).

What comes next is obvious. Judges don't like invalidating elections. When your vote isn't counted, they're not going to like ordering a recount or invalidating the election. Shockingly enough, state laws usually don't really force them to under any circumstances.

And wait -- how do you know your vote wasn't counted? You have to do some serious sleuthing to prove it. Did I mention those voting machines are "proprietary" and that protection is greater than your interest in state government? They are and it is. But let's say you get through that. You can prove your vote was valid, yet nulled.

Well, now the court can claim you have no relief available because the election already happened. That's right motherfucker: your vote exists in a temporal vortex where it can't be taken away from you such that you're harmed, but it can be stolen such that it never counts as stolen.

Without a Calvinball standing doctrine, this would all be impossible.

I don't have any glib ideas on how to stop Calvinball. I've speculated that if we took a metaphorical page from oral tradition and used more formulas in laws it would make it harder to end-run around them. For Chris' example, for instance, if the formula held that the state lost money and the private interest gained money then that was that, that could help. The fact of the matter is though that judges can just fucking lie. They can just make things up. That recent case where Thomas denied relief to a man who proved that prosecutors knew he was innocent but withheld evidence proving the same is a good example of this: Thomas' opinion literally ignored relevant facts in the case. He just played "let's pretend."

I think it comes down to this: all legal solutions are ultimately political. If your leadership is corrupt, all the laws in the world can't save you.

John, regarding Chomsky resentment, check out Marc Cooper, Hitchens, and the twitter feeds of various liberals, including Adam Serwer.

This, by Juan Cole, alluded to Chomsky:


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