Legal & Ideas & BushCo Posted by JP Stormcrow, 30 Jul 2007 07:56 am

Rule of Law


“We are in bondage to the law so that we might be free.”
Cicero (106-43 BC)

the law is a ass—a idiot.”
Mr. Bumble Oliver Twist, Charles Dickens

When I first conceived of this post, I was going to basically describe a great article by Kim Lane Scheppele, When the Law Doesn’t Count: The Rule of Law and Election 2000, in which in addition to providing a devastating critique of the actions of the Supremes and how they violated some of the basic tenets of the Rule of Law, describes how many countries with “horrors” in their past (Germany, Russia, various Eastern Europe countries) have included specific “Rule of Law” clauses in their constitutions. I was going to propose that the United States might profit from adding a similar amendment to our constitution. I still think that it is a great article, (Do read it, but be warned that it will infuriate you all over again. I found it via Lawyers, Guns and Money, which I found in turn via MB’s hockey blogging, which shows that though the wheels of blogging grind fast, they grind Non sequiturously) and such an amendment is still is probably a good idea for the US. However, after watching the various “Accountability Follies” that have played out over the last few months between Bushco and Congress, I am less sanguine about the capacity for any combination of mere words on parchment or paper to save us from ourselves, now or in the future - especially if those words are to be interpreted by the likes of the Roberts court. These days I am thinking more along the lines of what to do right now, because I think John Rogers got it exactly right in his L33T Justice post at Kung Fu Monkey :

They have found the “exploit” within the United States Government. As I watched Congressmen and Senators stumble and fumble and thrash, unable to bring to heel men and women who were plainly lying to them under oath, unable to eject from public office toadies of a boot-licking expertise unseen since Versailles, it struck me. The sheer, simple elegance of it. The “exploit”.

The exploit is shame.

….

We are faced with utterly shameless men. Cheney and the rest are looking our representatives right in the eye and saying “You don’t have the balls to take down a government. You don’t have the sheer testicular fortitude to call us lying sonuvabitches when we lie, to stop us from kicking the rule of law and the Constitution in the ass. You just don’t. What’s beyond that abyss — what that would do to our government and our identity as a nation — terrifies you too much. So get the fuck out of our way.”

(I looked for an image that included Cheney, but when I uploaded it to Imageshack, everything stopped working and I couldn’t get back in to the site and then I got this nasty e-mail from them talking about lawsuits and “Terms and Conditions” and it seemed like they were having a bad day, so I stayed with just these three.)

It is interesting to note that Rogers does not ascribe the “exploit” to some loophole in the Constitution or US Law (which is what I was expecting when I started the article), but rather to our basic sense of how minimally decent people behave. Now, of course, a lot of people in this world are not minimally decent, or they may be, but don’t behave that way all the time (especially when in positions of power), thus there are laws in general, and in the US in particular, our Constitution with its “Checks and Balances”. But is the Constitution up to it? Would any Constitution or system be? It was not by chance that I chose a quote from Cicero. Do I actually think we are on the verge of dictatorship? No, not really**. Do I think the country’s governmental institutions and sense of “civic nationalism” have been severely damaged and that we are in a “Constitutional Crisis”? Damn straight. But as with other “Constitutional Crises”. I think that this is more a crisis of national character than it is of law or the Constitution. The laws will follow if as a nation we truly have it in us to face the madness and call it for what it is**.

But for now we are left with the last resort of impeachment. Since Gonzalez has been so contemptuous, and has done it right in Congress’s face, there is actually some feeling that he may actually have a chance to become the first sitting Cabinet member in US history to be impeached. But don’t count too much on it, I think “troopers” like Specter will go right back into the nutjob Republican fold when push comes to shove - and the Washington press corps will give him (and others) cover when they do, if only to avoid all that icky partisanship. So I think that Alberto will leave his post precisely on the day calculated to trade off political cover for Republican candidates with the Administration’s need to not have a functioning Justice Department.

Because that is the only reason Abu is still alive and kicking in Washington - the need for a partisan, dysfunctional Justice Department to protect Bush/Cheney. Otherwise we might be talking the real I-word (and forget Cheney for the moment - I know he runs things, but The Shrub is the symbol - and it is symbolism that we are dealing with here at this point.) But what am I saying? Bush will never be impeached and the Dems would never even try. And until a few months ago, I was right there, with tactical political justifications at the ready. But thinking about it right now, I am in favor of going for it. Write up articles of impeachment on all three of the bastards! Do it simultaneously! We (and Congress) owe it to the framers, to the Constitution, to the idea of what this country could be, to a positive dream of America. I understand that we most certainly will lose, but silence is assent - this behavior, this outrageous charade of an Administration cannot be allowed to pass without being challenged, and challenged within the tools of law at our disposal, flawed and weak though they may be.

**There are two nagging concerns that I have that erode my confidence in my predictions - and that is the respective characters of the Press and the Supreme Court. Both are disasters at the moment. The awfulness of the press (literally) speaks for itself. To date Roberts is everything I feared and worse, a smoother, slicker Ken Starr with a seemingly terminal case of White Boy Deranged Entitlement Syndrome. Couple that with Scalia’s formalistic bullshit originalism (except when the need arises to ignore all that crap and deliver a desired political result) you have a really, really scary court. However, to end on a slightly more positive note do go read the Jack Balkin essay I linked above entitled Basic Law, Higher Law, Our Law– An Essay on Constitutional Redemption , it is a refreshing antidote to the originalist obfuscation you get from the Scalias of the world.

Trackbacks

Responses to “Rule of Law”

  1. on 30 Jul 2007 at 11:19 am 1. James Killus said …

    I think the Bush-is-a-dolt-and-Cheney-actually-runs-things model of it all may be pernicious and wrong. I do not believe that Cheney is very bright; I’ve always pegged him as an “empty suit” and I’ve seen nothing so far to change my mind. He has surrounded himself with vicious plotters, but my mind keeps wanting to turn that last one into “plodders.”

    But it’s still Bush who sets the (sadistic, deluded, sneering, ignorant, arrested-development sociopathic) tone for this administration and his characteristics are why the authoritarian right loves him so. Gonzalez, for example, cannot be laid to Cheney’s door, nor any of a dozen other evil actions. Never fall into the trap of believing that the head guy is just a puppet; that’s what got Bush elected in the first place.

    But I understand why people would like to pretend that these are not just a gang of third-rate thugs who have taken over the levers of power (actually the positions were basically handed to them by those who bear a fundamental hatred for democracy). It’s both frightening to comtemplate what this means about the future and shameful to think of what it means about the past, how many people bought the lies, or worse, chose to pretend to believe the lies because they were offered up a full course banquet of hate and bigotry and chose to gorge themselves into an evil torpor.

  2. on 30 Jul 2007 at 11:59 am 2. Zeus said …

    Excellent and thoughtful post JP. I love it when I can read something impassioned and written by a citizen who clearly cares about not just his own interest and ideology but his character and that of the nation. This is not about “how we look” but about “who we are” (and what we do with who we are), and that is what brings up the insight inspired by your essay:

    We have historically relied on a negative to restrain our appetites for unfettered power- shame. But the Strauss-inspired evolving neo-conservatism sees “shame” as a quaint boondoggle thrown in the path of self-proclaimed supermen as themselves. We are thus left without equipment (ub, ub, ub… you can’t do that!) when we are led (i.e. run over) by those without shame. The decisive political remedies (impeachment) seem too extreme or impractial, yet the behavior it seeks to remedy is far more extreme. What gives?

    I love the John Rogers quote you offered, speaking as Bush and Company: “You haven’t got the balls (to take us down)… What’s beyond that abyss — what that would do to our government and our identity as a nation — terrifies you too much. So get the fuck out of our way.” That really opens to door to our moment of decision: We fear we won’t have the character as a nation to enter the abyss and really “get it on” with these criminals. These criminals know it and use it to drive the whole country and the Consitution into a different and worse abyss.

    Question is, will you enter the abyss of responsibility and courage by choice or do you get thrown in that different and worse abyss– giving up responsibility and getting screwed royally. You have exposed by your observations our quisling, authoritarian-loving tendency (in the conservative vein– we want a “strong leader” to tell us what to do, to calm our fears if only with lies and obfuscation) and our conformist tendency (on the liberal front– we want to make nice, and make sure no feathers are ruffled, and to be “civil” [i.e. cowardly] in all matters of conflict).

    I think both lack citizen decisiveness. The question is not whether the nation has the character. We cannot control that. The question is not about what will befall us. Our inaction has guaranteed the worst of all worlds. The question is not even “Will it actually succeed?” “Sending a message” does not work. The question is whether “I” in concert with others have the embodied character to call this delusion and cowardice out in myself and in my nation, to produce an actual solution to the larger consitutional and consituency crisis before us. Whether or not Bush and Co. can run out the clock on impeachment is immaterial. We ought to press it now, go after them, and reclaim our democracy.

    Citizen Zeus

  3. on 30 Jul 2007 at 1:16 pm 3. James Killus said …

    My fantasy on how it should be is this:

    The Sergeant-at-Arms of the Senate and/or House deputizes members of the Washington D.C. Police Department, who then go to the offices of Rove, Cheney, Myers, Gonzales, et al., with orders to bring them in front of Congress, without delay, to testify under oath in general contempt of Congress/impeachment hearings, as applicable. As they kick down the door of one of the offices, one of the policemen says, “I gotcher Constitutional Crisis right here, pal!”

  4. on 30 Jul 2007 at 3:02 pm 4. JP Stormcrow said …

    I basically came to this position (surprising myself) late in a thread over at Crooked Timber. Kieran Healy had asked Is it a constitutional crisis yet? And after the usual back and forth over Bush defenders trying to nitpick each little detail, it seemed to settle into a sense of “Well, no one is going to impeach anyway due to political considerations, so why even talk about it.” And to which I’m sure our wingers friends added to themselves “and therefore no constitutional crisis”. It was that image that brought home to me that if we let this slide, we have set a new low bar for “acceptable and normal” behavior. As Carol Avedon said: (she came in at the end of the thread with some needed fire)

    The founders made it clear that a situation such as we have now is precisely what they intended impeachment for. In fact, we have several situations that impeachment was intended for. Madison, for example, was explicit about a president who used the pardon power to prevent exposure of his own administration’s crimes.

    So if you don’t impeach under those circumstances, when do you?

    My first step is letters to my Congressman and Senators - will post those later tonight. Specter gets a special one.

  5. on 30 Jul 2007 at 3:29 pm 5. Oaktown Girl said …

    And to which I’m sure our wingers friends added to themselves “and therefore no constitutional crisis”.

    Yeah, the crimes aren’t the crisis, it’s those pesky Democrats screaming for investigations and impeachment that’s bringing us to a crisis.

    Bravo, JP. Guess what? Nancy Pelosi is actually my representative, and while I believe I’ve email, I haven’t called. So I will do so. Our Democratic “leaders” are not abiding the will of the people (as reflected now clearly in the polls), but continue to make decisions based on how they fear the corporate, right-wing loaded media will spin it, especially on the Sunday morning talking head shows.

    Whether or not Bush and Co. can run out the clock on impeachment is immaterial. We ought to press it now, go after them, and reclaim our democracy.

    What Zeus said. The reasons given for not putting impeachment firmly back “on the table” are the worst sort of tortured political “logic”. Running out the clock - how does that help the country? By reinforcing the message that if you are rich enough and high enough in rank, it’s OK to commit any crime because our elected “leaders” will just shake their heads and look the other way? Mmmm. That’s some tasty good leadership.

  6. on 30 Jul 2007 at 5:17 pm 6. James Killus said …

    Just a little reminder: “High crimes and misdemeanors” do not cease being crimes after a President leaves office, and although the powers of Presidential Pardon are “Plenary,” I believe that even this Supreme Court would balk at the prospect of an exiting President pardoning himself.

    I believe that there are quite a few people who do not intend to let bygones be bygones this next time around. I know I won’t.

  7. on 30 Jul 2007 at 9:41 pm 7. JP Stormcrow said …

    My letter to Senator Casey and Rep. Jason Altmire (both elected over Repub incumbents this past fall.)

    Dear xxx,

    I was quite glad to vote (Altmire only: and provide financial support) for you in last year’s election, and I was quite satisfied when you won. I feel that my interests and those of the (State/district) as a whole have been much better represented by you than by the previous officeholder.

    However, I am writing to you today about an issue that I understand is quite controversial. The issue is impeachment. The President, Vice-President and Attorney General have all engaged in behavior that calls out for impeachment. Impeachment is a crude tool, but it is the one that the Constitution gives us to respond to the behavior we have seen all too often from this administration. I do not advocate this path towards the end of a specific political gain for Democrats versus Republicans, or even with the expectation that it will pass, but rather so that people in the United States and the World at large can be assured, now and in the future, that there are some in the halls of power who understand that we are a nations of laws and not men. Please do not let quotidian political concerns stay you from supporting what you know in your heart is necessary. After all, we have naught to lose but our country.

  8. on 30 Jul 2007 at 9:57 pm 8. JP Stormcrow said …

    Letter to Arlen Specter.

    Dear Senator Specter.

    I will be brief and blunt. I am a Democrat and have never voted for you. However, as a Pennsylvania resident I appeal to you to please support the impeachment of the President, Vice-President and Attorney General. I know that you know it is necessary, their behavior must be challenged, otherwise Congress has tacitly endorsed their actions as within the bounds of acceptable government. I actually do not expect you to support these measures, your record of sticking up for your principles when the going gets tough these last seven years has been abyssmal. However, I also know that you do not want your final legacy to be as an enabler for the lies and contempt of this dreadful administration. For the sake of your country, your constituency, your peace of mind, and your party, please join with your Democratic colleagues and demand accountability as provided in the Constitution.

  9. on 30 Jul 2007 at 11:48 pm 9. Porlock Junior said …

    On a more frivolous note than this thread deserves, I’d like to move a vote of thanks to Citizen Zeus, who writes “quisling” without capitalization, as a common English noun. It deserves to be that, not an esoteric reference footnoted with a capsule biography of Vidkun Quisling. This is not only because Quisling does not deserve even the honor of recognition as an eponym but because English needs the word.

    It’s a nasty little word, isn’t it? It sounds contemptuous. (My apologies to my Norwegian ancestors, to whom it would not have sounded that way; but this is English.) I don’t know what this quis- thing is that the quislings belong to, but they’re obviously up to no good.

    It was mostly written as a common noun from 1943 on (the first such citation in the OED is from C. S. Lewis); but my impression is that it has been drifting out of use for many years. Bring it back in our hour of need.

    OTOH, we can probably do without the derivative verb to quisle, which, alas, I am not making up.

  10. on 31 Jul 2007 at 8:24 am 10. JP Stormcrow said …

    On a more frivolous note than this thread deserves

    Frivolity about a serious topic? On this blog? Why I never have heard of such a thing ….

    I do agree that quisling fills a useful linguistic niche. And also that a back-formed verb from a noun which itself was formed from a proper noun is a pretty ugly thing.

    However, quisled reminds me of a fictitious heteronym of misled (pronounced either MY-zuld or mizzled) that apparently is a somewhat widespread invention of kids whose reading vocabularies outpace their spoken ones. I shared this misapprehension and discovered that many others did as well per this thread at Crooked Timber (which started as discussion on the mispronunciation of Samuel Pepys’ name.)

    Could say more, but I don’t want to bogart this discussion thread.

  11. on 31 Jul 2007 at 9:50 am 11. Oaktown Girl said …

    On a more frivolous note than this thread deserves…

    Au contraire, Porlock. In fact, I not only thank you for calling our attention to it in Zeus’ comment, but will add that I think it’s totally appropriate to do so for this post.

    I’ll cop to having had to look up the word because indeed, it is not part of common usage these days. But sadly, it’s most befitting to our times and needs to be brought back out into the light of day. I think it would do some good to the general cause of beating back those bastards right and justice.

    quis·ling /ˈkwɪzlɪŋ/ Pronunciation Key - Show
    –noun
    1.a person who betrays his or her own country by aiding an invading enemy, often serving later in a puppet government; fifth columnist.
    [Origin: 1940; after Vidkun Quisling (1887–1945), pro-Nazi Norwegian leader]

    2.n. A traitor who serves as the puppet of the enemy occupying his or her country.
    (From dictionary.com)

  12. on 01 Aug 2007 at 10:44 am 12. Porlock Junior said …

    Matter of fact, a year or two ago, Steve Gilliard [sob] was using “Vichy Democrats”, also an excellent term, and in this case meriting capitalization.

    The reason for my lead was actually that I was about to submit something that was a lot more serious-minded. The attempt failed, but the blog software seems to be allowing me to comment today so here it is two days late.

    JP and pretty much everyone else look on this as a quixotic effort (do I prefer eponyms that start with q?) that we must undertake because it’s morally imperative; and this is the first time I have seen the position presented eloquently and convincingly. This is entirely right; but I want to present a case that it isn’t necessarily even doomed.

    At lunch with an old friend today, I was contradicting nearly everything, when the subject of impeachment came up, because I brought it up, and having no one but myself to contradict, I did that. I have not, I explained, been mad at Nancy Pelosi (not my congressbeing; mine is the one who invited Cindy Sheehan to the State of the Union) for not pursuing the obviously justified course of impeachment, as everyone else seems to be. What, after all, is the purpose of the effort, doomed to failure as it is?

    At which point I began to Visualize Impeachment. (I may order some bumper stickers with that motto.) It’s not a matter of introducing a motion and voting on it; it goes through the tedium and complexity of Congressional Hearings. The attempt to make these happen will cause a Constitutional Crisis unike anything seen since 1861, and it may be resolved by force of arms. But if the hearings proceed, with or without White House testimony, we’ll get, like, the story! It will be shocking. It will probably not be possible for the media to cover it in the same way they covered the case against the lies in 2002. This stuff, given any political skill whatever, will blow up big. It will turn out that what the adinistration has been doing is far worse than the public knows, obviously; it is likely to turn out worse than we know.

    Would Conyers and Waxman and all be up for this job? Would they be up to doing it well? Does Barry Bonds use steroids?

    After two rounds of hearings and debates in the two houses — and assuming that Bush doesn’t wind up rallying the forces on top of a tank in front of the Capitol — it’s not impossible that the public pressure could make 1.5 dozen Republicans act like honest men when it comes to the 2/3 vote in the Senate.

    Stretching out the process for 18 months? Right, that will really be a good thing to be involved in, around November 2008, won’t it? Great for the Republicans’ prospects.

    The first thing necessary is for Pelosi to stand up and say, “I take no position on impeachment. I must fomally recuse myself, for obvious reasons. [Here the next President explains the obvious reasons.] Recently I stated that the subject was not on the table; that was a misjudgment that I regret. As Speaker, I leave the question to the relevant committee chairmen. Persons.”

  13. on 01 Aug 2007 at 11:54 am 13. Oaktown Girl said …

    But if the hearings proceed, with or without White House testimony, we’ll get, like, the story!

    Yes, impeachment hearings will force these criminals to go on the record and defend their positions. And that’s a very strong reason to advocate for it…beyond the fact that it’s the right thing to do for our country, and our “leaders” need to stand up for what’s right for a change, and not just what they think is politically expedient.

  14. on 01 Aug 2007 at 8:31 pm 14. JP Stormcrow said …

    but the blog software seems to be allowing me to comment today so here it is two days late.

    Sorry that you are had problems.

    Good catch on Pelosi recusing herself. I had not thought of that, but it certainly makes sense.

    And yes, I do admit that I held/hold little hope for any success in the venture, but there is some plausibility in your scenario. What really motivated me was the vision of every arrogant, contemptuous thing done by future administrations being “justified” with - “It’s not as bad as Bush/Cheney/Gonzalez and no one impeached them.” for the rest of my life.

    I do wonder if a guy like Specter will ever finally stand up for real - you know he hates this administration - but so far he caves when it matters. (The contrast between how the Specter/Toomey primary got treated vs. Lieberman/Lamont continues to puzzle me - and has to have pissed off Specter.) Specter, Snowe, Collins etc., do they not see the future Republican party they are enabling? Do they really want that? I would love to be a fly on the wall for some of their private deliberations.

    Come back Barry Goldwater, all is semi-forgiven. (but NO, you still don’t get to be President.)

  15. on 05 Aug 2007 at 7:37 am 15. JP Stormcrow said …

    Given that my representative and both senators voted for the Bush blackmail FISA abomination, my letters re: impeachment look quite quixotic (does that exhaust the “q” nouns from people’s names?). I sent web/e-mail missives to all 3 with a somewhat less respectful tone this time around.