by Divorced one like Bush
For this post I will formally introduce myself. I am Daniel J. Becker. It is only proper and just to do so. I am using Mr. Greenwalds discussion only as a platform to add my thoughts regarding the Citizens United decision. Also this is a long read. So I’ll give you up front the crib note version: The source of error and thus argument is that the arguing/arguments are starting in the middle of the line of reasoning and not at the beginning.
The “rule of law” means we faithfully apply it in ways that produce outcomes we like and outcomes we don’t like.
The above is, I believe, the thrust of Mr. Greenwald’s argument. It has always been his strength and the source of the pleasure I receive when I read his arguments. I do not disagree with his statement. I believe it is the same argument presented by Mr. Jonathan Turley on MSNBC and by the ACLU. Mr. Turley specifically states that the Constitution does not protect us from bad decisions.
Our predicament with this latest decision and the examples of Bush et al’s “warrantless eavesdropping, torture, unilateral Presidential programs” which Mr. Greenwald presents is not found in the argument of whether we like or dislike the outcome. The argument however is addressing an issue I have had for years with the way law is practiced.
What is the proper means of using, applying, implementing a form of governance based on the ideology of “the rule of law”?
We need to step back further to see the source that can lead to a dire results upon implementing a ruling of properly applied law. One side is asking “how can you ignore the cliff?” The other is responding with “it’s the law”. There might even be a third party arguing that both sides can be viewed as just differences of interpretation of the words used. Maybe this even comes down to a simple placing of a comma?
Seems like quite the dilemma for us, no? If we are not true to applying the law as written then we are by definition of “rule of law” no longer under “rule of law” and thus the entire concept of law as we are historically taught becomes instantly nonexistent.
So it appears we are at times left with only the forced acceptance of hurting ourselves, hurting our social order for the ideal of living by the rule of law, an ideal existing for the purpose of removing the errors of emotion in the attempt to achieve betterment in producing justice.
I’m sorry. I will not accept that a system designed by persons who devoted their lives to understanding human nature and history, and used civil war to create the environment needed such that their ideas regarding government could live, is inherently flawed in a manor that we have to live with the threat of what can be called “legal masochism”. The question becomes: Where is the flaw in the application of the ideal and concept of “the rule of law” such that we have a masochistic results? Even Mr. Turley notes that this current decision has the ability to be a major self flagellation.
The only point at which both sides or all sides can resolve this predicament (assuming you are not accepting that legal masochism is an inherent aspect of our system) is at the place in any sentence where the word “faith” or it’s variant appears. Faithfully. Faithful. This word “faith” can not be interpreted and thus the sentence understood without answering the question: Given to what? What is our faith given to? What is the basis of our faith? We give faith to something because we accept that the “something” has a power of some nature.
SCOTUS: …and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.
All federal employees: …that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same…
President: …I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
Vice President:… I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same…
Congress: …I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same…
The only entity in our governing system not to specifically or tangentially pledge their faith to the Constitution is “We the People”. The Pledge of Allegiance is a pledge to each other as one. I would argue, that such a pledge implies our faith in “We the People”. This is as it should be. We are not bound to the Constitution by any external power. Not by religious power, royalty power, dictatorial power, corporate power, etc. We can not be so bound because we are the power. There is no other hierarchical power in our system of governance. Any faith we express regarding our ability to govern our self is the result of the enlightened reality that people governed are the source of all governance power. We are the power. We agreed to this understanding of power in ratifying the Constitution.
Thus, the only power that the Constitution has is the power that We write into it. This is the genius of our founders. The Constitution is the written word so to speak of our power. It is our collective thoughts regarding governance. It is our identity as a governed people. It is the blue print to be used by any entity to come if such entity desired to reproduce our governance mind.
Many have noted the Preamble of the Constitution as a reference to why the Citizens United ruling is in error. The presentation is that it states only “We the People” and thus follows that only humans can have rights and power. But, this is incorrect as to why the argument as Mr. Greenwald and Mr. Turley state is in error.
The Preamble does not give power to us. The Preamble however, is very important for it is the statement from us to each other declaring what “We the people” will do with our power. The Preamble is the point of source and reference for all of our laws and the Bill of Rights and thus rulings. The Preamble is the stated purpose and desired goal of the application of our power. It is the final test as to the consistency of all that comes after it. All that comes after the Preamble is the listed means by which we will exercise our power. This includes the Bill of Rights. As an individual, it would be one’s purpose in life.
Here’s the real rub however, that I have with all I have read and the current way law is practiced and the reason for the above set up of this discussion. I am not a sum of parts and neither are you. I am a whole, a one which can not be understood or related to by subsection analysis. My intentions can not be fully implemented or appreciated as to their appropriateness to my overarching purpose independently of each. If you accept that this is true and I believe that the prevailing founders did, then our Constitution as the written word of our power and it’s use must so be understood and applied as a whole life which is summarized in the Preamble.
To exercise our Constitution in a reductionist manor, I believe is a mistake and a disservice to the intellect of those who wrote it. Such proof of thought can be found in the very division of our power. No one division can have purpose, can have material to work with without the other. The concept of separate but equal can only be appreciated if it is understood that the separation is only for the purpose of job distinction. Our power can not be exercised in whole by any one branch. The strength of the whole of our power can not be experienced in any one branch. That each branch is originated in the Constitution and each branch is dependent on the others for its job, is proof of construct and thus application and exercise of the Constitution and all that comes after it. One can not properly determine the appropriateness of any decision originating out of any of the branches without considering the the relationship to the whole of the Constitution. The whole being the relationship back to the Preamble which is the stated purpose and intentions of the application of our power. That such work is not performed creates what the Citizens United case has created…legal masochism.
Yes, we are at the point of faith. “We the People” refers to a collective and thus, the collective faith in the source of governance power. Our government exists solely as the result of our collective agreement to have faith in the idea that the power to govern comes from the governed. The entirety of our power is the collective faith in the idea: the power to govern comes from the governed. This was never made more real to me than when the issue of the “Nuclear Option” materialized. I wondered why not just go to the SCOTUS to get the question of constitutionality settled? I learned that the SCOTUS would not consider such a question coming from another equally powerful branch of our governance. Thus, the rule regarding filibusters and in fact the entire functioning of our government as laid out in the Constitution came down to an agreement by two parties (political or otherwise) to abide by the rules . Once one side decides not to agree, all governance related to the purposeful use of our power as stated in the Preamble stops. It is the Civil war at the extreme of disagreement. It includes the decision to not abide by the intention of the use of our power as stated in the Preamble leading to our incapable congress. That is, filibustering everything. It is why one party could pass all they wanted with just 50 votes.
There is only one means by which an individual or collection of individuals can decide not to agree as it relates to applying our power as designated in the Constitution. It is by not placing faith in the source of the power of government. Once faith is given to any other power than “We the People”, our government instantly ceases to exist. There is no Constitution, no Constitutional power, no Constitutional declaration of the purpose and use of power without faith in “We the People”. It is in this understanding that the argument as presented by Mr. Greenwald and Mr. Turley and those who present the first three words of the Preamble in counter argument fail. Placing power of any type in any entity other than “We the People” is a displacement of the faith. Stating that power comes from any other source than “We the People” is a displacement of the faith. Both makes the Constitution just a bunch of words.
There is a reason those who are charged with acting on our behalf, charged with implementing our intent have to pledge their faith to the Constitution. It is because they are pledging their faith to the source of the power they will exercise: We the People. In pledging to the Constitution, they are pledging to Us. It is this pledge to Us that gives us the ability to judge where their faith lays. The moment power is place in something other than “We the People”, our governance as dictated by the Constitution ceases to exist.
This gets us to the freedom of speech issue. Freedom of speech can only be applied to Us because as a declared right within our Constitution, the document that is the materialization of our power, it is a declared means by which We exercise our power. There is no other source of power regarding governance and thus there is no other entity that can have or obtain such power. The right of free speech can not be bestowed to an entity that is not a “people” by virtue of judging it’s bestowment via the Constitution. To do so is a violation of the pledge of faith to the source of our power.
In the issue of the entity called a corporation, the only true means to give it such power would be through legislation though I would argue that the transference of power properly has to be by constitutional amendment as all issues of seat of power are of the Constitution and not laws created by the legislative branch. Laws can not create power in our governance as it is constructed. At the same time, being that corporations are creations of law, it is impossible to reason that they can have the free exercise of a power which is only sourced from our faith in the idea that the power to govern comes from us. That the SCOTUS in the past has ruled (and this is even questioned) that corporations are proxies for people is a misplace of faith. It is a violation of their oath.
Then again, I could have simply pointed out that to conflate our economic system and its structure and components with our governance system as being a proxy for our governance system is the gravest of insults to our founders. They certainly understood power and they certainly understood the power of pooled money.
Corporations are properly a part of our economic system. It is a system that is in service to “We the people” for it only exists by virtue of law and not by virtue of the Constitution. It is a system that exists for a very specific and limited purpose; a purpose that does not included being a part of our governmental structure which exists for the purpose of exercising our power. Those structures that exist for the exercise of Our power are only the three branches. But consider the argument that corporation are just a coming together of people to exercise their power? Such a thought is a violation of our Constitution and ultimately our faith because the only means to come together to exercise our power is the direct interaction with our government through our Constitution. It’s called voting. That is the only means that exists in the Constitution for all those “strict constitutionalists”.
The economic system should properly be viewed as the results of our implementation of laws that protects us during the exercising of our personal freedom, not power. Freedom certainly results in greater power, but we have limited our individual exercise of power via our faith in the collective power such that all are endowed with the freedom of “domestic tranquility” and “the Blessings of Liberty.” One is free not to be screwed by another to be blunt but, one is not free to screw another.
At this point I am willing to accept that what I am suggesting with this entire presentation suggests that we are currently living under many rulings that are actually in error and thus would result in the undoing of a major amount of what we consider settled law. For example, the entity called a corporation should have never been accepted as the proper vehicle, model or structure for people to freely assemble for the purpose of forming a relationship with their government. Free assembly is just that. Assembly free of formal structure. What it means is that those looking to be elected really do need to go one person at a time to get said person’s vote. What it means is that at the point in the growth of our nation that campaigning became an expense for the candidate, we should have implemented public funding via law, or amended the Constitution to allow another form of assemble for the purpose of funding campaigns. Such a method would be an issue of placing power and certainly relates to the Preamble’s stated purpose and application of our power:
…in Order to form a more perfect Union.