The Union Imperfect


[photo: Minute Man statue by Muffet via Flickr]

Like Marcy, I find myself pondering today the Declaration of Independence as well as the subsequent system of government set in motion with publication of this influential document.

So much of what our founding fathers protested about the monarchy was the unilateral nature of governance. The signatories quite literally signed their death warrants as they rejected the power of the British crown to govern their lives, so serious were they about the need for self-rule with representation, and oversight to prevent abuses.

Yet here we are, 237 years later, moving toward a unicameral government, witnessing the slow-moving collapse of a democratic republic for which the earliest Americans gave both blood and treasure.

Increasing in number under the last several presidents, the White House has issued classified or secret executive orders and findings—in effect creating law without true oversight by the only body charged with lawmaking, and/or without restraint by the judiciary responsible for ensuring government powers are confined within the limits established by the Constitution.

Congress has failed to adequately exercise its oversight powers to constrain the White House’s execution of laws and and unilateral orders, while permitting departmental employees to lie and misrepresent actions carried out at the orders of the President or subordinate functions.

Congress’s failure to take adequate action with regard to Director of National Intelligence James Clapper’s misrepresentations is but one example. Were the three branches of government truly distinct and acting according their purview, Congress would have demanded an immediate investigation into Clapper’s activities as well as the intelligence functions he oversees, punishing Clapper as appropriate for misleading the people through their representatives.

The judiciary as the third branch has become a rubber stamp function of the plutocracy, set in place by the über-wealthy who co-opted members of Congress with campaign donations, or media sufficient to bully members of Congress to do their bidding. The Court’s composition does not represent the American public, interpreting laws through a perspective shaped and dominated by white male privilege.

That is, when laws find their way in front of the judiciary at at all. Congress and the White House have both created law that deliberate attempts to evade judicial intervention and subsequent review. For example, this recently enacted legislation:

…The so-called Monsanto Protection Act is actually a provision (officially known as Section 735) within a recently passed Congressional spending bill, H.R. 933, which exempts biotech companies from litigation in regard to the making, selling and distribution of genetically engineered (GE) seeds and plants.

President Obama signed the bill and its controversial rider into law in March 2013 much to the dismay of environmentalists. It means that Monsanto and other companies that supply the majority of the nation’s crop seeds can continue to produce GE products regardless of any potential court orders stating otherwise. …” [emphasis mine]

Another effort to bypass the judiciary is noted in the creation and modifications of the REAL ID ACT of 2005. The text of the original bill introduced as H.R. 418 prohibited any judicial review:


Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note) is amended to read as follows:

`(c) Waiver-

`(1) IN GENERAL- Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive, and shall waive, all laws such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.

`(2) NO JUDICIAL REVIEW- Notwithstanding any other provision of law (statutory or nonstatutory), no court shall have jurisdiction–
`(A) to hear any cause or claim arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1); or
`(B) to order compensatory, declaratory, injunctive, equitable, or any other relief for damage alleged to arise from any such action or decision.’.

Though subsequently modified before passage with regard to judicial review, the current legislation retains authority (under the Executive Branch’s Department of Homeland Security) to waive laws as necessary to secure the nation’s borders. Legitimacy of this language is questionable, but not reviewed as yet by the judiciary.

With each of the three branches of government failing in multiple ways to do the work assigned to each them alone under the Constitution, failing to limit the power of government under the same document which authorizes their existence at the consent of the governed, we should take pause this Fourth of July.

Was it worth 25,000 dead and 25,000 wounded for us to end up with something our founding fathers fought against — an unlimited, unilateral executive retaining concentrated and centralized powers, ineffectively restrained by the people’s representatives, nor limited by the judiciary appointed by the same representatives?

Think about it: we could instead have been lower Canada, with all its so-annoying health care for all.

We could still realize a more perfect union if we remember as a people we are governed only at our consent. To paraphrase the Declaration of Independence itself, I like to believe we the people can still alter this situation to effect our safety and happiness.

I wish you and yours a safe and happy Fourth of July.

15 replies
  1. P J Evans says:

    Was it worth the thousands who died for it 150 years ago?
    Ten years ago, I’d have said yes.
    Now, I wonder, because government seems to have completely forgotten about ‘by the people, and for the people’.

  2. Rayne says:

    @P J Evans: But the people also forgot “of, by, and for the people.” If memory serves, this phrase found in the preample is unique among the world’s constitutions: “We the people…”

    This where it went off the rails, when elected representatives no longer felt accountable to we the people and became accountable instead to corporations.

    Just look at Egypt—nearly 40% of their total population gathered to rally in the streets of a single city. They literally left just babies, children, and grandparents behind in order to make their point. It’s impossible to ignore a crowd big enough to see from outer space.

    Now I’m not saying we need to do anything quite as big, but Americans don’t realize their absence at townhalls, their not showing up at representatives’ offices, their avoidance of any effort to organize politically means they can be ignored, their representatives co-opted by those who do show up. Our distractedness, fobbed off by bread-and-circuses, mistaking consumerism for civic engagement, has been anathema to our democracy.

    It should have been noted six months after Obama was elected in 2008 when the OFA outreach machine from the campaign failed to make any effort to keep voters engaged that we’d returned to business as usual. Meet the new boss, same as the old boss…

    Until we get it through our heads that this is was to be a government of, by, and for the people — not a government of contractors, by profiteers, for their shareholders — we are going to lose what’s left of this democracy.

    EDIT — 11:36 PM EDT —
    From the notes of Dr. James McHenry, delegate for Maryland at the Constitutional Convention of 1787:

    “A lady asked Dr. [Ben] Franklin Well Doctor what have we got a republic or a monarchy.

    A republic replied the Doctor if you can keep it.”

    If we can we keep it, indeed.

  3. P J Evans says:

    Politics is as much a spectator sport as football – and really needs to have that level of news coverage. (That is, the analysis and the in-depth coverage and the second-guessing and broadcasting everything possible.)

  4. Lefty665 says:

    @P J Evans: Like football, politics is a contact sport. Watching from the sidelines and second-guessing gets us nowhere. Ya gotta get into the game.

    As Rayne observed, nearly 40% of Egypt showed up in the streets. Occupy was crushed because Americans were not willing to get off their butts in numbers large enough to make change.

  5. C says:

    @P J Evans: No politics is not a Sport.

    It is serious. It deserves all the attention that is instead given to the NFL and certainly perjury before congress deserves by DNI Clapper deserves, at least, as much punishment as a damn baseball player.

    The problem with equating politics with a sport is that it lends itself to exactly the kind of my side vs your side bullcrap that you find on crossfire. Where each party shouts for an hour and we are just expected to pick one side and support it not to actually think about the consequences or recognize when both sets of self-interesed hacks are screwing us over.

  6. P J Evans says:

    A whole lot of people couldn’t afford to get out into the streets. That’s how bad the economy is. They won’t get out until it’s much worse – because as long as they have something to lose, they’re going to hold on to it.

  7. pdaly says:

    Party hats for surveillance cameras in honor of George Orwell’s birthday

    Wish We The People could install some in both the back rooms and in the halls of power.

  8. Bitter Angry Drunk says:

    It’s hard to have much hope for the future. America — our ideal of it, the way we were taught to think of it — was always more myth than reality. But the monied interests started taking this country in a dark, destructive direction a long time ago. I always think of Reagan’s election as a launching point (as I’m sure many others do), but if I’m honest with myself I know it goes back further than that.

    In the 1990s, when Bill Clinton was spreading his BS about the benefits of NAFTA (and Al Gore was shepherding the overlooked but also very destructive Telecommunications Act), I worked as a contractor at a large, world-renowned corporation. This company was among the vanguard when it came to whisking away worker pensions and outsourcing jobs to India and elsewhere. I really felt sorry for those who were in their early 50s then, with an eye on retirement — they were the first to really get their futures torn from them. At least us younger folks could see it coming. Not even 20 years since then, and the destruction of our Middle Class is nearly complete.

    Honestly I don’t ever see how it’s going to change, because the masses have been so intricately turned against one another. Half the country quakes in fear from the “socialists” who would take their guns while the other half, also quaking in fear, averts their eyes to the abuses of Team Blue. The faux liberals ignore the force-fed prisoners in Gitmo, the warnings of the whistleblowers and the perfectly valid arguments of those who say Obama isn’t worse than Bush, he’s worse than Nixon. I now wonder if these folks, largely smart, caring people I have respected, aren’t actually more fearful for their futures and more delusional about the state of the world than the shut-ins glued to Fox News. Because they should damn sure know better.

    But until we stop fighting ourselves, we can’t even begin to combat those who are destroying us.

    I do though want to thank EW, the other contributors and the commenters at Emptywheel. This has quickly become a go-to place on the Internet for me. The work here is so smart and so thorough… I’m just grateful I have it. Thank you all, and here’s hoping the next Independence Day will be a better time for all of us than the one just passed.

  9. Bill Michtom says:

    @Rayne: “It should have been noted six months after Obama was elected.”
    It should have been noted three months BEFORE the election, when Obama voted for the FISA Amendments Act that we were going to get the same old boss, regardless of who won the election.

  10. Larue says:

    RAYNE!!!! *G*

    Miss your writing, don’t check Emptywheel near enough anymore, are you regular or was this a feature?

    Grand post, went to my FB with a small intro . . . damn lady I sure do miss your writing. Hope all has been well with you and all yours.



  11. lefty665 says:

    @P J Evans:
    “Freedom’s just another word for nothing left to lose. Nothing ain’t worth nothing but it’s free.”

    If our founders had followed your logic, we’d never have had a revolution. They had everything to lose. “…we mutually pledge to each other our lives, our fortunes and our sacred honor.”

  12. Rayne says:

    @Bill Michtom: And our options in the late summer of 2008 were…what, vote for the sick old man with a ditz-bag Hail-Mary Pass for a veep?

    No, the real option was to start intense pressure on the White House during the health care debates, BEFORE the Tea Party took over the entire right-wing narrative that August.

    Some of us tried. We just didn’t have critical mass, too many people still riding the buzz from 2008 election.

    @Larue: Hey! How the hell are you? Nice to see you here. I’m not here all the time, too busy with running the mom-bus for sports and academic events, but Marcy kindly lets me keep a key to the backdoor. Drop in more often, it’s good to see another long-time friend in the ‘hood!

    @Bitter Angry Drunk: I think your observation about “the masses have been so intricately turned against one another” is very important. The timing of the market’s plummet and the subsequent economic crisis set up a perfect storm, softening the public in a way that made them extremely receptive to any appearance of aid. Now they are either fully co-opted or roped in tightly so that they cannot easily see around the simulation constructed about them. Until enough folks can create a hole in the fence large enough to see through, we are stuck. We’re very glad to have you here, by the way, thanks for your readership.

  13. lefty665 says:

    @Rayne: “Some of us tried. We just didn’t have critical mass, too many people still riding the buzz from 2008 election.”

    Say it like it is Rayne! It was being the turd at the picnic. In addition to health care it was: “Rubin, Summers, Geithner are how we got into this mess in the first place (Any bets one of them will replace Bernanke?). WTF, retaining Gates at Defense? Emmanuel’s profane a**hole realpoltick is a sellout. That’s only half actually stimulus, or half enough even if it was all real. Bunch of DLC, right wing, blue cur, Repub wannabes already running for re-election on a platform of marginally lesser evildom”.

    Not sure it’s a whole lot more popular now, but at least more folks are listening. Four and a half years of cognitive dissonance seems to be having some impact.

    Keep at it! Happy Independence Day.

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