Wednesday, July 23, 2008

On "voting" for Supreme Court Justices

The Declaration of Independence is our "mission statement." The Constitution was subsequently written -- and thus our government created -- within that context. "This is what we believe. This is what's currently wrong. Now, here's the limited servant government we create to address all that for ourselves." They are inextricably linked. The latter is wholly justified within the former, written specifically to address the beliefs and issues enumerated, and -- one might hope, umm, self-evidently -- not to contradict them.

"ALL men" — not just "citizens," which didn't exist when that was written — are endowed with "certain unalienable rights." Says so right there. "That to secure these rights, Governments [plural and generic, and again, written prior to the creation -- or really any realistic hope thereof -- of ours] are instituted among Men [not just residents of the Colonies], deriving their just powers from the consent of the [respective] governed," with the explicit purpose of protecting those pre-existing rights.

Whether these consenting "Men's" respective governments recognize them or not (or whether our government has the authority to impose them by force on other jurisdictions through the fascistic military-industrial complex with forcibly stolen and inflated taxpayer dollars) is an entirely different matter, but ours is required to recognize them within its jurisdiction as an expressed condition of its creation: "That whenever any [not just ours] Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it." "Ends" being securing these rights for all consensually governed men. To repeat, when within the jurisdiction of our government — which was established with the clear understanding that it would HONOR those rights — "all men" RETAIN those rights.

When the Founders meant "citizen," they said "citizen." They believed -- rightly, I trust we agree -- that rights exist whether the revolution succeeded and their preferred government was formed – whether they were “citizens” -- or not. Rights pre-exist, and are independent of any government. "All men are created equal," endowed with rights, and therefore "to secure these rights, Governments are instituted." The word “citizen” occurs only once in the Declaration (and notably, referring to a different government), with the very first mention in the Constitution (which created our current government) being right up top in Article 1, Section 2, where it stipulates that one simply may not participate in the government (not merely enjoy the people’s inherent liberty – not to be confused with "entitlements," of course – that it's intended to protect) unless one is a citizen. They were perfectly aware of the word, and used it where they meant to. They didn't use "citizen" in, say, the 4th Amendment. If you want it to say "citizen," you must amend the Constitution.

If our government does not declare war (and Dr. Paul gave them a clear opportunity, which they notably declined to take), then there can be no (endless) PRISONERS of (an endless) war. Can't have it both ways. That rules out military processes for dealing with these detainees, leaving us with civil, and habeas corpus must apply, just as it must to the subset of "all men" known as "citizens." To "all men" within our government's jurisdiction. What's so threatening about them having their day in court, anyway? What is it we don’t want to hear? Or perhaps more concerning, what is it our GOVERNMENT doesn't want us to hear?

If one prefers the military process, there is a solution, but it's not to pretend that the "ALL men" precondition to the creation of our government doesn't exist. Because there's always a persecuted whimsical subset of "all men," even of "all citizens" — perhaps even intentionally artificially created — to which any one of us can belong, and that 5 in robes can rule. Or just one in a Texas jester cap, for that matter. If King George unilaterally decides to declare you an "enemy combatant" in a perpetual war, with no access to courts or counsel -- ever -- how will you prove otherwise (as if the burden of proof should actually be on you)? Buh-bye, now...

Personally, I'd prefer not having to cope with figuring out what all those subsets could be at any given time. Best just to adhere to the rule of law. "All men." Either we abide by the Constitution -- and the "mission statement" that underlies it -- or we don't. But then, "whenever any Form of Government becomes destructive of these ends..."

Anyway, I see and hear admonitions increasing (again) that voting for one or the other major-party candidate (somehow there's never any other "valid" option) is the only way to save this or that right through their anticipated Supreme Court appointments. This is missing the forest for (equivalently important) selective trees.

The sad truth is that the very same justices who got habeas corpus right, got Heller wrong. And the exact same 4 who got Heller right, got habeas wrong. Only Justice Kennedy managed to apply first principles consistently on the two landmark decisions, both of which thus barely upheld clear Constitutional principles by the absolute slimmest of margins. (My thoughts on Heller are here.)

Habeas Corpus Decision
John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, David Souter, Anthony Kennedy
Antonin Scalia, John Roberts, Clarence Thomas, Samuel Alito

Heller Decision
Antonin Scalia, John Roberts, Clarence Thomas, Samuel Alito, Anthony Kennedy
John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, David Souter

Until our "leaders" stop learning their reading comprehension skills in government schools -- or until we take George Washington's advice, and eschew political parties and vote only for principle, in which case the "Demoblicans" (I do like that one: it's got "mob" right in it) would be gone right quick -- "We the People" are screwed either way.

The upshot, ironically enough, is that ya might as well vote for principle. And if everyone would...

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