Sunday, April 01, 2007

Why the Bush regime is illegitimate

Conservatives are not necessarily stupid, but most stupid people are conservatives.
-John Stuart Mill
In his classic essay "On Liberty", John Stuart Mill deals with the issue of "civil liberties" -not the metaphysical issue of "free will". Mill deals with threats to liberty from within the institutions of democracy itself. This issue is especially relevant today, a time when widespread domestic wiretapping and surveillance violates the Fourth Amendment to the U.S. Constitution, a measure intended to prevent the abuse of liberty by government, a measure intended to preserve the very ownership of government by people.
A time, however, came in the progress of human affairs, when men ceased to think it a necessity of nature that their governors should be an independent power, opposed in interest to themselves.

- John Stuart Mill, On Liberty

With those words, Mill is off and running.
The struggle between Liberty and Authority is the most conspicuous feature in the portions of history with which we are earliest familiar, particularly in that of Greece, Rome, and England. But in old times this contest was between subjects, or some classes of subjects, and the government.

That (it might seem) was a resource against rulers whose interests were habitually opposed to those of the people. What was now wanted was, that the rulers should be identified with the people; that their interest and will should be the interest and will of the nation.

-- John Stuart Mill, On Liberty
...creating the desire, the need, for a government "...of the people" themselves.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Preamble, U.S. Constitution

The preamble to the US Constitution is, arguably, the most important clause in the entire document. Historically, it must rank with the Magna Carta, establishing up front the source of US sovereignty: the people themselves. It asserts its own legitimacy and the philosophical basis for the legitimacy of government itself. It defines a revolution based upon the ideas of Montesquieu, John Locke, Rousseau and, of course, Voltaire.

As important as the preamble to the US Constitution, is the still revolutionary principle articulated by Thomas Jefferson in the Declaration of Independence:
That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
Government is no longer "legitimate" by default or by raw power. Legitimacy and sovereignty reside with the people themselves. The apparatus of government is owned by the people and those governments violating those principles may be overthrown -by revolution, if necessary.

A special note about Voltaire is appropriate. Voltaire's life illustrates those principles that many of us growing up in a free society take for granted. Voltaire lived most of his life in or near Geneva or nearby Ferney in France. He lived always in fear of being arrested by the French regime where all power resided in the King and Church. The King's will was law made "legitimate" by "The Church" which recognized a "divine right of kings". Voltaire's France was a society in which the King supported the authority of the Catholic Church in France and vice versa. The people were controlled, however, only so long as the masses believed in both the divinity of the Church and in the "the divine right of kings". "Heretical writing" as well as his "upstart" attitude had often landed Voltaire in jail. From Ferney, he could always beat a hasty retreat into Switzerland just down the road.

The repression of dissent, of minorities, of "subversives" is nothing new. Mill reminds us of the plight of Socrates, arguably the father of Western Philosophy itself:
Mankind can hardly be too often reminded, that there was once a man named Socrates, between whom and the legal authorities and public opinion of his time, there took place a memorable collision. Born in an age and country abounding in individual greatness, this man has been handed down to us by those who best knew both him and the age, as the most virtuous man in it; while we know him as the head and prototype of all subsequent teachers of virtue, the source equally of the lofty inspiration of Plato and the judicious utilitarianism of Aristotle, "i maestri di color che sanno," the two headsprings of ethical as of all other philosophy. This acknowledged master of all the eminent thinkers who have since lived -- whose fame, still growing after more than two thousand years, all but outweighs the whole remainder of the names which make his native city illustrious -- was put to death by his countrymen, after a judicial conviction, for impiety and immorality. Impiety, in denying the gods recognized by the State; indeed his accuser asserted (see the "Apologia") that he believed in no gods at all. Immorality, in being, by his doctrines and instructions, a "corrupter of youth." Of these charges the tribunal, there is every ground for believing, honestly found him guilty, and condemned the man who probably of all then born had deserved best of mankind, to be put to death as a criminal.

- John Stuart Mill, On Liberty
In a post-911 world, we simply must remember the philosophical source of our own founding. It does not serve our purpose here to pinpoint a specific time when people began to think differently about how and by whom they should be governed. However, two significant events come to mind: the signing of the Magna Carta and the English Civil War, to cite just two examples. Indeed, in 1649, in an historic assertion of the rights of Parliament, King Charles I of England was executed. According to Mill, government itself ceased to be the seat of sovereign power. More accurately, I would say that it never had been. But it required a realization by people that they had always been the sovereign. Upon this realization, "governors" ceased to be independent powers; magistrates of the State became delegates of the sovereign i.e. the people themselves. Their power was revocable, or as Simon Schama said in his "History of Britain", even a King could be "brought to book."

The American Declaration of Independence put that principle in writing.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

-Thomas Jefferson, Declaration of Independence

The aim of early libertarians was to limit the power of the ruler over those governed. Mill understood that even governments of freely elected executives and legislators often become unaccountable and, as we have seen recently, autocratic. He understood the need to limit the power of elected governments. Because even majorities can be tyrannical, Mill understood the necessity of limiting the powers that even freely elected, democratic governments, may exercise over minorities and individuals. His work is more relevant now than ever.

If minorities have rights today, due credit must be given to J.S. Mill. No society is expected to tolerate genuinely criminal behavior. But, for Mill, a free people, in a free society, may not tolerate a majority rule which seeks to interfere with or suppress minorities or non-conforming behaviors indiscriminately simply because a "majority" may be prejudiced, mis-informed, or simply tyrannical and arbitrary.

Mill understood that the democratic ideal -a government of the people - is often not the case in fact. Those exerting the power of the government -elected officials, bureaucrats, the judiciary - develop their own interests, influenced by special interests and their constituencies in ways that are at odds with the interests and liberties of individuals, minorities, or, indeed, the greater good of the society as a whole. Indeed, a majority may become tyrannical when its interests are at odds with the legitimate interests of a minority or an individual. Mill sees no difference between a tyranny of one and a tyranny of many. A majority running roughshod over the rights of individuals and minorities is no less a tyrant because it is a majority, because it is elected, or because it is elected by a majority.

What then are the powers that society may legitimately exercise over the individual?

Mill answers:
The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.

-J.S. Mill, On Liberty
James Madison -called the "Father of the Constitution" -anticipated Mill's ideas in his draft of the Bill of Rights -the first ten amendments to the Constitution. Implicit in the Bill of Rights is the recognition that the power of the state is a blunt instrument. Abused, it can oppress and repress individuals and minorities alike. The Bill of Rights addresses this issue by guaranteeing "due process of law", limiting state power over individuals and groups, guaranteeing that groups and individuals may speak and worship freely.

The Fourth Amendment specifically is a promise that our government made to us in its very founding:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

-Fourth Amendment, Bill of Rights, U.S. Constitution
The Bush administration has waged a war of assaults upon the Fourth Amendment. The "Sneak and Peak" provisions of the Patriot Act, for example, allowed agents of the federal government to come into your home, to search your residence, and leave without even telling you about it. Initially, it was unclear whether Bush administration intended to prosecute the War on Terrorism as justification for his subversive campaign against the Bill of Rights --or was he willing to abrogate our most precious freedoms in pursuit of a phantom menace --terrorism? Bush has not waged war in defense of freedom but against it.

Nat Hentoff would later write that by "...a stunning 309-118 vote, the House of Representatives on July 22, reflecting a growing apprehension about the USA Patriot act around the country, voted to deny funding for a key section of that act. Before that move, at least 142 cities and towns and three state legislatures, have passed strongresolutions against the Patriot Act." Hentoff also reminded that the issue of warrantless "search and seizure" was among many British abuses listed by Jefferson in the Declaration of Independence. It was, he wrote, "... a precipitating cause of the American Revolution."

Many politicians, eager to consolidate the powers of government, seem eager to invent powers that have simply never existed in American tradition. Executive privilege is just one of many powers that simply do not exist, were never articulated by the founders, or, in a worst case, blatant inventions. Let's make it also clear that there are no "inherent powers" or "implicit" authorizations" that would, in any way, overturn, limit, or repeal the Fourth Amendment or any other portion of the US Constitution or the Bill of Rights. A President may not cite "inherent powers" that will, in any way, expand his/her own powers beyond those enumerated in the Constitution. A President may not create various and asundry powers under the cover of "executive privilege", a notion so imprecise as to be utterly meaningless.

It is not only an executive who is constrained. Congress may not, cannot overrule the Fourth Amendment with statutory law. Constitutional Law is supreme and provisions in the Bill of Rights are valid until amended as set out in the Constitution itself. Widespread domestic surveillance is illegal whatever is done by Congress ex post facto -and until the Constitution is amended, it will remain illegal. At last, ex post facto laws, themselves, are expressly forbidden by the Constitution.

Mill is all the more remarkable for his insight into issues that remain contemporary. In every literate criticism of "special interest groups", PAC's, the gun lobby, the tobacco lobby, the Military/Industrial Complex, one sees the lasting influence of John Mill.

The regime of George W. Bush has not only corrupted the American government, it has assaulted the very principles upon which the United States was founded. Right wing, "neo-conservative" ideas are a throwback to Medieval Europe, in this case espousing the autocratic rule of one man, a man who could not and has not won a majority of the popular vote.

Since 911, however, the administration of George W. Bush has taken abuses of the US Constitution to new levels. These are "...broad based assaults on basic Constitutional rights". Checks and balances are not working even as the Bush administration attacks the very concept of an independent judiciary.

The American GOP has indulged a level of corruption and state-sponsored crime completely unprecedented in American history. Bush, his base, and the GOP learned all the wrong lessons from Watergate. They learned how not to get caught. The Republican party and the regime of George W. Bush continue to advocate powers for the office of "President" never envisioned by the founders, powers that never existed.

The regime of George W. Bush continues to conspire with corporate sponsors to subvert the authority of the "people", who, alone under our Constitution, are sovereign. Bush and his monied sponsors assumed arbitrary powers and authorities that simply do not and have never existed. This is most notable with regard to the round up and detention of "terrorist suspects" over which Bush assumes dictatorial and arbitrary powers of life and death. Bush has no such authority and must never have it. Bush, has in fact, reserved for himself the power to order the arbitrary executions, murders of American citizens. If you should think such arbitrary powers are reserved for for use against on those persons who are easily identified as "Middle Eastern" or "Muslim", then I pity you. The Bush doctrine, therefore, is a poke in the eye to American values, the Constitution, indeed, the very concept of the Rule of Law. There is a word for such rule: tyranny.

On Liberty is essential reading for anyone interested in law, the principles of government, political science, political philosophy, indeed, freedom itself. It is also essential reading for anyone interested in learning about the intellectual underpinnings of Anglo-American civil liberties. It is, likewise, essential reading for anyone wishing to restore to America the blessings of a free society.

Some additional resources:

Why Conservatives Hate America

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