Letters to the Editor
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Blanket Support for the Contitutional Framework is Thoughtless
Glenn Greenwald's article has some fine aspects, namely that the corporate Democrats are complicit in supporting the Bush power grab in violation of certain aspects of the Constitution. But then, his conclusion is thoughtless. He ends with:
"The common, defining political principle here — what resonates far more powerfully than any other idea — is a fervent and passionate belief in our country’s constitutional framework, the core liberties it secures, and the checks and balances it offers as a safeguard against tyrannical power. Those who fail to defend that framework, or worse, those who are passively or actively complicit in its further erosion, are all equally culpable."
He fails completely to distinguish which parts of the constitutional framework he so wholly reveres are worth believing in, being progressive, and which ones are worth amending, being anti-progressive.
This comment area is not the place to make the whole argument about what parts of the framework are progressive and which parts are not, and so are worth amending, but I can summarize a few and point the way to where the arguments have been made.
The progressive parts of the nation's second Constitution are many, including the Bill of Rights as well as those powers of the House over the President, such as the provision that enables Congress to make the rules that govern the armed forces in Article 1 (8). The clause in Article 6 (2) that makes "treaties made" the "supreme law of the land" is also quite progressive. And there are many, many others.
But there are obvious flaws. The fact that the Senate's membership is not proportional to the population of the states is wholly anti-democratic. The six-to-one ration of population (white people) at the time of its adoption in 1789 has now ballooned to 80 to 1 (California to Wyoming) such that in the Senate, if California had the same representation per-capita as Wyoming, California would have 160 senators. But California has two. And this unrepresentative body also has great powers not given to the House: to filibuster; to approve treaties, judges and cabinet positions; and to prevent constitutional amendments or a constitutional convention.
The presidential veto amounts to a third legislature, and therefore prevents innovation and creates gridlock. The single-seat-district, most-votes-wins nature of House elections is anti-proportional, therefore anti-progressive. Of course, proportional representation was not invented until the middle part of the 19th century.
This is to say there are inherent contradictions between the Preamble with its insistence that the government represents and serves the people. (It doesn't say (We The States . . .)
And the gravest, most obvious flaw in the entire document is the lack of a referendum, not only for electing our president (substituting the non-democratic Electoral College which we should abolish) but also the lack of a referendum for removing a corrupt president and/or vice-president, and for calling for and approving amendments to the Constitution itself, and for calling for a constitutional convention. The state of Montana has one of the better amending provisions in these regards, passed in 1972. It allows for 10 percent of the voters, including 10 percent in at least half the counties, to put forth an amendment or for calling a convention, and then a majority up or down vote on proposed amendments. THAT is a progressive amending process. Montana also calls for a vote for a state constitutional convention (following Jefferson's advice) every 20 years if none has been called. THAT is also a progressive amending process.
While the states have had no fewer than 233 state constitutional conventions, the nation has had zero constitutional conventions since the last one to fix the first flawed constitution in 1787. There are progressive solutions to this problem using Article V, and that is getting a convention to fix these and other problems in the framework. Fifty states have submitted 567 applications for a constitutional framework, and Congress has not acted as Article V says they "shall" once two-thirds of the states have done so. So there is a real opportunity here. Here is a group working on that: www.foavc.org.
And we shouldn't overlook that the constitutional framework has failed to prevent a plutocratic corpocracy from seizing the framework itself, fulfilling Franklin's prophesy that the constitution would need to be replaced when the people came to deserve "despotic government" and got, then, what they deserved. In 2007, that prophesy is obviously fulfilled. No other established democracy allows money to dictate electoral outcomes, which amounts, obviously, to bribes.
These flaws add up to a system that prevents governmental policies from mirroring public opinions, a situation which is against the highest ideals Madison believed in. The current gap between governmental policy and public opinion is a vast chasm, earning Congress an approval rating of 27 percent.
There are many thoughtful sources to countermand the thoughtless conclusion of this article. See: Sanford Levinson's Our Undemocratic Constitution; Dan Lazare's Frozen Republic; Robert Dahl's How Democratic is the American Constitution; and Steven Hill's 10 Steps to Repair American Democracy and his earlier book Fixing Elections. There is also much on this at www.fairvote.org.
We need to be thoughtful enough to decipher its progressive aspects and preserve those, and to decipher its non-democratic, non-progressive aspects and fix those.
The progressive bottom line is stated in the Preamble quite well: a more perfect union has five characteristics: domestic tranquility, the general welfare, the common defense, establishment of justice, and the blessings of liberty. Or in short, Bob LaFollette's words at the 1912 Republican Convention when he said, " . . . the will of the people shall be the law of the land." As complicated and detailed as the above argument may be (and it is only the tip of the iceberg of electoral and constitutional change along progressive lines) there is simply no substitute for grokking the history, the arguments and the options if progressives are to find a way forward to fix the nation.
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intent of the FISA amendment
(Continued from previous post)
When I consider the likely fact that intercepting a purely foreign-to-foreign communication routed physically through the US does not, under the current version of FISA, require a court order, along with the contours and meaning of the new FISA amendments, I am strongly led to a general hypothesis. This hypothesis was bolstered last night by the remarks of a Republican Congressman on the floor of the House (thank you C-Span!), which I will get to.
I strongly believe that what we are dealing with here is the administration's desire to legally attach electronic intercept and sifting hardware to the major communications nodes of internet and telephone service providers in this country, hardware which would literally cast a dragnet over an entire portion of communications that - according to "reasonable" procedures required by the pending FISA amendment - are likely sent by or to a person outside the US. The proposed FISA language allowing intercepts without a court order of "surveillance directed at a person reasonably believed to be located outside of the United States" tells me that it is designed precisely for this type of technology, which in some way seeks to filter for conversations that likely (though not necessarily, or in fact) involve a person outside the US.
This will, by default or design, inherently encompass conversations involving people inside the US as well, because there's no requirement in the amendment that all parties to the communication be reasonably believed to be outside the US. This will also, by default or design, occasionally intercept conversations occurring wholly between or among people in the US, because the amendment (and probably the technology) will only require a "reasonable belie[f]" that a person at whom the surveillance is "directed" is located outside the US. This belief of mine is bolstered by the statements of the Republican Congressman (can't remember exactly who) that the communications of US persons in the US that are sucked up pursuant to this new power will be subject to "minimization procedures" that limit their use and dissemination within the government. This was, in my opinion, a rather off-message slip revealing that at least the Republicans (and probably also the Dems) were fully aware that these changes go far beyond just fixing some alleged "gap" preventing the government from intercepting purely foreign communications relayed through the US. Congressman Conyers at least had the intelligence and wherewithall to say that outright on the floor, being one of the few Members of Congress to actually read a portion of the legislation on the floor.
Moving on, the procedures (read: software and hardware) required to "determine" that the surveillance "concerns persons reasonably believed to be located outside the United States" themselves need only be "reasonable". Moreover, and more strikingly, the "determination" by the DNI and AG (Gonzales) that these procedures are reasonably designed to do that may only be overturned by the FISA Court if they are "clearly erroneous," which is a legal term of art for "it's ok as long as the determination isn't blatantly idiodic."
What we have, consequently, are two or three layers of deference to the determinations and procedures of the government. For every use of the word "reasonable" or "reasonably," the case against a given intercept becomes harder still, and the "clearly erroneous" standard is simply a nail in the coffin of court oversight.
Enough for now - perhaps more later. I'm also waiting for Glenn's piece today.