Tag Archives: United States Constitution

The New Attack on Democracy: What the Founders Knew But We’ve Forgotten

constitutionOne of the foundational principles of American democracy is under attack.

When the nation’s Founders crafted the United States Constitution in 1787, they were careful to include a requirement that:

“The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.” (Art I, Sec. 6, Clause 1).

A similar provision for compensation applies to the president:

“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” (Art II, Sec. 1, Clause 7).

The Founders understood that providing compensation for the new government’s elected officers was not a trivial matter, but an essential and cutting edge principle of the new democracy that they were striving to create — and one that directly and profoundly affected the kind of people who would be willing and able to serve as representatives of the people.

They knew too that no other nation on earth insisted on compensation for its elected officials.

In England, members of parliament as a rule served without pay.  In colonial America, candidates for public office usually followed the practice of their English counterparts and promised to serve without compensation.  In the states themselves, only Pennsylvania provided for “wages” from the “state treasury” to “all lawmakers.”

The Founders knew that this English aristocratic practice of not paying public officers created an enormous disadvantage for less wealthy candidates who could not afford to serve without receiving an adequate income for their efforts.

The Founders did not want public service to be a genteel avocation reserved for men of independent wealth, as it was in England, but wanted instead to create a system in which – as James Madison said – public office would be open to “those who have the most merit and least wealth.”

Fueled by the rhetoric of anti-government and anti-egalitarian demagogues (mostly in or allied with the Republican Party), this foundational and deeply American egalitarian principle is now under attack in this country – especially in California, where voters are responding to the state’s budget crisis by cutting the salaries of legislators and city officials, and where our billionaire governor constantly rails against legislative salaries and supports a 10 percent pay cut in legislative compensation.

But as the Founders knew – and we clearly have forgotten – adequate compensation for public officials is an essential element of a democratic government.

Cutting the salaries of public officials will mean that only the rich will able to serve – and when only the rich can serve, we will have the opposite of the government that Madison envisioned – one in which our representative have “the most wealth and the least merit.”

The Founders would not be pleased that the people are now so willingly – even eagerly – abandoning one of the fundamental principles of the American democracy that they fought to create.

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The Trial of John Yoo

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John Yoo

I have just returned from a debate on presidential power at Chapman University Law School.

In retrospect, the event should more properly have been called “The Trial of John Yoo.”

And strikingly, it was Yoo who cast himself in the role of defendant.

The debate was titled “Presidential Power and Success in Times of Crisis,” and the debaters included John Eastman, Dean of Chapman’s law school and one of the nation’s smartest (and therefore most dangerous) conservative legal scholars, as well as progressive Chapman law professors Katherine Darmer and Larry Rosenthal.

The first speaker and featured star attraction was John Yoo, currently Professor of Law at the University of California at Berkeley and Fletcher Jones Distinguished Visiting Professor of Law at Chapman, and the former Deputy Assistant Attorney General in the Office of Legal Counsel under President George W. Bush who co-authored the now-infamous memos justifying waterboarding and other forms of torture.

For those of us expecting a high power constitutional firefight over Bush era torture and presidential power, the debate was a letdown.

In fact, only one side – Darmer and Rosenthal – really addressed the scope of presidential power in the war on terror or the legal and ethical issues involved in the Bush administration’s torture program.

The other side – Yoo and Eastman – focused instead on the legal and ethical charges – only vaguely alluded to in the debate, but prominent in the media – against John Yoo himself.

Yoo’s self-defense consisted of unsubstantiated claims that torture (or what he called “enhanced interrogation”) was necessary to prevent a repeat of a 9-11 terrorist attack against the U.S., and strained analogies to prior unilateral presidential actions during wartime (such as Lincoln’s attempt to suspend habeas corpus during the civil war).

Most significantly, Yoo argued that President Bush — and, by clear implication, Yoo himself — should not be legally or morally judged in Obama era hindsight.  Rather, Yoo claimed, the legal and moral judgment of the Bush administration’s policy on torture must take into consideration the legitimate fear of terrorism that gripped the nation immediately following the 9-11 attacks.

Professor Rosenthal aptly called this argument the “I lost my head” defense.

For now, I will leave to others the discussion of Bush era torture, as well as the extent of John Yoo’s personal moral and legal culpability.

What I want to note is that John Yoo knows that he is already on trial – not just in Spain, but here in the United States – and he is already attempting to put on his defense.

And if his performance at Chapman is an indication of his skill as his own defense attorney – and I think that it is – John Yoo is in serious trouble.

Yoo was meandering, inarticulate, and alternately simplistic and condescending.  He was no match for Darmer and Rosenthal – both former federal prosecutors and both clearly far smarter and more savvy than John Yoo.

I came away from the debate feeling that Yoo is a rather pathetic figure, intellectually out-classed by the others on the panel.

Yoo’s rise in the legal world of the Bush administration was obviously more a product of his political beliefs and ultra-conservative connections – he clerked for Supreme Court Justice Clarence Thomas and Thomas’ friend and mentor Judge Laurence Silberman – than of his legal skill.

Yoo was probably not really even the primary author of the torture memos – that dubious distinction most likely belongs to his boss at the Office of Legal Counsel, former assistant attorney general and now federal appellate judge Jay Bybee.

And if John Eastman’s tepid and uncharacteristically dim performance as co-counsel for Yoo’s defense is an indication, Yoo may just end up as the designated fall guy for public outrage over Bush’s torture program.

At Chapman today, one sensed that John Yoo knew that he was the going to take the fall and that there was little, if anything, that he could do about it.

America (9-11)

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“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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 to the U. S. Constitution

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” —  First Amendment, U.S. Constitution.

“I do solemnly swear (or affirm) that 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.” — Oath of Office of the President of the United States, as prescribed by U.S. Constitution,  Article II, Section 1, Clause 8.

“Observe good faith and justice towards all nations; cultivate peace and harmony with all.” — George Washington

“This country will not be a good place for any of us to live in unless we make it a good place for all of us to live in.” — Theodore Roosevelt

“True patriotism hates injustice in its own land more than anywhere else.” — Clarence Darrow

“These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman.” — Thomas Paine

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“I venture to suggest that partiotism is not a short and frenzied outburst of emotion but the tranquil and steady dedication of a lifetime.” — Adali Stevenson

“No man can put a chain about the ankle of his fellow man without at last finding the other end fastened about his own neck.” — Frederick Douglass

“Where liberty dwells, there is my country.” — Benjamin Franklin

“And so, my fellow Americans: ask not what your country can do for you – ask what you can do for your country. My fellow citizens of the world: ask not what America will do for you, but what together we can do for the freedom of man.” — John F. Kennedy

lincoln_memorial“Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But, in a larger sense, we can not dedicate — we can not consecrate — we can not hallow — this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom  — and that government of the people, by the people, for the people, shall not perish from the earth.”  — Abraham Lincoln

“There are those who look at things the way they are, and ask why… I dream of things that never were, and ask why not?” — Robert F. Kennedy

“I have a dream that one day this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident that all men are created equal.'” — Martin Luther King, Jr.

“As I would not be a slave, so I would not be a master. This expresses my idea of democracy. Whatever differs from this, to the extent of the difference, is no democracy.”  — Abraham Lincoln

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“Each man must for himself alone decide what is right and what is wrong, which course is patriotic and which isn’t.  You cannot shirk this and be a man.  To decide against your conviction is to be an unqualified and excusable traitor, both to yourself and to your country, let men label you as they may.” — Mark Twain

“All tyranny needs to gain a foothold is for people of good conscience to remain silent.” — Thomas Jefferson

“The only power, therefore, which the president possesses, where the ‘life, liberty or property’ of a private citizen is concerned, is the power and duty prescribed in the third section of the second article [of the Constitution], which requires ‘that he shall take care that the laws shall be faithfully executed.’ He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the coordinate branch of the government to which that duty is assigned by the Constitution.” — Roger Taney, Chief Justice of the United States Supreme Court (Ex Parte Merryman)

“Semper Fidelis (Always Faithful)” — United States Marine Corps

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” — Martin Luther King, Jr.

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”  — Emma Lazarus (The Statue of Liberty)

“I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.” — Thomas Jefferson

“The only sure bulwark of continuing liberty is a government strong enough to protect the interests of the people, and a people strong enough and well enough informed to maintain its sovereign control over the government.” — Franklin Delano Roosevelt

“This land is your land, this land is my land
From California to the New York Island
From the Redwood Forest to the Gulf Stream waters
This land was made for you and me.
As I went walking that ribbon of highway
I saw above me that endless skyway
I saw below me that golden valley
This land was made for you and me.
I roamed and I rambled and I followed my footsteps
To the sparkling sands of her diamond deserts
While All around me a voice was sounding
Saying this land was made for you and me.
The sun came shining, and I was strolling
And the wheat fields waving and the dust clouds rolling
As the fog was lifting, A voice was chanting,
This land was made for you and me.
This land is your land, this land is my land
From California to the New York Island
From the Redwood Forest to the Gulf Stream waters
This land was made for you and me” — Woody Guthrie

civil-rights-now-lg1“[T]he right to marry is not properly viewed as simply a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people.” — California Supreme Court (In re Marriage Cases)

“We cannot seek achievement for ourselves and forget about progress and prosperity for our community… Our ambitions must be broad enough to include the aspirations and needs of others, for their sakes and for our own.” — Cesar Chavez

“I cannot and will not cut my conscience to fit this year’s fashions.” — Lillian Hellman

“My country, ’tis of thee,
Sweet land of liberty,
Of thee I sing;
Land where my fathers died,
Land of the pilgrims’ pride,
From every mountainside
Let freedom ring!”  — Samuel Francis Smith

“We shall overcome, we shall overcome
We shall overcome someday
Deep in my heart, I do believe
We shall overcome someday.
We’ll walk hand in hand, we’ll walk hand in hand
We’ll walk hand in hand someday
Deep in my heart, I do believe
We’ll walk hand in hand someday.
We shall live in peace, we shall live in peace
We shall live in peace someday
Deep in my heart, I do believe
We shall live in peace someday.
We are not afraid, we are not afraid
We shall overcome someday
Deep in my heart, I do believe
We shall overcome someday.
We shall overcome, we shall overcome
We shall overcome someday
Deep in my heart, I do believe
We shall overcome someday.”  — Rev. Dr. Charles Albert Tindley

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Come and take a walk with me thru this green and growing land
Walk thru the meadows and the mountains and the sand
Walk thru the valleys and the rivers and the plains
Walk thru the sun and walk thru the rain.
Here is a land full of power and glory
Beauty that words cannot recall
Oh her power shall rest on the strength of her freedom
Her glory shall rest on us all.
From Colorado, Kansas, and the Carolinas too
Virginia and Alaska, from the old to the new
Texas and Ohio and the California shore
Tell me, who could ask for more?
Yet she’s only as rich as the poorest of her poor
Only as free as the padlocked prison door
Only as strong as our love for this land
Only as tall as we stand.”  — Phil Ochs

“God bless America, land that I love
Stand beside her and guide her
Through the night with the light from above
From the mountains
To the prairies,
To the ocean white with foam
God bless America,
My home sweet home.”  — Irving Berlin

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