John Woo Debates Bruce Fein: US Constitution as Ouija Board

A fachidiot is someone who knows a whole lot about some one thing but lacks ordinary common sense. The lawyers involved in the current debate about whether Obama's actions are unconstitutional are fachidiots. These people look at the problems faced by the federal government in relationship to the only thing they have studied, the US Constitution. What they do not say is how the federal government is going to solve real-world problems if Congress refuses to do its job, which is defined by the Constitution as providing the funds for the executive branch to do its job.

John Yoo, War Monger

John Yoo, a Professor of Law at UC Berkeley, proudly proclaims he is a conservative, yet seems only concerned with one aspect of presidential power, namely war-making. This is a sure sign of the fachidiot: He considers all problems in light of the one thing he knows about. Yoo knows all about the history of warfare and how past presidents have taken over the waging for war from the Congress since WWII. This change has come about because Congress has ceased to show any real understanding of international politics. Instead they have replaced the study of issues, which would require time and intelligence, with application of platitudes, which only requires reading talking points prepared by weapons manufacturers.

Professor Yoo used to work for the George Bush administration. He gave his legal opinion that torture, indefinite imprisonment without trial, and assassination were all perfectly fine under the Constitution. All three of these practics (and several others Yoo approved) violate the Geneva Conventions of War, a treaty which the US signed but which Yoo said we could ignore in its entirety. Professor Yoo says that the Constitution gives warmaking powers to the President and hence, anything he wants to do is legal under the Constitution.

The world is a simple place for Yoo. Might makes right. Presidents are all-powerful when it comes to war. This is similar to the view of Chinese government espoused by Confucius. Confucius maintains that the Emperor is the supreme authority of the state, essentially a god on earth. Therefore, he can do no wrong. Yoo has incorporated a similar totalitarian belief into his study of Constitutional law. He does not seem concerned that the nations of Western Europe and North America have advanced beyond this view of an absolute ruler. He finds the basis for absolute dictatorship in the US Constitution.

Yoo goes further. Finding the UN Charter fundamentally flawed, he suggests a new world order in which countries engage in preventative wars and establish democracies at the point of a gun. His views are not new. They were tried out in Iraq with disastrous results, both in lost treasure and in human slaughter and suffering.

Bruce Fein, Human Rights Advocate

In debate with Woo about Constitutional powers of the president, Bruce Fein claims that the Constitution does not give the president extraordinary powers to make war. He says he does this by examining the motives and opinions of the Framers outside the Constitution. This he calls, examining the spirit of the Constitution as opposed to the letter of the Constitution. Woo commented that Fein obviously didn't care for the views of Robert Bork, the conservative judge who failed to be confirmed to the Supreme Court. Woo assuredly made this comment to chide Fein for not being a true conservative.

Fein is a traditional conservative who believes the Constitution guarantees rights to our citizens and proscribes the government from taking unjust actions against them. In a letter to President Bush in 2007, Fein and his co-authors explained that the policies of the Bush administration would

obliterate the conservative philosophy of individual liberty and limited government celebrated by the Founding Fathers.

Fein also respects the human rights initiatives of the United Nations, writing that

waterboarding, detentions without accusation or trial, the suspension of habeas corpus, spying on Americans without judicial warrants, and threatening lawyers for defending accused terrorists or terrorist organizations are earmarks of tyranny, not liberty.

What Does It All Mean?

The problem with this debate is that both sides claim to be conservatives, following the explicit instructions they find in the US Constitution, yet their conclusions are diametrically opposed. Yoo thinks the president can order waterboarding and spying on Americans. Fein thinks he can't.

For these two lawyers, the question is an intellectual exercise. For the rest of us, as we attempt to assert our rights in courts and on the streets, the question of what the Constitution protects or guarantees is more practical. We want to know, what can the police officer do to me? The answer would seem to be that the police can do whatever they like, just as the president does.

I suggest that the constitutional experiment has failed.

A New Bill of Rights for We the People

The current Bill of Rights concerned individual rights to be protected from the government. These rights were important at the time, when a war had recently been fought against the British monarchy. The American Revolution was a clash between those who believed that one class of people, the nobility, was superior to all others, and others who believed that there should be no perpetuated classses. This was the original meaning of the Declaration of Independence, when it declared that all men are created equal.

Authoritarian governments, like the English monarchy, recognized no rights among the people, only obligations. The people had the obligation to respect the sovereign, pay their taxes, and fight for him, if necessary. The American colonists objected to this view of their rights. Many of the colonies had been opposed to the English monarchy and nobility. They objected to the King's attempt to reclaim his full rights, especially the right to tax. The original Bill of Rights addressed the abuses of the monarchy.

Events that led to the American Revolution were imposition of taxes on Americans, who were not represented in the English parliament; reorganization or abolition of American governing bodies; quartering English soldiers in America for the purpose of maintaining a standing army, which could defend or control the colonists; and seizure of arms intended for militias.

Such were the events that still troubled the minds of the Framers of the Constitution in 1789. Such were the evils that the Bill of Rights was intended to combat. But these evils were shortly diminished or rendered harmless. Militias were replaced by a standing army. Representation was provided by a Congress elected every two years. The federal government has never reorganized a state government, except after a civil war. The standing army was never quartered on the populace. The amendments that refer to those ills are no longer relevant.

New ills have taken their place. First among these new ills is inequality between the wealthy and the poor, an inequality of opportunity and an inequality of power. The ills associated with industrialization are rampant: unemployment, dislocation, exploitation of labor, hunger. Corporations, monopolies, and cartels prey upon the people and control the government, the press, and the courts. New rights need to be guaranteed to counter these modern ills.

The starting point for the People's Bill of Rights is the Virginia Declaration of Rights, adopted by the Fifth Virginia Convention in June, 1776. This declaration of rights was echoed in the Declaration of Independence adopted at Philadelphia in the following month. The Virginia Declaration also influenced James Madison when he drew up the first 10 amendments to the U.S. Constitution.

People's Bill of Rights

I. All people are by nature equally free and independent, and have certain inherent rights, of which, when they enter into society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

This is the first article of the Virginia Declaration of Rights, here referred to as Mason's Declaration, except that the word “people” has been substituted for the word “men” in the first line. It was appropriated into the Declaration of Independence by Thomas Jefferson, with some important changes. Jefferson's Declaration states that man is endowed by his creator. Mason's Declaration requires no such divine entity. Jefferson's rights are inalienable; Mason's are inherent, and he describes precisely what Jefferson refers to as inalienable, that is, that the people cannot deprive their posterity of these rights by any compact. Jefferson mentions three inalienable rights, namely life, liberty and the pursuit of happiness. Mason defines these rights more succinctly as the enjoyment of life and liberty, and pusuing and obtaining happiness. Mason also adds to these the means of acquiring and possessing property, and the ability to pursue safety.

Dropping this article from the U.S. Bill of Rights has the effect of removing the guarantee of equality. Mason also makes clear that the government is us, not an entity that was created by us and then took on a life of its own. Mason makes the people themselves those who cannot deprive their posterity of these inherent rights. This distinction erases the artificial opposition of the government to the people.

This article also answers the question whether corporations are people: No, they are not. A corporation is an artificial association of people that does not exist in nature and therefore has no inherent natural rights. Corporations, like governments, are creations of the people and responsible to them.

II. All power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

This article describes the kind of government this is, namely a democracy, since all power is vested in and derived from the people. It also describes the relationship of the government to the people, namely that the government is their creation and its functionaries are servants of the people. In a monarchy, such as Great Britain at that time, all power arises from the monarch, who is responsible only to himself. The people in a monarchy become the servants of the monarch, who can make laws and raise taxes as he sees fit, without their consent. The people have the right to petition the monarch, but cannot force him to alter his course. Any attempt to argue with the monarch is considered treason and can be severely punished. This is why there is no freedom of speech or of the press in a monarchy.

The framers of the Constitution were republicans, that is, they designed a republican form of government. In this sort of government, the people elect representatives who make all their decisions for them. The people become the servants of their representatives, who have all the power. The people hold elections, but the same people tend to return to power again and again, becoming a de facto ruling class, who are out of touch with the people they are supposed to represent.

III. Government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.

This article reinforces the supremacy of the people over their government while it describes the attributes of a true democracy. Mason makes clear he does not necessarily favor a republican form of government unless a republic is capable of producing the greatest degree of happiness and safety and is most effectually secured against maladministration. The framers designed a republic that was inflexible and incapable of providing for the happiness of the people. Instead, the current Constitution guarantees the happiness of it rulers and gives them the power to threaten the safety of all. The waging of endless war, as some of our representatives favor, does not lead to the safety of the people; rather, it leads to an erosion of the civil liberties inadequately guaranteed under it. Civil liberties are seriously violated when the government can throw people in prison and hold them indefinitely without a trial, as is currently the case under our Constitution.

Our Decrepit Constitution: Remedies (Part Two)

6. Give the President More Domestic Power

The Founders persuaded the colonists to support the revolution by blaming a long list of problems on the King of England. They included this list in the Declaration of Independence. The Declaration also served—pehaps primarily—as a notice to the countries of Europe that the colonies wanted a new country, not reconciliation with the King. The colonists fought against the King and were not likely to accept a new monarch in his place.

The Articles of Confederation lacked a strong executive authority, which was seen as a major weakness. So the new Constitution had to describe a middle road. The office of the Presidency was a compromise between the power of a monarch and the limited authority of an administrator appointed by the Congress.

The President at first glance appears impressive. But the President does not propose a budget; only the House of Representatives can introduce spending measures. The President can appoint his cabinet, but they must be approved by the Senate. The President can negotiate and sign treaties with foreign nations, but the Senate must approve them before they go into effect. Likewise, the President appoints judges, but the Senate approves them.

This situation has lasted for two hundred years. At the beginning, when there was mutual respect between Congress and President, the system worked fairly well. As time went by, it worked less and less well. Today, Congress sees its approval as conditional on concessions from the executive branch, or simply as a way to attack the President.

It is absolutely impossible to imagine a corporation operating successfully under similar restrictions. The CEO appoints subordinate executives without any interference from the Board of Directors. The CEO proposes plans for the Board to approve, but once the plan is agreed upon, the CEO may implement the plan in any manner he or she sees fit. The President should have similar powers.

In line with their limited powers under the new system, the Senate may have veto power over presidential appointments, but only for 60 days. After that waiting period, the appointment becomes official.

7. Impeachment should be abolished

When it came time to establish procedures for removing a President from office, the Framers adopted a complex set of rules for impeachment, modeled after the British Parliament's impeachment procedures. In recent years, other procedures have been substituted for impeachment. The House or Senate may expel a member without any complex, quasi-judicial process. There is no reason to continue using this creaky, 18th century artifact, except that it can be used to completely stymie the political program of a president, as happened in President Clinton's second term. That alone is a reason to abandon the process, not to preserve it.

The last impeachment proceedings held in the Congress, against William Clinton, were entirely political in nature. The Republican House indicted Clinton with only five democratic representatives voting to impeach. The Republican Senate voted to convict Clinton with none of the democratic senators joining the Republicans.

The impreachment of President Clinton was a direct result of a Supreme Court ruling that Paula Jones could bring a charge against him in a civil court because there was little likelihood that he would be hindered in his duties as president while answering the civil suit (Clinton v. Jones, 1997). The Supreme Court was unanimous in this decision and they were completely wrong. Clinton spent much of the rest of his term as president embroiled in the Paula Jones case and the impreachment that followed.

After the National Initiative Amendment is passed, the Constitution may substitute a much simpler procedure involving a recall election. The House may vote for a recall by a two-thirds majority to place the recall on a special election ballot. The election must be held within 30 days to avoid any undue delay. If the President loses the recall election, he is immediately removed from office and the Vice President assumes his duties.

8. Sign International Treaties and Remove Exceptions

American Exceptionalism is a theory that regards the U.S. as a special nation. The idea has become part of conservative dogma since the 1980s. Ronald Reagan introduced the concept, if not the name, in a speech delivered to the first Conservative Political Action Committee. Reagan claimed he had a mystical revelation that America was part of a divine plan that involved men who believed in freedom and had a special kind of courage. 

Reagan backed up his mystical belief in that speech with a number of examples drawn from history, particularly the history of the founding fathers. Most of his examples were entirely false, but Reagan connected with the conservative movement with his folksy charm and his Hollywood-inflected view of the world and world history. 

Since the 1980s, the U.S. has withdrawn more and more from the family of nations. It has failed to sign treaties that offered cooperation on war and peace, the climate crisis, and the law of the sea. While President George H. W. Bush conducted an attack on Iraq with a broad coalition of nations under the auspices of the United Nations, his son rejected the advice of the U.N., instead attacking Iraq with a small coalition of U.S. allies. This action violated the United Nations Charter by carrying out an aggressive war that did not respond to a threat against our nation. 

Bush appointed an ambassador to the U.N. who stated that there was no United Nations, that the U.S. was the only real power in the world and that sometimes the U.S. could persuade other countries to follow its lead. This is an expression of American exceptionalism that few countries in the world could accept.

As a result of this quasi-religious belief in American exceptionalism,

the U.S. Senate has repeatedly failed to ratify treaties intended to increase cooperation between the countries of the world. Instead of leading the rest of the world, the U.S. has pursued its own interests in despite of any other country's opinions.

The Supreme Court has fallen in line with this belief. Its conservative members refuse to consider any court rulings from outside the U.S. as persuasive. This position is insulting to jurists in other countries, especially those who have been working for world peace and cooperation. Rulings of the Supreme Court have also reduced the reach of the Alien Tort Statute, further eroding any possibility of legal remedies for victims of injustice overseas.

We the people must curtail the power of the Senate to block implementation of treaties which the executive branch has negotiated and agreed to. These treaties could be approved by initiative and referendum, but that process is time-consuming and unnecessary. The Senate should have the power to block treaties for one year only. After one year, if the Senate hasn't approved a treaty, it should go into effect automatically.

9. Incorporate the International Declaration of the Rights of Man into our Constitution

The U.S. helped form the United Nations after World War II. We were then the world leaders calling other nations to move toward a peaceful world. In recent years, due in part to the theory of American Exceptionalism, we have moved away from a vision of the world which was ours. We the People should reclaim this vision.

The Framers believed that the Bill of Rights guaranteed all the rights that government should be concerned with. Their vision of the world did not extend farther than that. At that moment in time, the Bill of Rights was a laudable achievement. But we no longer stand at that moment in time.

Americans believed in 1945 that they possessed all the virtues in the world, since their armies had just defeated the alliance that embodied all the evils in the world. Sixty years later, we know better. We have seen our own country commit unspeakable crimes, bomb defenseless civilian populations, torture captives, imprison captured enemy soldiers indefinitely without trial. We can have only two reactions to these crimes: We can embrace a theory that defines them as virtues, since the country that committed them is ordained by God to be the savior of the world; or we can atone for our errors by becoming the world leader for peace and prosperity that we once were and can be again.

Our Decrepit Constitution: Slavery by Another Name

During the last days of the Civil War, Congress passed the Thirteenth Amendment. This amendment freed all the slaves in perpetuity, including those not yet freed by the Emancipation Proclamation. The Fourteenth (1868) and Fifteenth (1870) Amendments followed within a short while.

The Constitution was not strong enough by itself to protect the newly minted rights of freedmen. The government posted federal troops in the states of the former Confederacy to enforce the law. Freedmen--former slaves--voted in elections for the first time. African-Americans were elected to state offices, helped by laws that made former Confederate office holders ineligible to run.

The freedom and justice promised by the Fourteenth Amendment was short-lived. The Ku Klux Klan began intimidating and murdering Republicans and African-Americans in 1868. The Klan murdered Republican organizer George Ashburn in Columbus, Georgia, on March 28, 1868. The Klan published a pamphlet intended to slander Ashburn and intimidate anyone who might try to take his place as an organizer. The pamphlet charged that Ashburn was living with an African-American woman and described the place of assassination as a brothel.¹

Nine men, described as prominent citizens, were arrested and brought to trial before a military tribunal. Before they could be tried, the Georgia legislature accepted the Fourteenth Amendment, which was the condition set for reentering the union. The military government was dissolved and the prisoners released. No one was ever tried for Ashburn's murder.

A group of African-American Republicans marched from Albany to Camilla to attend a political rally in September, 1868. White southerners ambushed them in Camilla's Courthouse Square, killing 12 and wounding many others. The white men kept on attacking the group as they retreated along the road back to Albany. Other similar massacres occurred in South Carolina and Alabama.

Some political leaders were intimidated or imprisoned. T. G. Campbell described how he argued before the Georgia Legislature that he and other freedmen should be allowed to speak. While he was speaking, the white legislators put their hands on the butts of their pistols and made threatening gestures at him. Campbell gave up after eight days of argument. Later he took office as justice of the peace and organized a group of 300 African-American horsemen to protect himself from the Klan.

Campbell could perhaps protect himself from violence within the enclave of freedmen he organized along the Georgia coast, but he could not protect himself from miscarriage of justice perpetrated by his white enemies. Campbell was charged with malfeasance in office and brought before a local judge. He was convicted and immediately jailed. Campbell spent the next year and a half being shuffled from jail to jail. His wife tirelessly worked to free him, but nothing she did was of any use. Judges avoided him. New trials were arranged, but with each new trial came demands for new documentation that had to be found and delivered to the court.

Finally, Campbell's wife secured an order from the U.S. Attorney General that the case be moved to a federal court. Campbell believed that he was about to be cleared, but his lawyer failed to file the proper papers and his case was dismissed. After the dismissal in federal court, Campbell was sent to a prison camp where the prisoners were worked from dawn to dusk and beaten if they fell behind the other workers. This system of forced convict labor replaced slavery to a certain degree. Campbell's wife interceded for him with the camp overseer and succeeded in getting him a job more suited to his age. He was sixty-three when he entered the camp in 1876.²

Following the passage of the Fourteenth and Fifteenth Amendments, Congress passed several Civil Rights Bills to protect the civil rights created in the amendments. The Supreme Court set about methodically destroying these rights in a series of decisions that ran counter to the spirit and the letter of the amendments.

In Blyew v. United States (1871), the Court ruled that the Civil Rights Act (1866) did not affect the witnesses in a case. The Bill specifically states that all persons born in the United States are citizens and that citizens have a right to give evidence in court cases. In Blyew, two African-Americans were denied the right to testify by Kentucky state law. The Court construed the Civil Rights Act to apply only to principals in court cases, not witnesses, despite the clear intent of the law, and affirmed the ruling of the Appellate Court. In this case, the principal, a blind, 75-year-old African-American woman, was the murder victim. Since she was dead, the Court ruled, the federal court had no jurisdiction in the case.

In United States v. Cruikshank (1876), the Supreme Court ruled that the Enforcement Act of 1870 was only binding on state actions, not individuals. Using this logic, the Court overturned the convictions of two white men who had joined the Colfax Massacre in Louisiana, when over 100 blacks were murdered by a white militia. The Congress had intended this Act specifically to address the actions of the Ku Klux Klan, so the Court ruled exactly counter to the purpose of the Act. The Court's action left the freedmen in the south at the mercy of the Klan and numerous other private militias. Their action returned African-Americans to their pre-War status, when an African-American could be raped, murdered, or tortured by a white with impunity.

In the Civil Rights Cases (1880), the Supreme Court ruled likewise that the Fourteenth Amendment did not apply to private citizens, like railroads, hotels, and the operators of public amusements. These individuals, said the Court, had the right to choose the people they wanted to associate with, regardless of what the Fourteenth Amendment said. Justice Harlan, the sole dissenting voice in these five decisions, reminded the Court that private railroads were by law public highways, that innkeepers had long been held to be public servants of a sort, and that public amusements are maintained under a license coming from the public. No state, said Harlan, nor any corporation or individual acting under state authority for the public good, can discriminate against freemen or citizens. These rulings put an end to efforts by Congress to ensure civil rights for African-Americans and ushered in an era of segregation and second-class citizenships.

In U.S. v. Harris (1883), the Supreme Court once again ruled that federal courts had no jurisdiction in cases of murder or assault. These cases were matters for the states. It did not matter that the persons assaulted were African-Americans and the assailants were a group of Ku Klux Klansmen. In Harris, the Klansmen dragged four African-Americans from their jail cells and beat them, one of them to death. Although Federal Law intended to stop such violations of African-American civil rights, as authorized under the Fourteenth Amendment, the law was unconstitutional because it usurped the rights of the states. Harris also ruled that the sheriff who had custody of the African-Americans who were beaten could not be held liable under federal law because he was liable only for his actions, not his inactions. Under this ruling, depriving a person of his life is not the same thing as depriving him of his Constitutional rights, and inaction is not a form of action.

Not until the 1960s did the Supreme Court repudiate the extreme racism inherent in all these rulings (and others besides). The Constitution failed to protect individuals from crimes committed against them, even when Congress explicitly created laws saying that it should.

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1 Radical rule : military outrage in Georgia: Arrest of Columbus prisoners (Louisville, Ky., 1868), http://books.google.com/books?id=QEwTAAAAYAAJ&pg=PA16&lpg=PA16&dq=george+ashburn+murder&source=bl&ots=u4jYy1SKzI&sig=csGygOILiQ6j5e-RfFFGKQ-9Ha0&hl=en&sa=X&ei=_Hh9UcibCpTG4APiooDgCg&ved=0CHoQ6AEwCQ#v=onepage&q=george%20ashburn%20murder&f=false. Since this pamphlet declares in its preface that its intent is to convey the proper impression of military despotism to the northern mind, its content must be treated as completely unreliable.

2Campbell, T.G., Sufferings of the Rev. T. G. Campbell and his family, in Georgia (Washington, 1877), http://openlibrary.org/books/OL22894692M.

Our Decrepit Constitution: The People Hardly Matter

On April 17, the U.S. Senate voted to block any vote on a gun control regulation supported by 90% of the people. The Senate would have passed the bill had a vote been taken, since they had 54 votes to allow debate to continue. Opponents of the bill included lobbyists for gun manufacturers and the radical fringe that opposes any attempt to limit the quantity or quality of armaments that any American can buy.

The Constitution is to blame for this. The Framers planned for the Senate to be the last bastion for minorities against the majority of public opinion. Once again, the Senate has fulfilled its role. The Senate also proved that this country is not democratic, since the vast majority of the people support gun control but can't even get the Congress to vote on a bill that grants their wishes.

Gun control is not the only issue that can't be discussed in the Senate. Global warming, affirmed by over 90% of the world's climate scientists, also fails to get a hearing due to spending by its wealthy opponents. Too many rich people depend on oil for the majority to have their way. Yet global warming threatens to destroy the wealth of the whole world. The slogan of the oil companies seems to be, “I'll Be Gone, You'll Be Gone.” By which they mean to say that when the economy collapses under the weight of natural disasters, they will have made their fortunes and gone away to a haven for the wealthy.

There are only two solutions to this problem. One relies on less democracy, the other on more.

The first option was chosen by the Romans in the First Century A.U.C. The Roman world was racked by revolutions. The ruling class, holders of political power, were unable to stem the violence. But the violence continued until finally a leader, Julius Caesar, emerged who destroyed the power of the elite and declared himself sole ruler of Rome. The people acquiesced to his rule because they were exhausted by warfare and uncertainty. Democracy came to an end and with it the possibility of long-term survival, since an absolute ruler is only concerned about his own power, not the welfare of the people.

There is a possibility that such a person may emerge in the United States. There is nothing in our Constitution to prevent such an action if the situation is desperate enough. In the past, American presidents have increased their power with the consent of the Congress. John Kennedy brought the nation to the brink of nuclear war because he believed missile sites in Cuba threatened the U.S. mainland, but never explained how the Cubans could be a threat when the Russian military possessed missiles that could reach the mainland from Russia. Lyndon Johnson persuaded the Senate that the navy of North Vietnam represented a danger to the United States that justified years of war and thousands of American deaths. Ronald Reagan convinced the Congress that Marines should invade the island of Grenada because a few American medical students might possibly be in danger. George Bush convinced the whole country that Saddam Hussein posed a threat to the U.S. that justified 10 years of war and a trillion dollars of military spending. Americans have a history of letting presidents do anything they want.

There is another way, though, one that results in more democracy, not less. The country could pass the National Initiative Amendment, which would create a way for the majority to exert its will. The initiative process has already been tried in 28 states. Recently California has ended the deadlock in its legislature, very similar to the deadlock in the U.S. Congress, with an initiative.

A national initiative has the advantage over the current Congress that individual Representatives would not need to vote on an issue. They could pass an initiative and let the people decide. If such a process were available today, the gun manufacturers could not spend enough money on propaganda to sway 90 per cent of the electorate to their position. Reasonable gun laws could be passed nationally.

The deaths of thousands of innocent men, women, and children through gun violence is an important stimulus to legislative action. The wealth of our country's wealth and power by global warming is even more critical, since it affects every American, and every person in the world. A national initiative would permit the people to vote on whether to permit oil companies to pollute the world. A national initiative could overrule a Supreme Court stuffed with oil company backers, because the Court cannot rule that an amendment is unconstitutional. The amendment passed by the Constitution would become part of the constitution.

Our Decrepit Constitution: Defanging the Senate

The Framers designed the Senate as a stronghold for prominent men. John Adams wrote that all members of the government should be gentlemen, which he defined as friends and connections of the well-born and educated. In those days, prominent men took pride in their erudition. We know what books Thomas Jefferson had in his library because he donated the entire collection to the Library of Congress after the War of 1812. Jefferson was an American patriot, but no isolationist. His library included an extensive collection of Greek and Latin classics, books in modern European Languages like French and Italian, and a broad selection of subjects from astronomy to poetry. He likely would have laughed at the idea, commonly espoused by today's Supreme Court, that only American laws should be consulted.

Adams himself wrote 10 volumes of scholarly books, primarily on government and law. He was both a scholar and an author, as well as a statesman. He believed in the superiority of the natural aristocracy. Adams believed the aristocracy were the only men who should be allowed to govern the new country. He and other framers believed that democracy was dangerous. He favored not a democracy but a republic which he defined as a government run by representatives of the people, not the people themselves.

The Senate was one of the measures taken by the framers to keep government firmly in the hands of the gentlemen. The framers assumed that fewer members in the Senate would make the positions more highly sought after. Originally, the Senators were to be appointed by state legislatures, rather than elected by the people directly. This method of appointment was thought to add even more assurance that only the best men would be elected to the senate. Senators were to serve for six years. This qualification insulated senators from pressure by the people they were supposed to represent. The framers believed senators should represent the votes of the people, not their opinions.

From the beginning, the Senate was a place where a few men could block progress, the inevitable change brought about by the passage of time. Progress happens primarily because people are changeable. New ideas arise for the popular mind to accept or reject as it sees fit. The framers assured that the public would learn new ideas when they guaranteed freedom of speech and religion. They tried to slow progress by omitting the liberal ideals expounded in the Declaration of Independence from the Constitution. The Constitution did not consider all men equal, at birth or at any other time. It consigns Africans to slavery and the original inhabitants to annihilation by making no reference to the rights of indiginous peoples.

During the first 60 years of its existence, the primary function of the Senate was to prevent any anti-slavery laws from passing. It did this by creating gridlock in the government. Each state had two senators, regardless of its population. The pro-slavery states assured that one slave-holding state would be admitted to the union for each new free state. This tactic meant that the number of pro-slavery senators always matched the number of anti-slavery senators. The admission of California as a free state in 1850 doomed the senate deadlock system and led to the Civil War.

The Senate remained a place where a minority faction could block the will of the majority. The Senate was still the bastion of elitism it had always been. During the twentieth century, the Senate opposed internationalism, preferring a protectionist system that they felt favored the wealthy banking and merchant classes in the U.S. The Senate used its veto power over treaties to wreck the League of Nations. President Wilson intended for the League to prevent major wars by creating a forum where the great powers could talk to each other instead of shooting at each other. Without the cooperation of the U.S., the League failed to prevent the next catastrophic war. The Senate still had more damage to inflict on the world, however, by committing the U.S. to a policy of isolationism. In that isolationism, Nazi Germany arose and grew until it was almost capable of taking over Europe. During the 1950s, the Senate used its filibuster power to block civil rights laws, once again delaying inevitable progress.

After the election of Barack Obama, the Senate used its filibuster power to halt most of the president's fiscal programs. This led to a prolonged recession and suffering for millions of Americans. The Senate, representing the wealthy elite, was not affected by the suffering it inflicted on others. By this time, the U.S. government had delayed facing numerous problems, including drug violence, massive incarceration of its minority populations, two disastrous wars, an enormous and expensive military, the collapse of the middle class, violence in its cities, and a country divided against itself to as great an extent as it had been in the 1850s.

The Framers modeled the Senate after the English House of Lords. The House of Lords performed the same function as the U.S. Senate, that is, rejecting legislation aimed at taxing the wealthy and aiding the poor. The British system was not crippled by a Constitution like ours, however, and in 1911 the Parliament passed a law removing most of the power of the House of Lords to reject or delay laws.

The U.S. Senate was certainly as much a hindrance to progress as the House of Lords. In the 20th century, the Senate kept the executive branch from forming critical alliances, enacting treaties that meant the difference between war and peace, and enacting legislation that provided equal rights to African Americans. In the 21st centure, the Senate became even more obstructive, blocking or delaying numerous judicial nominations and refusing to fund agencies that favored the middle class over Wall Street millionaires and corporate executives.

The addition of another layer of checks allotted to the wealthy class in the form of a powerful Senate is a drag on the government at a critical time in our history. After passage of the National Initiative Amendment, the people should pass initiatives that severely limit the power of the Senate as it is currently defined in the Constitution. The number of Senators should be increased by 100 at-large seats, elected by popular vote nationwide. This will increase the influence of larger states like New York and California, while making each Senator less powerful.

An amendment should pass that limits the ability of the Senate to delay a bill by more than 3 months. If the Senate refuses to accept a treaty negotiated by the executive within 6 months, the treaty will automatically be ratified. These reforms should defang the Senators and turn the Senate into a debating club for the wealthy. Its fangs will be removed.

Our Decrepit Constitution: Its Secret Meaning

Our Decrepit Constitution: Its Secret Meaning

The Framers of the Constitution came from the English tradition of common law. Under common law, laws are not written but deduced from similar court cases. An important concept in common law is stare decisis, which requires the court to follow tradition, so that if a court decides a case a certain way, it will be bound by its own prior decision.

A problem arises when a court, especially the Supreme Court, is not bound by its prior decisions. The Supreme Court, in Bush v. Gore (2000), rejected previously settled law by overturning the ruling of the Florida Supreme Court. The majority of the Court decided that the Florida Supreme Court did not have the right to interpret Florida election law. This contravened the judgment in Marbury v. Madison (1803), which ruled, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” The Republican majority of the court thus overruled a decision that had stood for nearly 200 years to elect the presidential candidate of their party.

The Supreme Court, in Citizens United v. FEC, overturned 100 years of precedent upholding the Tillman Act (1907) which limited corporate contributions to political campaigns. In doing so, the Court found that the campaign finance law violated the First Amendment, something which was not mentioned in the original claim. The Court thus gave itself authority to rule a law unconstitutional without having a representative case brought to its attention. The Court's failure to abide by its own earlier decisions struck a blow against the means by which the law does not change erratically but in a principled and intelligible fashion.

The result of these rulings was a critical wound to public confidence in the Supreme Court in particular and the law itself in general. State legislatures have begun passing bills that obviously contradict Supreme Court decisions and Constitutional Amendments. The Kansas legislature yesterday passed a bill that defines life as beginning at fertilization and bans abortion based on fetal gender altogether. These provisions of the new bill patently violate the Supreme Court's ruling in Roe v. Wade (1973). Several other states have passed similar laws limiting the availability of abortion. All of these laws presume that the Supreme Court will overturn a ruling it made 40 years ago. The Court will do this not because of any change in technology or public sentiment, but simply because it does not agree with the earlier decision.

Another provision of the Kansas bill prohibits Planned Parenthood from teaching sex education in the public schools. Supporters of such laws do not claim that Planned Parenthood gives false information in their classes. State Rep. Bette Grande (R-Fargo) introduced a similar bill in North Dakota. Rep. Grande said that Planned Parenthood was not part of the way business was conducted in her state.

This state of affairs has been brought about by the Supreme Court's attempt to set itself up as the supreme branch of government, which may at any time decide to strike down reasonable laws made by legislatures or decisions made by other courts for the simple reason that this court, for obvious political reasons, disagrees with them. The Courts decisions may be described as obviously political because observers can predict which way individual justices will rule based on their political affiliation alone.

The situation resembled the state of affairs in Japan before the issuance of its constitution in 1868. The Japanese lords made legal decisions without consulting precedent or legal codes because there were none. Japanese subjects had to obey the lords because there was no appeal from an arbitrary or unjust decision. The Supreme Court seeks to institute just such a government, where laws are not made by the people, but by Supreme Court Justices, who, like the prophets of the Old Testament, reveal the secret meaning of the Constitution.

Our Decrepit Constitution: Welcome to the Future

Our Decrepit Constitution: Welcome to the Future

The Framers were intelligent, perhaps even brilliant men. But they were not clairvoyant. They could not see into the future. They designed a government for the times they lived in, assuming that all future times would be similar.

The pace of change quickened abruptly after 1860. The Civil War accelerated the building of railroads, which in turn led to increased production from steam power. The industrial revolution brought great wealth but also brought poverty, dangerous working conditions, and child labor. The Framers could not imagine either the problems themselves, or their scale. European governments, where industry was well-established by 1860, created a safety net for victims of disclocation and unemployment. Germany passed the first unemployment and social security laws in 1889, 36 years before the U.S. passed theirs.

American thinkers have played important roles in the establishment of human rights and international institutions. Woodrow Wilson helped establish the League of Nations in 1919. The United Nations based its human rights proclamations on a speech by Franklin Delano Roosevelt, wherein he defined the four freedoms: freedom of speech, freedom of worship, freedom from want, freedom from fear. The Framers recognized the importance of the first two freedoms. They did not mention the others in their Constitution.

The United Nations wrote treaties guaranteeing the four freedoms after World War II. These treaties are known to many Americans as the Geneva Accords. The United States Congress refused to ratify many of these treaties. The current Senate refuses to ratify the Law of the Sea, a treaty that formalizes traditional laws concerning the use of the oceans and their protection. The Supreme Court does not accept many international treaties as binding on the U.S. court system. U.S. Presidents have ignored the Geneva Convention on prisoners of war and torture.

The U.S. Bill of Rights needs to be extended to protect foreign nationals from ill-conceived and dangerous military adventurism, like the wars in Iraq and Afghanistan and interventions in Nicaragua, Honduras, and Chile. The Constitution should incorporate the International Bill of Rights, so there is no question whether U.S. Courts should recognize the rights of women, children, and the poor.

Justice Scalia claims that the Supreme Court cannot ask whether a person is guilty of a crime, only whether his trial met the bare minimum standards of due process. Likewise, Scalia claims that the Court cannot look at the reality of discrimination and voter suppression, it can only consider whether Constitutional standards are being met. Scalia challenges his critics to find a right to privacy in the Bill of Rights, although the Tenth Amendment reserves any rights not mentioned in the Constitution to the States or the People. Scalia accepts the concept of implied powers because it suits him but refuses to accept the concept of implied rights because it does not.

This ability to pick and choose which concepts to accept and which to reject is exactly what the Framers had in mind when writing the Constitution. They wanted the privileged minority to make choices for the people as a whole. The Framers assumed that these gentlemen would make better decisions than the majority of the people. After two hundred years of experiments, we now know that this opinion is false. Democracy works.

Our Decrepit Constitution: 1. Bill of Rights

The framers of the U.S. Constitution cobbled together a document that described a possible government for the thirteen original colonies. All of the framers who signed the constitution understood that it is not a perfect document. It is a compromise. The Senate is composed of two delegates from each state as a compromise to appease the smaller states. This principle, adopted by the California State Constitution for its State Senate, was struck down by the U.S. Supreme Court in Reynolds v. Sims, 377 U.S. 533 (1964), when Earl Warren wrote that legislatures represent people, not trees or acres. The U.S. Constitution, 48 years later, still supports the notion that U. S. Senators represent trees, not people.

The Constitution limited eligible voters to white male property owners. The property owners could also cast votes on behalf of their slaves, each of which was set equal to 3 fifths of a white man. Seventy-six years later, the Fourteenth Amendment gave to African-Americans the right to vote. Fifty-five years after that, the Nineteenth Amendment extended the franchise to women. Yet modern textualist jurists insist that we should interpret the words of the Constitution exactly as the framers meant them. This is nonsense. The framers were parochial thinkers in a backward country, still threatened by larger neighbors and Native American tribes. They were hardly the repositories of all wisdom that modern conservatives imagine them to be, nor did they believe that of themselves. Their experience did not include much of what today informs our thinking about human rights, science, and philosophy.

Some of the framers might be included in the group of thinkers who epitomize world wisdom on the subjects of politics and government, but not all. Madison, Hamilton, and Jay authored the Federalist Papers. Other signers of the Constitution are less well known as thinkers. Later thinkers would also be included in the prestigious group, like Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, Franklin Delano Roosevelt, Susan B. Anthony, Eleanor Roosevelt, and Martin Luther King, to name only a few Americans. The international list would be much longer and would include a number of non-Americans who influenced the framers, including Locke and Montesquieu.

Americans in general, not just conservatives, believe that the Constitution is a semi-divine document. It gives us foolproof rules for governance. It protects our rights. We believe this despite the numerous constitutional crises that have occurred over the years.

Constitutional Crises

The first constitutional crisis involved the manner prescribed by the Constitution for the election of the president. This crisis occurred in 1800, when opponents of Thomas Jefferson tried to have Aaron Burr declared president. Burr was the vice presidential candidate, but the Constitution failed to recognize that the Vice President and the President would usually have the same number of electoral votes and that this fact could be exploited by politicians. The election of 1800, only the third presidential election held under rules established by the Constitution, was decided by the House of Representatives instead of the electors.

The nation has a severe problem. The Republicans have kept their promise never to raise taxes, but they lowered taxes and made vast appropriations for two wars without raising the funds to pay for them. No one likes high taxes, but the government needs money to pay for the programs that voters have approved and that business and the poor may rely on. The Constitution, which makes it impossible to pass laws without compromise, compounds the problem. The Republicans will not compromise on their political positions. They have made a constitutional crisis into a government crisis for which no one has found an answer.

Despite evidence to the contrary, many people, including members of the courts, consider that the Constitution is perfect or nearly so. All we need to do is tweak it from time to time. But the document itself forbids change. The Constitution is 224 years old this year. It is a creaking vessel taking in water at every joint. It was designed to slow the pace of change. Recently it has succeeded so well that it seems to be turning time backward to a time when only property owners had rights, minorities were enslaved, women had no vote, and only one culture was accepted and protected by the government.

The Supreme Court determined the outcome of the presidential election of 2000. The election in Florida was indecisive. Both sides claimed victory. A series of actions by the Florida state legislature and courts were appealed to the Supreme Court, which made its decision along strict party lines. Nothing in the Constitution gives the authority to decide elections to the Supreme Court, but nothing in the document prevents them from doing so.

Our leaders and thinkers spend a great deal of time thinking about how to make the Constitution work, just as medieval thinkers exhausted their energies trying to imagine God and his plan. The thinkers who followed medieval times created a government ruled by a document, just as the Church was ruled by the Bible. The study of the Constitution has become as sterile and fruitless as the theological studies of the Middle Ages. We need to stop wasting time fantasizing about what the framers intended and start thinking about how to put our country back on track.

First Amendment

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.

The first amendment was intended to guarantee the rights of individuals to speak out against the abuses of government. From the very beginning, these rights were challenged by the government, which passed the Alien and Sedition Acts in 1798. The Supreme Court never invalidated the Alien and Sedition Acts, although the Acts specifically banned freedom to criticize the government. The government used the Acts to imprison a Congressman, John Lyon, for writing a letter critical of President Adams and other similar acts. The Constitution did not protect Lyon's rights.

More recently, the supreme court has ruled that people with large sums of money have a right to drown out the voices of the majority. A small group of plutocrats spent hundreds of millions of dollars in 2012 to elect candidates to office. They did not succeed in getting the presidency, but they did succeed in many other races and they retained control of the House of Representatives. The framers envisioned a representative democracy. The Supreme Court has interpreted the First Amendment as giving inordinate power to a small group of wealthy people. The government has almost ceased to be a democratic republic and is close to becoming a plutocracy.

The plutocrats have taken advantage of the Supreme Court's ruling by financing propaganda. They use vast fortunes to buy advertisements on television, radio, and in print. They buy their own newspapers, radio stations, and television networks. The newspapers and networks created numerous scandals that were damaging to their political opponents.

The First Amendment protects people's right to tell lies, but it does nothing to protect people from the damage done by lying, legally called defamation. The laws against defamation in the U.S. are too weak to prevent elections being altered by lies. In 2004, a group of wealthy Republicans spent millions of dollars to convince the public that John Kerry had lied about his war record. The Kerry campaign had no way to stop the lies being broadcast continuously for weeks. The First Amendment protected the defamers and engineered Kerry's defeat.

Rupert Murdoch has subverted the press by buying Fox News Channel and turning it into a non-stop propaganda networkfor the Republican party. The wealthy publishers, Disney and Warner and their peers, still have this freedom. The rest of us do not. The copyright law makes an exception for fair use, meaning that you or I can use copyrighted material without paying for it under circumstances. The Digital Millennium Copyright Act (DMCA) took the right of fair use away from anyone posting to social network sites on the internet. The DMCA determines that a copyright holder can demand that a publisher, such as Facebook or YouTube, must immediately remove any material from its website or face severe fines. This removes the concept of fair use from copyright law, since Facebook or YouTube will not protect your fair use right and risk large fines. The Congress has taken away your right to due process, since the material must be removed immediately. You can appeal, and may win, but lawyers cost money and trials take time. If fair use must be won it court it is not safe to publish anything that may be contested.

It may appear contradictory that laws against defamation are too weak to prevent intentional lying but copyright laws are not strong enough to protect the right to fair use of copyrighted materials. The parties favored by the two laws have a great deal in common, however. They have plenty of money to defend themselves from charges of defamation or to attack people they accuse of violating copyrights.

The First Amendment forbids the congress making any law respecting the establishment of any religion. Congress passed and President Clinton signed the Defense of Marriage Act in 1996. This law, by defining marriage exclusively as a right of heterosexuals, adopted the religious views of part of the population and incorporated those views into federal law. The First Amendment did not prevent this from happening and could not help people who suffered from its effects. In 2012 the Supreme Court appears ready to annul the law, only sixteen years after its passage. The constitutional system appears to work, but only after time and money have been expended to fight this law. Justice delayed is justice denied.

Second Amendment

Its supporters, including members of the supreme court, ardently believe that the second amendment guarantees every U.S. Citizen the right to own a gun. The actual wording of the amendment does not appear to support this belief:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

The form of this amendment is a logical inference, meaning that if and only if the first part of the sentence is true, then the second part will also be true. Therefore, if a well regulated militia is not necessary to the security of a free state, the right of the people to keep and bear arms may be infringed by federal law. In some cases, where firearms cause danger to the people, then arms must be regulated to protect the public safety.

Justices of the Supreme Court who wish to return the country to the supposed golden age of the 18th century have ceased to analyze the actual meaning of the Constitution. They instead have developed complicated systems to infer that the framers, or at least the society of the late eighteenth century, believed that the right to bear arms should exist independent of any militia. This is hardly plausible, since the framers showed themselves to be fearful of the masses in numerous aspects of the Constitution.

The Second Amendment is obsolete. It guarantees citizens the right to bear arms because a well-regulated militia is essential to the security of a free state. This amendment passed before the U.S. had a standing army. Many of the framers, including Thomas Jefferson, opposed a standing army or navy. They intended to defend the country from England or France, then world superpowers, with a volunteer army whose soldiers kept their own guns.

During the Civil War militias were called out by the governors of the southern states to serve as the nucleus for an army of rebellion. In response to this abuse by the states, the Militia Act of 1903 established the National Guard under the dual control of the states and the federal government. The Militia Act gave the President the authority to place the state militia under the authority of the Army, thus effectively preventing their use for purposes of insurrection. Yet second amendment supporters continue to threaten rebellion.

The Second Amendment continues in force long after it has outlived its original purpose. Today it causes more harm than good by providing a legal excuse for the sale of deadly weapons to civilians. Twelve thousand people die from gunshot wounds in the U.S. every year. The Second Amendment, intended to protect the United States against invading armies, now contributes to needless slaughter of our citizens.

The politicized Supreme Court ruled in 2008 (District of Columbia v. Heller, 554 U.S. 570) that the Second Amendment guaranteed an individual's right to own a firearm, regardless of his membership in a militia. In this ruling, the majority of the Court continued its identification with the Republican Party by ignoring the legislative history of militias after 1789. Their ruling would have been correct in 1789, in a frontier country where everyone was required to bring a musket with them when they were called up.

A musket is a single-shot weapon that takes up to a minute to reload. The bullet must be inserted into the barrel of the musket, then tamped into place with a steel rod. A person must practice long hours to reload quickly and aim the gun properly. He will find great difficulty hitting a moving target, especially one that tries to get away. Most minutemen were not great marksmen, nor were they capable of coordinating their shot

It is not 1789 any longer. Our hand-held weapons can fire 50 or 100 shots in minutes without reloading. Gun sales advocates frequently argue that murderers will find other weapons if guns are not available. These advocates cite the genocide in Rwanda where 500,000 people were killed with machetes. The massacres there occurred over 100 days and involved up to 500,000 attackers. By contrast, a single individual with an automatic rifle killed 20 children, along with the 6 adults that tried to protect them, in less than an hour. Had the shooter been armed with a knife, it is likely that no children would have died, as there were adults on site who tried to disarm the shooter.

President Obama has recently announced several initiatives on gun control. He announced, as do all other politicians making public statements in support of gun control, that he is a firm supporter of the second amendment. Gun control laws protect the American people from the dire consequences of the second amendment. Its repeal would save thousands of lives annually.

Fourth Amendment 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.

The Patriot Act was the first law that subverted the terms of the fourth amendment. Section 215 of the Act made it possible for investigators to demand that a suspect turn over tangible things so long as these things are needed for an authorized investigation. The investigators no longer need to show probable cause, or even reasonable grounds, that the person under investigation is engaged in criminal activity.

In 2002 President Bush signed an executive order authorizing the National Security Agency (NSA) to conduct warrantless wiretapping of thousands of American citizens without a court order. At about the same time, the NSA began working on a top-secret project called Stellar Wind, that would collect millions of documents, phone calls, and digital transactions and store them in a massive facility in Bluffdale, Utah. These digital records were collected from law-abiding American citizens without warrants.

The Fourth Amendment did not stop the President from authorizing warrantless searches, nor did it stop the Congress from passing legislation that apparently violates the constitutional provision against unlawful search.

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The framers put their faith in independent, reasonable jurors. A grand jury today seldom decides cases against the advice of the prosecutor who convened the jury. The prop of an independent grand jury has been removed, although the independence of jurors may always have been illusory.

Supreme Court Justice Antonin Scalia has held that the Constitution does not prevent the execution of a defendant who has been convicted by a full and fair trial and later convinces a habeas court that he is innocent. This is true. The Fifth Amendment states that a person may not be deprived of life without due process of law. It does not prevent a state from manufacturing evidence against a defendant. The Supreme Court, following Scalia, considers only the careful observance of procedure, not flaws in the process itself, or the prejudice of the people. Troy Davis, whose case Scalia was commenting on, was executed by the state of Georgia despite efforts of numerous individuals and organizations to secure a review on the basis on recanted testimony..

The framers erroneously assumed that state governments would take care not to convict innocent persons. Instead, according to the NAACP and Amnesty International, states have shown a propensity to convict African-Americans for crimes regardless of their guilt or innocence. Since 1973 over 140 persons have been released from death row where they had been confined as a result of due process. The defendants were not protected by the Fifth Amendement, but because of a post-trial actions, such as the discovery of DNA evidence.

An unjustly convicted person should not expect a reprieve from the Supreme Court, where Scalia refused to consider Davis's case, calling it a fool's errand and a sure loser.

Due process starts with the presumption of innocence. Without that presumption, the accused is presumed guilty until he clears himself. The reasonable doubt is then given to the prosecution. Without that coin to throw onto the scales of justice, a defendant has little chance to escape punishment.

The Fifth amendment explicitly prevents the state from forcing a defendant to testify against himself. This clause was intended to prevent the use of torture in criminal trials, where it was still used in the eighteenth century. The Bush Administration, wishing to use torture against captured terrorists, simply disregarded the Fifth Amendment. John Woo, a lawyer appointed by the president, wrote an opinion that justified the use of torture. His opinion was used by the CIA to justify their treatment of enemy combatants.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment bans cruel and unusual punishment. The state of Alabama impressed prisoners into chain gangs and forced them to toil in the hot sun without concern for their health or safety. Chain gang members who became angry at their treatment vented their anger on the men who were chained next to them and could not escape their attacks. Prison wardens rounded up African Americans on fictitious charges to supply their customers, who profited from this form of slave labor. The institution of the chain gang was outlawed by the U.S. Supreme Court as cruel and unusual in 1910. Despite this ruling, Alabama and Arizona once again began using chain gangs in the 1990s until the Supreme Court outlawed the practice again in 1996.

As a form of discipline, Alabama prison authorities chained prisoners to a high railing and forced them to stand for hours, a practice decried as torture by the United Nations. The Federal Court indicated (Gates v. Collier 501 F.2d 1291 (1974)) that this practice in Mississippi constituted cruel and unusual punishment as early as 1974. The prison system of the state of Alabama was still using this form of punishment in 1995. The Supreme Court definitively declared this practice unconstitutional in 2002 (Hope v. Pelzer 536 U.S. 730 (2002)). This indicates the prisons in Alabama continued inflicting cruel and unusual punishments on inmates for at least 21 years after the courts ruled such practices unconstitutional.

Justice Thomas (Hudson v. McMillian (1992)) argued that such treatment did not constitute cruel and unusual punishment because it was not part of a judgment. Thomas apparently believes that the treatment of prisoners, once they are sentenced and incarcerated, is of no concern to the Supreme Court. This opinion comports with the views of eighteenth century politicians, who did not intend the eighth amendment to apply to prisoners; it has no place in the present day, more than 50 years after the Universal Declaration of Human Rights (UDHR) (1948) declared that no one shall be subjected to cruel or inhuman punishment.

In 2009, Attorney General Eric Holder ordered independent prosecutor John Durham to investigate whether the CIA had used any unauthorized.interrogation tactics in the years following 9/11. Durham discovered that the CIA had destroyed 92 video recordings of interrogations, but Holder concluded that most of the subjects had never been in CIA custody. Holder thereupon closed the remaining two investigations in 2012. If these were not interrogations by the CIA, then they may have been interrogations conducted by extraordinary renditions.

Holder's opinion, hence the Obama administration's opinion, is thus that whatever happens to a prisoner of war once he is handed over to a third party cannot be blamed on the American CIA officer who handed him into hostile hands.This reluctance to prosecute Americans under the terms of the Geneva Conventions may explain why the Obama administration has not sought indictments against the politicians who planned and executed the Iraq War. The laws of the United States do not apply to non-citizens; the Eighth Amendment is not broad enough to provide protection to foreign prisoners of war. The Geneva Conventions apply equally to all nationalities, but these rules are not recognized as law in American courts, partly because of reservations made by the Americans when the accords were adopted, and partly because American courts do not recognize international law as binding.

The Constitution is Dead

Our statutes don’t morph. They don’t change meaning from age to age to comport with whatever the zeitgeist thinks appropriate. When you read Chaucer, you try to figure out what the words meant when they were put down on paper. It’s the same thing with the law. --Justice Antonin Scalia

Scalia is correct when he says the Constitution is dead. Abraham Lincoln, who loved the Constitution well, declared in his inaugural address that

no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions.

But the Supreme Court under the leadership of Justice Scalia is currently engaged in a project to change all our laws to comport with what the framers of our Constitution believed. When he is asked whether a new law is constitutional, Scalia goes directly to the text of the document. If he finds that the Constitution agrees with this new law, he approves the law. If he finds otherwise, he declares the law unconstitutional and throws it out.

Scalia is an expert interpreter of laws, but he is no literary critic. Otherwise, he would understand that every critic reads Chaucer differently. There is no absolute meaning in a work of literature. Each generation finds something different in Chaucer or Shakespeare. The new discoveries make these works of literature relevant again.

When Scalia argues that the Constitution is dead, he is arguing that we need a new document to take its place, or at least one that is completely altered. The Constitution is a fossilized relic of a bygone age. We should study it for its ideas, but we should not try to preserve them intact.

We should reform the Constitution so that it is easier to change. The framework that Justice Scalia praises so highly has broken down utterly. The Congress is so feeble that it can hardly pass a bill. The President is so powerful that he can violated the Bill of Rights with impunity, merely by declaring a war on some tiny group of people in a far corner of the globe.

The people have passed laws to repair flaws in the Constitution. Justice Scalia and his brethren strike them down. Their decision in Citizens United tells the people that they cannot decide what kind of government they want, but must accept the kind of government described by the framers. All power in the state arises from the people. If the Constitution prevents the people from making decisions based on new information, then it is the Constitution that must yield, not the people.

Nothing lasts forever. Everything eventually outlives its usefulness. The time has come to retire the Constitution and seek a replacement more suited to today.