Summary: The Plebes of Rome asked what is the law?  Show it to us, rather than merely handing down verdicts.  So in 451 BC the Senate appointed 10 men to draw up the law.  They inscribed it upon 12 bronze tablets and publicly displayed them in the Forum.  Since then the essence of law in a just society was that all can see it.  That’s no longer true in America, as we take another step towards a new political regime — away from that founded by the Constitution.

They paved paradise
And put up a parking lot
With a pink hotel, a boutique
And a swinging hot spot

Don’t it always seem to go
That you don’t know what you’ve got
Till it’s gone
They paved paradise
And put up a parking lot

— Big Yellow Taxi by Joni Mitchell

Contents

1. Introduction
2. The latest step along the road leading to a new regime for America
3. What happens next?
4. Other posts about the Constitution, our liberties, and our government

(1)  Introduction

On July 4, 2006 I forecast the death of the Constitution, which seemed outlandish at that time (I did not mention Bush or Republicans).   Five years later it’s happened.  Historians may choose another arbitrary date for the death of the Second Republic (the Articles of Confederation being the First).  But so much has happened in the past two years that we’ve clearly crossed the line beyond which the Constitution no longer governs. Increased surveillance without warrant, long detention without trial (5 years for Jose Padilla), torture, assassination of citizens without charge or trial, wars without Congressional authorization.

The two parties argued about the significance of these things (ie, the pro-government and pro-citizen parties, as the conservative/liberal lines no long track these issues).  All that matters is that we consented in the most fundamental way to every growth in government power since 9-11 (more broadly, since WWII).  Silence means assent.

(2)  The latest step along the road leading to a new regime for America

The Teabaggers were right: We really do have a death panel. Just not the sort of death panel that they were rallying against. And some of the people who wanted restraints on executive power when there was a Red boot stomping on a human face will serve as death panelists when there’s a Blue boot stomping on a human face. Just as the Teabaggers were silent for 8 years.
— Thoreau at Qunualified Offerings, 9 october 2011

The Office Of Legal Counsel has written memos to justify the government’s surveillance and assassination policies.  Secret memos.  Citizens cannot see them, cannot evaluate them.  But are bound by them, even to the extent of losing our lives. In effect, secret laws written by the President’s minions.

The withholding of the legal basis for targeting al-Awlaki is inappropriate for two reasons. First, the world already knows that the U.S. killed al-Awlaki; how could it possibly harm national security to disclose why the Justice Department believes the killing was legal? Second, unless rejected by the President or superseded by a court ruling, OLC’s legal interpretations are binding on the executive branch. Undisclosed OLC opinions are therefore a kind of “secret law,” something that has no place in a democracy.
— “Reducing Overclassification Through Accountability“, Elizabeth Goitein and David M. Shapiro, NYU School of Law, 5 October 2011

Presidents can always find someone among their political appointees at DOJ to provide the legal stamp of approval for whatever they want to do. Bush officials, of course, infamously claimed that everything Bush did in the areas of detention, surveillance, interrogation and war were legal because DOJ lawyers issued memos saying they were legal … Under this theory, the president is free to commit whatever crimes he wants with total impunity as long as he can find some DOJ underlings to opine in advance that he has the legal authority to do so, something that every president – who always commands vast hordes of dutiful partisans and ideological loyalists – would be able to do in every instance. … More and more, this is how the most vital matters in our democracy are decided: by secret deliberations among the President’s partisan lawyers.
— Glenn Greenwald, Salon, 9 October 2011 — IMO a must-read article!

If it is the case that the president can designate an Office of Legal Counsel functionary to immunize government officials and employees against criminal behavior, then it is true, to all intents and purposes that “if the president does it it’s not illegal.”
— Digby, posted at Hullabaloo, 11 July 2009

(3)  What happens next?

We can still turn back.  On this cause both liberal and conservative can unite.  Write your representatives demanding that the President release these memoranda.  Write letters to your newspapers.  Talk to your friends and relatives.  Protest in the Streets.

Of course, I suspect we will do nothing.  Our rulers are competent, and have carefully tested us since 9-11 to learn the extent of our apathy.  They have slowly released information about their surveillance activities and assassination programs.  Each announcement tests our reaction and prepares us to accept the next.  They have moved faster, more boldly, and more successfully than I imagined possible when I first wrote about the Constitution in 2006.

This is just one step on the road.  More will be taken, slowing giving the government still greater powers.  Less visibility.  Less accountability, more immunity from legal recourse.  Eventually most Americans, all but the hard-core fascists among us (who are becoming increasingly visible), will realize what we’ve lost.

There have been a lot of lessons learned in the decade that has passed since 9/11, but one of them, I think, is that executive branch legal interpretations matter enormously. It is so rare for one of these weighty issues of war powers to be decided on the merits by the courts, because they are almost never justiciable.

… By acting on their theories, they were converting them into historical fact. A president had done these things based on these theories, and since he had done them, those theories must be true and so would be available to future presidents to invoke when they, too, wanted to do something that seemed to conflict with a statutory or legal constraint. At its most cynical, that’s how executive branch lawyering works: in the vast areas that are immune to judicial review and take place largely in secret, the accretion of historical precedent – whatever a president in the past got away with — becomes the baseline for his successors to build upon, pushing out further. These precedents are now an immutable part of American history, and will influence how the government handles itself for generations.

— Charlie Savage (New York Times reporter), Power Wars: Unmasking National Security Legal Policy Deliberations Under Bush & Obama (2011)

Historians will debate the exact point at which the Second Republic died, but it’s a matter for Trivia Pursuit players.  Today, or after next year’s new measures, or the bigger steps ten years from now.  RIP, Constitution.  It was a nice dream, but existed only so long as it lived in our hearts.  Too bad we were not up to the task of carrying on the program bequeathed to us by our ancestors.

It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt.
— Often misattributed to Jefferson, this was said by John Philpot Curran in a speech upon the Right of Election (1790)

Other posts about the Constitution, our liberties, and our government

Running commentary on the slow death of the US Constitution:

1. Forecast: Death of the American Constitution, 4 July 2006
2. The Constitution: wonderful, if we can keep it, 15 February 2008
3. Congress shows us how our new government works, 14 April 2008
4. See the last glimmers of the Constitution’s life…, 27 June 2008
5. Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
6. A report card for the Republic: are we still capable of self-government?, 3 July 2008
7. Another step away from our Constitutional system, with applause, 19 September 2008
8. What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
9. Are Americans still willing to bear the burden of self-government?, 27 March 2009
10. “Lights, Camera, Democracy” by Lewis Lapham, 24 May 2009
11. “The Constitution that I interpret and apply is not living, but dead.” – Supreme Court Justice Scalia, 9 June 2009
12. More about the tottering structure of the American political regime, 17 August 2009
13. Listen to the crowds cheering Sarah Palin, hear the hammerblows of another nail in the Constitution’s coffin, 8 February 2010
14. Another nail put in the Constitution’s coffin, but we don’t care, 9 February 2010
15. Recommended reading about the Constitution, 17 March 2010 — About the invisible “living” Constitution
16. Another step towards fascism: “Silencing the Lawyers”, 31 May 2010
17. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
18. The President’s big stick (domestic): his National Emergency Powers, 12 June 2010
19. Code red! The Constitution is burning., 5 August 2010
20. An Appalling Threat to Civil Liberties and Democracy, 8 August 2010
21. Every day the Constitution dies a little more, 1 September 2010 — About US government assassination programs
22. What do our Constitution-loving conservatives say about our government’s assassination programs?, 2 September 2010
23. Cutting down the tree of liberty, 9 September 2010 — Government secrets trump fair trials.
24. The guilty ones responsible for the loss of our liberties, 11 September 2010
25. A great philosopher and statesman comments on the Bush-Obama tweaks to the Constitution, 10 October 2010
26. This week’s news: many stories showing that the Constitution is dead, 8 December 2010
27. We’re at war, again. Another shovel of dirt on the corpse of the Constitution., 21 March 2011
28. Conservatives tells us not to worry about the Constitution’s death, 23 March 2011
29. The Constitution will still work for us, if we’d only use it. About options for responding to our enemies. , 29 March 2011
30. Can the UN give Obama the authority to send US forces in the Libyan War?, 1 April 2011
31. Tearing the Constitution is a bipartisan sport!, 4 April 2011

This post originally appeared at Fabius Maximus and is reproduced with permission.