Well-Regulated Militias, and More

Lisa & Ian Murray seamus at accessone.com
Sat Oct 30 16:52:38 PDT 1999


Since the big C was written before Darwin, Einstein and Godel, the framers can be forgiven for the inconsistency between the freedom of association clause of the 1st amendment and the property and takings clause of the fifth. In the age of computation and toxics, we cannot. The judicial guards on "private property" are the biggest single headache for ecologically sane economics in the US, leading to a "property rights smog". Let's hear it for a Constitutional Convention...

"If, therefore, any right to any form of private property or freedom no longer serves a good social purpose, it must go." [L. T. Hobhouse]

ian


> -----Original Message-----
> From: owner-lbo-talk at lists.panix.com
> [mailto:owner-lbo-talk at lists.panix.com]On Behalf Of Doug Henwood
> Sent: Saturday, October 30, 1999 2:23 PM
> To: lbo-talk at lists.panix.com
> Subject: Re: Well-Regulated Militias, and More
>
>
> Max Sawicky wrote:
>
> >How do rights that facilitate popular
> >struggle demobilize it? Because we are lulled into false
> >consciousness?
>
> Because there's such reverence for the text - and the wisdom of The
> Framers that inheres mystically in it - people are absolved from any
> sort of self-organized political action. That's reinforced by the
> fragmented, rivalrous structure of government in the U.S., which has
> been quite consciously designed to depoliticize politics.
>
> For a pure example of delusional liberal constitutionalism, see the
> attached. What the hell is wrong with "partisan" removal of a
> president, anyway?
>
> Doug
>
> ----
>
> The Nation - February 15, 1999
>
> What Works: The Constitution
> JONATHAN SCHELL
>
> In most respects, the impeachment of President Bill Clinton--now
> destined to go on for yet more weeks--is different from the
> proceedings against President Richard Nixon a quarter-century ago.
> Nixon was accused of abuses of the power of his office. You had to be
> President to bomb Cambodia secretly, to use the IRS to harass your
> political enemies or to ask the CIA to squelch an investigation by
> the FBI. Clinton, on the other hand, is accused of violations of law
> in his individual capacity. It is within the power of almost anyone
> to fool around at the office, to invite a colleague to dissemble
> about the affair in court or to ask a friend to do the lover in
> question a favor.
>
> The historical circumstances were different, too. In the immediate
> background was the cold war, in whose name the presidency had
> accumulated powers that Nixon used to break the law. The question
> before the country$was whether to embrace this "imperial" presidency
> or to restore the constitutional balance, and it chose the latter.
> Today, by contrast, one would be hard put to name any large public
> controversy that is going to be settled one way or the other by the
> impeachment trial. If anything, the trial has created fresh issues
> (mostly regarding abuse of the impeachment power itself) rather than
> resolved existing ones.
>
> In at least one respect, however, the two impeachment proceedings are
> similar. Both, in their different ways, illumine the wisdom,
> shrewdness and almost uncanny prescience of the Framers of the
> Constitution of the United States. In recent years this magazine has
> run a series of articles titled "What Works." The Constitution is the
> prince of things that have worked--in its case for 210 years. To sing
> the praises of the Constitution at this moment is, I know, no
> startling thing to do. Those accusing the President in the Senate
> chamber as well as those defending him have been doing likewise for
> several weeks now. One side wants Clinton out, and the other side
> wants him to stay, but both want what they want in the name of the
> Constitution . In fact, this general reverence for the
> document--sometimes called America's civil religion--may in truth be
> as important as its particular provisions. Agreement about any code
> of conduct, whether this is the US Constitution, Islamic Sharia,
> Confucian odes or last week's astrological charts, can be a boon to a
> country. A king who's respected is worth more than a splendid
> constitution that's ignored. (Stalin's Constitution of 1936--an
> exemplary document, guaranteeing every imaginable human right--comes
> to mind.)
>
> In the events at hand, though, it is also undeniably the provisions
> of the document that shine. In The Federalist Papers and other
> writings of that day, the abstract thoughts of the writers often read
> like descriptions of the events unfolding before our eyes. For
> example, we instantly recognize today's Republican Party in Alexander
> Hamilton's warning that "the most conspicuous characters" in
> impeachment will "be too often the leaders, or the tools of the most
> cunning or the most numerous faction; and on this account can hardly
> be expected to possess the requisite neutrality towards those, whose
> conduct may be the subject of scrutiny."
>
> Therefore the Constitution established certain breakwaters against
> the tide. One was the provision that two political bodies had to be
> involved--the House as accuser, the Senate as court. In our case,
> though, both bodies are under the control of one party. Not to worry,
> though--the Framers placed one final obstacle in the way of the
> President's removal: the requirement of a two-thirds majority in the
> Senate. "The division ... between the two branches of the
> legislature," Hamilton wrote in The Federalist Papers, "assigning to
> one the right of accusing, to the other the right of judging; avoids
> the inconvenience of making the same persons both accusers and
> judges; and guards against the danger of persecution from the
> prevalency of a factious spirit in either of those branches. As the
> concurrence of two-thirds of the senate will be requisite to a
> condemnation, the security to innocence, from this additional
> circumstance, will be as complete as itself can desire." And this
> provision today stands in the way of a purely partisan removal of the
> President, just as Hamilton had anticipated.
>
> Such prophetic refinement is especially striking in the impeachment
> clause, which is probably the loosest cannon on the constitutional
> deck. It is the final, desperate remedy when the normal, everyday
> operations of the Constitution have all failed and the Republic is on
> the edge of catastrophe. Not surprisingly, then, it runs counter to
> other principles on which the Constitution is based. The separation
> of powers, for example, is one of the Constitution 's very
> foundations; yet impeachment clearly breaks it down. The separation
> of jury and judge is basic to our judicial system, but in the persons
> of the senators at the trial it is erased. The scene before us every
> day in the Senate chamber--in which the President is in the dock;
> Congressmen have trooped over from their own House to the Senate; the
> senators have been rebaptized as hybrid juror-judges; and the Chief
> Justice of the United States has left his co-equal lair across from
> the Capitol to preside--is a sort of monstrosity from the
> separation-of-powers point of view. Here, owing to a contemplated
> great national emergency (missing in today's case), the separated
> powers seem, as in time of war, to have fused primitively into one.
>
> Yet this crude power, too, has been tempered and regulated. In
> effect, a separation of powers was re-created by assigning
> impeachment to the two bodies and requiring the two-thirds vote. For
> some months, a majority of the public, according to most observers,
> has been paying little attention to the spectacle in Washington. The
> government is in uproar, but they are calm. They go about their daily
> lives, which they find more important than impeachment. Let us
> imagine, though, that in some lax moment at the Constitutional
> Convention the Framers had omitted to require the two-thirds
> majority. Today, the President would be in clear danger of removal.
> Immediately, we must suppose, public indifference would end and
> people would angrily take sides in a battle whose stakes are huge and
> menacing. But none of this is happening. The two-thirds rule--a great
> shield held out by the Framers across a gulf of two centuries to
> shelter us--is in place, and we are undisturbed.
>



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