Constitution in Crisis, Candidates in Denial

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By John Nichols

Constitution Day has arrived without major statements from Democrat Barack Obama or Republican John McCain on the need to restore this country's commitment to the rule of law.

In contrast, independent presidential candidate Ralph Nader's campaign produced a video statement detailing his commitment to constitutional renewal.

Here's Nader's video, in which he says, "You and I cannot turn our backs on the Constitution, as the two parties have done."

Even more powerful is the statement made by Senator Russ Feingold, the Wisconsin Democrat who chairs the Senate Judiciary Committee's Constitution subcommittee, at the opening of Tuesday's hearing -- which Obama and McCain should have attended -- on how to repair the damage done by the Bush-Cheney administration to the system of checks and balances and our fundamental liberties.

Decrying the administration's record as a "shameful legacy that will haunt our country for years to come," Feingold declared that America needs to "get started right away on this immense and extremely important job of restoring the rule of law."

The Wisconsinite pondered seeking the Democratic nomination for the presidency this year but instead backed Barack Obama.

Would that Obama was speaking up as Feingold is on the Constitution.

Here's the Constitution subcommittee chair said in his call to action:


Tomorrow, September 17, is the 221st anniversary of the day in 1787 when 39 members of the Constitutional Convention signed the Constitution in Philadelphia. It is a sad fact as we approach that anniversary that for the past seven and a half years, and especially since 9/11, the Bush Administration has treated the Constitution and the rule of law with a disrespect never before seen in the history of this country. By now, the public can be excused for being almost numb to new revelations of government wrongdoing and overreaching. The catalogue is breathtaking, even when immensely complicated and far reaching programs and events are reduced to simple catch phrases: torture, Guantanamo, ignoring the Geneva Conventions, warrantless wiretapping, data mining, destruction of emails, U.S. Attorney firings, stonewalling of congressional oversight, abuse of the state secrets doctrine and executive privilege, secret abrogation of executive orders, signing statements. This is a shameful legacy that will haunt our country for years to come.

There can be no dispute that the rule of law is central to our democracy and our system of government. But what does ‘the rule of law' really mean? Well, as Thomas Paine said in 1776: ‘In America, the law is king.' That, of course, was a truly revolutionary concept at a time when the King, quite literally, was the law.

Over 200 years later, we still must struggle to fulfill Paine's simply stated vision. It is not always easy, nor is it something that once done need not be carefully maintained. Justice Frankfurter wrote that law:

is an enveloping and permeating habituation of behavior, reflecting the counsels of reason on the part of those entrusted with power in reconciling the pressures of conflicting interests. Once we conceive ‘the rule of law' as embracing the whole range of presuppositions on which government is conducted . . ., the relevant question is not, has it been achieved, but, is it conscientiously and systematically pursued.

The post-September 11th period is not, of course, the first time that events have caused great stress for the checks and balances of our system of government. As Berkeley law professors Daniel Farber and Anne Joseph O'Connell write in testimony submitted for this hearing: ‘The greatest constitutional crisis in our history came with the Civil War, which tested the nature of the Union, the scope of presidential power, and the extent of liberty that can survive in war time.' But as legal scholar Louis Fisher of the Library of Congress describes in his testimony, President Lincoln pursued a much different approach than our current President when he believed he needed to act in an extra-constitutional manner to save the Union. He acted openly, and sought Congress's participation and ultimately approval of his actions. According to Dr. Fisher:

[Lincoln] took actions we are all familiar with, including withdrawing funds from the Treasury without an appropriation, calling up the troops, placing a blockade on the South, and suspending the writ of habeas corpus. In ordering those actions, Lincoln never claimed to be acting legally or constitutionally and never argued that Article II somehow allowed him to do what he did. Instead, Lincoln admitted to exceeding the constitutional boundaries of his office and therefore needed the sanction of Congress…. He recognized that the superior lawmaking body was Congress, not the President.

Each era brings its own challenges to the conscientious and systematic pursuit of the rule of law. How the leaders of our government respond to those challenges at the time they occur is, of course, critical. But recognizing that leaders do not always perform perfectly, that not every President is an Abraham Lincoln, the years that follow a crisis are perhaps even more important. And soon, this Administration will be over. So the obvious question is: ‘Where do we go from here?' I believe that one of the most important things that the next President must do, whoever he may be, is take immediate and concrete steps to restore the rule of law in this country. He must make sure that the excesses of this Administration don't become so ingrained in our system that they change the very notion of what the law is.

That, of course, is much easier said than done. It's not simply a matter of a new President saying, ‘Ok, I won't do that anymore.' This President's transgressions are so deep and the damage to our system of government so extensive that a concerted effort from the executive and legislative branches will be needed. And that means the new President will, in some respects, have to go against his institutional interests.

That is why I called this hearing – to hear from legal and historical experts on how the next President should go about tackling the wreckage that this President will leave. I've asked our two panels of experts who will testify to be forward-looking – to not only review what has gone wrong in the past seven or eight years, but to address very specifically what needs to be set right starting next year and how to go about doing it.

In addition to the testimony of the witnesses here today, I solicited written testimony from advocates, law professors, historians and other experts. So far we have received nearly two dozen submissions from a host of national groups and distinguished individuals. I want to thank each and every person who made the effort to prepare testimony for this hearing. You have done the country a real service.

All of this testimony will be included in the written record of the hearing, which I plan to present to the incoming Administration. The submissions we have received so far can be seen on my website at feingold.senate.gov. I hope that many of these recommendations, along with the testimony we will hear today, will serve as a blueprint for the new President so that he can get started right away on this immense and extremely important job of restoring the rule of law.