FW: The Economist: Why and when to go in

Jose G. Perez jgperez at SPAMnetzero.net
Tue Jan 9 18:43:08 MST 2001


>>These were crimes which were the acts of individuals, or conspiracies.
Even if the
FBI killed Kennedy, it still does not alter the extra-constitutional nature
of the
act. But the Bush regime has come to offcie by a constitutional coup d'etat.
That is
a different thing. It is much less sensational than Kennedy, MLuther King
etc, but
it is altogether more serious. Crimes committed in breach of law and
defiance of
consttituional right are one thing; the perversion of the constitution, its
legalised overthrow, is something else.<<

Maybe it is easier to take the U.S. Constitution seriously from far away.
Yes, this was as blatant an act of thuggery against the Constitution as one
can imagine. Just about every fundamental concept in the constitution was
trampled, from governmental legitimacy deriving from the consent of the
governed to the idea that the legislative, executive and judicial branches
form a coordinated system of checks and balances. And various positions
taken by the Republicans -- well, why belabor the obvious.

Nevertheless, your view of the matter, or at least the way you're coming
across, starts to border on Constitutional cretinism. The plain fact is that
the constitution as written expired by the mid-1800's because of the
irrepressible conflict between the North and the South. All the famous
compromises and so on of that epoch were simply the nullification of the
carefully crafted document, and the civil war represented its being torn to
shreds.

Sure, the "letter of the law" and a certain number of forms, like the
electoral college, have survived, even until today. But they are a
completely empty vessel into which the bourgeoisie pours whatever content it
wants to pour. One day "separate but equal" is okay. Fifty or sixty years
later, it becomes "inherently unequal" and unconstitutional.

But, at any rate, whatever political merit there may have been to the
original design of the constitution had been long abandoned. In fact, it
didn't last much more than Washington's two terms as President. The
fundamental aim of a lot of the structures adopted was to *prevent the
emergence of national political parties.*  If you read the Federalist
papers, you'll see this was very clearly the aim. That was the purpose and
role of the state naming presidential electors, and of excluding from the
electors ALL participants in national politics. The aim was to make national
parties superfluous, indeed, well nigh impossible. The idea was to somehow
recreate on a national scale some of the same kinds of things that happened
in the largely self-governing townships of New England, where there WAS a
long tradition of plebeian democracy, both through the town meeting from of
government and the grand jury form of government. (The latter involved the
random selection from among the head of the town's farming and shopkeeping
families of a group of men that would oversee town affairs for a period of
time).

Of course, the utopian hope of avoiding party strife had no possibility of
surviving given the growing class differentiation in the early American
republic, never mind the division of the country into slave and free states.
And the civil war resulted in the complete reinterpretation of the
constitution, doing away with any semblance of the original content of the
document.

It is said that the United States has a government of laws, not men, but
nothing could be further from the truth. It is a government of lawyers and
not of laws, and no one can say on any matter just what the law is with any
degree of certainty. Indeed, the United States has so many laws, rules and
regulations that one could spend an entire lifetime trying to read them all
and not finish the task. For one thing, we have layer upon layer of
government, all endowed with law-making capacity. The city has one law, the
county another, the state still another, countless regulatory bodies write
reams or rules and regulations, the Federal Congress makes laws and so do
the courts, national, state and local. Although nowhere in the Constitution
is the president given the right to rule by decree early on it was decided
this was unavoidable, and to save appearances we don't call them decrees but
executive orders.

Of course, judicial precedent is binding, except when it is not. Whatever is
not prohibited is allowed unless, of course, it goes against "public
policy," and "public policy" is, like the constitution, it is whatever the
particular judge wants it to be, unless some judges higher up want to
overrule him.

For there to be public outrage at the violation of established rules, laws
and procedures, there needs to be a great deal of public clarity on just
what those rules, laws and procedures are. The American people by and large
have become accustomed to the idea that in reality, there is no solidity AT
ALL to the legal foundations of the state. Thus President Clinton's
dalliance with Monica was transformed into a "high crime and misdemeanor," a
concept which at the time the Constitution was written had a precise legal
meaning, and, moreover, was explained by those involved in the drafting of
the document itself. Yet the complete destruction of any concept of existing
law had been so thoroughly destroyed (especially by the judicial priesthood)
that by the 1860s, president Johnson was impeached for the "high crime and
misdemeanor" of removing a person from his cabinet, even though the
constitution is quite specific in saying that the executive power is vested
in the president personally: he IS the executive branch, and if this means
anything, it means cabinet members serve at his pleasure.

The things that legally go on in the U.S., for example, in the criminal
justice system, would shock most civilized countries. It is the routine
practice in the United States and all its jurisdictions, for example, that
the nature of the crime committed by someone and the punishment are
negotiated between the lawyers involved. Prosecutors invariably overcharge,
in order to use the dropping of the spurious more serious charges as
leverage for getting admissions of guilt to lesser charges.

In the 1960s the death penalty as it then existed was outlawed because it
was applied in such a freakish and arbitrary fashion that it violated all
concepts of due process and the rule of law. The big item cited as proof was
that more than 40% of the inmates on death row were Black.

A decade later the states had passed new laws and harvested a whole new crop
of clients for the hangmen. The Supreme Court looked at the new laws and
said they were good. And what was the result of these laws? That more than
40% of the people on death row were Blacks.

Judges no longer judge in any meaningful sense of the word. The exercise of
judicial discretion, of judgment, in deciding guilt or innocence and in
prescribing appropriate punishment had been outlawed.

Under current sentencing laws, for example, President Clinton could and
should have been subject to life imprisonment without the possibility of
parole for committing three felonies: smoking marijuana, adultery, and
getting a blow job. And, yes, blow jobs remain a felony in many parts of the
United States, specifically upheld as such by the Supreme Court only a few
years ago.

And that's not even taking into account that he was a Democrat in the White
House, which, as the Supreme Court recently revealed, is illegal.

Newt Gingrich, by the way, was equally guilty of these same three felonies
and then probably some others we haven't heard about.

Another example. In most civilized countries, it is illegal to bribe someone
for their testimony in a criminal case. U.S. law says the same thing:
whoever offers money or "any other thing of value" for someone's testimony
is guilty of suborning perjury, which is very heavily punished by law.

A couple of years ago, some wiseacre lawyer in the Rockies noticed this law
and, since his defendant had been convicted on the basis of testimony by an
already convicted alleged accomplice in exchange for the accomplice's
freedom, argued successfully before a three-judge appeals court panel that
this exchange of lenient treatment for testimony was the subornation of
perjury. This happens every day in the few criminal cases that actually do
wind up before a jury, and bought-and-paid-for testimony by confessed
criminal is the staple of criminal trials.

There are quite a few countries where you could not even get into court with
such testimony, the uncorroborated, self-serving statements of an accomplice
are not, as a matter of law, sufficient for a conviction. But not in the
USA.

What I'm trying to get across with this is that the American people believe
they're a country of laws and rules, when the reality is totally the
contrary, and they believe this despite the fact that their everyday
experience contradicts this completely. The priesthood of judges and
especially the Supreme Court are in charge of saying just what these laws
and rules are; it is not the place of the rabble to question --or even
understand-- the reasoning behind this.

It's been said a million or two million times in the past few weeks that
Gore accepted the Supreme Court ruling because, after all, he believes in
the constitution and that we are a government of laws not men. Yet precisely
that Supreme Court ruling is the most compelling refutation of the very
idea. This was the federal judiciary interfering in the conduct of
presidential elections, something which the constitution had explicitly and
categorically reserved for the exclusive competence of the Congress and the
states. There was no need for the Supreme Court to set itself up as supreme
electoral tribunal because the constitution had already assigned that
jurisdiction to another body, the Congress. And it goes into a great deal of
detail on how disputes are to be handled and resolved.

There was in fact at the constitutional convention substantial discussion
about the Supreme Court playing some role in the selection of the president,
and the framers eventually rejected categorically the judicial branch
playing any role whatsoever in elections. It was viewed as a matter of
capital importance that the judicial branch remain totally apart from
politics, otherwise its impartiality and independence would be compromised.
The naming of judges for life-long appointments was another measure meant to
wall off the judiciary from the political branches of the government.

Despite all that in this case the Supreme Court did intervene. It did so to
war off the hypothetical possibility that ballots might be counted using
different standards and that the state judge in charge of the recount would
not fix this. And in doing so it let stand a count where in some (poor and
Black) precincts one out of every three votes was tossed out, whereas in
other (rich and white) precincts every single ballot was counted. In the
name of equal treatment it let stand a count where in one county, voters who
wrote in the names of Bush or Gore had their ballots disqualified while in
three surrounding counties the very same ballots would have been considered
unquestionably legal votes, as they clearly expressed the intent of the
voter. In other words, in the name of equal treatment under the law, they
sanctified results obtained by manifestly and unquestionably unequal
treatment.

Try to explain that to the average (white) person here, and you will soon
discover that what they mean and understand by saying that we are a
government of laws not men is what any reasonable person would call a
lawless government where the people involved make up the rules as they go
along. And by and large (white) Americans truly and deeply believe this is
what makes the U.S. the most perfectly democratic country in the world, we
have such respect for law that everyone accepts that a bare majority of one
on the Supreme Court can decide that the guy who got half a million votes
less for president really is the people's choice.

It's not that most Americans are for lawless and arbitrary rule, they're
not. It's that what they understand by the rule of law is, in fact, totally
lawless and arbitrary rule. That's what makes having discussions with many
people around this issue of the presidential election so frustrating. The
don't even have a concept of the rule of law, to them, the rule of law is
accepting whatever a bare majority of one on the Supreme Court decides, even
if you personally disagree with it.

José



----- Original Message -----
From: "Mark Jones" <jones.mark at btconnect.com>
To: <marxism at lists.panix.com>
Sent: Sunday, January 07, 2001 1:31 PM
Subject: RE: FW: The Economist: Why and when to go in



> I am still unconvinced that we have witnessed an unprecedented
> disenfranchisement, not a greater one than those achieved with the murders
of
> Lincoln, Kennedy, or with the Watergate.

These were crimes which were the acts of individuals, or conspiracies. Even
if the
FBI killed Kennedy, it still does not alter the extra-constitutional nature
of the
act. But the Bush regime has come to offcie by a constitutional coup d'etat.
That is
a different thing. It is much less sensational than Kennedy, MLuther King
etc, but
it is altogether more serious. Crimes committed in breach of law and
defiance of
consttituional right are one thing; the perversion of the constitution, its
legalised overthrow, is something else.

> Please explain what is the conceptual difference between your single word
> definition and my longish one

any kind of consummation, including electoral, which happens without
consent, is
rape.

Mark








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