Saturday, March 25, 2006


all good things, it is said, must come to an end.

it is now entirely possible that within your lifetime and mine a historian will one day record:

on friday, march 24, 2006, democracy in the united states passed into oblivion, escorted not with the blast of an explosive but only the hush of a smothered breath.

but what happened on friday, march 24, 2006, such that the founding principles which had carried the nation, at times lurching, but never completely collapsing, through almost 230 years of blood and sweat and toil, should so quietly vanish?

on friday, march 24, 2006, the united states department of justice delivered its answer to the house judiciary committee regarding its basis in law for conducting domestic surveillance on american citizens without judicial writ.

by way of background our historian will write, perhaps with a wistful sigh, that the united states:

was once based on a quaint system of checks and balances, now obsolete, designed to distribute the three primary functions of government among three interdependent and complementary bodies. the congress was created to write and enact the law. the judicial branch was created to interpret the law and ensure its conformance to the constitution. the executive branch was created to enforce the law. and no citizen of that nation was considered exempt from the law.

james madison, destined to become the fourth president, writing in the federalist papers, in his argument for ratification of the fledging constitution, claimed that "there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers".

on friday, march 24, 2006, the forty-third president and chief executive, one george walker bush, speaking through the department of justice, the enforcement arm of the executive branch, in his answer to the house judiciary committee, assumed sole authority and expanded his "unitary" claim to power over the whole of government, limited only by his "special and unique competence" alone.

his words were like the seal on a tomb:

the constitution is the supreme law of the land, and any statutes inconsistent with the constitution must yield. the basic principle of our system of government means that no president, merely by assenting to a piece of legislation, can diminish the scope of the president's constitutional power. ...

just as one president may not, through signing legislation, eliminate the executive branch's inherent constitutional powers, congress may not renounce inherent presidential authority. the constitution grants the president the inherent power to protect the nation from foreign attack, and congress may not impede the president's ability to perform his constitutional duty. ...

in order to execute the laws and defend the constitution, the president must be able to interpret them. the interpretation of law, both statutory and constitutional, is therefore an indispensable and well established government function. ...

the president's power to interpret the law is particularly important when he is engaged in a task — such as the direction of the operations of an armed conflict — that falls within the special and unique competence of the executive branch.

and thus, on friday, march 24, 2006, the president so declared himself not answerable to the other two bodies of government.

and thus, on friday, march 24, 2006, the president so usurped their powers and claimed them for his own.

and thus, on friday, march 24, 2006, democracy did die its quiet death.

however — it is yet possible to avert that future and stay our historian's hand.

because the events he will ultimately record shall depend upon the other two branches of government and their willingness to assert their respective inherent authorities to write and interpret the law.

will they claim the powers rightly granted them by the constitution?

or will they bow in craven bondage to their newborn king?

the future is now and history awaits us.

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