COMMENTARY: The Rule of Law
COMMENTARY by Jerry Richardson
For a major part of the past eight years, Democrats and the political left have been critically and caustically outspoken about what they perceive as “lawlessness” on the part of the Bush administration.
On May 21, 2009, President Obama gave a rousing speech to “explain” his position on issues surrounding his closing of Guantanamo.
After a lot of high-sounding rhetoric used to support the notion that the Bush administration did not adhere to “the rule of law” in regard to the ‘war on terror’; Obama proclaimed that he would correct all that.
But, contrary to his “rule of law” thesis, Obama proceeded to enunciate what he called“prolonged detention” (now being referred to in the media as “preventive detention”) for terrorists who cannot be released (too dangerous), cannot be tried in the U.S. courts (for arguably good reasons), and cannot be given to other countries (they won’t take them).
However, based upon the June 12, 2008 Supreme Court ruling, an unjustified decision in the opinion of Justice Scalia and others, nevertheless, denying terrorists the privilege of habeas corpus is no longer lawful:
“2.Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo.”
BOUMEDIENE
et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.
How is Obama’s proposal to violate habeas corpus (after The Supreme Court ruling) for Guantanamo detainees less lawless than the detention that the Bush administration imposed? How is Obama’s style of detention made lawful by closing Guantanamo and moving the detainees to the USA? It isn’t.
And it could be made much worse by extending the “preventive detention” power beyond a handful of Guantanamo detainees to anyone, anywhere who is alleged to be a sufficient threat.
What would prevent Obama from over-extending a “preventive detention” power? In other words, what prevents the President of the USA from becoming lawless?
I believe that the best immediate deterrent (not an ultimate such as impeachment) is knowledge of, and a healthy respect for, the U.S. Constitution. Does President Obama have sufficient respect for the Constitution as it is written? Let’s examine.
The most concise statement of the President’s responsibilities is stated in the oath of office:
“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability to preserve, protect and defend the Constitution of the United States.”
–U.S. Constitution, Article II, Section I
Now, consider the following statement concerning the constitution made by then-Illinois State Senator Barack Obama:
“In a Sept. 6, 2001 interview with Chicago Public Radio station WBEZ-FM, Mr. Obama noted that the Supreme Court under Chief Justice Earl Warren “never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society,”…
He also noted that the Court “didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it has been interpreted.” That is to say, he noted that the U.S. Constitution as written is only a guarantee of negative liberties from government — and not an entitlement to a right to welfare or economic justice…
Does Mr. Obama support the Constitution as it is written, or does he support amendments to guarantee welfare?”
Wall Street Journal
[October 28, 2008]
Obama seems to fancy himself a wordsmith, and has famously said,“Words mean something, you can’t just make stuff up.” ( TIME). Yet, in the part of his inaugural speech where the precise
word “Constitution” should have been used, he substituted the word “Charter”.
“Our Founding Fathers, faced with perils we can scarcely imagine, drafteda charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations.”–Obama Inaugural Address, 20th January 2009
The words “Constitution” and “Charter” have very different LEGAL meanings:
“CHARTER. A grant made by the sovereign either to the whole people or to a portion of them, securing to them the enjoyment of certain rights…A charter differs from a CONSTITUTION in this, that the former is granted by the sovereign, while the latter is established by the people themselves: both are the fundamental law of the land.”
LEGAL-DICTIONARY
By his own statements and his actions since being elected, we are justified in concluding that President Obama does NOT respect the totality of the U.S. Constitution as it is written.
Since the basis of our law is the U.S. Constitution, a President, with vast executive power, who does not respect the U.S. Constitution, and who looks for ways to avoid its “essential constraints”, is potentially a grave threat to the “rule of law”.
Disrespect for the Constitution is NOT going to be limited to just the President; Obama has stated his personal (not the legal, or Constitutional) requirements for a Supreme Court Justice:
“While announcing Sonia Sotomayor as his nominee to the Supreme Court, President Barack Obama praised her as a judge who combined a mastery of the law with ‘a common touch, a sense of compassion, and an understanding of how the world works and how ordinary people live.’ This is in keeping with his earlier statement that he wanted to appoint a justice who possessed the ‘quality of empathy, of understanding and identifying with people’s hopes and struggles.’”
WSJ[May 29, 2009]
Could anyone expect Sotomayor, or any other judge, who applies Obama’s requirement of “quality of empathy” in reaching judicial decisions, to uphold the oath of office that every Supreme Court Justice takes:
“I, [NAME], do solemnly swear (or affirm) thatI will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.” –Title 28, Chapter I,
Part 453 of the United States Code
The phrase “justice without respect to persons” means that personal considerations such as “empathy” should NOT influence the decision of an impartial judge.
But, shouldn’t a judge have “empathy”? No. Absolutely not. Certainly not a Justice of the Supreme Court. Not when deciding issues of justice under the law. That is the meaning of “justice without respect to persons”.
Where is all this leading? We are only a few months into the Obama administration, and it is already clear. We are seeing an administration that is pursuing policies and legislation
that will bring governmental lawlessness to an unprecedented level. Here are three additional examples:
1. TARP (Troubled Asset ReliefProgram) funds were initially designated by congress to be used to assist financial institutes such as banks. George W. Bush bent the rules and instituted the first GM bailout. Obama has not only continued this practice of misusing TARP funds, he has expanded it.
As GM goes into bankruptcy, the Obama administration is providing GM another $30 billion dollars; and the government will own a 60 percent share of the new reorganized GM company. None of these plans have the approval of Congress, nor is there any legislation to authorize the acts.
In Article 1, Section 9 of the U.S. Constitution states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;” Since Congress has NOT approved the TARP funds for any organizations other than financial organizations, TARP funding for the auto industry is unconstitutional. Is this not lawlessness?
2. GM and CHRYSLER bond holders have been strong-armed by the Obama administration into taking drastically reduced payoffs for the secure debt represented by their bonds. Obama publicly vilified them, simply because the bond-holders wanted what they are legally entitled to—first chance at assets if the company undergoes bankruptcy.
Bankruptcy contract law specifies that bond holders are first in line to receive compensation for the notes they own. Obama is clearly attempting to break contract law. In addition, Obama gave first preference to the automotive unions. Is this not lawlessness?
3. Charges brought against the New Black
Panther Party by the Bush administration have been dropped by Obama’s Attorney General Eric Holder even though the evidence is public and overwhelming that party members were guilty of intimidating voters.
“The Obama administration won the case last month, but moved to dismiss the charges on May 15… A poll watcher who provided an affidavit to prosecutors in the case noted that Bartle Bull, who worked as a civil rights lawyer in the south in the 1960’s and is a former campaign manager for Robert Kennedy, said it was the most blatant form of voter intimidation he had ever seen.” FOX
Is this not lawlessness?
These three examples, along with the proposed closing of Guantanamo coupled with “preventive detention” are important because they illustrate an escalation into lawlessness in three major areas of American life:1) Economics, 2) Race relations, and 3) National Security.
The need for ”the rule of law” in government is no minor issue. It is not a Democrat or a Republican issue. It is the foundational issue of our American liberties. All of us should resolve to carefully track and study the actions of our public officials and vote accordingly.
