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As I have noted in a recent Commentary, the Preamble to the Constitution of the United States states: “We the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Fascinating stuff. The “World’s Greatest Democracy,” no? Exceptional, no? Well, no, for the first. There may be a great democracy somewhere, but ours is more of a partial one. For many of our citizens, we surely ain’t it. But exceptional? Well, yes indeed. Why, both the Constitution and its implementation have been filled with exceptions since the document was first written.
Let’s start with the “blessings of liberty.” Well, gee, that applied to everyone — except of course the African-American slaves and the Native Americans. At least the former were sort of counted as people: two-thirds of a slave per “person.” But that was done only to provide extra seats in the House of Representatives for the slave-holding states. The Native Americans did not count at all. So, no “blessings of liberty” for either of those groups. Neither were “justice” nor “the general welfare” extended to them. Then there was the matter of the peculiar construction of the representative body, the legislature, in particular the Senate. Why, that one was set up precisely to “protect” the “peculiar institution,” as the slave-owners themselves called slavery. In what was intended, by some of its founders anyway, to be a grand democracy, each state got two Senators regardless of population size. And in the beginning, until the 17th Amendment was adopted in 1913, even they were not elected democratically, but rather by the respective state legislatures. So, there were some major exceptions, right from the beginning.
Of course, those exceptions weren’t enough for the slave-holders. In 1832, they tried to claim that they could go ahead and ignore any federal law they didn’t like (sound familiar?) That one was turned back by a Southerner, President Andrew Jackson. But then, when they became fearful that democracy would inhibit the spread of slavery as the nation expanded westward, of course eleven of the slave-holding states formed the traitorous “Confederate States of America” and started the Civil War. The North supposedly won the Civil War (but didn’t really) and slavery was legally abolished. Then a comprehensive Civil Rights Act, known as the 15th Amendment, was enacted. But after the end of what was called Reconstruction, due to a backroom deal on the allocation of electoral votes in a Presidential election (sound familiar?), the former members of the “CSA” were granted an exception to the 15th. And some exception it was: they didn’t have to abide by it. Through state civil and criminal law, known as “Jim Crow,” and force and violence, using summary public executions known as lynchings, they managed to extend a social, educational, and economic system akin in many ways to slavery for another hundred years.
The modern Senate represents yet another exception to the concept of democracy that is inherent in the Preamble to the Constitution, if not in its compromise-with-the-slaveholders body. Currently the Republicans, having 41% of the seats in the Senate represent around 37% of the population of the United States (and if the one large state in which they hold both Senate seats, Texas, were removed from the calculation, the percentage would be even lower). But, because of the Senate’s peculiar rules, originally set up to “protect” the interests of the Jim Crow South, those 41% of the bodies’ members representing around 37% of the nation’s population can prevent any legislation they want to from coming up for an up-or-down vote and can prevent (and do, currently, to a fare-thee-well) any of the President’s nominees for federal office requiring confirmation for coming up for a vote either. Thus the minority in this undemocratic, unrepresentative body, whose very existence was originally constructed to “protect” the interests of the slave-holding states, uses its totally undemocratic rules to block the majority will of the people as represented by the democratically elected President and House of Representatives.
Of course, due to the widespread use of “gerrymandering” (named after an early 19th century governor of Massachusetts who invented it in an attempt to insure the election to the House of Representatives of members of his party) the pattern of representation in the House of Representatives is also undemocratic. The GOP is openly pushing for the election of Republican governors in 2010 for the purpose of redistricting states to ensure the election of more GOPers to the House. Two more exceptions to democracy.
Here are a few more current ones. For example, there was the torture exception taken by Bush/Cheney which violates Article VI that had made treaties like the UN Convention Against Torture part of the highest law of the land. Then there is the exception just proposed by the current Attorney General, Eric Holder. Funnily enough, he was a Board Member of the American Constitution Society (full disclosure: I’m a member) which fought hard during the Bush Regime against precisely the kind of things that Holder is proposing and defending as AG. He has proposed that the so-called “Miranda Rights” be withheld from or not applied to “terrorism suspects.” Actually, the term “Miranda Rights” is a misnomer. The rights, e.g. to protection against self-incrimination, are right there in the Constitution, and every US citizen, and some would argue, everyone apprehended on US soil, has them. “Miranda” simply requires law enforcement officials to tell/remind arrestees of that fact. But Holder, presumably with the President’s approval, wants to carve out an exception.
Then there is the no freedom of religious belief on the matter of when life begins exception. One would think that that should be protected by the clause of the First Amendment that states: “Congress shall make no law respecting an establishment of religion.” But the “Hyde Amendment” did establish one particular religious view on that subject as the law of the land when it comes to the matter of abortion. One would think that the equal protection clause of the 14th Amendment would apply to the civil law in the 50 states concerned with marriage and divorce. But in most states not when it comes to same-sex marriage, donchaknow. In that case, a particular religious view of what marriage is applies, violating the First Amednment as well as the 14th. Three more exceptions here.
Finally, there is dear old Joe, Lieberman that is. He has proposed legislation (supported by the Tea-Bagger, “small government,” Palinesque “get-government-off-our-backs,” Scott Brown of Massachusetts) that would strip US citizenship from anyone suspected of being a “terrorist” or “aiding terrorism.” What an interesting concept. No particular definitions of “terrorism” or “aiding” and certainly no trial or proof. Association, suspected, alleged, or whatever, will do. There was a European country that before World War II adopted a series of laws and regulations, that for certain kinds of its citizens, designated as members of a particular group of “undesirable” persons by the government, barred them from sexual relations with non-members of their group, then from employment as lawyers, doctors or journalists, prohibited them from using state hospitals and banned them from state schools past the age of 14. Also they were barred from using public parks, libraries and beaches. They were eventually as a group made non-citizens, with their futures subject to governmental whim.
The country was Germany and the laws and subsequent regulations are historically subsumed under the name the “Nuremberg Laws.” How ironic it is that it is a Jew who would start this country down the road to declaring a citizen a non-citizen on the say-so of a law enforcement official. Not much of a reach from there to declaring anyone a “danger to the nation” on some pretext or other and stripping them of their citizenship too. Outlandish, you think? Listen to Limbaugh declaring that “liberals are the enemies of the nation” or Le-vin (also a Jew) declaring that “Democrats need to be squashed underfoot like cockroaches.” Funnily enough, but then again maybe not so funny, it’s Lieberman’s namesake in Israel (first name Avigdor, not a known relation) who wants to make all Israeli Arab citizens non-citizens and then eventually expel them, simply because they are Arabs.
We are facing very dangerous times, folks. Under a Democratic President, although a DLCer to be sure, too. On the other hand, you should know that the German Enabling Act of March, 1933 that gave Hitler his dictatorship, had its precedent in the sweeping “emergency powers” that could be assumed by the State under the “democratic” Weimar Constitution of post World War I Germany. And so, it must be noted that some of those exceptions that have been part of our exceptional Constitution from its beginnings are once again coming home to roost, big time.
Steven Jonas, MD, MPH is a Professor of Preventive Medicine at Stony Brook University (NY) and author/co-author/editor of 30 books. In addition to being a Columnist for BuzzFlash, Dr. Jonas is also a Contributing Author for TPJmagazine; a Featured Writer for Dandelion Salad; a Senior Columnist for The Greanville POST; a Contributor to TheHarderStuff newsletter; a Contributor to The Planetary Movement; and a Contributing Columnist for the Project for the Old American Century, POAC.