We Cannot Say Ben Franklin Did Not Warn Us
By Martin Garbus*
huffingtonpost.com
The confirmation of Samuel Alito will contribute towards a total reorganization of this form of government. The Rehnquist era started the shift of the power to the states and away from the federal government – away from the Congress, away from the federal agencies, away from the regulatory system created to protect employees, consumers, investors – the people of America.
The Roberts-Scalia-Alito-Thomas-Kennedy Court will not only continue the work of the Rehnquist Court and make the rightward turn more dramatic – it will also preside over the expansion of presidential powers in ways never before imagined. But even more importantly, it will insulate the President from accountability – the Chief Executive, under the new regime, will be responsible to no one. Most radically, his interpretation of a law passed by Congress he signs will become more significant than Congress’s own intent. It is the legally binding one.
Our Founding Fathers created a republican form of government – a state in which the supreme power rests in the people through their elected representative – a self-government based on a structure of checks and balances.
The story goes that, as Benjamin Franklin (whose 300th birthday we celebrate today), left the Constitutional Convention in 1787, he was approached by a Mrs. Powell, who asked him, “What have you given us, Dr. Franklin?”
“A republic,” he replied, “if you can keep it.
Well, we can’t seem to keep it. At least not for the long foreseeable future – for decades. The three branches of government are totally out of joint. The Congress’s role is to pass laws, it is their intent (not the President’s) that is to be used in interpreting the laws. Under the Constitution, the President has absolutely no power to say what the intent of a law is.
But because he issues a statement at the time he signs the law Bush claims his interpretation of the law has effect. Alito claims, as do conservative academics, that the “signing statement” would “increase the power of the executive to shape the law.”
The Supreme Court was supposed to be a check and balance on the Executive. Chief Justice John Roberts’s Court will no longer be that. It will give Bush a blank check; not only in foreign matters but in domestic issues as well. 9/11 was a tragic godsend for those who wanted to restructure the government. Often in war times, presidents are given greater powers – and then years later, in peacetime, those powers are diluted. It’s a cycle we have repeatedly seen during our history. But, now with a permanent war, the presidency will get a free, unfettered hand from the Court.
The Congress will not be able to stop the President for the Courts will rule they do not have that power. The Courts, in taking away the ability of Congress, takes away power from its 535 elected representatives in the Senate and House. It eviscerates the right and the ability to self govern.
We no longer have three equal branches of government.
Ken Starr, in his book “First Among Equals,” argued, as the title makes clear, that the Supreme Court, since it can define the structure of the government, of the democracy, has more power than the other branches. It is deserved, he says, because they, unlike the elected officials, are better able to interpret the Constitution, better educated, and, from a higher level of our culture. Starr claims, they give us the Platonic form of government we wanted where our betters lead the way.
Nonsense. History shows us the effects of that are disastrous. The self-anointed Best and Brightest are not what we want, not what this democracy wants.
The Conservatives have spent the last three decades refocusing the path of legal opinions. All that Edwin Meese, Robert Bork and John Roberts wanted when they formed the Federalists has come to pass.
Martin Luther King’s life reminds us how long a struggle for a democracy rights can take.
King’s death signified the end of a liberal era. We must now struggle to try to move forward to end this conservative cycle.
His death reminds us we once lived in an era of giants. Where are the giants now?
We start now to fulfill his vision.
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*Martin Garbus is one of the country's leading trial lawyers. Mr. Garbus aggressively represents his clients in the courts and in the media. He has appeared before the United States Supreme Court as well as the highest state and federal courts in the nation. His devotion to ethics, justice and the law has earned him respect among the legal community and beyond as well as prominent awards. Time Magazine has named him "legendary . . . one of the best trial lawyers in the country," while Newsweek , the National Law Journal and other media agree that Mr. Garbus is America's "most prominent First Amendment lawyer," with an "extraordinarily diverse practice." The National Law Journal named him one of the country's top ten litigators. |
