Too Fucking Old

This morning, as I was having breakfast and reading news stories through the tubes on the Internets, I had NPR playing on my radio. There was a story about a gent named Benjamin Wittes, who has written a book about the legal ramifications of Chimpy’s War. One of the things I heard him refer to was a problem with the Constitution being “too old and too short.”

“Too old” may be a problem when one is talking about athletics or military weapons. When one is talking about legal or moral principles, “old” can mean that the principles have stood the test of time. The Constitution is 221 years old, with the last new amendment ratified in 1971 (yes I know the 27th Amendment was ratified in 1992, but that one took 201 years to ratify. Look it up).

One of the oldest principles in English and American law is that the king (then, the government) cannot hold a person indefinitely on his say-so. That principle, which existed in the First Millenium, was codified in the Magna Carta, which is almost 800 years old.

Magna Carta, Paragraph 29:

No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.

That is the Great Writ. That is the foundation of the right not to be held forever.

Constitution, Article I, Section 9:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

If you are not on active duty in the Army, the Navy, the National Guard and there is a war or "public danger," they can hold you without going to a grand jury. If you are not a uniformed combatant, they can't just hold you forever. That, by expansion, is the foundation of your right to know the charges you are being held on, your right to a fair trial, the right to confront the witnesses used against you.

The Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The neo-cons (a modern term for "fascists") like to proclaim that the Constitution is old. There are other principles that the neo-cons revere, and one of those ancient documents is the Ten Commandments. They may be three thousand years old and some may be archaic, but living your life by the principles of "don't kill people," "don't steal their stuff," "don't lie," and "listen to your parents" will still get you pretty far in this world.

The Golden Rule, otherwise known as the "Ethic of Reciprocity," appears in faiths around the world. Whether it is the Christian one of "do to others what you would have them do to you" or the Confucianism "never impose on others what you would not choose for yourself" or, as Rabbi Hillel put it: "That which is hateful to you, do not do to your fellow," that ancient principle is also a good one with which to guide your conduct in all matters, large and small.

We, as Americans, are a society of laws. Unlike most other nations, and until this current administration adopted a Soviet view of the country, elevating the "homeland" to the "Rodina" of Soviet times, it was fair to say that what distinguished our nation from most others was the Constitution. America, until this current crop of goons got into office, was an idea, a concept, not a fixed set of borders or an ancient patch of dirt.

The Constitution is the bedrock of our country, not adherence to where the Ashley meets the Cooper or any other place. We have not always been good at it; it wasn't until the 1960s that the rule of law was extended to African-Americans throughout the South. Many people still claim the right to discriminate against others of different race, gender or sexual orientation. But we're doing better.

When we let the President operate with unchecked power, when we let the Executive Branch search our communications, our vehicles and our houses, when we let the police listen in to our telephone calls or detain us without cause, we are betraying our core values.

There is an old joke that goes like this:

A man and a woman are sitting next to each other at a fancy society dinner. In the course of the conversation, the topic turns to what people would do for money. The man asks the woman: "Would you sleep with me for a million dollars?" The woman allows that she probably would. "Would you sleep with me for five dollars," he then asked. She responded, angrily: "No, what do you think I am, a whore?" His reply, as he left the table, was: "We've already established that, now we're settling on a price."

When we betray our core values, we show ourselves to be not a nation of laws, but a nation where "might makes right," a governing principle of monarchies that goes back to the first tribe where Ogg picked up a large branch, beat his rival to death and proclaimed himself to be chieftain. Might makes right and rigged show trials are not a hallmark of a nation of laws, they are a hallmark of a nation of thugs.

Whether the "I can hold anyone I want to for as long as I want if I utter the magick words `unlawful combatant`" or "it's not torture if we do it" arguments of the Bush Administration or their insistence that they can wiretap anyone they damn well please (and the prostrate willingness of both Republican and Democratic congresses to go along), the Bush Administration has betrayed our core values as Americans. That is a point, while incomprehensible to the loyalists of the Bush Administration, is not lost on the rest of the world.

The eager willingness of the Bush Administration to shitcan the Constitution as "a goddamn piece of paper", as Bush is alleged to have said, has been used by our enemies against us.

You cannot defeat ideas with force. You defeat ideas with better ideas. The Bush Administration has made a mockery of the ideas of "freedom" and "liberty" and "democracy." By attempting to do away with the principle of being a nation of laws, by embracing secret prisons, detention without due cause, wiretaps and torture, the Bush Administration surrendered the moral high ground.

That is why the Bush Administration is losing the war of ideas.