(Contrary
to all logic and reason, I have decided to put new material up on this
blog, but only in the form of the columns that I have done for the
Toledo Free Press. This is done for the benefit of those with time to
waste, who likewise do not spend their time reading the website of this
award winning weekly newspaper, and I will go back and add efforts that
were published earlier this year.)
This particular effort was published today on 08/11/2014.
Many will tell you that the United States is the greatest country in
the world. They believe so in large part because this nation, (at least
in theory) under the framework of the Constitution, lives under the
“Rule of Law.”
Now for those unfamiliar with this principle, this means this nation
is governed under the pre-eminence of its laws, and not under the
primacy of any individual or group of individuals. Laws however, have an
internal supremacy of their own.
Municipalities like Toledo, for example, have city councils with the
ability to write and pass laws, which go into effect if the mayor signs
and doesn’t veto them. Those rights are guaranteed under the principle
of “Home Rule,” granted under Article XVIII of the Ohio Constitution.
Article XVIII however, states: “Municipalities shall have authority to
exercise all powers of local self-government and to adopt and enforce
within their limits such local police, sanitary and other similar
regulations, as are not in conflict with general laws,” — which is
written vaguely enough to make it a constant subject of judicial, if not
political, interpretation. Translated from “lawyer-speak,” it means
that a city can write laws for itself only as long as the state and
nation agree that such laws don’t conflict with state or federal law.
Confused yet? Then let’s talk about the state level, where legislators
play much the same game. Like their municipal counterparts, laws can be
whatever is passed by the state legislature and signed by the governor.
Once completed, however, state law has the potential to make local laws
obsolete or superfluous, under the conflict portion of Article XVIII.
But that’s not the end.
The efforts of the states in turn are themselves subject to the same
fate under the supremacy of federal laws under Article VI of the
Constitution. Known in fact as the “Supremacy Clause” it states: “This
Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the Contrary notwithstanding.”
(I know, blah, blah, blah …) Remove the legal gibberish however, and it
makes clear that when under judicial review, federal law shall deemed
the Supreme “Law of the Land.”
This is where it gets even more confusing. Not only does the president,
like the governor at the state level, have the ability to sign or veto
legislation submitted to him by the legislature, but lately he seems to
feel he has the power to change or delay implementation of certain
politically inconvenient provisions in spite of “shall vs. may” language
within it (something we’ll have to go into in another effort). More
importantly, it’s the executive branch and the president’s attorney
general at the Department of Justice (DOJ) that’s ultimately responsible
for enforcing federal law.
During the current administration there’s been some confusion,
contradiction and what might even be seen as arbitrary behavior where
such enforcement is concerned. The current DOJ sees no voting rights
violation when a couple of Black Panthers with clubs stand outside a
polling place in Pennsylvania, but does see it in a Wisconsin
requirement for photo ID and in Ohio where providing absentee ballots
and 28 days of early voting is apparently insufficient protection.
The DOJ challenged Arizona (and won) for passing a state law to allow
its local and state constabulary to enforce existing federal immigration
law when the federal government seemed unable or unwilling to do so.
(Texas’s governor just recently deployed the Texas National Guard to
assist border enforcement in his state and we have yet to see if this
too will be challenged.)
And then there’s pot …
The DOJ insisted on the supremacy of federal drug laws early on when
challenging “medical” marijuana use in California, but has recently
seemed rather timid regarding recent state laws for recreational use in
Colorado and Washington.
Inconsistent and contradictory federal enforcement of the Supremacy
Clause seems the most generous way of describing the current situation.
Does this erratic and unpredictable legal philosophy leave us confused
as a nation, one ripe for both abuse and for legal challenge? Yes. Worse
yet, it also makes it more likely that regardless of what you do (even
if that’s nothing at all), you could well be guilty of something.
For those of you who may not have noticed, I have been rather silent on the execution of Osama bin Laden. Don't get me wrong, it's not because I don't believe that this was an evil man, a murdering thug, and and a terrorist who deserved to die. Like many others in this country, I am quite glad to see bin Laden gone.
I have even managed to take off my tin foil hat long enough to get past the inconsistency of the information released by the White House after the raid.
We are after all, talking about self-serving politicians attempting to speak about the selfless acts of a group of elite soldiers (sorry, sailors) that they have no better chance of understanding than men have of understanding women. It's to be expected therefore, that getting the story 'straight' (you know, telling it in a manner that would make the politicians sitting in a nice, safe room in Washington and facing danger no greater than from paper cuts or their own misstatements) might take a couple of tries and perhaps some creative 'spinning' from the professional writers around them.
What does concern me however is the continuing level of arrogance that this latest strategy in the 'War on Terror' illustrates. Perhaps it's simply something about this war that I don't understand. It is after all, like the 'War on Drugs' and the 'War on Poverty' a rather ambiguous conflict with imprecise goals, indefinite strategy, and equivocal declarations of success. In fact, if we are to believe what we have been told in the last couple of years, it's not actually a war at all.
So you can imagine my confusion when an elite military unit is sent in to take out what must be considered a military target under a kill order in a war that doesn't exist. Was this action taken under the auspices of the 'War Powers Act'; and if so are there now any effective limits that Congress will place on this exercise of Executive power? (If not, an even greater question exists as to its limits.) Is it now considered right and proper to violate the national sovereignty of any nation we choose in order to execute (a term I use guardedly) such a strategy? Is it now acceptable for the US government to send troops across any border, without the permission of Congress or any nation (enemy or ally), to work the will of the Executive branch of government against any individual, a group, or government?
At this point the whole thing becomes less about bin Laden than it does about us. Whether Pakistan is a poor ally or not, that doesn't justify the government of the United States kicking them to the curb to meet out punishment decided upon without any pretense of abiding by the rule of law. Criminals don't play by the rules in this country either (hence the term criminals), but the police are not excused from following the rule of law when dealing with them, no matter what terrible acts they may have committed.
One might also question the lack of outrage of the American people on the subject at a time when so many are concerned over the security of our own borders; but only if one were seeking consistent logic and reasoning in those people.
Most of us, however grudgingly, accept that there are rules in a modern society that we must conform to or civilization simply fails to exist. Many of them we follow with little conscious thought, as they are conventions of little import or concern.
We agree on things as simple as where to place a knife, fork, and spoon in place settings around the table. We agree to obey local, state, and federal laws so that we may live in an ordered society. We likewise form a government, limited in what it has the power to do, based on the Constitution of the United States in order to create and enforce those laws to protect us not only from each other, but from that government. And just as there are rules and laws to protect people from each other, there are rules and conventions to protect one nation from another.
This country has gone to war more than once to protect other nations from those considered despots for violating those rules and conventions.
How then are we to view our own nation acting as the worst sort of bully in this recent act? Flush still with military power (stretched however thin) and still willing to buy friendship and compliance with our wishes around the world, we coerce cooperation of friend and foe alike. Claiming to be a bastion of the principle of the 'rule of law', we are apparently not above violating such principles in the name or working our will upon our enemies. Assuming a mantle of menacing omnipotence, we justify acts of strong-armed persuasion that we would fight to the death to defend ourselves and others from.
It may be past time that we took a hard look at not the ability, but the right of this nation to impose its will upon the world regardless of the consequences. It may be time to ask ourselves whether it's more important to win at any cost, or to play by the rules.
