Two hundred and twenty-one years ago this week, the Constitutional Convention that had gathered in the touchstone city of Philadelphia to replace the Articles of Confederation with a more clearly drawn guiding document for their revolutionary experiment agreed finally on a framework to govern the new United States.
In so doing, Benjamin Franklin suggested, the framers established a republican framework sturdy enough to outlast them – if, Franklin warned, ensuing generations of Americans could keep faith with the Constitution.
The document that was ratified September 17, 1787, though amended and interpreted, remains as Franklin knew it.
But the republic has not been well kept.
The United States of 2008 is stuck in the foreign entanglements created when two wars were initiated without being declared by Congress as required in Article 1 of the Constitution.
Warrantless wiretapping and data mining projects developed and implemented by the current administration in violation of laws explicitly designed to prevent abuses make a mockery of privacy protections outlined in the 4th amendment.
Torture and extraordinary rendition, as practiced in US operated detention centers and carried out by US authorities, [is] an aggressive affront [to] the 8th amendment bar on cruel and unusual punishment of those in the country’s custody.
Presidential signing statements and the refusal of current and former White House aides to cooperate with congressional inquiries, have created a dramatic imbalance between a super-powerful executive branch and a disempowered legislative branch. This undermining of the system of checks and balances that has been at the heart of the constitutional project upsets the rule of law and creates a monarchical circumstance similar to that against which the colonials revolted.
Yet, responses to the crisis have been tepid to the point of being dysfunctional. The power to impeach has been taken off the table by congressional leaders, and the mild option of censure has been disregarded not for lack of necessity but for lack of political will.
So it is that America will on Wednesday mark a Constitution Day that cannot be a moment of celebration.
Rather, this Constitution Day requires of believers in the American enterprise a renewed commitment to the ideals – and the radical spirit – of the founders and essential document of the republic.
To that end, Wisconsin Senator Russ Feingold — who with his lonely vote against the Patriot act in 2001 and his consistent battles against executive excess since then has established himself as the most diligent defender of the Constitution in the current Congress — will be as busy this week as were James Madison, George Mason, Ben Franklin and their fellow framers 221 years ago.
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Feingold, who pondered seeking the Democratic nomination for the presidency this year but instead decided to focus on his duties as chairman of the Constitution Subcommittee of the Senate Judiciary Committee, has taken it upon himself to use the run-up to this year’s Constitution Day to highlight the need to restore the rule of law to the United States.
Feingold’s constitutional renewal project has seen the senator working with a bipartisan cross-section of concerned leaders and activists that includes former U.S. Senator Lincoln Chaffee, R-Rhode Island, and Common Cause President Bob Edgar – whose group has launched a “Recapture the Flag” campaign “to restore public faith in the core values of American democracy – freedom from tyranny, respect for individual liberty and human rights, and government based on the rule of law” — to highlight “what the next president must do to fully restore the rule of law after seven years of unprecedented Executive Branch power grabs.”
Kicked off with a national conference call featuring Edgar, Chafee and Feingold, the Wisconsin senator was set Monday to deliver a major address at Georgetown University, in which he intended to challenge “the lofty and misdirected rhetoric of the Bush administration’s ‘Freedom Agenda'” and suggest that “(America’s) true self-interest (lies) in supporting democracy and the rule of law as essential to fairness and stability globally.”
On Tuesday, Feingold will chair a Constitution Subcommittee hearing on “Restoring the Rule of Law.” Legal scholars, historians and advocates will testify as part of what Feingold’s office describes as “an effort to provide the next president with a full range of recommendations for reestablishing appropriate checks and balances in a variety of areas, including warrantless wiretapping, interrogation standards, detention policy, abuse of executive privilege, excessive government secrecy, violations of privacy and misleading Congress.”The point of this intensive activity by Feingold and his allies is to get the media, the presidential candidates and Congress focused on the work of reestablishing the rule of law.
To that end, a broad coalition of organizations from across the ideological spectrum – ranging from the National Lawyers Guild and the Center for Constitutional Rights to the Republican Liberty Caucus and the American Conservative Defense Alliance, as well as Human Rights Watch, Common Cause and the American Booksellers Foundation for Free Expression — has been urging the presidential candidates and the media to dedicate Constitution Day (Wednesday) to discussing constitutional issues
In particular, the groups want Republican John McCain and Democrat Barack Obama to explain what they think it means when they swear an oath “to protect and defend the Constitution of the United States.
Noting that Obama and McCain had devoted September 11 to honoring the victims of attacks on the World Trade Center and the Pentagon, and to expressing their commitment to promoting national service, the American Freedom Campaign’s Steve Fox says, “We hope that (the Democratic and Republican nominees), along with other presidential candidates, will see September 17 as a similar opportunity to join together for an important anniversary. The Constitution is the foundation of our nation and deserves a day a day of its own on the campaign trail.”
In particular, Fox and other organizers of the Constitution Day push are asking the candidates to address issues related to:
• Separation of powers and checks and balances
• Congressional oversight and executive branch accountability (including the executive branch’s responsibility to comply with congressional subpoenas)
• The appropriate use of signing statements
• Torture and habeas corpus
• Electronic surveillance and Foreign Intelligence Surveillance Act (FISA)
• Freedom of speech as it applies to potential whistleblowers in the next administration)
Noting that “presidents exercise a great deal of discretion and flexibility in interpreting the Constitution and that abuse of constitutional rights and safeguards can have significant harmful effects on the American people’s lives,” the more than three dozen groups that have endorsed the Constitution Day initiative have embraced the argument that “it is therefore essential… to understand where candidates stand on constitutional rights and separation of powers prior to their election.”
These are, as the founders would have said, self evident truths.
Unfortunately, with the exception of the rare Russ Feingold, contemporary politicians tend to shy away from discussions about constitutional duties and precise interpretations of what the executive branch can and cannot do. If we are frank, we will acknowledge the ugly reality that the men who would be president keep the discussion vague because they want to maintain a flexibility to disregard the Constitution at will, as President Bush and his predecessors have so frequently done.
That is why it is so vital to raise constitutional questions now, when the men who would be president are supposed to telling us how they will govern -– and whether they will join the noble work of keeping the republic Ben Franklin and his comrades bequeathed to us.
